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Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 32X 1 2 3 4 5 6 V l¥ CIYIL CODE OF LOWER CANADA With the amendments effected by Imperial, Federal and Pro- vincial Legislation, up to and including the first session of the ninth Legislature of the Pro- vince OF Quebec, 6i Victoria 1898, also The Federal Bills of Exchange Act 1890, as amended up to and including The Dominion Act, 60-61 Victoria 1897, 8T HKNRY J. KAVANAGH, Q.C., OF THE MONTREAL BAR. x^ontrbal- : Printed and Published by John Lovell & Son. 1898. 1 I 1966 u ' •/ XABI^B OF CONXKNXS. Art. PRELIMINARY TITLE.— OF the "promulgation, distribution, EFFECT, APPHOATION, INTERPRETATION AND EXECUTION OF THE LAWS IN GENERAL 1 BOOK FIRST. OF PERSONS. TITLE FIRST.— Of the enjoyment and loss of civil rights. Chap. I.— Of the enjoyment of civil rights 18 " II.— Of THE LOSS OF CIVIL rights 30 Sec. I.— Of civil death 31 " ii.-Of the eifects of civil death 35 TITLE SECOND.— Of acts OF civil status. Chap. I.— General Provisions 39 •' II.— Of acts OF birth 54 " III.— Of ACTS OP MARRIAGE 57 " IV.— Of ACTS OF BURIAL 66 *' v.— Of ACTS OE RELIGIOUS PROFESSION , 70 •' VI.— Of THE RECTIFICATION OF ACTS AND REGISTERS OF CIVIL STATUS 75 " VII.— OF REPLACING REGISTERS OF CIVIL STATUS WHICH HAVE BEEN LOST OR DESTROYED 78a TITLE THIRD.— Of domicile 79 TITLE FOURTH.— Of absentees. Geueral Provision , 86 Chap. I.— Of the curatorship to absentees 87 " II.— Of the provisional possession of the heirs of absentees 93 " III.— Of the effect of absence in relation to con- tingent RIGHTS WHICH MAY ACCRUE TO THE absentee 104 iv Civil Code of Lower Canada. Art Chap, IV.— Of the BFFEtxs of abhence in relation to mar- riage 108 " v.— Of the care of minor childben of a father who HAS DISAPPEARED 113 TITLE FIPTH.-Of mauriaoe. CHAP. I.— Of the qualities and conditions necessary for contracting marriage 115 •• II.— Of the formalities relating to the solemniza- TlOr OF MARRIAGE 128 •• III.— Of OPPOSITIONS TO MARRIAGE 136 «• IV.— Of actions for annulling marriage 148 " V.'-OF THE OBLIGATIONS arising FROM marriage 166 " VI.— Of the respective rights and duties op husband AND WIFE ... .*. 173 " VII.— Of the dissolutjon op marriage i85 TITLE SIXTH.— Op separation from bed and board. Chap. I.— Of the causes of separation from bed awd board 186 " II.— Of the formalities of the action for separation FROM bed AND BOARD 194 «« III.— OF the provisional measures TO WHICH THE action for ^separation from BED AND BOARD MAY OIVE RISE 20O «• IV.— Op the effects of separation frou bed and BOARD 206 TITLE SEVENTH.— Of filiation. Chap. I,— Of the filiation of children who are legitimate OR CONCEIVED DURING MARRIAGE 218 " II.— Of the evidence of filiation of legitimate CHIL- DREN 228 " ni.— Of illegitimate CHILDREN 237 TITLE EIGHTH.— Of paternal Authority 242 TITLE NINTH.— Of minority, tutorship and emancipation. Chap. I.— Op minority 246^ *' II.— Of tutorship. Sec. I.— Ot the appointment of tutors 249 " II Of subrogate tutors 267 " III.— Of the causes which exempt from tutorship 272 " rv.--Of incapacity, exclusion and removal from tutorship 282 Table of Contents. ^ r Art. Sec. v.— Of the administration of tutors 290 " VI.— Of the account of tutorship 308 Chap. III.— Of Emancipation 814 TITLE TENTH.— Of majokity, interdiction, curatorship and OF JUDICIAL ADVISERS. Chap. I.— Of majohitv , 324 '• II.-Of interdiction 326 •* 11(a).— Interdiction of habitital drunkards 336a " 11(B).— Interdiction of persons who make use of opium OR other NARCOTICS 836r '• III. -Of CURATORSHIP 337 " IV.— Of JUDICIAL ADVISKRS 349 '• Iv(A).— Sale of certain property uelonoing to minors And OTHER INCAPABLE PERSONS , 351a TITLE ELEVENTH.— Of corpoeations. Chap. I.— Of the nature and creation of corporations, AND OF THEIR DIFFERENT KINDS , 862 Chap. II.— Of the rights, privileges and disabilities of cor- porations. Sec. I.— Of the rights of corporations 357 «' II.— of the privileges of corporations 362 •• III.— Of the disabilities of corporations 364 CHAP. III.— Of the DISSOLUTION OF CORPORATIONS AND THE LIQUIDATION OF THEIR -^PFAIRS. Sec. I.— Of the dissolution of corpoj'-ns 366 " II.— Of the liquidation of the affai ; of dissolved corporations. 371 BOOK SECOND. OF PROPERTY, OP OWNERSHIP AND OF ITS DIFFERENT MODI- FICATIONS. TITLE FIRST.— Op the distinction of things , . 374 Chap. I.— Of immoveables 375 «* IL— Of movfablt ^ 383 " III.— Of property in its rela" with those to whom it belongs OR WHO T' 3ESSIT 399 vi Civil Code of Lower Canada. Art. TITLE SECOND.— Of ownkbbhip. Chap. I.— Of thb rioht of accession over what is produced BY A THING 409 " II.— Of the rioht op accession over what becomes unit- ed and incorporated with a thing 413 Seo. I.— Of the right of accesBlon in relation to immoveable pro- perty.... 414 *• II.— Of the right of accession In relation to moveable property 429 TITLE THIRD.— Oi? USUFRUCT, use and habitation. Chap. I.— Of ^jsufruct 443 Sec. I.— Of th- rights of the usufructuary 447 •• II.— Of the obligations of the usufructuary 403 " III.— Of the termination of usufruct 478 Chap. II.— Of use and habitation 479 TITLE FOURTH.— Of real servitudes. General Provisions 499 Chap. I.— Of servitudes which arise from the situation of PROPERTY 501 " II.— Of SERVITUDES established BY LAW fJOG Sec. I.— Of division walls and ditches, and of clearance 610 '• II.— Of the distance and of the intermediate works required for certain structures 532 " III.— Of view on the property of a neighbour 533 '* I v.— Of the eaves of roofs 539 •• v.— Of the right of way 540 Chap. III.— Of sERvrtuoEs established by the act of majt. Sec. I.— Of the different kinds of servitudes which may be estab- lished on property 545 " II.— How servitudes are established 549 " III.— Of the rights of the proprietor of the land to which the servitude is due 563 '• IV.— Of the extinction of servitudes 559 TITLE FIFTH.— Of emphyteusis. Sec. I.— General provisions . . 667 " II.— Of the rights and obligations of the lessor and of the lessee 673 ' ' III. — Of the termination of emphyteusis 573 Table of Contents. Til Art. BOOK THIRD. OF THE ACQUISITION AND EXERCISE OF RIGHTS OF PROPERTY. General provlBions S83 TITLE FIRST.— Op SUOCESSIONB. General provisions 006 Chap. I.— Of the opening of successions and of the seizin of HEIBS. I.— Of the opening of succession 000 II.— Of the seizin of heirs 606 II.— Of the qualities requisite to inherit 608 III.— Of the different orders of succession. I.— General provisions 614 II.— Of representation 619 III.— Of successions devolving to descendants 625 IV.— Of successions devolving to ascendants 626 v.— Of collateral successions 631 VI.— Of irregular successions 636 IV.— Op acceptance and renunciation of successions. I.— Of acceptance of successions 641 11.— Of renunciation of successions 651 III.— Of the formalities of acceptance, of benefit of Inventory and its effects, and of the obligations of the benen- ciaryheir 660 -Of vacant successions 684 Sec. « Crap. Sec. (I t< Chap. Sec. Chap. Sec. IV.- V.— Of partition and returns. I.— Of the action of partition and its form 689 II.— Of returns 712 III.— Of payment of debts 735 IV.— Of the effects of partition and the warranty of shares .... 746 '* v.— Of recission in matters of partition 751 TITLE SECOND.— Of gifts inter vivos and by will. CnAP. Sec. I.— General provisions 754 II.— Of gifts inter vivos. I.— Of the capacity to give and receive by gift inter vivos 761 II.— Of the form of gifts and of their acceptance. . 776 m.— Of the effect of gifts 795 IV.— Of registration as regards gifts inter vivos in particular. . 804 v.— Of the revocation of gifts 811 VI.— Of gifts by contract of marriage, whether of present pro- perty or made in contemplation of death 817 VIII Civil Code of Lower Canada. Chap. Se«. Sec. it Chap. Seo. (I Abt. III.— Of wills. I.— Of the capacity to give and to receive by will 831 II.— Of the form of wills 840 III — Of the probate and proof of wills 8S6 IV. -Of legacies. § 1. Of legacies in gonaral 863 § 2. Of universal legacies and legacies by general title 873 § 3. Of legacies by particular title 880 § 4. Of the seizin of legatees 801 v.— Of the revocation and lapHO of wills and legacies 892 VI.— Of testamentary executors JWB IV.— Or 8UB8TITUTIONB. •^ I.— Kules concerning the nature and form of substitutions. . 028 II.— Of the registration of substitutions 038 III.— Of substitutions before their opening 044 IV.— Of the opening of substitutions and the delivering over of the property 961 v.— Of the prohibition to alienate .... 968 iv.(A)— Of trusts 981a iv.(b)— Of the investment of moneys belonging to other persons. . 981o TITLE THIRD.— Of ohligations. Qeneral provisions Chap. Seo. 982 Sec. Sec. Chap. Sec. <( Chap. L— Of CONTKAfTS. I.— Of the requisites to the validity of contracts 984 1. Of the legal capacity to contract 985 2. Ofconsent 988 3. Of the cause or consideration of contracts 989 4. Of the object of contracts II.— Of causes of nullity in contracts 991 1. Oferror 992 2. Of fraud 993 3. Of violence and fear 994 4. Ofleslon 1001 III.— Of the interpretation of contracts .... 1013 IV.— Of the effect of contracts 1022 v.— Of the effect of contracts with regard to third persons. ... 1028 VI.— Of the avoidance of contracts and payments made in fraud of creditors 1032 II.— Of quasi-contb acts 1041 I.— Of the quasi-contract Negotiorum gestio 1043 11.- Of the quasi-contract resulting from the reception of a thing not due 1047 III.— Of offences akd quasi -offences 1053 Tabic of Contents. ix ART. Chap. IV.— Op ohlioationh vriticit rrsult from tiik opbration OK LAW HOLKLY 1057 *♦ v.— OFTIIE OHJEt.'T OF OBLKJATIONS 4 XOW " VI.— Of THE EFFECT OF OIILIOATION8. S«0. I.— General provtflioiii 1068 " II.— Of defaults 10C7 " in.— Of the damngeB rosultina from the inexecution of obliga- tions T "... 1070 Chap. VII.— Of different kinds or obligations. Sec. i.-Of oonditlonal obligations 1070 «• 11.— Of obligations with a term 1089 " III— Of alternative obligations 1093 '* IV.— Of Joint and several obligations. § 1. Of joint and several interest among creditors HOC § 2. Of debtors Jointly and severally obliged 1108 Sec. V. Of divisible and indivisible obligations 1121 ' ' VI.— Of obligations with a penal clause 1131 Chap. VIII.— Of the kxtinction of oblioationb. 860. I.— General provisions 1138 *• II.— Of payment. § 1 General provisions 1139 § 2. Of payment with subrogation 1164 § 3. Of the imputation of payments 1158 § 4. Of tender and deposit 1162 Sec. III.— Of novation. . 1169 " I v.— Of release 1181 •• v.— Of compensation 1187 " VI.— Of confusion 1198 " viL— Of the performance of the obligation becoming impossible 1200 Chap. IX.— Op proof. Sec. I.- General provisions - 1203 " II.— Of proof by writings. § 1. Of authentic writings 1207 § 2. Of copies of authentic writings 1215 § 3. Of certain writings executed out of Lower Canada 1220 § 4. Of private writings 1221 Sec. Ill —Of testimony 1232 " IV.— Of presumptions 1238 " v.— Of admissions 1243 " VI.— Of the oaths of parties (section repealed) 1246 TITLE FOURTH :— Of marriage covenants and of the effect of MARRIAGE UPON THE PROPERTY OF THE CONSORTS. Chap. I.— General provisions 1257 Civil Code of Lower Canada. Art. Chap, II.— Op community of property 1268 Sec, I.— Of legal community 1270 § 1. What things compose the assets and liabilities of the community 1272 § 2. Of the administration of the community and of the elfect of the acts of either consort, in relation to the conjugal association 1292 § 3. Of the dissolution of the community and of its continua- tion in certain cases. T. Of the dissolution of the community 1310 II. Of the usufruct of the surviving consort 1323 § 4. Of the acceptance of the community and of the renuncia- tion that may be made thereof, with the conditions relative thereto 1338 § 5. Of the partition of the community 1354 I. Of the partition of the assets 1355 II. Of the liabilities of the community and of the contribu- tion to the debts 1369 § 6. Of the renunciation of the community and of its effects.. 1279 Sec. 11.— Of conventional community and of the most ordinary conditions which may modify or even exclude legal community 1384 § 1. Of the clause of realization 1385 § 2. Of the clause of mobilization 1390 §3. Of the clause of separation of debts 1396 § 4. Of the right aiven to the wife of taking back free and clear what she brought into the community . . . .• 1400 § 5. Of conventional preciput 1401 § 6. Of the clauses by which unequal shares in the community are assigned to the consorts 1406 §7. Of community by general title 1412 Provisions common to the articles of this section 1413 § 8. Of covenants excluding community , 1415 I. Of the clause declaring that the consorts marry without community 1416 II. Of the clause of separation of property 1422 Chap. III.— Of dower. Sec. I.— General provisions 1426 " II.— Particular provisions as to the dower of the wife 1450 " III.— Particular provisions as to the dower of children 1466 TITLE FIFTH.— Of sale. Chap. I.— General provisions 1472 " II.— Of the CAPACITY to BUY or SELL 1482 " III.— Of THINGS WHICH MAY BE SOLD 1486 " IV.— Of the OBLIGATIONS OF THE SELLER. Sec. I.— General provisions 1491 Table of Contents. ~ '!xi Art. Sec. II.— Of delivery 1492 *' III. — Of warranty.— General provisions 1606 § 1. Of warranty against eviction 1508 § 2, Of warranty against latent defects 1522 Chap. V.— Of the obligatioks of tke buyer 1532 " VI.— Of the DISSOLUTION AND OF THE ANNULLING OF THE CONTBACT OF SALE 1545 Sec. I.— Of the right of redemption 1546 " II.— Of the annulling of sale for cause of lesion 1561 Chap. VII.— Of sale by licitation 1562 " VIII.— Of sale by auction 1564 " IX.— Of THE SALE of registered vessels 1569 " X.— Of the sale of debts and other incorporeal things. Sec. I.— Of the sale of debts and rights of action 1570 " II.— Of the 8'>le of successions 1579 " III.— Of the sale of litigious rights 1582 Chap. XI.— Of forced sales and transfers resembling sale. Sec. I.— Of forced sales 1585 " II.— Of the giving in payment 1592 " III.— Of alienation for rent 1593 TITLE SIXTH. -Of exchange 1596 TITLE SEVENTH —Of lease and hire. Chap. I.— General provisions 1600 " II.— Of the lease or hire of things. Sec. I.— General provisions 1605 " II.— Of the obligations and rights of the lessor 1612 " III.— Of the obligations and rights of the lessee 1626 " ly.— Rules particular to the lease or hire of houses 1642 " v.— Rules particular to the lease and hire of farms and rural estates 1646 " VI.— Of the termination of the lease or hire of things 1655 Chap. III.— Of the lease and hire of work. Sec. I.— General provisions 1666 '* II.— Of the lease and hire of the personal service of workmen, servants, and others 1667 " m.— Ofcarriers 1672 " IV.— Of work by estimate and contract 1683 " iva.— Of the payment of workmen 1697a Chap. IV.— Of the lease of cattle on shares 1698 491 x\\ Civil Code of Lower Canada. Abt. TITLE EIGHTH.— Of mandate. Chap. I.— General provisions 1701 " IL— Of the obligations of the mandatary. Sec. I.— Of the obligations of the mandatary toward the mandator 1709 " II.— Of the obligations of the mandatary toward third persons 1715 Chap. III.— Of the obligations op the mandator. Sec. I.— Of the obligations of the mandator toward the mandatary 1720 " II.— Of the obligations of the mandator toward third persons. . 1722 Chap . IV.— Of advocates, attorneys and notaries 1737 " v.— Of brokers, factors and othhr commercial agents 1735 " VI.— Of the termination of mandate 1755 TITLE NINTH.— Of loan. General provisions 1762 Chap. I.— Of loan for use (commodattim). Sec. I.— General provisions 1763 •' II.— Of the obligations of the borrower 1766 " III.— Of the obligations of the lender 1773 Chap. II.— Of loan for consumption {muluum) Sec. I.— General provisions 1777 " II.— Of the obligations of the lender 1781 " III.— Of the obligations of the borrower 1782 Chap. III.— Op loan upon interest 1785 " IV.— Of constitution of rent 1787 TITLE TENTH.— Of deposit 1794 CHAp. I.— Of simple deposit. Sec. I.— General provisions 1795 Sec. II.— Of voluntary deposit 1799 " III.— Of the obligations of the depositary 1802 " IV.— Of the obligations of the depositor 1812 •• v.— Of necessary deposit 1813 »« va.— Of the lien of innkeepers upon tho goods of their guests. 1816a Chap. II.— Of sequestration 1817 Sec. I.— Of conventional sequestration 1818 " II.— Of judicial sequestration 1823 TITLE ELEVENTH.— Of partnership. Chap. I.— General provisions 1880 " IL— Of the obligations AND rights of partners among » themselves 1839 • " III.— Of the obligations of partners toward third per- sons 1854 ^11 1 , ♦ - ■ ! ' Tabic of Contents, xiii Art, CUAP. IV.— Of THE DIFFKBBNT KIXDB OF PARTNERSHIP 1857 Sec. I.— Of universal partnerships 1888 " II.— Of particular partnerships 1862 " III.— Of commercial partnerships . ; 1863 ^ §1. Of general partnerships 1865 §2. Of anonymous partnerships 1870 § 3. Of partnerships en commandite or limited partnerships. . . 187) §4. Of joint-stock companies 1889 Chap. v.— Of the dissolution of partnership 1892 " VI.— Of the effects of dissolution 1897 TITLE TWELFTH.— Of life rents. Chap. I.— General provisions , 1901 Ch A.P. IL— Of the effects of the contract 1907 TITLE THIRTEENTH — OF transaction 1918 TITLE FOURTEENTH.— Of GAMING CONTRACTS AND BETS .... 1927 TITLE FIFTEENTH,— Of suretyship. Chap. I.— Of the nature, division and extent of suretyship. 192^ « ' IL— Of the effect of suretyship. Sec. I.— Of the effect of suretyship between the creditor and the surety 1941 •« II.— Of the effect of suretyship between the debtor and the surety 1948 «'J III.— Of the effect of suretyship between co-sureties 1955 Chap. III.— Of the extinction op suretyship I96ft «< IV.— Of legal and judicial suretyship 1962 TITLE SIXTEENTH.— Of pledge 1966 Chap. I.— Of the pledge of immoveables 1967 «« II.— Of PAWNING 1968 TITLE SEVENTEENTH.— Of privileges and hypothecs. Chap. T.— Preliminary provisions 198Q •« II.— Of privileges. General Provisions l'.«83 Sec. I.- Of privileges u; on moveable property 1993 •* II.— Of privileges upon immoveables , , , . 2009 «♦ 111— How privileges upon immoveables are retained , . 2015 Chap. III.— Of hypothecs. Sec. I.— General provisions.... , 2016 «* n— Of legal hypothecs 2024 §1. Legal hypothec of married women ...202^ ..!*•■ xiv Civil Code of Lower Canada. «!i' Art; §2. Legal hypothec of minors and interdicted persons 2030 §3. Legal hypothec of the crown 2032 § 4. Legal hypothec of mutual insurance companies 2033 Sec. III.— Of judicial hypothec 2034 " IV.— Of conventional hypothec 2037 " v.— Of the order In which hypothecs rank among themselves. 2047 CiiAP. IV.— Of the effect of privileges and hypothecs with REGARD TO THE DEBTOR OR OTHER HOLDER 2053 Sec. I.— Of the hypothecary action , 2058 §1. Of the exception of discussion 2066 § 2. Of the exception of warranty 2068 § 3. Of the exception of subrogat ion [ceflendarum actionum) . . . 2070 § 4. Of the exception resulting from expenditures 2072 § 5. Of the exception resulting from a privileged claim or a prior hypothec 2073 Sec. II.— Of the effect of the hypothecary action 2074 Chap. V.— Of the bxtixotion of privileges and hypothecs 2081 TITLE EIGHTEENTH.— Of registration of real rights. Chap. I.— General provisions. 2082 " II.— KULES particular TO DIFFERENT TITLES BY 'WfllOH REAL RIGHTS ARE ACQUIRED 20&8 " III.— Of the ORDER OF PREFERENCE OF REAL RIGHTS 2130 •' IV.— Of THE MODE AND FORMALITIES OF REGISTRATION 2131 Sec. I.— Of registration at length 2132 •' II.— Of registration by memorial 2136 Chap, v.— Of the cancelling op registrations of real RIGHTS ., 2148 " VI.— Of the organisation of registry offices. Sec. I.— Of registry offices and the registers 2158 •' II. — Of the oflftcial plans and books of reference and provisions concerning the same . 2166 " III.— Of the publicity of the registers 2177 if I TITLE NINETEENTH.— OF prescription. Chap. I.— General provisions 2183 " II.— Of possession 2192 " III.— Of the causes which hinder prescription, and specially of precarious occupation and op substitutions 2201 Chap. IV.— Of certain things imprescriptible and of privi- leged prescriptions 2211 Chap. Se(5. n Chap. Sec. ' , •.-■II Table of Contents. ijtv Art. v.— Of the causes which interrupt or suspend pre- scription. I.— Of the causes which interrupt prescription 2222 II.— Of the causes which suspend the course of prescription. . . 2232 VI.— Op the time required to prescribe. I.— General provisions 2240 II.— Of the prescription by thirty years, of prescription of rents and iutereet, and of the duration of the plea of pre- scription 2242 III.— Of prescription by subsequent purchasers 2251 IV.— Of certain prescriptions by ten years 2268 v.— Of certain short prescriptions 2260 VI.— Transitory provisions 2270 BOOK FOURTH. COMMERCIAL LAW. General provisions 2278 TITLE FIRST.— Op bills of exchange, notes and cheques. The Bills of Exchange Act, 1890. p. 430 TITLE SECOND.— Of merchant shipping 2355 Chap. I.— Of the registration of ships 2356 " II.— Of the transfer op registered vessels 2359 " III.— Of the mortgage and hypothecation of vessels.. . 2374 " IV.— Op privilege and maritime lien upon vessels and THEIR cargo and FREIGHT 2383 " v.— Of OWNERS, MASTERS AND SEAMEN 2389 TITLE THIRD.— Op affreightment. Chap. I.— General provisions 2407 " II.— Of charter-party 2414 " III.— Of the conveyance op goods in a general ship 2419 " IV.— Of the bill of lading 2420 •* v.— Of the obligations of the owner or lessor and of THE master '. 2423 Chap. VI.— Of the obligations of the lessee. Sec. I.— General provisions 2437 '* II.— Of freight, primage, average and demurrage 2442 xvi Civil Code of Lower Canada, Art. TITLE FOURTH.— Op the carrtaqe op passengers in mbrohakt VESSELS 2461 TITLE FIFTH.— Op insurance. Chap. I.— General provisions. Sec. I.— Of the nature and form of the contract 246& " II.— Of representation sjid concealment 2485 ' ' III.— Of warranties 2490 Chap. II.— Of marine insurance. Sec. I.— General provisions 2492 " II.— Of the obligations of the insured 2499 § 1. Of the premium 2500 § 2. Of representation and concealment 2503 § 3. Of warranties 2504 III.— Of the obligations of the insurer 2507 IV.— Of losses 2521 v.— Of abandonment 263 VI.— Of loss by average contributions 2551 Chap. III.— Op pire insurance 2568 " IV.— Op Lipe insurance 2585 Sec. n of the Governor-General or of the Lieutenant-Governor, aa a day of general fast or thanksgiving, or as Labour Day. (10) (10) Added to section 14 of the schedule the words "or as Labour Day." 60 Vict., c. 60, s. 1 (1 Sept., 1897). The words, "saving the special provisions established by the statutes concerning the collection of the revenue and the payment of bills of exchange and promissory notes." were struck out from the original section 14 of the schedule by R. S. Q., art. 6775; 49-50 Vict., c. 95, s. 36, subsec. 23. 15. The word "oath" includes the solemn affirmation which certain persons are permitted to make instead of an oath. (11) (11) The following articles of the R. S. Q. have reference to art. 17. sub-sec. 15 C. C. " Art. 5497. The persons commonly called Quakers, residing In the province, are not compellable to take oaths, but Instead thereof may make solemn affirmation In the same form and words in which an oath is directed to be administered, leaving out the word 'swear' and inserting in the place thereof, 'do solemnly, sincerely and truly declare and affirm.' " C. S. L. C, c. 34, a. 8. " Art. 5498. No person, not publicly known to be of the people called Quakers for some years before an affirmation is to be administered to him In any court, or before any justice of the peace, or any person qualified to administer the same, shall bt^ admitted to make an affirmation In manner aforesaid, unless It appears by a certificate from the quarterly meeting of the Quakers, for the place where such person resides, signed by six or more of the principal people of such meeting, that such person has been allowed as one of the people called Quakers, for the space of twelve months or upwards before he Is to make such afBrmation," C. S. L. C, c. 34, s. 10. 16, The word "magistrate " means a justice of the peace. "Two justices of the peace" mean two or more justices sitting or acting together. When anything is ordered to be done by or before a justice of the peace, magistrate, functionary or public 8 Civil Code of Lower Canada. oflQcer, one is understood whose powers or jurisdiction ex- tend to the place where such thing ought to be done. The authority given to do a thing carries with it all the powers necessary for that purpose. 17. The right of nominating to an office or employment carries with it that of removal. 18. The duties imposed and the powers conferred upon, an officer or public functionary, in his official capacity, pass to his successor, and pertain to his deputy in so far as they are compatible with the charge of the latter. 19. When an act is to be performed by more than two persons, it may be validly done by the majority of them, except in the cases otherwise specially provided. 20. The pound sterling is equivalent to the sum of four dollars eighty-six cents and two-thirds or one pound four shillings and four pence currency. The "sovereign" is of like value. 21. The words "inhabitant of Lower Canada" or "inha- bitant of the Province of Quebec" mean a person having his domicile in the Province of Quebec. (12) (12) Section 21 of the schedule originally read: "By the terms •inhabitant of Lower Canada,' is meant a person having" his domicile in that part of the province." Amended by R. S. Q., art. 5775; B. N. A. Act, 1867, s. 6. 22. The terms "acts of civil status" mean the entries made in the registers kept according to law, to establish births, marriages and burials. " Registers of civil status" are the books so kept and in which such acts are entered. " Officers of civil status" are those intrusted with the keeping of such registers. 23. By "bankruptcy" is meant the condition of a trader who has discontinued his payments. 24. A "fortuitous event" is one which is unforeseen, and caused by superior force which it was impossible to resist." Enjoyment and L*.\.s of Civil Rights. 9 BOOK FIRST. OF PERSONS. TITLE FIRST. OF THE ENJOYMENT AND LOSS OF CIVIL RIGHTS. CHAPTER FIRST. OF THE ENJOYMENT OF CIVIL RIGHTS. 18. Every British subject is, as regards the enjoyment of civil rights in Lower Canada, on the same footing as those born therein, saving the special rules relating to domicile. 19. The quality of British subject is acquired either by right of birth, or by operation of law. 20. A person born in any part of the British empire, even of an alien, is a British subject by right of birth, as also is he whose father or grandfather by the father's side is a British subject, although he be himself born in a for- eign country; saving the exceptions resulting from special laws of the empire. 21. An alien becomes a British subject by operation of law, by conforming to the conditions the law prescribes. 22. These conditions, in so far as they are prescribed by the laws of the Dominion, are: 1. Residence in Canada during three years at least, or service during at least three years under the Government of Canada, or under the Government of one of the pro- vinces of Canada, with the intention, when naturalized, to either reside in Canada, or to serve under the Government of the Dominion or under the Government of one of the provinces of Canaia. 2. Taking the oath of residence or of service, and that of allegiance required by law. 3. Procuring from the proper court, with the necessary ]! 10 Civil Code of Lower Canada. formalities, the certificate of naturalization required by law. (1) (1) Article 22 originally read:— "These conditions, as pre- scribed by the laws of the province, are:— 1. Residence during three years at least in some part of the province of Canada, with the intention of settling therein; 2. Taking the oaths of residence and allegiance required by law; or in the case of a woman, the oath of residence alone; 3. Procuring from the proper court, with the necessary formalities, the certificate of naturalization required by law." This was amended and assumed its present form by R. S. Q., art. 6228 (R. S. C. c. 113). 23. An alien woman is naturalized by the mere fact of the marriage she contracts with a British subject. 24. Naturalization confers in Lower Canada, on him by whom it is obtained, all the rights and privileges he would have if born a British subject. 25. Aliens have a right to acquire and transmit by gra- tuitous or onerous title, as well as by succession or by will, all moveable and immoveable property in Lower Canada, in the same manner as British-born or naturalized subjects. 26. Aliens cannot serve as jurors. (1) (1) Original article read: " Aliens may also serve as jurors, in all cases where, according to law, a jury must be com- posed of one half of foreigners." Amendments:— " No alien shall be entitled to be tried by a jury ffe mnfietafc li)Hiun of banfl, 5. Whether it was with the consent of their fatner, mother, tutor or curator, or with the advice of a family council, when such consent or advice is required; 6. The names of the witnesses, and whether they are related or allied to the parties, and if so, on which side, and in what degree; 7. That there has been no opposition, or that any oppo- sition made has been disallowed. CHAPTER FOURTH. OF ACTS OF I5UUIAL. (1) 66. No burial can talce place before the expiration of twenty-four hours after the decease; and whoever know- ingly takes part in any burial before the expiration of such time, except in cases provided for by police regula- tions, is subject to a penalty of twenty dollars. 66a. It belongs solely to the Roman Catholic eccle- siastical authority to designate the place in the cemetery, in which each individual of such faith shall be buried; and if the deceased cannot, according to the canon rules and laws, in the judgment of the ordinary, be interred in ground consecrated by the liturgical prayers of such re- ligion, he receives civil burial, in ground reserved for that purpose and adjacent to the cemetery. (1) (1) Added by R. S. Q., art. 5786 (39 Vict., c. 19, s. 1, 24 Dec, 1875; 51-52 Vict., c. 48, s. 2). 67. The act of burial mentions the day of the burial, and that of the death, if known; the names, surnames, and quality or ocupation of the deceased; and it is signed by the person performing the burial service, and by two or the nearest relations or friends there present; if they cannot sign, mention is made thereof. 68. The provisions of the two preceding articles apply to religious communities and hospitals where burials are permitted. 69. When there is any sign or indication of death hav- ing been caused by violence, or when there are other circumstances which give reason to suspect it, or when the death happens in any prison, asylum, or place of forcible confinement other than lunatic asylums, the burial (1) See art. 3458 et seq. R. ©. Q. relating to burials. 20 CivU Code of Lower Canada. m ^! cannot be proceeded with until It Is authorized by the coroner or other officer whose duty It is to inspect the body In such cases. e9rt. The body of no person who died of a contagious disease shall be disinterred until after the expiration of Ave years from, its interment or of such period as may be fixed by the Provincial Board of Health. Subject to the preceding provision and by observ.ng the formalities prescribed by the law respecting interments and disinterments, one or more bodies may be removed from any church, chapel or cemetery for the purpose of building, repairing or selling such church, chapel or ceme- tery, or re-interring the bodies In another part ( f the same or in any other church, chapel or •cemetery, or of rebuild- ing or repairing the tomb or coffin in which a body is burled. (1) (1) Added by R. S. Q., art. 5787 (51-52 Vict., c. 48, ss. 19 and 21, 12 July, 1888). CHAPTER FIFTH. OF ACTS OF llELIGIOUS PROFESSION. 70. In every religious community in which profession may be made by solemn and perpetual vows, two registers of the same tenor are kept, in which are inscribed the acts establishing the taking of such vows. 71. [These registers are numbered and initialed like the other registers of civil status, and the acts are inscribed therein in the manner prescribed in article 46.] 72. The acts set forth the names and surnames, and the age of the person making profession, the place of her birth and the names and surnames of her father and motlier. They are signed by the party, by the superior of the community, by the bishop or other ecclesiastic who per- forms the ceremony, and by two of the nearest relations, or by two friends who were present. 73. The registers are used during five years, after which one of the duplicates is deposited in the manner declared In article 47, and the other remains with the community tQ form part of its records. Extracts of such registers, signed and certified by the superior of the community, or the depositary of one of m Acts of Civil Status. 11 3, 19 and 21, the duplicates, are authentic, and are do'ivore:! by cue or other of them at the option and on the djuiar.d cf those re Hiring them. CHAPTER SIXTH. OF TUE UECTIFICATION OV ACTS AM> KlXiiSTKUS UF UlVlIi STATUS. 76. If an error have been committed In the entry made In the register of an act of civil status, the court of original jurisdiction in the ofhce of which such register is or Is to be deposited may, at the instance of any Interested party, order such error to be rectified in presence of the other parties interested. 76. The depositaries of the registers, on receipt of a copy of any judgment of rectification, are bound to in- scribe the same on the margin of the act so rectified, and if there l)e no margin, then on a sheet of paper which re- mains annexed thereto. 77. [If an act which ought to have been inserted in the register be entirely omitted, the same court may, at the instance of one of the parties interested, the others being notified, order that such omission be supplied, and the judgment so ordering Is inscribed on the margin of the said register, at the place where the act so omitted ought to have been entered, and if there be no margin, then on a sheet of paper which remains annexed thereto.] 78. The judgment of rectification cannot, at any time, be set up against those who did not seek it, or who were not duly notified. CHAPTER SEVENTH. OF REPLACING REGISTERS OF CIVIL STATUS WHICH: HAVE BEEN LOST OR DESTROYED. 78ff. Whenever registers of civil status have been lost or destroyed, in whole or in part, the officer charged with keeping them may, upon a resolution of the fnlmque, trus- tees, or religious community interested, establishing such loss or destruction, obtain from the prothonotary of the district, in whose office such registers are deposited, a copy of the whole or any part thereof, on payment of siix cents I'S !i ! ! Ilk, mi f i !! I iijllin I liHli I El li 22 Civil Code of Lower Canada. for each certificate of baptism or of burial, and of eighteen cents for each certificate of marriage. (1) (1) Added by 60 Vict., c. 50, 3. 3. 786. The registers and books necessary for making such copies are furnished by the fabrique, trustees, or religious community interested, and must be numbered and initialed in the manner prescribed by the Code of Civil Procedure. (1) (1) Added by 60 Vict., c. 50, s. 3. 78<7. Such copy of the registers must be a fac simile of the sole existing duplicate. (1) (1) Added by 60 Vict., c. 50, s. 3. ISd. The certificate of authenticity of such copies of registei*s must be appended by the prothonotary after the last entry in each book or register. (1) (1) Added by 60 Vict., c. 50, s. 3. 78e. Every copy of registers, so authenticated and de- livered, is considered as an original register; and extracts, certified by the depositary of the said registers, are authentic; but such depositary must declare, in the ex- tracts which he delivers, that the registers from which they are taken are copies, so certified, of the only existing duplicate. (1) (1) Added by 60 Vict., c. 50, s. 3. 78/'. Any person authorized to keep registers of civil status may, with the authorization of the fabrique, trustees, or religious community interested, at the expense of the parish, church, mission, congregation or religious commu- nity to which he is attached, replace, in so far as the writing may be deciphered, the said registers of civil status kept up to the year 1800, in his custody, by others, repro- ducing them as exactly as possible. (1) (1) Added by 60 Vict., c. 50, s. 3. 78.^. Any such person, so authorized to keep registers of civil status, after having carefully compared such copy kept by him with the original, must affix at the end thereof a certificate attesting that it has been examined and Domicile. 23 compared, and that it agrees with the register of which it is a copy. Such certificate is made under oath before the protho- nctary of the Superior Court of the district. Such copy must be authenticated and initialed by the prothonotary before being used. (1) (1) Added by GO Vict., c. 50, s. 3. IQh. Notwithstanding the authenticity of such copy, which has the same effect as the original register, the latter must be preserved, so that reference may be had thereto. (1) (1) Added by 60 Vict., c. 50, s. 3. TITLE THIRD, OF DOMICILE. 79.' The domicile of a person, for all civil purposes, is at the place where he has his principal establishment. 80. Change of domicile is effected by actual residence in another place, coupled with the intention of the person to make it the seat of his principal establishment. 81. The proof of such intention results from the de- clarations of the person and from the circumstances of the case. Rf>. A person appointed to fill a temporary or revocable public office, retains his former domicile, unless he mani- fests a contrary intention. 8^. A married woman, not separated from bed and board, has no other domicile than that of her husband. The domicile of an unemancipated minor is with his father and mother, or with his tutor. The domicile of a person of the age of majority inter- dicted for insanity is with his curator. 84. The domicile of persons of the age of majority, who serve or work continuously for others, is at the resi- dence of those whom they serve or for whom they work, if they reside in the same house. i 24 Civil Code of Lower Cmiada. 85. When the parties to a deed have for the purpose of such deed, made election of domicile in any other place than their real domicile, all notifications, demands and suits relating thereto may be made at the elected domicile, and before the judge of such domicile. The indication of a place of payment in any note or writing, wherever it is dated, is equivalent to such election of domicile at the place so indicated. (1) (1) The second paragraph of article 85 was added by 52 Vict., c. 48, s. 1 (21 March, 1889). TITLE FOURTH, OF ABSENTEES. GENERAL PROVISIONS. 86. An absentee, within the meaning of this title, is one who, having had a domicile in Lower Canada, has disap- peared, without any one having received intelligence of his existence. Sin CHAPTER FIRST. OF CURATORSHIP TO ABSENTEES. 87. If it be necessary to provide for the administration of the property of an absentee who has no attorney, or whose attorney is unknown or refuses to act, a curator may be appointed for that purpose. 88. The necessity for such appointment is determined, at the instance of those interested, on the advice of a family council called and composed in the manner pro- vided in the title Of Minority, TutorsMp and Emancipation, and homologated by the court, or by one of its judges, or by the prothonotary. 89. Curators to the property of absentees make oath faithfully to fulfil the duties of their office and to account. 00. The curator is bound to cause to be made, in no- tarial form, a faithful Inventory and valuation of all the property committed to his charge, and for his administra- Absentees. 25 by 52 Vict., tion he is liable to the same obligations as those to which tutors are subject. 91. The powers of such curator extejid to acts of ad- ministration only; he can neither alienate, pledge nor hypothecate the property of the absentee. 92. The curatorship to the absentee is brought to an end : 1. By his return; 2. By his sending a power of attorney to the curator or to any other person; 3. By his heirs being authorized to take provisional pos- session of his property, in the cases provided by law. CHAPTER SECOND. OF THE PROVISIONAL POSSESSION OF THE HEIRS OF ABSENTEES 93. Whenever a person has ceased to appear at his domicile or place of residence, and has not been heard of for a period of [five] years, his presumptive heirs at the time of his departure or of the latest intelligence received, may obtr ;n from the court or the judge (1) authority to take provisional possession of his property, on giving security for their due administration of it. (1) The words "or the judge" were added by 60 Vict, s. 4 (1 Sept., 1897). c. 50, 94. Provisional possession may be authorized before the expiration of such delay, if it be established to the satisfaction of the court or the judge (1) that there are strong presumptions that the absentee is dead. (1) The words "or the judge" were added by 60 Vict., c. 50, s. 5 (1 Sept., 1897). 95. In pronouncing on such demand, the court or the judge (1) takes into account the reasons of the absence and the causes which may have prevented the reception of intelligence concerning the absentee. (1) The words "or the judge" were added by 60 Vict., c. 50, s. 6 (1 Sept., 1897). 98. Provisional possession is a trust which gives to those who obtain it, the administration of the property 26 Civil Code of Lower Canada. of the absentee and makes tEem liable to account to him or to his heirs and legal representatives. 97. Those who have obtained provisional possession are bound to .nake an inventory, before a notary, of the moveable property and title deeds of the absentee, [and to cause the immoveable property to be visited by skilled persons for the purpose of ascertaining its condition. Their report is homologated by the court or the judge, (1) and the costs are paid out of the absentee's property.] The court or the judge (2) which granted the pos«essiion may, If there be ground for it, order the sale of the move- ables or of any part of thorn ; in which case, the price of such sale is invested, as are also all I'^nts, issues and profits accrued. (1) (2) The words "or the Judge" were added by 60 Vict., c. 50, s. 7 (1 Sept.. 1897). 98. If the absence have continued during thirty years from the day of the disappearance, or from' the latest in- telligence received, or if a hundred years have elapsed since h's birth, the absentee is reputed to be dead from the time of his disappearance or from the latest intelli- gence received; in consequence, if provisional possession have been granted, the sureties are discharged, the parti- tion of the property may be demanded by the heirs or others having a right to it, and the provisional possession becomes absolute. 9P. Notwithstanding the presumptions mentioned In the preceding article, the succession of the absentee d^x'-olves from the day on which he is proved to have died, to the heirs entitled at such time to his estate; and those who have been in the enjoyment of the absentee's property are bound to restore it. 100. If the absentee reappear, or if his existence b© proved during the provisional possession, the judgnieiit granting it, ceases to have effect. 101. If the absentee reappear, or if his existence be proved, even after the expiration of the hundred years of life or of the thirty years of absence, as mentioned in article 98. he recovers his property in the condition in which it then is, and the price of what has been sold, or the property arising from the investment of such price. mm Absentees. 27 Vict., c. 50, 102. The children and direct descendants of the absentee may likewise, within the thirty years from the time a,t which the said possession becomes absolute, claim the restitution of his property, as mentioned in the preceding article. 103. After the judgment authorizing provisional pos- session, persons having claims against the absentee can only enforce them against those who have been authorized to take possession. CHAPTER THIRD. OP THE EFFECT OP ABSBNCP: IN RELATION TO CONTINGENT RIGHTS WHICH MAY ACCRUE TO THE ABSENTEE. 104. Whoever claims a right accruing to an absentee must prove that such absentee was living at the time tlie right accrued; in default of such proof his demand is not admitted. 105. If an absentee be called to a succession, it de- volves exclusively to those who would have shared with him, or to those who would have succeeded in his stead. 106. The provisions of the two preceding articles do not affect actions for the recovery of inheritances and of other rights, which actions belong to the absentee, *iis heirs and legal representatives, and are only extinguished by the lapse of time required for prescription, 107. So long as the absentee does not reappear, or actions are not brought on his behalf, those to whom' the succession has devolved make the profits received by them in good faith their own. CHAPTER FOURTH. OF THE EFFECTS OF ABSENCE IN RELATION TO MARRIAGE. lOS. The presumptions of death arising from absence, whatever be its duration, do not apply in the case of mar- riage; the husband or wife of the absentee cannot man'y again without producing positive proof of the death of such absentee. 109. If there be community of property between the consorts, such community is provisionally dissolved, from 28 Civil Code of Lower Canada. the day of the demand to that effect by the presumptive heirs, after the time required for obtaining authority to take possession of the absentee's property, or from the date of the action that the consort 'vho is present brings against them, for the same purpose; and in these cases, the liqui- dation and partition of the property of the community may be proceeded with on the demand of such consort, or of the persons authorized to take provisional possession, or of any other parties interested. 110. In the cases provided for in the preceding article, the covenants and rights of the consorts, dependent on the dissolution of the community, become effective and absolute. 111. If the husband be the absentee, ihe w'fe may obtain possession of all the matrimonial profits and a1- vantages resulting from .he law or from her mrirringe contract; but on condition of giving good and suflleient security to account for and restore all that she shall have so received, should the absentee return. 112. If the absent consort have no relations entitled to his succession, the consort who is present may obtain provisional possession of the property. ■Jiiii:; 1 ^i !! 1 J iii :|ii CHAPTER FIFTH. OF THE CARE OF MINOR CHILDREN OF A FATHER WHO HAS DISAPPEARED. 113. If a father have disappeared, leaving minor chil- dren issue of his n^arriage, the mother has the care of such children and exercises all the rights of her husband as to their person and as to the administration of their property, until a tutor is appointed. 114. After the disappearance of the father, if the mother be dead or unable to administer fhe property, a provisional or a permanent tutor may be appointed to the minor children. Marriage. 2H TITLE FIFTH. OF MARRIAGE. mnriiage CHAPTER FIRST. OF THK QUALITIES AND CONDITIONS NECESSARY FOR CONTRACTING MARRIAGE. 115. A man cannot contract marriage before the full age of fourteen years, nor a woman before the full age of twelve years. 116. There is no marriage when there is no consent. 117. Impotency, natural or accidental, existing at the time of the marriage, renders it null; but only if such im- potency be apparent and manifest. This nullity cannot be invoked by any one but the party who has contracted with the impotent person, nor at any time after three years from the marriage. 118. A second marriage cannot be contracted before the dissolution of the first. 119. Children who have not reached the ar. of twenty- one years must obtain the consent of their father and mother before contracting marriage; in case of disagree- ment, the consent of the father suflices. 120. If one of them be dead or unable to express his will, the consent of the other suflices. 121. A natural child who has not reached the age of twenty-one years must be authorized, before contracting marriage, by a tutor ad hoc duly appointed for the pur- pose. 122. If there be neither father nor mother, or if both be unable to express their will, minor children, before contracting marriage, must obtain the consent of their tutor, or, in cases of emancipation, their curator, who Is bound, before giving such consent, to take the advice of a family council, duly called to deliberate on the sub- ject. 30 Civil Code of Lower Canada. '■ 'III; i'T !:,i! I i II m k "1 ml Hi; 123. Respectful requlsitdons to the father and mother are no longer necessary. 124. In the direct line, marriage is prohibited between ascendants and descendants and between persons connected by alliance, whether they are legitimate or natural. 125. In the collateral line, marriage is prohibited be- tween bi-other and sister, legitimate or natural, and between those connected in the same degree by alliance, whether they are legitimate or natural; but it is permitted between a man and his deceased wife's sister. (1) (1) The words permitting marriage between a man and his deceased wife's sister were added by R. S. Q., art. 6230 (45 Vict. (C). c. 42, 1882), 126. Marriage is also prohibited betwen uncle and niece, aunt and nephew. 127. The other impediments recognized according to the different religious persuasions, as resulting from re- lationship or aflanity or from other causes, remain subject to the rules hitherto followed in the different churches and religious communities. The right, likewise, of granting dispensations from such impediments appertains, as heretofore, to those who have hitherto enjoyed it. CHAPTER SECOND. OF THE FORMALITIES RELATING TO THE SOLEMNIZATION OF MARRIAGE. 128. Marriage must be solemnized openly, by a compe- tent officer recognized by law. 129. AH priests, rectors, ministers and other officers authorized by law to keep registers of acts of civil status, are competent to solemnize marriage. But none of the officers thus authorized, can be com- pelled to solemnize a marriage to which any impediment exists according to the doctrine and belief of his religion, and the discipline of the church to which he belongs. 130. Th« publications of bans, required by articles 57 and 58, are made by the priest, minister or other officer, in the church to which the parties belong, at morning service, or Marriage. 31 mother are > and niece, IZATION OF Y a compe- if there be no morning service, at evening service, on three Sundays or holidays with reasonable intervals. It the parties belong to different churches, these publications taiie place in each of such churches. 131 If the actual domicile of the parties to be married has not been established by a residence of six months at least, the publications must also be made at the place of their last domicile in Lower Canada. 132. [If their last domicile be out of Lower Canada, and the publications have not been made there, the officer who, in that case, solemnizes the marriage, is bound to ascer- tain that there is no legal impediment between the parties.] 133. If the parties or either of them be, in so far as regards marriage, under the authority of others, the bans must be also published at the place of domicile of those under whose power such parties are. 134. The authorities who have hitherto held the right to grant licenses or dispensations for marriage, may exempt from such publications. 135. A marriage solemnized out of Lower Canada be- tween two persons, either or both of whom are subject to its laws, is valid, if solemnized according to the formalities of the place where it is performed, provided, that the parties did not go there with the intention of evading the law. CHAPTER THIRD. OF OPPOSITIONS TO MARRIAGE. 136. The solemnizing of a marriage may be opposed by any person already married to one of the parties in- lending to contract. 137. The marriage of a minor may be opposed by his father or, in default of the latter, by his mother. 138. In default of both father and mother, the tutor or, in cases of emancipation, the curator may also oppose the marriage of such minor. (1) (1) The words "but the court to which such opposition is submitted, cannot decide on Its merits without the advice of a family council, which It must order to be called," which followed after the word "minor," were struck out by 60 Vict., c. 60, s. 8 (1 Sept., 1897). r 'I 32 Civil Code of Lower Canada. 11 ■■ if . W r '5 139. If there be neither father nor mother, tutor nor curator, or if the tutor or curator have consented to the marriage without taking the advice of a family council, the grandfathers and grandmothers, the uncles and aunts, and the cousins-german, who are of full age, may oppose the marriage of their minor relative; but only in the two following cases: 1. When a family council, which, according to article 122, should have been consulted, has not been so; 2. When the party to be married is insane. 140. When opposition is made under the circumstances and by any of the persons mentioned in the preceding article, if the minor have neither tutor nor curator, the opposant is bound to cause one to be appointed; if the minor have already a tutor or curator, who has consented to the marriage without consulting a family council, the opposant must cause a tutor ad hoc to be appointed; in order that such tutor, curator, or tutor ad hoc may repre- sent the interests of the minor in such opposition. 141. [If a person about to be married, being of the age of majority, be insane, and not interdicted, the following persons may oppose the marriage, in the following order: 1. The father, and in his default, the mother; 2. In default of both father and mother, the grand- fathers and grandmothers; 3. In default of the latter, the brothers or sisters, uncles or aunts, or cousins-german, of the age of majority; 4. In default of all the above, those related or allied to such person who are qualified to take part in the meeting of a family council, which should be consulted as to the interdiction.] 142. When the opposition is founded on the insanity of the person about to be married, the opposant is bound to apply for the interdiction and to have it pronounced without dclpy. 143. [Wuatever may be the quality of the opposant, it Is his duty to adopt and follow up the formalities and pro- ceedings necessary to have his opposition brought before the court and decided within the legal delays, a demand for its dismissal not being required; in default of his so doing, the opposition is regarded as never having been made, and the marriage ceremony is preceded with, not- withstanding.] Marriage. 3.'{ 144. The Code of Civil Procedure contains the rules as to the form, contents and notification of oppositions to marriage, as well as those relative to the peremption men- tioned in the preceding article, and to the other proceed- ings required. 145. Repealed 60 Vict. (Q), cap. 50, sec 9. Tho rollowlng: is the text of the repealed article:— " The oppositions are brought before the court of original jurisdiction of the domicile of the party whose marriage is opposed, or of the place where the marriage l.s to be solemnized, or before a judge of such court." (See O. C. P., art. 110.'^.) 146. Repealed 60 Vict. (Q), cap. 50, sec 9. The following is the text of the repealed article:— " Proceedings upon appeals from such judgments are sum- mary and take precedence." (See C. C. P., art. 1112.) • 147. If the opposition is dismissed, the opposants, other than the father and the mother, are liable to damages according to circumstances, without prejudice to the con- demnation to costs, in the manner stated in the Code of Civil Procedure. (1) (1) The original article read: "If the opposition be rejected, the opposants, other than the father and mother, may be condemned to pay costs, and are liable for damages according to circumstances." The article assinned \t<. present form by virtue of 00 Vict., c. 50. s. 10 (1 Sept., 1897). (See C. C. P.. art. 1113.) CHAPTER FOURTH. OF ACIIONS FOR ANNULLING MARRIAGE. 148. A marriage contracted without the free consent of both parties, or of one of them, can only be attacked by such parties themselves, or by the one whose consent was not free. When there is error as to the person, the marriage can only be attacked by the party led into error. 149. [In the cases of the preceding article, the party who has continued cohabitation during six months after having acquired full liberty or become aware of the error, cannot seek the nullity of the marriage.] 150. A marriage contracted without the consent of the father or mother, tutor or curator, or without the advice .3 ' 'ft w. ; H M\ :u Civil Code of Lower Canada. of a family council, in cases where such consent or advice was necessary, can only be attacked by those whose con- sent or advice was required. 151. [In the cases of articles 148 and 150, an action for ennulling marriage cannot be brought by the husband or wife, tutor or curator, or by the relations whose consent Is required, if the marriage have been either expressly or tacitly approved by those whose consent was necessary; nor If six months have been allowed to elapse without complaint on their part since they became aware that th^ marriage had taken place. J 152. Any marriage contracted In contravention of articles 124, 125 and 126, may be contested either by the parties theinselves, or by any of those having an Interest therein 153. But a marriage contracted before the parties or either of them have attained the age required, can no longer be contested: 1. When six months have elapsed since the party or parties have attained the proper age; 2. When the wife, under that age, has conceived before the termination of the six months. 154. The father, mother, tutor, or curator, or the rela- tions who have consented to the marriage, in the cases mentioned In the preceding article, are not allowed to 8eek the nullity of such marriage. 155. In the cases referred to In article 152, where the action for annulling the marriage belongs to all those Interested, the interest must be existing and actual, to permit the exercise of the right of action by the grand- parents, collateral relatives, children born of another mar- riage, and third persons. 156. Every marriage which has not been contracted openly, nor solemnized before a competent officer, may be contested by the parties themselves and by all those who have an existing and actual Interest, saving the right of the court to decide according to the circumstances. 157. [If the publications required were not made, or their omission, supplied by means of a dispensation or license, or if the legal or usual intervals for the publica- Marriage. 36 f articles 3 parties tlierein irtiea or can no party oY )d befor*^ ttie rela- ;he cases [owed to liere the all those ctual, to e grand- her mar- >ntracted may be lose who ht of the nade, or ation or publica- ■A lions or tlie solemnization have not elapsed, the officer solemnizing the marriage under such circumstances, is liable to a penalty not exceeding Ave hundred dollars.] 158. [The penalty imposed by the preceding article is In like manner incurred by any officer who, in the execu- tion of the duty imposed upon him, or which he has under- taken, as to the solemnisation of a marriage, contra- venes the rules prescribed in that resi)ect by the different articles of the present title. J 159. No one can claim the title of husband or wife and the civil effects of marriage, unless he produces a certifi- cate of the marriage, as inscribed in the registers of civil status, except in the cases provided for by article 51. 160. Possession of the status does not dispense those who pretend to be husband and wife, from producing the certificate of their marriage. 181. When the parties are in possession of the status, and the certificate of their marriage is produced, they can- not demand the nullity of such act. 162. Nevertheless, in the case of articles 159 and 160, if there be children issue of two persons who lived pub- licly as husband and wife, and who are both dead, the legitimacy of such children cannot be contested solely on the pretext that no certificate is produced, whenever such legitimacy is supported by possession of the status uncon- tradicted by the act of birth. 4 163. A marriage although declared null, produces civil effects, as well with regard to the husband and wife as with regard to the children, if contracted in good faith. 164. If good faith exist on the part of one of the par- ties only, the marriage produces civil effects in favor of such party alone and in favor of the children issue of the marriage. CHAPTER FIFTH. OF THE OBLIGATIONS ARISING FROM MAKRIAGE. 165. Husband and wife contract, by the mere fact of marriage, the obligation to maintain and bring up their children. m '■ ti feil m ■ Hi m 36 Civil Code of Lower Canada. M 166. Children are bound to maintain their father, mother and other ascendants, who are in want. 167. Sons-in-law and daughters-in-law are also obliged, in like circumstances, to maintain their father-in-law and mother-in-law, but the obligation ceases: 1. When the mother-in-law contracts a second mar- riage; 2. When the consort, through whom the affinity ex- isted, and all the children issue of the marriage, are dead. 168. The obligations which result from these provisions are reciprocal. 169. Maintenance is only granted in proportion to the wants of the party claiming it and the fortune of the party by whom it is due. 170. Whenever the condition of the party who fur- nishes or of the party who receives maintenance is so changed that the one can no longer give or the other no long- er needs the whole or any part of it, a discharge from or a reduction of such maintenance may be demanded. 171. If the person who owes a maintenance, justify that he cannot pay an alimentary pension, the court may order such person to receive and maintain in his house the party to whom such maintenance is due, 172. The court likewise decides whether the father or mother, who, although able to pay, offers to receive and maintain the child to whom a maintenance is due, shall in that case be exempted from paying an alimentary pension. CHAPTER SIXTH. OF THE RESPECTIVE RIGHTS AND DUTIES OF HL'SBANJ) AND AVIFE. 173. Husband and wife mutually owe each other fideli- ty, succor and assistance. 174. A husband owes protection to his wife; a wife obedience to her husband. [•, mother D obliged, L-law and )nd mar- fiiiity ex- aie dead. Drovisions 3n to the the party who fur- nce is so jr no long- from or a ed. e, justify ourt may his house father or ceive and due, shall limentary Marriage. 37 313 AND ler fideli- s; a wife 176. A wife is obliged to live with her husband, and to follow him wherever he thinks fit to reside. The hus- band is obliged to receive her and to supply her with all the necessaries of life, according to his means and condition. 176. A wife cannot appear in judicial proceedings, without her husband or his authorization, even if she be a public trader or not common as to property; nor can she, when separate as to property, except in matters of simple administration. 177. A wife even when not common as to property, cannot give nor accept, alienate, nor dispose of property inivv vims, nor otherwise enter into contracts or obliga- tions, unless her husband becomes a party to the deed, or gives his consent in writing; saving the provisions con- tained in the act 25 Vict., chap. 66. If, however, she be separate as to property, she may do and make alone all acts and contracts connected with the administration of her property. 178. If a husband refuse to authorize his wife to appear in judicial proceedings or to make a deed, the judge may give the necessary authorization. 179. A wife who is a public trader may, without the authorization of her husband, obligate herself for all that relates to her commerce; and in such case she also binds her husband, if there be community between fhem. She cannot become a public trader without such authoriza- tion expresis or implied. (1) (1) See art. 5502a R. S. Q., added by 60 Vict., c. 49, concerning" declaration to be made by a married woman separate as to property, before she can carry on trade. 180. If a husband be interdicted or absent, the judge may authorize his wife, either to appear in judicial pro- ceedings or to contract. 181. All general authorizations, even those stipulated by marriage contract, are only valid in so far as regards the administration of the wife's property. 182. A husband although a minor may, in all cases, authorize his wife who is of age; if the wife be a minor. I 4 38 Civil Code of Lower Canada. the authorization of her husband, whether he is of age or a minor, is sufficient for those cases only in which an emancipated minor might act alone. 183. The want of authorization by the husband, v^here it is necessary, constitutes a cause of nullity which no- thing can cover, and which may be taken advantage of by all those who have an existing and actual interest in doing so. 184. A wife may make a will without the authorization of her husband. CHAPTER SEVENTH. ;.0F THE DISSOLUTION OF MARRIAGE. 185. Marriage can only be dissolved by the natural death of one of the parties; while both live, it is indissoluble. TITLE SIXTH. OF SEPARATION FROM BED AND BOARD. i'- I i CHAPTER FIRST. OF THE CAUSES OF SEPARATION FROM BED AND BOARD. 186. Separation from bed and board can only be de- manded for specific causes; it cannot be based on the mutual consent of the parties. 187. A husband may demand the separation on the ground of his wife's adultery. 188. A wife may d^»uand the separation on the ground of her husband's adultery, if he keep his concubine in their common habitation. 189. Husband and wife may respectively demand this separation on the ground of outrage, ill-usage or grievous insult committed by one toward the other. 190. The grievous nature and sufficiency of such out- rage, ill-usage and insult, are left to the discretion of the court which, in appreciating them, must take into con- sideration the rank, condition and other circumstances of the parties. Separation from Bed and Board. 39 >f age or iThich an d, y;Iiere hich no- ,iitage of iterest in lorization iral death lissoluble. BOAllI). ly be (le- d on the n on the he ground icubine in mand this r grievous such out- ion of the into con- istances of 191. The refusal of a husband to receive his wife and to furnish her with the necessaries of life, accoraing to his rank, means and condition, is another cause for which she may demand the separation. CHAPTER SECOND. OF THE FORMALITIES OF THE ACTION FOR SEPARATION FROM BED AND BOARD. 192. Repealed 60 Vict (Q.), cap. 50, sec. 11. The following is the text of the repealed article:— " The action for separation from bed and board is brought before the competent court of the district in which the con- sorts have their domicile." (See art. 1099 C. C. P.) 193. Repealed 60 Vict. (Q.), cap. 50, sec. 11. The following is the text of the repealed article:— vvv " This action is brought, tried and decided in the same ^.* % manner as all other civil actions, with this difference, that the parties cannot admit the allegations, proof of which must always be made before the court." (See art. 1100 C. C. P.) 194. The wife who desires to obtain a separation from bed and board (1) must apply by a petition setting forth her reasons and addressed to the judge, to be authorized to sue, and to be allowed to withdraw pending the suit to a place which she indicates. (1) The words '"who desires to obtain a separation from bed and board" were added by 60 Vict., c. 50, s. 12 (1 Sept., 1897). 195. If the alleged wrongs be found sufficient, the judge, in according to the wife the authorization to sue, allows her to leave her husband and to reside elsewhere during the suit. 196. The action for separation from bed and board is extinguished by a reconciliation of the parties taking place either since the facts which gave rise to the action, or after the action brought. 197. In either case the action is dismissed. The plaintiff may nevertheless bring another, for any cause which has happened since the reconciliation, and may in such case make use of the previous causes in sup- port of the new action. 198. If the action be dismissed the husband is obliged to take back his wife, and the wife is obliged to return to her husband, within such delay as the court by its judgment determines. 40 Cicil Code of Lower Canada. 109. When the action is brought for outrage, ill-usage, or grievous insult, although the same be well established, the court may refuse tio grant the separation forthwith, and may suspend its judgment until a further day, which it appoints in order to afford the parties sufficient time to come to an understanding and reconciliation. •iB'n 11 il 1 I ffl^ ! 'i ■ y 1 r i[ :|' I Pi CHAPTER THIRD. OF THE PKOVISIONA.L MEASURES TO WHICH THE ACTION FOK SEPARATION FROxM BED AND BOARD MAY GIVE RISE. 200. The provisional care of the children remains with the father, whether plaintiff or defendant, unless the court or judge orders otherwise for the greater advantage of the children. 201. A wife sued in separation may leave her hus- band's domicile, and reside during the suit at a place indi- cated or approved of by the court or judge. 202. Whether the wife is plaintiff or defendant, she may demand an alimentary pension, in proportion to her wants and the means of her husband; the amount is fixed by the court, which also orders the husband, if necessary, to deliver to the wife at the place to which she has with- drawn, the clothing she may require, 203. [If the wife leave the place of residence assigned to her without the permission of the court or judge, the husband may claim to be liberated from the payment of the alimentary pension; he may even have her action dis- missed, saving her recourse, should she refuse to obey the order given her to return within a given delay to the place she has thus quitted.] 204. A wife who is in community as to property, whether plaintiff or defendant in an action for separation from bed and board, may, from the date of the order mentioned in articles 195 and 201, obtain permission from the court or judge, to cause the moveable effects of such community to be attached for the preservation of the share which she will have a right to claim when the partition takes place; in consequence of which, her husband is bound as judicial guardian, to represent the things seized or their value when required. Separation from Bed and Board. 41 205. All obligations contracted by a husband, affecting the community, and all alienations made by him of the im- moveable property of such community, subsequent to the rendering of the order mentioned in articles 195 and 201, are declared null, if it be established that such obligations or alienations were contracted or made in fraud of the rights of his wife. CHAPTER FOURTH. OF THE EFFECTS OF SEPARATION FROM BED AND BOARD. 206. Separation from bed and board, from whatever cause it arises, does not dissolve the marriage tie; neither husband nor wife, therefore, can contract a new marriage while both are living. 207. The separation relieves the husband from the obligation of receiving his wife, and the wife from that of living with her husband; it gives the wife the right of choosing for herself a domicile other than that of her husband. m 208. Separation from bed and board carries with it separation of property; it deprives the husband of the rights which he had over the property of his wife, and gives to the wife the right to obtain restitution of her dowry, and of the property that she brought in marriage. Unless by the judgment they are declared forfeited, which only takes place in the case of adultery, the separa- tion also gives the wife the right to claim the benefit of all the gifts and advantages conferred on her by the mar- riage' contract; saving the rights of survivorship, to which such separation does not give rise, unless the contrary has been specially stipulated. (1) This article has been erroneously given in certain editions of the Code. Whether or not the official text is capable of sensible inter- pretation as it stands, this is a question for the courts and the commentators to decide. The above text is taken from the official edition of the Code. In the Codifiers' Report the words "unless bv the judgment they are declared forfeited, which only takes place in case of adultery." form part of the first paragraph, and are preceded by a semi-colon. The second paragraph there commences with the words, "The senaration also gives the wife," etc. For a full discussion of the curious difference between this article as the Codifiers perhaps intended it should be, and Its present condition, see Mignault, Droit Civil, vol 2 p 45 et seq. • . t • %': 1 .ill ill 'i u i 42 Civil, Code of Lower Canada. 209. When community of property exists, the separation operates its dissolution, imposes on the husband the obli- gation of making an inventory, and gives to the wife, in case of acceptance, the right to demand the partition of the property, unless by the judgment she has been declared to have forfeited this right. 210. The separation renders the wife capable of suing and being sued, and of contracting alone for all that relates to the administration of her property; but for all acts and suits tending to alienate her immoveable property, she re- quires the authorization of her husband, or, upon his re- fusal, that of [a judge]. (1) (1) The words "of her husband, or, upon his refusal, that of" were added by 39 Vict., c. 24 (24 Dec, 1875); R. S. Q., art. 5788. The brackets are as In the original article. 211. For whatever cause the separation takes place, the party against whom it has been declared, loses all the advantages granted by the other party. 212. The party v/bo has obtained the separation, retains all the advantages granted by the other, although they may have been stipulated to be reciprocal and (the reci- procity does not take place. 213. Either of the parties thus separated, not liaving sufficient means of subsistence, may obtain judgment against the other for an alimentary pension, which is fixed by the court, according to the condition, means and other circumstances of the parties. 214. The children are entrusted to the party who has obtained the separation, unless the court, after having, if it think proper, consulted a family council, orders, for the greater advantage of the children, that all or some of them be entrusted to the care of the other party, or of a third person. 215. Whoever may be entrusted with the care of the children, the father and mother respectively retain the right of watching over their maintenance and education, and are obliged to contribute thereto in proportion to their means. 216. Separation from bed and board judicially declared does not deprive the children, issue of the marriage, of any ■■:& Filiation. 43 of the advantages allowed them by law or by the mar- riage covenants of their father and mother; but these rights only become open in the same way and under the same circumstances as if there had been no such separation. 217. Husband and wife thus separated, for any cause whatever, may at any time reunite and thereby put an end to the effects of the separation. By such reunion, the husband reassumes all his rights over the person and property of his wife, the community of property is re-established of right and, for the future, is considered as never having been dissolved. TITLE SEVENTH. OP FILIATION. CHAPTER FIRST. OF THE FILIATION OF CHILDREN WHO AllE LEGITIMATE OR CONCEIVED DURING MARRIAGE. 218. A child conceived during marriage is legitimate and is held to be the child of the husband. A child born on or after the one hundred and eightieth day after the marriage was solemnized, or within three hundred days after its dissolution, is held to have been conceived during marriage. 219. The husband cannot disown such a child even for adultery, unless its birth has been concealed from him; in which case he is allowed to set up all the facts tending to establish that he is not the father. 220. Neither can the husband disown the child on the ground of his impotency. either natural or caused by acci- dent before the marriage. He may nevertheless disown it if, during the whole time that it may legally be presumed to have been conceived, he were, by reason of impotency not existing at the time of the marriage, of distance, or of any other cause, in the physical impossibility of meeting his wife. 221. A child born before the one hundred and eightieth day after the marriage was solemnized, may be disowned by the husband. 44 Civil Code of Lower Caumta. . 1 1.) ii) ■I-- i 222. Nevertheless a child born before the one hundred and eightieth day of the marriage, cannot be disowned by the husband in the following cases: 1. If he knew of the pregnancy before the marriage; 2. If he were present at the act of birth, or if that act be signed by him, or contain the declaration that he can- not sign; 3. If the child be not declared viable. 223. [In all the cases where the husband may disown the child, he must do so: 1. Wilhin two months, if he be in the place at the time of the birth; 2. Within two months after his return, if absent at the time of the birth; 3. Within two months of the discovery of the fraud, if the birth have been concealed from him.] 224. [If the husband die before disowning the child, but still being within the delay allowed for so doing, th,Q heirs have two months to contest the legitimacy of the child from the time he has taken possession of the pro- perty of the husband, or from the time that the heirs have been disturbed by him in their possession.] 225. [Such disavowal, on the part of the husband or of his heirs, musit be made by an action at law, directed against the tutor, or tutor ad hoc, appointed to the child, if he be a minor; and the mother, if living, must be made a party to the action.] 226. If the disavowal do not take place, [as prescribed in the pre&ent chapter,] the child which might have been disowned is held to be legitimate. 227. A child born after the three hundredth day from the dissolution of the marriage is held not to be the issue thereof and is illegitimate. CHAPTER SECOND. OP THE EVIDENCE OF THE FILIATION OF LEGITIMATE CHILDREN. 228. The filiation of legitimate children is proved by the acts of birth inscribed in *the registers of civil status. 229. In default of such act, the uninterrupted possession of the status of a legitimate child is sufficient. Filiation. 45 130. Such possession is established by a sufficient con- currence of facts, indicating the connection of filiation and relationship between the individual and the family to which he claims to belong. 231. No one can claim a status contrary to that which his act of birth, accompanied with the possession conform- able to such act, gives him; and reciprocally no one can contest the status of him who has a possession conform- able to his act of birth. 232. In default of the act of birth and of an uninter- rupted possession, or if the child have been described either under false names, or as being the child of unknown parents, the proof of filiation may be made by testimony; nevertheless this evidence can only be admitted when there is a commencement of proof in writing, or when the pre- sumptions or indications resulting from facts then ascer- tained, are sufficiently strong to permit its admission. 233. A commencement of proof in writing results from the title-deeds of the family, the registers and papers of the father and mother, from public and even private writ- ings proceeding from a party engaged in the contesta- tion, or who would have had an interest therein had he been alive. 234. Proof of the contrary may be made by any means of a nature to establish that the claimant is not the child of the mother he claims to have, or even, the maternity being proved, that he is not the child of the husband of such mother. 235. The action of a child to establish his status is imprescriptible. 236. This action cannot be brought by the heirs of a child who has failed to bring it, unless he died in minority, or within five years after his majority; but they may continue the action already brought. CHAPTER THIRD. OF ILLEGITIMATE CHILDREN. 237. Children born out of marriage, other than the issue of an incestuous or adulterous conmection, are legitimated by the subsequent marriage of their father and mother. IT 46 Civil Code of Lower Canada. ^ i '•;;i 238. Such legitimation takes place even in favor of the deceased children who have left legitimate issue, and in that case it benefits such issue. 239. Children legitimated by a subsequent marriage have the same rights as if they were bom of such marriage. 240. The forced or voluntary acknowledgment by the father or mother of their illegitimate child, gives the latter the right to demand maintenance from each of them, ac- cording to circumstances. 241. An illegitimate child has a right to establish judi- cially his claim of paternity or maternity, and the proof thereof Is made by writings or testimony, under the con- ditions and restrictions set forth in articles 232, 233 and 234. TITLE EIGHTH. OF PATERNAL AUTHORITY. 242. A child, whatever may be his age, owes honor and respect to his father and mother. 243. He remains subject to their authority until his majority or his emancipation, but the father alone exer- cises this authority during marriage; saving the provisions contained in the act 25 Vict., chap. 66. 244. An unemancipated minor cannot leave his father's house without his permission. 245. The father and, in his default, the mother of an unemancipated minor have over him a right of reasonable and moderate correction, which may be delegated to and exercised by those to whom his education has been en- trusted. S' i Minority, TntorsJdp and Emancipation. 47 wes lionoi" lis father's TITLE NINTH. OF MINORITY, TUTOKSHll' AND EMANCIPATION. CHAPTER FIRST. OF MINORITY. 246. Persons of either sex remain in minority until tliey attain the full age of twenty-one years. 247. Emancipation only modifies the condition of the minor; it does not put an end to the minority, nor does it confer all the rights resulting from majority. 248. The disabilities, rights and privileges resulting from minority, the acts the minor may do and the suits he may bring, the cases in which he may demand to be relieved, the manner and time of making the demand, and other like questions, are determined in the third book of the present code, and in the Code of Civil Procedure. CHAPTER SECOND. OF TCJTORSHIP. f-EOTION I. OF THE APPOINTMENT OF TUTORS. 249. All tutorships are dative; they are conferred on the advice of a family council, by a competent court or by any judge of such court, having civil jurisdiction in the district where the minor has his domicile, or by the pro- thonotary of such court. 250. The convocation of a family council may be de- manded by all those related or allied to the minor, with- out regard to the degree of relationship, by the subrogate- tutor, by the minor himself in certain cases, by his cre- ditors, and by all other persons Interested. 251. The persons to be called to a family council are those most nearly related or allied to the minor, to the number of seven at least, and taken, as equally as possible, from both the paternal and the maternal line. vH I pi m jH!i I ;i II 48 Civil Code of Loioer Canada. 262. With the exception of the mother nud other female ascendants during widowhood, the reiatious must be maios, of the full age of twenty-one years, and residing in the district where the appointment of the tutor is to be made. 253. If, however, a sufflcient number be not found in the district, they may be talten in other districts, and even in default of relations of both lines, the friends of the minor may be called to form or to complete ihe number required. 254. Persons related or allied to the minor, qualifleU to make part of the family council, and who have not been called, have a right to attend, and to give their advice as if they had been called. 265. The judge or prothonotary, on petition of .i com- petent person, calls before him the relations, connections, or friends of the minor who are to compose the family council, and for this purpose grants an order which is no- tified to the parties at the instance of fhe person seeking the convocation. 250. If the persons to be called reside at a greater distance than Ave leagues, the court, judge or prothonotary may, if requested, authorize a notary or other compe^ont person to hold such lamily council at the place where such parties reside, to administer the necessary oath, to take their advice on the appointments to be made, and even to administer the oath of office to the tutor chosen. 26V. In every case in which, according to the preceding articles, a judge may call before him. or delegate the right to call a family council, it is lawful for any notary, re- siding or present at the place where the meeting is to be held, without regard to distance, to call it himself without the authorization of the judge, and to act therein in the same manner in every respect as if he had been delegated by the judge, 258. The notary can, however, act in conformuy with the preceding article, only wnen he is requested to do so by one of those at whose instance such council might have been called before a judge; and in such case, the petitioner makes a declaration before the notary, of the object and motives of his demand, in the same manner as I I 31 ' I aer female , be mules, ng in tho > 1)6 made. , found in , and even ids of the tie numl)^r •, qualifled have not heir advice of .1 com- onnections, Ihe family hich is no- ion seeking a greater otho notary compe^^snt where such h, to tal() 11 I; Civil Code of Lotver Canada. All acts done subsequently by the person Interdicted for imbecility, madness or insanity are null; the acts done by any one to whom an adviser has been given, without the assistance of such adviser are null, if injurious to him, in the same manner as those of minors and of persons inter- dicted for prodigality, according to article 987. 335. Acts anterior to interdiction for imbecility, insanity or madness may nevertheless be set aside, if the cause of such interdiction notoriously existed at the time when these acts were done. 336. Interdiction ceases with the causes which neces- sitated it. Nevertheless it cannot be removed without ob- serving the formalities prescribed for obtaining it, and the interdicted person cannot resume the exercise of his rights until after the judgment removing fhe interdiction. CHAPTER SECOND (A). INTERDICTION OF HABITUAL DRUNKARDS. (1) 336a. May also be interdicted any habitual drunkard who squanders or mismanages his property or places his family in trouble or distress, or transacts his business pre- judicially to his family, his friends or his creditors, or who uses intoxicating liquors to such an extent that he thereljy incurs the danger of ruining his health or shortening his life. (1) n) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 1, 1 Feb.. 1S7C). a3<»^. The demand in interdiction is made by a peti- tion, under oath, presented to any one of the judges of the Superior Court, who alone shall have power to act, by any relations, whether of blood or by affinity, or, in default of relations, by any friend of such habitual drunkard. The judge may, for any of the reasons mentioned in the preceding article, set forth in the petition and established before him to his satisfaction, pronounce the interdiction of such habitual drunkard and appoint a curator to him, to (1) See art. 5503 R. S. Q., enacting a penalty for sale or grift of intoxicating liquors to persons interdicted for drunkenness. Majority, IntvrdUtion, Vuratorshiit and hdlivial Adciavra. (H interdicted acts done Ithout the to him, In jons inter- Y, insanity e cause of vhen these Ich neces- ithout ob- ig it, and ;lse of his Lterdlctlon. manage his affairs, as in the ease of one interdicted for prodigality. (1) (1) drunltard places his iiness pre- rs, or who le fherehy ening his 1, 1 Feb., a peti- ?es of the t, by any iefault of d. ed in the itablished diction of 3 him, to or grift of enness. (1). Added by R. S. Q., art. 5790 (33 Vict., c. 26, a. 1, 1 Feb., JSTO). The word "prodigality" in the last line of the article was substituted for "in.sanlty" by 42-43 Vict., c. 28, s. 1 (31 Oct.. 1879). 336c. Any person who, according to the common re- port of the neighborhood, has the reputation of being a drunkard, is considered as being an habitual drunkard within the meaning of this chapter. (1) (!) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 12, 1 Feb., 1S70). 338(?. The petition praying for the interdiction of any habitual drunkard Is personally served upon him at a time when he is sober, or, if at the time of the said service, the person whose interdiction is demanded is not sober, the petition is served upon a reasonable person of his family, at least eight days before that fixed for the appear- ance before the judge for the purpose of the Interdiction. (1) (1) Added by R. S. Q.. art. 5790 (33 Vict., c. 26, s. 5, 1 Feb., 1870). 336e. The interdiction is proceeded with, by summon- ing before such judge a family council as in the case of tutorships, under the provisions of this Code, and by taking the opinion, under oath, of each person compos- ing the family council, as to the truth of the fact of such person being an habitual drunkard and as to tlie neces- sity of such interdiction; but the person mating such demand in interdiction cannot form part of such family council. (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 2, 1 Feb., 1870). 336/. The person, whose interdiction is thus demanded, may produce before the judge witnesses to contradict the allegations of the petition and the evidence of any of the members of the family council; and eacla party may retain an advocate to conduct the proceedings on his behalf and to examine the witnesses before the judge, who may require, from the person instituting the demand in interdiction, 'I; [f! 1 If ,p_ f l?i i: Ui i 'I h G2 Oidi Code of Lower Canada. further evidence of the facts alleged in the petition, in addition to that of the family council. (1) ,,0) Added by R. S. Q., art. 6790 (33 Vict., c. 2«, s. tj, ] Feb., This latter act allowed each party to retain counsel as well as an advocate; and the words "and the evidence of any of the members of the family council" there read: 'and the evi- dence of any or all of the members of the family council." 336.V In proceeding to the Interdiction, the proof la taken orally or in writing, in the discretion of the judge; and it is not necessary that the person, whom it is sought to interdict, be interrogated before the judge (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, ss. 4 and 6. 1 Feb., 1870). 336/1. The decision of the judge Is final and without appeal, whether he grants the interdiction or rejects the demand therefor. (1) (1) Added by R. S. 1S70). Q., art. 5790 (33 Vict., c. 2G, s. 7, 1 Feb., 330/. The judgment ordering the interdiction may also order, if it have been prayed for, that tlie person inter- dicted be confined in an establishment for habitual drunlcards, for such space of time as may be deemed neces- sary. (1) (1) Added by R. S. Q.. art. 5790 (47 Vict., c. 21, s. 2, 10 June, 1SS4). S36j. Such order may, if not then obtained, be ap- plied for and obtained subsequently upon sufficient proof, upon petition presented to one of the judges of the Supe- rior Court in the district in which the interdicted person has his domicile, by observing the formalities prescribed in articles 336(?, 336e, 336/, and 336f7. (1) (1) Added by R. S. Q., art. 5790 (47 Vict., c. 1884). 21, s. 2. 10 June, 336k. The judgment must mention the name of the establisbnient in which the person, isi to be confined, the duration of the confinement, the name or names of the persons who are to carry out the order, a certified copy whereof is given to the director of the establishment at the same time as the person, is confided to his care. (1) (1) Added by R. S. Q., art. 5790 (47 Vict., c. 1884). 21, s. 2, 10 June, and 0. 1 Feb., s. 2, 10 June, s. 2, 10 June, Majoritu, IiiUrdUtlon, Vuruturslilp and J mticial Advisers. 63 336^ The order for confinement may be suspended or cancelled at any time by one of the judges of the Superior Court, upon summary petition accompanied by sufficient proof that the person may, in his own interest and in that of his family, be released. (1) (1) Added by R. S. Q., art. iui)0 (47 Vict., c. 21, s. 2, 10 June, 1884). 338///. If any demand in interdiction under this chapter be rejected, the same shall not be renewed before the ex- piration of three months. (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 8, 1 Feb., 1870.) 336 1. Any person interdicted as an habitual drunkard may be relieved from saich interdiction, after one year's sober habits, and the removal thereof is effected by observ- ing the same formalities as those prescribed to obtain the interdiction, and the person interdicted cannot regain the exercise of his civil rights, until after the judgment re- moving the interdiction. (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 9, 1 Feb., 1S70.) 3860. The wife, or the son of full age, of any person so interdicted, may be appointed his curator. When the wife of the person interdicted has been ap- pointed, she has all the powers of curators to persons interdicted for prodigality, and is subject to the provi- sions of article 180 of this Code, save in so far as regards acts of simple administi'atlon, and for such acts her ap- pointment as curatrix avails as full authorization. (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 10, 1 Feb., 1870.) 336jt>. Proceedings under this chapter are summary. (1) s. 2, 10 June, (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 13, 1 Feb., 1870.) 3367 The name of every person interdicted under this: chapter must be inscribed on the roll of Interdicted per- sons, as In other cases of interdiction. (1) (1) Added by R. S. Q., art. 5790 (33 Vict., c. 26, s. 14, 1 Feb., 1870.) ^. , : Irir 64 Ciiil Code of Lower Canada. SCHEDULE. A. FORM OF PETITION FOR INTERDICTION. Province of Quebec, District of To the Honorable A. B., one of the judges of the Superior Court for the Province of Quebec: C. D., of the parish of , in the said dis- trict, farmer by this his petition, respectfully represents: That for about year , E. F., of the said parish of , farmer (uncle or brother of the peti- tioner, as the case may be), has been an habitual drunkard, and that by reason of his drunkenness he squanders or mis- manages his property, or places his family in trouble or dis- tress, or transacts his business prejudicially to his family, his relations or his creditors, and that, therefore, it is desirable that in virtue of the law, the said E. F., be inter- dicted as an habitual drunkard. Wherefore, your petitioner prays that the interdiction of the said E. F., as an habitual drunkard, be pronounced in accordance with the law. B. FORM OF AFFIDAVIT WHICH MUST ACCOMPANY THE PETITION PRAYING FOR THE INTERDICTION. C. D., the petioner named in the foregoing petition, being duly sworn upon the Holy Evangelists, doth depose and say: That the facts alleged in the foregoing petition are true, and that the said petition hath not been made through malice, nor with a view to oppress. And he hath (declared himself to he unaUe to sign,) or (hatli signed) after the same hath been duly read to him. Sworn before me, at this . 18 J, S. C. le Superior Majority, Interdiction, Ciiratorship and Judicial Advisers. Go C. JUDGES OKDER, COXVENING A FAMILY COUSICIL TO PROCEED TO THE INTERDICTION. Considering the foregoing petition and affidavit, let the relations, whether of blood or by affinity, and in default of such relations, the friends of the said E. F., in the said petition mentioned, appear before me in chambers, in the court house, in the city or tovn, etc., on the day of .18 , at o'clock in the noon, for the purpose of proceeding upon the said petition. 18 J. S. C. E PETITION t CHAPTER SECOND (B). INTERDICTION OF PERSONS WHO MAKE USE OF OPIUM OR OrHER NARCOTICS. 336r. Mny also be interdicted any person who makes use of opium, morphine, or other narcotics, and who squanders or mismanages his property, or places his family in trouble or distress, or transacts his business prejudicially to his family, relatives or creditors, or incurs the danger of ruining his health or shortening his life. (1) (X) Added by 59 Vict., c. 40, s. 1 (21 Dec, 1895). 3365. The formalities prescribed by articles 3366, and 336(?' to B36g, inclusively, are observed with reference to obtaining the interdiction, the confinement of the inter- dicted person and the relief from Interdiction, in so far as they may apply thereto. (1) (1) Added by 59 Vict., c, 40, s. 1 (21 Dec, 1895). CHAPTER THIRD. OF CURATORS HIP. 337. There are two sorts of curatorship, one to the per- son, the other to property. 338. The persons to whom curators are given are: 1. Emancipated minors; 2. Interdicted persons; 3. Children conceived but not yet born. 66 Civil Code of Lower Ca/nada. sli ;.,; ■fi' ;:i 339. With the exception of curators to habitual drunk- ards, (1) curators to the person are appointed with the formalities and according to the rules prescribed for the appointment of tutors. Curators to the person (2) are sworn before entering upon their duties. (1) The words "with the exception of curators to habitual drunkards" were added by R. S. Q., art. 5791 (33 Vict., c. 26, s. 1, 1 Feb., 1S70). (2) The words "curators to the person" were substituted for the word "they" by 60 Vict., c. 50, s. 14 (1 Sept., 1897). 340. A curator to an emancipated minor has no control over his person; he is given in order to assist him in matters and proceedings in which he cannot act alone. This curatorship ends with the minority. 341. A curator to an interdicted person is appointed by the judgment which pronounces the interdiction. 342. The husband, unless there are valid reasons to the contrary, must be appointed curator to his interdicted wife. The wife may be curatrix to her husband. 343. The curator to a person interdicted for imbecility, insanity or madness has over such person and his property all the powers of a tutor over the person and property of a minor; and he is bound towards him in the same manner as the tutor is towards his pupil. These powers and obligations extend only to the property when the interdiction is for prodigality or habitual drunk- enness. (1) (1) The words "or habitual drunkenness" were added by R. S. Q., art. 5792 (42-43 Vict., c. 28, s. 1, 31 Oct., 1879). 344. [No one, with the exception of husband and wife, and ascendants and descendants, is obliged to retain the curatorship of an interdicted person for more than ten years; at the expiration of that time, the curator may de- mand and has a right to be replaced.] 345. The. curator to a child conceived but not yet born, is bound to act for such child whenever its interests require it; he has until its birth the administration of the pro- perty which is to belong to it, and afterwards he is bound to render an account of such administration. ;« Majority, Interdiction, CiiratorsMp and Judicial Advisers. 67 1 1 lal drunk- with the )d for the 3ring upon ;o habitual ^ict., c. 26, stituted for 597). no control ist him in act alone. pointed by »n. sons to the interdicted i. imbecility, is property d property the same tie property :ual drunk- dded by R. 346. If during the curatorship, the party subjected to it have any interests to discuss with his curator, such party is given, for that case, a curator ad hoc, whose powers only extend to the matters to be discussed. 347. Curators to property are those appointed: 1. To the property of absentees; 2. In cases of substitution; 3. To vacant estates; 4. To the property of extinct corporations; 5. To property abandoned by insolvent traders who have made an abandonment of their property for the benefit of their creditors, (1) or by arrested or imprisoned debtors, or on account of hypothecs; 6. To property accepted under benefit of inventory. (1) The words " by insolvent traders who have made an abandonment of their property for the benefit of their creditors," in sub.-sec. 5 were added by R. S. Q., art. 5793 (48 Vict., c. 22, s. 4, 9 May, 1885; 49-50 Vict., c. 12, s. 1). 347nr. Curators to property must be sworn before enter- ing upon their duties. (1) (1) Added by CO Vict., c. 50, s. 15, 1 Sept., 1879. 348. The provisions relating to curators to the property of absentees are contained in the title Of Absentees. Those concerning curators to the property of extinct corporations, in the title Of Corporations. In the third book and in the Code of Civil Procedure are to be found the rules touch- ing the appointment, powers and duties of the other cura- tors mentioned in the preceding article, who must also be sworn. CHAPTER FOURTH. f; 'm 1, and wife, retain the than ten or may de- t yet born, ests require 3f the pro- le is bound OF JUDICIAL ADVISERS. 349. A judicial adviser is given to those who, without being absolutely insane or prodigal, are nevertheless of wesk intellect, or so inclined to prodigality as to give reason to fear that they will dissipate their property or seriously impair their fortune. 350. Judicial advisers are given by those who have power to interdict, on the demand of any person who has a right to demand interdiction, and with the same .1 m ,f nPHHHniMi 68 Civil Code of Lower Canada. i r I! formalities. Such demand may also be made by the party himself. 351. If the powers of the judicial adviser be not defined by the judgment, the person to whom he is appointed is prohibited from pleading, transacting, borrowing, receiv- ing moveable capital and giving a discharge therefor, as also from alienating or hypothecating his property without the assistance of such adviser. The prohibition can only be removed in the same man- ner that the appointment has been made. CHAPTER FOURTH (A). SALE OF CERTAIN PROPERTY BELONGING TO ALINORS AND OI'HER INCAPABLE PERSONS. 331a. In the case of the sale of capital sums, such as shares or interest in financial, commercial or manufactur- ing joint stock companies, or public securities, belonging to minors, interdicted persons or absentees or to substitu- tions, the judge or the court, authorizing such sale upon the advice of a family council, may, if he or it deem it meet, order that the sale be made, at the current rate upon the stock exchange, by a broker or other person appointed for that purpose, without advertisement or other formalities; and the judge or court in case he or it may deem tTie same advisable, may authorize, during such delay as shall be determined, the gradual disposal of such securities at the current rate upon the stock exchange. The person appointed shall make a report of all sales by him made, and deposit it in the clerk's office where the authorization for the sale has been deposited, with an atfceistation under oath, showing the market value of simi- lar securities sold upon the stock exchange on the day of each sale. (1) (1) Added by R. S. Q., art. 5794 (42-43 Vict., c. 26, ss. 1 and 2, 31 Oct., 1879). 3516. Articles 298 and 299 of this Code, and tie fifth title of the third part of the Code of Civil Procedure, do not apply to the sale of immoveable property or immove- able rights, belonging to minors or persons incapable of acting for themselves, nor to the sales of the capital sums, shares or interest of such minors or persons in any finan- cial, commercial or manufacturing joint stock company, I the party same man- Corporations. 09 the real value of which does not exceed the sum of four hundred dollars. The sale may take place in the manner set forth in article 6016 of the Revised Statutes of Quebec. (1) (1) Added by R. S. Q., art. 5794 (35 Vict., c. 7, s. 1, 23 Dec, 1871). The words "or immoveable rights" were added to 35 Vict., c. 7, by 36 Vict., c. 18, s. 1 (24 Dec, 1872). The words "belonging' to minors or persons incapable of acting for themselves, nor to sales of the capital sums, shares or interests of such minors or persons, in any financial, com- mercial or manufacturing joint .stock company" were added to 35 Vict., c. 7 by 36 Vict., c 17, s. 1 (24 Dec, 1872). TITLE ELEVENTH. OP CORPORATIONS. ss. 1 and 2, CHAPTER FIRST. OF THE NATURE AND CREATION OF CORPORATIONS, AND OP TflKIR DIFFERENT KINDS. 352. Every corporation legally constituted is an artificial or ideal person, whose existence and succession are per- petual, or sometimes for a fixed period only, and which is capabV of enjoying certain rights and liable to certain obligations. 353. Corporations are constituted by act of parliament, by royal charter or by prescription. Those corporations also are reputed to be legally con- stituted which existed at the time of the cession of the country and which have been since continued and recog- nized by competent authority. 354. Coiporations are aggregate or sole, Corporations aggregate are those composed of several members; corporations sole are those consisting of a single individual. 355. Corporations are either ecclesiastical or religious, or they are lay or secular. Ecclesiastical corporations are aggregate or sole. They are all public. * '.Q I', , 70 Civil Code of Lower Canada. Secular corporations are either aggregate or sole. They are either public or private. 356. Secular corporations are further divided into poli- tical and civil; those that are political are governed by the public law, and only fall within the control of the civil law in their relations in certain respects, to individual members of society. Civil corporations constituting, by the fact of their in- corporation, ideal or artiiicial persons, are as such govern- ed by the laws affecting individuals; saving the privi- leges they enjoy and the disabilities they are subjected to CHAPTER SECOND. OF THK RIGHTS, PRIVILE(4ES, AND DISABILITIES OF CORPO- RATIONS. SECTION I. OF THffl R'GHTS OP CORPOUATrOXS. 367. Every corporation has a corporate name, which is given to it at its creation or which has since been recog- nized and approved by competent authority. Under such name the corporation is known and desig- nated, sues and is sued, and does all its acts and exercises all the rights which belong to it. 358. The rights which a corporation may exercise, be- sides those specially conferred by its title, or by the general laws applicable to its particular kind, are all those which are necessary to attain the object of its creation; thus it may acquire, alienate and possess property, sue and be Eiied, contract, incur obligations, and bind others in Its favor. 359. For these objects, every corporation has the right to select from its members, officers whose number and denominations are determined by the instrument of its creation or by its by-laws or regulations. 360. These officers represent the corporation in all acts, contracts or suits, and bind it in all matters which do not exceed the limits of the powers conferred on them. These powers are either determined by law, by the by-laws of the corporation, or by the nature of the duties imposed. Corporations. 71 361. Every corporation has a right to make, for its internal government, for the order of its proceedings and for the management of its affairs, by-laws and regulations which its members are bound to obey, provided they are legally and regularly passed. SECTION II. OF THE PRIVILEGES OF CORPOUATIONS. 362. Besides the special privileges which may be granted to each corporation by its title of creation or by special law, there are others which result from the fact of incor- poration and which exist of right in favor of all corporate bodies, unless taken away, restrained or modified by such title or by law. 363. The principal of these privileges is that which limita the responsibility of the members of a corporation to the iniere&t which each possesses therein, and exempts them from all personal liability for the payment of obli- gations contracted by the corporation within the scope of its powers and with the formalities required. SECTIOX III. OF THE DISABILITIES OF CORPORATIONS. 304. Corporations are subject to particular disabilities which either prevant or restrain them from exercising certain rights, powers, privileges and functions, which natural persons may enjoy and exercise; these disabilities arise either from their corporate character or they are im- posed by law. 365. In consequence of the d ibilities which arise from their corporate character, they can neither be tutors nor curators, (1) nor 3an they take part in meetings oY family councils. They cannot be entrusted with the execution of wills or any other administration which necessitates the takmg of an oath, or imposes personal responsibility. They cannot be summoned personally, nor appear in court otherwise than by attorney. They cannot sue nor be sued for assaults, battery or other violence to the person. ? ft ' f, « 1 h! !'; '( ■k' t ' .! I:, i 72 CivU Code of Lower Canada. They cannot serve as witnesses nor as jurors betore the courts. They can neither be guardians nor judicial sequestra- tors, nor can they be charged with any other functions or duties the exercise of which might entail ^imprison- ment. (1) The words "saving the exception contained in chapter 34 of the Consolidated Statutes of Canada," following after the word "curators," were struck out of the original article by R. S. Q., art. 5795 (Consol. Statutes of Lower Can., c. 34, s. G. ]S(iOj. Reference is now made for this exception to art. 5.504 R. S. Q., which reads as follows:— " The commissioners appointed by the lieutenant-governor for superintending the Hotel-Dleu at Quebec, the General Hospital of the Grey Nuns at Montreal, the General Hospital at Quebec, or any institution receiving foundlings in the dis- trict of Three Rivers, and their successors in office, are the legal tutors of the foundlings in the institutions with reference to which they have been respectively appointed, and have such powers as they would have, if appointed to be such tutors in the ordinary course of law." 366. The disabilities arising from the law are: 1. Those which are imposed on each corporation by its title, or by any law applicable to the class to which such corporation belongs; 2. Those comprised in the general laws of the country respecting mortmains and bodies corporate, prohibiting them from acquiring immoveable property or property so reputed, without the permission of the crown, except for certain purposes only, and tp a fixed amount and value; 3. Those which result from the same general laws im- posing, for the alienation or hypothecation of immoveable property held in mortmain or belonging to corporate bodies, particular formalities, not required by the common law. 866ff. All corporations which, under the provisions of their charters or of the law, cannot acquire real estate except to a limited amount, have the right, whenever they dispose of or alienate any real estate belonging to them, to apply the price thereof to the acquisition of other real estate, and also to receive the revenues thereof and to employ the same for the objects for which they were con- stituted. (1) 1, 31 (1) Added bv R. S. Q., art. 5796 (42-43 Vict., c. 34, s. Oct., 1879). 867. All corporations are prohibited from carrying on the business of banking unless they have been specially authorized to do so by their title of creation. Corporations^ 73 CHAPTER THIRD. OF THE DISSOLUTION OP CORPORATIONS AND THE LIQUIDATION OF THEIR AFFAIRS. SECTION I. OF THE DISSOLUTION OF CORPORATIONS. 368. Corporations are dissolved: 1. By any act of the legislature declaring their disso- lution; 2. By the expiration of the term or the accomplishment of the object for which they were formed, or the happening of the condition attached to their creation; 3. By forfeiture legally incurred; 4. By the natural death of all the members, the dimi- nution of their number, or by any other cause of a nature to interrupt the corporate existence, when the right of succession is not provided for in such cases; 5. By the mutual consent of all the members, subject to the modifications and under the circumstances hereinafter determined; 6. By voluntary liquidation in the cases by law pro- vided. (1) (1) No. 6 added by R. S. Q. art. 5797 (42-43 Vict., c. 31, ss. 5 and 22, 31 Oct., 1879). 369. Ecclesiastical and secular corporations of a public nature, other than those formed for the mutual assistance of their members, cannot be dissolved by mutual consent without a formal and legal surrender or the authority of the legislature, as the case may be. The same rule applies to banks, to railway, canal, tele- graph, toll-bridge, and turnpike companies, and generally to private corporations who have obtained privileges which are exclusive or exceed those resulting by law from incorpora- tion. 'h ^■■A 370. Public corporations formed for the mutual assist- ance of their members, and those of a private nature not included in the preceding article, may be dissolved by mutual consent, on conforming to the conditions which may have been specially imposed on them, and saving the rights of third parties. II ^1?^ 74 Civil Code of Lower Canada. in \ ^^ ii 8KCTI0N II. OP THK LIQUIDATION OP THE AFPAIItS OF lIsSOLVED CORPORATIONS. 371. Saving the case of the voluntary liquidation of joint stock companies, a dissolved corporation Is, for the liquidation of its a. fairs, in the same position as a vacant succesaion. The creditors and others interested have the same recourse against the property which belonged to it, as may be exercised against vacant successions and the property belonging to them. (1) (1) The words "saving the case of a voluntary liquidation ot joint stock companies" were added bv R. S. Q., art. 579S (42-43 Vict., c. 31, s. 22, 31 Oct., 1879). 372. In order to facilitate such recourse, a curator, who represents such corporation and is seized of the property which belonged to it, is appointed by the proper court, with the formalities observed in the case of vacant 'estates. 373. Such curator must be sworn; he must give security and make an inventory. He must also dispose of the moveables, and must proceed to the sale of the immoveable property, and to the distribution of the price bet-veen the creditors and others entitled to it, in the manner pre- scribed for the discussion, distribution and division of the property of vacant estates to which a curator has been ap- pointed, and in the cases and with the formalities required by the Code of Civil Procedure. S'/Sa. In the case of the voluntary liquidation of a joint stock company, one or more liquidators are appointed in the manner required by law, for the purpose of winding up the affairs and of distributing the assets of the com- pany. (1) (1) Added by R. S. Q., art. 5799 (42-43 Vict., c. 31, ss. .'. and 22, 31 Oct.. 1879). Distinction of Thimja. 7ft BOOK SECOND. OF PKOrEBTY, UP OWNEKSHIP AND OF ITS DIFFKRENT MODIFICATIONS. TITLE FIRST. OP THE DISTINCTION OF THINGS. 374. All property, incorporeal as well as corporeal, is moveable or immoveable. CHAPTER FIRST. OF IMMOVEABLES. 375. Property is immoveable either by its nature, or uy its destination, or by reason of t"he object to wiiich it is attached, or lastly by determination of law. 376. Lands and buildings are immoveable by tlieir nature. 377. Windmills and water-mills, built on piles and form- ing part of the building, are" also immoveable by their nature when they are constructed for a permanency. 376. Crops uncut and fruits unplucked are also im- moveable. According as grain is cut and as fruit is plucked, they become moveable in so far as regards the portion cut or plucked. The same rule applies to trees; they are im- moveable so long as they are attached to the ground by their roots and they become moveable as soon as they are felled. 379. Moveable things which a proprietor has placed on his real property for a permanency or which he has in- corporated therewith, are immoveable by their destination so long as they remain there. Thus, within these restrictions, the following and other like objects are immoveable: i\ ^•p! \ I »n^ ,s&rv> - ^. IMAGE EVALUATION TEST TARGET (MT.3) 1.0 I.I 1.25 1.4 2.5 |Z2 1.6 V] <^ /2 / <$> :"^»>^ c*^ .>: Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 76 Civil Code of Lower Canada. 1 ii' 1. Presses, boilers, stills, vats and tuns; 2. All utensils necessary for working forges, paper-mills and other manufactories. Manure, and the straw and other substances Intended for manure, are likewise immoveable by destination. 380. Those things are considered as being attached for a permanency which are placed by the proprietor and fas- tened with iron and nails, imbedded in plaster, lime or cement, or which cannot be removed without breakage, or without destroying or deteriorating that part of the pro- perty to which they are attached. Mirrors, pictures and other ornaments are considered to have been placed permanently when without them the part of the room they cover would remain incomplete or imperfect. 381. Riglits of emphyteusis, of usufruct of Immoveable things, of use and habitation, servitudes, and rights or actions which tend to obtain possession of an immoveable, are immoveable by reason of the objects to which they are attached. 382. All moveable property, of which the law ordains or authorizes the realization, becomes Immoveable by determination of law, either absolutely or for certain purposes. The law declares to be immoveable the capital of unre- deemed constituted rents that were created before the pro- mulgation of this code, as also all moneys produced by the redemption during their minority of constituted rents be- longing to minors. The same rule applies to all sums accruing to a minor from the sale of his Immoveables during his minority, which sums remain Immoveable so long as tlie minority lasts. The law declares to be Immoveable all sums given by ascendants to their children, in contemplation of marriage, to be used In the purchase of real estate or to remain as private property to them only or to them and to their children. CHAPTER SECOND. OF MOVEABLES, 383. Property is moveable by Its nature or by deter- mination of law. !l Distinction of Things. 77 384 . All bodies which can be moved from one place to another, either by themselves, as animals, or by extrinsic force, as inanimate things, are moveable by nature. 385. Boats, scows, ships, floating mills and floating baths and generally all manufactories not built on piles and not forming part of the realty, are moveable. 386. Materials arising from the demolition of a building, or of a wall or other fence, and those collected for the construction of a new one, are moveable so long as they are not used. But things forming part of a building, wall or fence, and which are only temporarily separated from it, do not cease to be immoveable so long as they are destined to be placed back again. 387. Those immoveables are moveable by determination of law, of which the law for certain purposes authorizes the mobilization, so are all obligations and actions re- specting moveable effects, including debts created or guar- anteed by the province or by corporations, also all shares or interests in flnancial, commercial or manufacturing companies, although such companies, for the purposes of their business, should own immoveables. These immove- ables are reputed to be moveable with regard to each partner, only so long as the company lasts. 388. [Constituted rents and all other perpetual or life rents, are also moveable by determination of law; saving those resulting from emphyteusis, which are immoveable.] 389. No ground-rent, or other rent, affecting real estate, can be created for a term exceeding ninety-nine years, or the lives of three persons consecutively. These terms having expired, the creditor of any such rent may exact the capital of it. Such rents although created for ninety-^nine years, or for the lives of three persons, are, at all times, redeemable, at the option of the debtor, in the same manner as constituted rents to which they are assimilated. 390. It is nevertheless competent for the parties to stipulate, in the title creating these rents, that they shall only be redeemed at a certain time agreed upon, which cannot exceed thirty years; every stipulation extending this term being null with regard to the excess. i i! k i;i 78 Civil Code of Lower Canada. 391. All ground-rents, or other rents, affecting real estate, created heretofore, for a term exceeding ninety-nine years or the lives of three persons, are redeemable at the option of the debtor or of the possessor of the immoveable charged. 392. Rents created by emphyteutic lease are not how- ever subject to such redemption, nor those to which the creditor has only a conditional or a limited right. 393. [Where the sum for which the redemption of rents, other than life-rents, may take place is neither fixed by law nor validly agreed upon, the rents are redeemed by the repayment of the original price in capital, or of the value in money put by the parties upon the things which formed the consideration of the rents so created. If such price or such value do not appear, the redemption is effected by the payment of a sum sufficient to produce a like rent for the future, at the Idgal rate of interest at the time of the redemption.] Special provisions concerning the redemption of the rents substituted for seigniorial rigfhts, are contained in chapter forty-one of the Consolidated Statutes for Lower Canada. See arts. 5505 to 5534 R. seigniories. S. Q., for provisions relating to 394. [Life-rents and other temporary rents, at the ter- mination of which no reimbursement of the capital is to take place, are not redeemable at the option of either of the parties alone. In the twelfth title of the third book, a mode is provided for the redemption of life-rents, when it takes place forcibly under judicial proceedings. Temporary rents, other than life-rents, and not subject to reimbursement of the capital, are estimated, in like case, in the same manner as life-rents.] 395. Tke word "moveables" employed alone in any law or act, does not comprise money, precious stones, debts due, books, medals, scientific, artistic or mechanical in- struments, body-linen, horses, carriages, arms, grain, wines, hay and other provisions, nor stock in trade. 396. The word "furniture" comprises only th« moveables which are destined to furnish and ornament apartments, Distinction of Things. n law ebts m- ines, such as tapestry, beds, seats, mirrors, clocks, tables, china and other objects of a like kind. It also comprises pictures and statues, but not collec- tions of pictures which are in galleries or particular rooms. As regards china, likewise, only that which forms part of the decoration of a room comes under the denomination of furniture. 397. The expressions "moveable property," knd "move- able things" comprise generally whatever is reputed move- able according to the rules above established'. In the sale or the gift of a "furnished house" the word "furnished" comprises no other moveables than furniture. 398. The sale or gift of a house with all that it contains, does not comprise ready money, nor debts due or other rights the titles to which happen to be in the house. It comprises all other moveable effects. CHAPTER THIRD. OF PROPERTY IN ITS RELATIONS WITH THOSE TO WHOM IT BELONGS OR WHO POSSESS IT. 399. Property belongs either to the crown, or to muni- cipalities or other corporations, or to individuals. That of the first kind is governed by public or adminis- trative law. That of the second is subject, in certain respects as to its administration, its acquisition and its alienation, to cer- tain rules and formalities which are peculiar to it. As to individuals, they have the free disposal of the things belonging to them, under the modifications estab- lished by law. 400. Roads and public ways maintained by the state, navigable and floatable rivers and streams and their banks, the sea-shore, lands reclaimed from the sea, ports, harbors and roadsteads and generally all those portions of terri- tory which do not constitute private property, are con- sidered as being dependencies of the crown domain. 401. All estates which are vacant or without an owner, and those of persons who die without representa- tives or whose succession is abandoned, belong to the crown. il u I l! !l 80 Civil Code of Lower Canada. 402. The gatns, walls, ditches and ramparts of military places and of fortresses also belong to the crown. 403. The same rule applies to the lands, fortifications and ramparts of places which are no longer used for mili- tary purposes; they belong to the crown, if they have not been validly alienated. 404. The property of municipalities and other corpora- tions is that to which or to the use of which these bodies have an acquired right. 405. A person may have on property either a rlghc of ownership, or a simple right of enjoyment, or a servitude to exercise. TITLE SECOND. OF OWNERSHIP. 406. Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or \by regulations. 407. No one can be compelled to give up his property) except for public utility and in consideration of a just in- demnity previously paid. 408. Ownership in a thing whether moveable or im- moveable gives the right to all it produces, and to all that is joined to it as an accessory whether naturally or arti- ficially. This right is called the right of accession. CHAPTER FIRST. OF THE RIGHT OF ACCESSION OVER WHAT IS PRODUCED BY A THING. 409. The natural and industrial fruits of the earth, civil fruits, and the increase of animals, belong to tlie pro- prietor by right of accession. 410. The fruits produced by a thing, only belong to the proprietor suT)ject to the obligation of restoring the cost of the ploughing, tilling and sowing done by third persons. 1 V f Ownership. 81 411. A mere possessor only acquires the fruits in the case of his possession being in good faith; otherwise he is obliged to give the produce as well as the thing itself to the proprietor who claims it. A possessor in good faith is not bound to set off the fruits against improvements for which he has a right to be reimbursed. \\ 412. A possessor is in good faith when he possesses in virtue of a title the dedfects of which, as well as the happen- ing of the resolutory cause which puts an end to it are unknown to him. Such good faith ceases only from the moment that these defects or the resolutory cause are made known to him by proceedings at law. CHAPTER SECOND. OF THE JtlGHT OF ACCESSION OVER WHAT BECOMES UNITED AND INCORPORATED WITH A THING. 413. Whatever becomes united to or incorporated with a thing belongs to the proprietor, according to the rules hereinafter established. SECTION I. OF THE RIGHT OF ACCESSION IN RELATION TO IMMOVEABLE PROPERTY. 414. Ownership of the soil carries with it ownership of what is above and what is below it. Th€i proprietor may make upon the soil any plantations or buildings he thinks proper, saving the exceptions es- tablished in the title Of Real Servitudes. He may make below it any buildings or excavations he thinks proper, and draw from such excavations any pro- ducts they may yield, saving the modifications resulting from the laws and regulations relating to mines, and the laws and regulations of police. 415. All buildings, plantations and works on any land or underground, are presumed to have been made by the pro- prietor at his own cost, and to belong to him, unless the contrary 4s proved; without prejudice to any right of pro- perty, either in a cellar under the building of another or in any other pairt of such building, which a third party may have acquired or may acquire by prescription. 82 Civil Code of Lower Canada. 410. The proprietor of the soil who has constructed buildings or works with materials which do not belong to him, must pay the value thereof; he may also be condemn- ed to pay damages, if there be any, but the proprietor of the materials has no right to take them away. 417. When improvemenls have been made by a possessor with his own materials, the right of the proprietor to such improvements depends on their nature and the good or bad faith of such possessor. If they were necessary, the proprietor of the land cannot have them taken away; he must, in all oases, pay what they cost, even when they no longer exist; saving, in, the case of bad faith, the compensation of rents, issues and profits. If they were not necessary, and were made by a possessor in good faith, the proprietor is obliged to keep them, if they still exist, and to pay either the amount they cost or that to the extent of which the value of the land has been augmented. If, on the contrary, the possessor were in bad faith, the proprietor has the option either of keeping them, upon paying what they cost or their actual value, or of per- mitting such possessor, if the latter can do so with advan- tage to himself and without deteriorating the laud, to re- move them at his own expense; otherwise, in each case, the improvements belong to the owner, without indemnifica- tion; the owner may, in every case, compel the possessor In bad faith to remove them. 418. In the case of the third paragraph of the preceding article, if the improvements made by the possessor be so extensive and costly that the owner of the land cannot pay for them, he may, according to the circumstances and to the discretion of the court, compel the possessor to keep the property, and to pay the estimated value of it. 419. In case the party in possession is forced to give up the Immoveable upon which he has made improvements for which he is entitled to be reimbursed, he has a right to retain the property until such reimhursement is made, "Without prejudice to his personal recourse to oblain re- payment; saving the case of surrender in any hyiK>thecary action, which is specially provided for in the title Of Privi- leges and Hypothecs. Ownership. 83 420. Deposits of earth and augmentations which are gradually and Imperceptibly formed on land contiguous to a stream or river are called alluvion. Whether the stream or river is or is not navigable or floatable, the alluvion which is produced becomes the pro- perty of the owner of the adjacent land, subject in the former case, to the obligation of leaving a foot-road or tow-path. 421. As to ground left dry by running water which in- sensibly withdraws from one of its banks by bearing in upon the other, the proprietor of the uncovered bank gains such ground, and the proprietor of the opposite bank cannot reclaim the land he has lost. This right does not exist as regards land reclaimed from the sea, which forms part of the public domain. 422. Alluvion does not take place on the borders of lakes and ponds which are private property; neither the pro- prietor of the lake nor the proprietor of the adjacent land gains or loses in consequence of the waters happening to rise or fall above or below their ordinary level. 423. If a river or stream, whether navigable or not, carry away by sudden force a considerable and disfinguish- able part of an adjacent field and bear it towards a lower or opposite bank, the proprietor of the part carried away may reclaim it; [but he is obliged, on pain of forfeiting his right, to do so within a year, to be reckoned from the possession taken of it by the proprietor of the land to which it ho been united.] 424. Islands, islets and deposits of earth formed in the beds of navigable or floatable rivers and streams belong id the crown, if there be no title to the contrary. 426. Islands and deposits of earth which are formed in rivers which are not navigable or floatable belong to the proprietors of the banks on the side where the island is formed. If the island be not formed on one side only, it belongs to the proprietors of the banks on both sides, divided by a line supposed to be drawn in the middle of the river. 426. If a river or stream, by forming a new branch, cut and surround the field of a proprietor contiguous to it, 81 Civil Code of Loioer Canada. and thereby form an island, the proprietor retains the pro- perty of his field, although the island be formed in a navig- able or floatable river or stream. 427. If a navigable or floatable river or stream abandon its course to take a new one, the former bed belongs to the crown. If the river be not navigable or floatable, the proprietors of the land newly occupied take as an indem- nity the ancient bed, each in proportion to the land which has been taken from him. 428. Pigeons, rabbits and flsh which go into another dove-cote, warren or pond, become the property of him to whom such pond, warren or dove-cote belongs, provided they have not been attracted there by fraud or artifice. Bees living in a state of freedom are the property of the person discovering them, whether or not he be proprietor of the land on which they have established themselves. Whenever a swarm of bees leaves a hive, the proprietor may reclaim them, so long as he can prove his right of property therein, and he is entitled to take possession of them at amy place on which, they may settle, even if such place be on the land of another person, provided, however, that he notify the proprietor of such land and compensate him for all damages, and unless the swarm settles in a hive which is already occupied, in which case the proprietor loses all right of property in such swarm. If the proprietor of a swarm of bees decline to follow such swarm', and another person undertake the pursuit, such other person is substituted in the rigihts of the pro- prietor, and every swarm which is not followed becomes the property of the proprietor of the land on which it settles, without regard to the place from which it came. Any unpursued swarm which lodges on any property whatsoever, without settling thereon, may be secured by the first comer, unless the proprietor of the land objects. (1) (1) The matter relating to bees was added by R. S. Q., art. BSOO (28 Vict., c. 8, ss. 1, 2, 3, 4 and 6). SECTION II. OF THE RIGHT OP ACCESSION IN RELA.TI0N^T0 MOVEABLR PROPERTY. 429. The right of accession, when it has for its object two moveable things, belonging to two different owners, is entirely subordinate to the principles of naturail equity. Ownership, 86 The following rules which are obligatory In tlie oases where they apply, serve as examples in the cases not pro- vided for, according to circumstances. 430. When two things belonging to different owners have been united so as to form a whole, although they are separable and one can subsist without the other, the whole belongs to the owner of the thing which forms the prin- cipal part, subject to the obligation of paying the value of the other thing, to him to whom it belonged. 431. That part is reputed to be the principal one to which the other has been united only for the use, ornament or completion of the former. 432. However, when the thing united is mucli more valuable than the principal thing, and has been employed without the knowledge of its owner, he may require that the thing so united be separated in order to be returned to him, although the thing to which it ha« been Joined may thereby suffer some injury. 433. If of two things united so as to form a whole, one cannot be considered as the accessory of the other, the more valuable, or, if the values be nearly equal, the more considerable in bulk, Is deemed to be the principal. 434. If an artisan or any other person have made use of any material which did not belong to him to form a thing of a new description, whether the material can resume its previous form or not, he who was the owner of it has a right to demand the thing so formed, on paying the price of the workmanship. 435. If however the workmanship be so important that It greatly exceeds the value of the material employed, it is then considered as the principal part, and the workman has a right to retain the thing, on paying the price of the material to the proprietor. 436. When a person has made use of materials which in part belonged to him and in part did not, to make a thing of a different kind, without either of the two materials being entirely destroyed, but in such a way that they can- not be separated without inconvenience, the thing is com- mon to the two proprietors, in proportion, as respects the 86 I': Civil Code of Lower Canada. one, to the material belonging to lilm, and as respects tbe other, to the material belonging to him and to the price of the workmanship. 437. When a thing has been formed by the admixture of several materials belonging to different proprietors, but of which neither can be looked upon as the principal matter, if the materials can be separated, the owner, with- out whose knowledge the materials have been mixed, may demand their division. If the materials cannot be separated without inconveni- ence, the parties acquire the ownership of the thing In common, in proportion to the quantity, quality and value of the materials belonging to each. 438. If the material belonging to one of the proprie- tors be much superior In quantity and price, In that case the proprietor of the material of superior value may claim the thing produced by the admixture, on paying to the other the value of his material. > ) 439. When the thing remains In common among the proprietors of the materials from which It is made, it must be disposed of by licitation for the common benefit, If any one of them demand It. 440. In all oases where a proprietor whose material has been employed without his consent, to make a thing of a different description, may claim the proprietorship of such thing, he has the choice of demanding the restitution of his material In the same kind, quantity, weight, measure and quality, or Its value. 441. Whoever is bound to give back a moveable object upon which he has made Improvements or additions for which he is entitled to be reimbursed, may retain such ob- ject until he has been so reimbursed, without prejudice to his personal remedy. 442. Persons who have employed materials belonging to others and without their consent, may be condemned to pay damages If any there be. Uau/ruct, Use and Hahitaiion. TITLE THIRD. OF USUFRUCT, USE AND HABITATION. 87 I \ CHAPTER FIRST. OP USUFRUCT. 443. Usufruct is the right of enjoying things of which another has the ownership, as the proprietor himself, but subject to the obligation of preserving the substance thereof. 444. Usufruct may be established by law, or by the will of man. 445. Usufruct may be established purely or condition- ally, and may commence at once or from a certain day. 448. It may be established upon property of all kinds, moveable or immoveable. SECTION I. OF THE RIGHTS OF THE USUFRUCTUARY. 447. The usufructuary has the right to enjoy every kind of fruits, whether natural, industrial or civil, which the thing subject to the usufruct can produce. 448. Natural fruits are those which are the spontaneous produce of the soil. The produce and the Increase of animals are also natural fruits. The Industrial fruits of the soil are those obtained by the cultivation or working thereof. 449. Civil fruits are the rent of houses. Interest of sums due and arrears of rents. The rent due for the lease of farms la also Included in the class of civil fruits. 450. Natural and industrial fruits aittached by branches or roots, at the moment when the usufruct Is open, belong to the usufructuary. Those in the same condition at the moment when the i I "'■'^ 'jl 88 Civil Code of Lower Canada. usufruct ceases, belong to the proprietor, without recom- pense on either side for ploughing or sowing, but also with- out prejudice to the portion of the fruits which may be acquired by a farmer on shares, if there be one at the com- mencement or at the termination of the usufruct. 451. Civil fruits are considered to be acquired day by day, and belong to the usufructuary in proportion to the duration of his usufruct. This rule applies to rent from the lease of farms, as it does to the rent of houses and to other civil fruits. 452. If the usufruct comprise things which cannot be used without being consumed, such as money, grain, liquors, the usufructuary has the right to use them, but subject to the obligation of paying back others of like quantity, quali- ty and value, or their equivalent in money, at the end of the usufruct. 453. The usufruct of a life-rent gives also to the usu- fructuary, during the period of his usufruct, the right to retain the whole of the payments that he has received as payable in advance, without being obliged to make any restitution. 454. If the usufruct comprise thin^ which, without being at once consumed, deteriorate gradually by use, as linen or furniture, the usufructuary has the right to use them for the purpose for which they are destined, and, at the end of the usufruct, he is only obliged to restore them in the condition in whicli they may be, and not deteriorated by his fraud or fault. 455. The usufructuary cannot fell trees which grow on the land subject to the usufruct. Whatever he may require for his own use must be taken from those which have fallen accidentally. If however among the latter there be not a sufficient quantity of a suitable kind for the repairs to which he is obliged, and for the keeping in repair and the working of the estate, he has a right to fell whatever may be required for these purposes, conformably to the usage of the place, or to the custom of proprietors; he may even fell trees for fuel, if there be any of the kind generally used in the locality for that purpose. Uftvfrvcf, Use and HahHation. 89 456. Any fruit trees which die, even those which are uprooted or broken by accident, belong to the usufructuary, but he is obliged to replace them by others, unless the larger proportion has been thus destroyed, in which case he is not obliged to replace them. 457. The usufructuary may enjoy his right by himself, or lease it, and may even sell it or dispose of it gratuit- ously. If he lease it, the lease expires with his usufruct; never- theless the farmer or the tenant has a right and may be compelled to continue his enjoyment during the rest of the year which had begun before the usufruct expired; subject to the payment of the rent to the propiietor. 458. The usufructuary enjoys any augmentation caused by alluvion to the land of which he has the usufruct. But his right does not extend to islands formed during the usufruct near the land which is subject to it and to which such islands belong. 459. He enjoys all rights of servitude, of passage, and generally all the rights of the proprietor in the same man- ner as the proprietor himself. 460.' Mines and quarries are not comprised in the usu- fruct of land. The usufructuary may nevertheless take therefrom all the materials necessary for the repair and maintenance ot the estate subject to his right. If however these quarries, before the opening of the usufruct, have been worked as a source of revenue by the proprietor, the usufructuary may continue such working in the way in which it has been begun. 461. The usufructuary has no right over treasure found, during the usufruct, on the land which is subject to it. 462. The proprietor cannot, by any act of his whatever, Injure the rights of the usufructuary. On his side, the usufructuary cannot, at the cessation of the usufruct, claim indemnity for any improvements he has made, even when the value of the thing is augmented thereby. He may however take away the mirrors, pictures and other ornaments which he has placed there, but subject to the obligation of restoring the property to its former condition. 90 Civil Code of Lower Canada. SECTION II. OP THE OBLIGATIONS OF THE USUFRUCTUARY. 463. The usufructuary takes the things in the condition In which they are; but he can only enter into the enjoy- ment oif them after having caused an inventory of the moveable property and a statement of the immoveables subject to his right to be drawn up, in the presence of or after due notice given to the proprietor, unless he is dis- pensed from doing so by the act constituting the usufruct. 464. He gives security to enjoy the usufruct as a pru- dent administrator, unless the act creating it exempts him from so doing; nevertheless the vendor or donor who has reserved the usufruct is not obliged to give security. 465. If the usufructuary cannot give security, the im- moveables are leased, farmed or sequestrated. Sums of money comprised in the usufruct are invested; provisions, and other moveable things which are con- sumable by use, are sold, and the price produced is like- wise invested. The interest of such sums of money, and the rent from leases belong in these cases to the usufructuary. 466. In default of security the proprietor may require that moveable property liable to be deteriorated by use, be sold in order that the price may be invested and re- ceived as in the preceding article. Nevertheless the usufructuary may demand and the court may grant, according to circumstances, that a portion of the moveables necessary for his use may be left to him on the simple security of his oath, and subject to the obliga- tion of producing them at the expiration of the usufruct. 467. The delay to give security does not deprive the usufructuary of whatever fruits he is entitled to; they are due to him from the moment the usufruct is open. 468. The usufructuary is only liable for the lesser re- pairs. For the greater repairs the proprietor remains liable, unless they result from the neglect of the lesser repairs since the commencement of the usufruct, in which case the usufructuary is also held liable. I ' Usufruct, Use and Eahitation. 91 469. The greater repairs are those of main walls and vaults, the restoration of beams and the entire roofs and also the entire reparation of dams, prop-walls and fences. All other repairs are lesser repairs. 470. Neither the proprietor not the usufructuary is obliged to rebuild what has fallen into decay or what has been destroyed by unforeseen event. 471. The usfructuary is liable, during his enjoyment, for all ordinary charges, such as ground-rents and other an- nual dues and contributions encumbering the property when the usufruct begins. He is likewise liable for all charges of an extraordinary nature imposed thereupon since that time, such as assess- ments for the erection and repair of churches, public and municipal contributions and other like burthens. 472. A legacy made by a testator of a life-rent or ali- mentary pension, must be entirely paid by the universal legatee of the usufruct, or by the legatee by general title of the usufruct according to the extent of his enjoyment, without any recourse in either case. 473. A usufructuary by particular title is not liable for the payment of any part of the hereditary debts, not even of those for which the land subject to the usufruct is hypo- thecated. If he be forced, in order to retain his enjoyment, to pay any of these debts, he has his recourse against the debtor and against the proprietor of the land. 474. A general usufructuary or a usufructuary by gen- eral title must contribute with the proprietor to the pay- ment of the debts as follows: The immoveables and other things subject to the usu- fruct are valued, and the contribution to the debts fixed in proportion to such value. If the usufructuary advance the sum for which the pro- prietor must contribute, the capital of it is restored to him at the expiration of the usufruct, without interest. If the usufructuary will not make this advance, the pro- prietor has the choice either of paying the sum, and in such case the usufructuary is obliged to pay him the interest thereon during the continuance of the usufruct, or of caus- ing a sufficient portion of the property subject to the usufruct to be sold. r 1 -dp 92 Civil Code of Lower Canada. 475. The usufructuary is only liable for the costs of such suits as relate to the enjoyment, and for any other con- demnations to which these suits may give rise. 476. If during the continuance of the usufruct, a third party commit any encroachments on the land, or other- wise attack the rights of the proprietor, the usufructuary is obliged to notify him of it, and in default thereof he is responsible for all the damage which may result therefrom to the proprietor, in the same manner as he would be if the injury were done by himself. 477. If an animal only be the subject of the usufruct, and it perish without the fault of the usufructuary, he Is not bound to give back another, nor to pay its value. 478. If the usufruct be created on a herd or flock, and it perish entirely by accident or disease, and without the fault of the usufructuary, he is only obliged to account to the proprietor for the skins or their value. If the flock do not perish entirely, the usufructuary is obliged to replace the animals which have perished, up to the number of the increase. SECTION III. OP THE TERMINATION OF USUFRUCT. 479. Usufruct ends by the natural or civil death of the usufructuary, if for life; By the expiration of the time for which it was granted; By the confusion or reunion in one person of the two qualities of usufructuary and of proprietor; By non-user of the right during thirty years, and by prescription acquired by third persons; By the total loss of the thing on which the usufruct is established. 480. Usufruct may also cease by reason of the abuse the usufructuary makes of his enjoyment, either by commit- tiag waste on the property or by allowing it to depreciate for want of care. The creditors of the usufructuary may intervene in con- testations, for the preservation of their rights; they may offer to repair the injury done and give security for the future. II Usufruct, Use and Habitation. 93 The courts may, according to the gravity of the circum- stances, either pronounce the absolute extinction of the Ufcufruct, or only permit the entry of the proprietor into possession of the object charged with it, subject to the obligation of annually paying to the usufructuary or to his representatives a fixed sum, until the time when tlie usu- fruct shall cease. 481. A usufruct which is granted without term to a corporation only lasts thirty years. 482. A usufruct granted until a third party reaches a certain fixed age, continues until such time, although the third person should die before that age. 483. The sale of the thing subject to usufruct does not In any respect change the right of the usufructuary; he continues to enjoy his usufruct, unless he has formally renounced it. 484. The creditors of the usufructuary may have his renunciation annulled, if it be made to their prejudice. 485. If only a part of the thing subject to the usufruct perish, the usufruct- continues to exist upon the remainder. 486. If the usufruct be established upon a building only, and such building be destroyed by fire or other accident, or fall fix)m age, the usufructuary has no right to enjoy either the ground or the materials. If the usufruct be established on a property of which the building destroyed formed part, the usufructuary enjoys the ground and the materials. CHAPTER SECOND. OF USE AND HABITATION. 487. A right of use is a right to enjoy a thing belonging to another and to take the fruits thereof, but only to the extent of the requirements of the user and of his family. When applied to a house, right of use is called right of habitation. 488. Rights of use and habitation are established only by the will of man, by deed inter vivos or by last will. They cease in the same manner as usufruict. 9,4 Civil Code of Lower Canada. 480. These rights cannot be exercised without previously giving security, and making statements and inventories as in the case of usufruct. 490. He who has a right of use or of habitation, must exercise it as a prudent administrator. 491. Rights of use and of habitation are governed by the title which creates them, and are more or less extensive according to its dispositions. 492. If the title be not explicit as to the extent of these rights, they are governed as follows. 493. He who has the use of land is only entitled to so much of its fruits as is necessary for his own wants and those of his family. He may even take what is required for the wants of chil dren born to him after the grant of the right of use. 494. He who has a right of use can neither assign nor lease it to another. 495. He who has a right of habitation in a house may live therein with his family, even if he were not married when such right was granted to him. 496. A right of habitation is coniined to what is neces- sary for the habitation of the person to whom it is granted and his family. "J^ : - ; ^ 497. A right of habitation can neither be assigned nor leased. "; ] ^ 498. If he who has the use take all the fruits of the land, or if he occupy the whole of the house, he is subject to the costs of cultivation, to the lesser repairs, and to the payment of all contributions, like the usufructuary. If he only take a portion of the fruits, or if he only oc- cupy a part of the house, he contributes in the proportion of his enjoyment. , ! I Meal Servitudes- TITLE FOURTH. OF REAL SERVI'lUDES. 96 I / GENKllAL PROVISIONS. 499. A real servitude is a charge imposed on one real estate for the benefit of another belonging to a different proprietor. . 500. It arises either from the natural position of the property, or from the law, or it is established by the act of man. CHAPTER FIRST. OF SERVITUDES WHICH ARISE FROM THE SITUATION OF PROPERTY, 501. Lands on a lower level are subject towards those on a higher level to receive such waters as flow from the latter naturally and without the agency of man. The proprietor of the lower land cannot raise any dam to prevent this flow. The proprietor of the higher land can do nothing to aggravate the servitude of the lower land. 502. He who has a spring on his land may use it and dispose of it as he pleases. 503. He whose land borders on a running stream, not forming part of the public domain, may make use of it as it passes, for the utility of his land, but in such manner as not to prevent the exercise of the same right by those to whom it belongs; saving the provisions contained in chapter 51 of the Consolidated Statutes for Lower Canada, or other special enactments. He whose land is crossed by such stream may use it within the whole space of its course through the property, but subject to the obligation of allowing it to take its usual course when it leaves his land. See arts. 5535 and 5536 K. S. Q., for provisions relating- to the right of improving water-courses by proprietors of adjoining lands. "\ s 96 Civil Code of Lower Canada. 504. Every proprietor may oblige his neighbour to set- tle the boundaries between their contiguous lauds. The costs of so doing are common. (1) (1) The words "those of the suit, in case of contestation, are In the discretion of the court," which followed after the word "common," were struck out by 60 Vict., c. 50, s. 16 (1 Sept., 1897). 504a. Boundaries may be determined either by mutual consent between neighbours, and by their mere act, or with the intervention of judicial authority. If suit is taken, the costs are in the discretion of the court. (1) (1) Added by 60 Vict., c. 50. s. 17 (1 Sept., 1897). 505. Every proprietor may oblige his neighbour to make In equal portions or at common expense, between their respective lands, a fence, or other sufficient kind of separa- tion according to the custom, the regulations and the situation of the locality. P! i M I CHAPTER SECOND. OP SERVITUDES ESTABLISHED BY LAW. 506. Servitudes established by law have for their object public utility or that of individuals. 507. Those established for public utility have for their object the foot-road or tow-path along the banks of navig- able or floatable rivers, the construction or repair of roads or other public works. Whatever concerns this kind of servitude is determined by i)articular laws or regulations. 508. The law subjects proprietors to different obliga- tions with regard to one another independently of any stipulation. 509. Some of these obligations are governed by the laws concerning municipalities and roads. The others relate to division walls and ditches, to cases where a counter-wall Is necessary, to views upon the pro- perty of a neighbour, to the eaves of roofs, and to rights of way. Jieal Servitudes. 97 SECTION I. - I OF DIVISION WALLS AND DITCHES, AND OF CLEARANCE. 510. Both in town and country, walls serving for sep- aration between buildings up to the required heights, or between yards and gardens, and also between enclosed fields, are presumed to be common, if there be no title, mark or other legal proof to the contrary. 511. It is a mark that a wall is not common when its summit is straight and plumb with the facing on one side, and on the other exhibits an inclined plane ; and also when one side only has a coping, or mouldings, or corbels of stone, placed there in building the wall. In such cases the wall is deemed to belong exclusively to the proprietor on whose side are the eaves or fhe corbels and mouldings. 512. The repairing and rebuilding of a common wall are chargeable to all those who have any right in it, in pro- portion to the right of each. 513. Nevertheless every coproprietor of a common wall may avoid contributing to its repair and rebuilding by abandoning his share in the wall and renouncing his right of making use of it. 514.. Every coproprietor may build against a common wall and place therein joists or beams, to within [four inches] of the whole thickness of the wall, without pre- judice to the right which the neighbour has to force him to reduce the beam to the half thickness of the wall, in case he should himself desire to put beams in the same place, or to build a chimney against it. 515. Every coproprietor may raise the common wall at will, but at his own cost, upon paying an indemnity for the additional weight imposed, and bearing for the future the expense of keeping it in repair above the height which is common. The indemnity thus payable is the sixth of the value of the superstructure. On these conditions such superstructure becomes the exclusive property of him who built it; but it remains, as to the right of view, subject to the rules applicable to com- mon walls. 7 98 Civil Code of Lower Canada. 1 i j" 616. If the common wall be not in a condition to support the superstructure, he who wishes to raise it must have it rebuilt at his own cost, and the excess of thickness must bo taken on his own side. 617. The neighbour who has not contributed to the super- structure may acquire the joint-ownership of It, by pay- ing half of the cost thereof, and the value of one half of the ground used for the excess of thickness, if there be any. 618. Every owner of property adjoining a wall, lias the privilege of making it common in whole or in part, by paying to the proprietor of the wall half the value of the part he wishes to render common, and half the value of the ground on which such wall is built. 610. One neighbour cannot make any recess in the body , of a common wall, nor can he apply or rest any work there, without the consent of the other, or on his refusal, witliout having caused to be settled by experts the necessary means to prevent the new work from being injurious to the rights of the other. 520. Every person may oblige his neighbour, in in- corporated cities and towns, to contribute to the building and repair of the fence-wall separating their houses, yards and gardens situated in the said cities and towns, to a height of ten feet from the ground or the level of the street, including the coping, and to a thickness of eigliteen inches, each of the neighbors being obliged to furnish nine inches of ground; saving that he for whom such thickness is not sufficient may add to it at his own cost and on his own land. 521. [When the different stories of a house belong to diiferent proprietors, if their titles do not regulate the mode of repairing and rebuilding, it must be done as follows: All the proprietors contribute to the main walls and the roof, each in proportion to the value of the story which belongs to him; The proprietor of each story makes the floor under him; The proprietor of the first story makes the stairs which lead to it; the proprietor of the second story makes the stairs which lead from the first to his, and so on.] Real Servitudes, W 622. When a common wall or a house Is rebuilt, the active and paBsive servitudes continue with regard to the new wall or to the new house, provided they are not ren- dered more onerous, and provided the rebuilding be done before prescription is acquired. 523. All ditches between neighbouring properties are presumed to be common if there be no title nor mark to the contrary. 524. When the embankment or the earth thrown out of a ditch is only on one side of it, it is a mark that the ditch is not common. 625. A ditch is presumed to belong exclusively to him on whose side the earth is thrown out. 626. A common ditch must be kept at common expense. 527. Every hedge which separates land is reputed to be common, unless only one of the lands is inclosed, or there is a sufficient title or possession to the contrary. 528. No neighbour can plant trees or shrubs or allow any to gi'ow nearer to the line of separation than the dis- tance prescribed by special regulations, or by established and recognized usage; and in default of such regulations and usage, such distance must be determined according to the nature of the trees and their situation, so as not to Injure the neighbour. 529. Either neighbour may require that any trees and hedges which contravene the preceding article be up- rooted. He over whose property the branches of his neighbour's trees extend, although the trees are growing at the pre- scribed distance, may compel his neighbour to cut such branches. If the roots extend upon his property, he has a right to cut them himself. 530. Trees growing in a common hedge are common as the hedge itself, and either of the neighbours has a right to have them felled. ^ f . 531. Every proprietor or occupier of land in a state of cultivation, contiguous to uncleared land, may compel the 100 Civil Code of Lower Canada. proprietor or occupier of the latter to fell all trees along the line of separation which are of a nature to injure the cultivated land, and this on the whole length, and on the breadth, in the manner, and at the time determined by law, by regulations having force of law, or by established and recognized usage. Trees, however, which may be preserved on or near the line, with or without curtailing the branches or roots, according to the three last preceding articles, are excepted. Fruit trees and maple trees, which may be preserved in all cases near or along the line, but are subject to the same curtailing, are also excepted. The fine for any contravention does not free one from the necessity of giving the clearance ordered by a com- petent tribunal, nor from the damages actually incurred since the party was put in default. SECTION* II. OF THE DISTANCE AND THE INTERMEDIATE WOlKS REQUIRED FOR CERTAIN STRUCTURES. 532. The following provisions are established for incor- porated cities and towns: 1. He who wishes to have a well near the common wall or that belonging to his neighbour, must make a counter- wall of masonry one foot thick; 2. He who wishes to have a privy near such wails must make a counter-wall of the same kind [fifteen inches] thick; If however there be a well opposite, on the neighbouring property, the thickness must be [twenty-one inches;! 3. [When the well or privy is at the distance from the wall determined by municipal regulations and by estab- lished and recognized usage, such counter-wall is no longer required. If there be no suoh regulations or usage the distance is three feet;] 4. He who wishes to have a chimney, or a hearth, or a stable, or a store for salt or other corrosive substances, near a common wall or a wall belonging to his neighbour, or to raise the ground or heap earth against it, is obliged to make a counter-wall or other work, the sufficiency of which is [determined by municipal regulations, by estab- lished and recognized usage, and, in default of any such, by the courts in each case;] Heal Servitudes. 101 5. He who wishes to have an oven, forge or furnace, must leave a vacant space of six Inches between his own wall and the common wall or that of his neighbour. SECTION III. OF VIEW ON THE PftOPERTY OF A NEIOHBOUH. 533. One neighbour cannot, without the consent of the other, make in a common wall any w iidow or opening of any kind whatever, not even those with fixed glass. fi34. The proprietor of a wall which is not common ad- joining the land of another, may make in such wall lights or windows with iron gratings and fixed glass, that is to say, such windows must be provided with an iron trellis, the bars of which are not more than four Inches apart, and a wlndow-sash faatenotl with plaster or otherwise in such a way that it must remain closed. 535. Such windows or lights cannot be placed lower than nine feet above the floor or ground of the room It Is In- tended to light, If it be on the ground floor; nor lower than seven feet from the floor, If In the upper stories. 536. One neighbour cannot have direct views or pros- pect-windows, nor galleries, balconies or other like pro- jections overlooking the fenced or unfenced land of the other; they must be at a distance of six feet from such land. 637. Nor can he have side openings or oblique views overlooking such land, unless they are at a distance of two feet. 538. The distances mentioned In the two preceding articles are reckoned from the exterior facing of the wall where the opening Is made, and If there be a balcony or other like projection, from the exterior line thereof. SECTION IV. OF THE EAVES OF ROOFS. 539. Roofs must be constructed In such a manner that the rain and snow from off them may fall upon the land of the proprietor, without his having a right to make it fall upon the land of his neighbour. I 102 Civil Code of Lower Canada. SECTION V. OF THE RIGHT OF WAY. 540. A proprietor whose land is enclosed on all sides by that of others, and who has no communication with the public road, may claim a way upon that of his neighbours for the use of his property, s-ubject to an indemnity pro- portionate to the damage he may cause. 641. The way must generally be had on the side where the crossing is shortest from the land so enclosed to the public road. 642. It should however be established over the part where it will be least injurious to him upon whose land it is granted. 643. If the land become so enclosed in consequence of a sale, of a partition, or of a will, it is the vendor, the copartitioner, or the heir, and not the proprietor of the land which offers the shortest crossing, who Is bound to furnish the way, which is in such case due, without indem- nity. 544. If the way thus granted cease to be necessary, it may be suppressed, and in such case the indemnity paid is restored, or the annuity agreed upon ceases for the future. CHAPTER THIRD. OF SERVITUDES ESTABLISHED BY THE ACT OP MAN. SECTION I. OF THE DIFFERENT KINDS OF SERVITUDES WHICH MAY BE ESTABLISHED ON PROPERTY. 545. Every proprietor having the use of his rights, and being competent to dispose of his immoveables, may estab- lish over or in favor of such immoveables, such servitudes as he may think proper, provided they are in no way con- trary to public order. The use and the extent of these servitudes are determined according to the title which constitutes them, or according to the following rules if the title be silent. Ill Meal Servitudes. m 546. Real servitudes are established either for the use of buildings or for that of lauds. Those of the former kind are called urban, whether the buildings to which they are due are situated in town or in the country. Those of the stcond kind are called rural without regard to their situation. Servitudes take their name from the p'' jerty to which they are due, independently of the one which owes them. 547. Servitudes are either continuous or discontinuous. Continuous servitudes are those the exercise of which may be continued without the actual intervention of man; such are water conduits, drains, rights of view and others similar. Discontinuous servitudes are these which require the actual intervention of man for their exercise; such are the rights of way, of drawing water, of pasture and othei*s similar. 548. Servitudes are apparent or unapparent. Apparent servitudes are those which are manifest by external signs, such as a door, a window, an aqueduct, a sewer or drain, and the like. Unapparent servitudes are those which have no external sign, as for instance, the prohibition to build on a land or to build above a certain fixed height. SECTION II. HOW SERVITUDES ARE ESTABLISHKD. 649. No servitude can be established without a title; possession even immemorial is insufficient for that purpose. 550. The want of a title creating the servitude can only be supplied by an act of recognition proceeding from the proprietor of the land subject thereto. Hi 'n 551. As regards servitudes the destination made by the proprietor is equivalent to a title, but only when it is in writing, and the nature, the extent and the situation of the servitude are specified. 552. He who establishes a servitude is presumed to grant all that is necessary for its exercise. 1 ^ 104 Civil Code of Lower Canada. Thus the right of drawing water from the well of an- other carries with it the right of way. SECTION III. OF THE RIGHTS OF THE PROPRIETOR OF THE LAND TO WHICH THE SERVITUDE IS DUE. 558. He to whom a servitude is due has the right of making all the works necessary for its exercise and its preservation. 654. These works are made at his cost and not at that of the proprietor of the servient land, unless the title con- stituting the servitude establishes the contrary. 555. Even in the case where the proprietor of the ser- vient land, is charged by the title with making the neces- sary works, for the exercise and for the preservation of the servitude, he may always free himself from the charge by abandoning the servient immoveable, to the proprietor of the land to which the servitude is due. 556. If the land in favor of which a servitude has been established come to be divided, the servitude remains due for each portion, without however the condition of the servient land being rendered worse. Thus in the case of a right of way, all the coproprietors have a right to exeoxiise it, but they are obliged to do so over the same portion of ground. 657. The proprietor of the servient land can do nothing which tends to diminieih the use of the servitude or to render its exercise more inconvenient. Thus he cannot change the condition of the premises, nor transfer the exercise of the right to a place different from that on which it was originally assigned. However if by keeping to the place originally assigned, the servitude should become more onerous to the proprietor of the servient land, or if such proprietor be prevented thereby from making advantageous improvements, he may offer to the proprietor of the land to which it is due another place as convenient for the exercise of his rights, and the latter cannot refuse it. 558. On his part, he who has a right of servitude can only make use of it according to his title, without being i ! Real Servitudes. 105 able to make, either in the land which owes the servitude, or in that to which it is due, any change which aggravates the condition of the former. SECTION IV. OF THE EXTINCTION OF SERVITUDES. 659. A servitude ceases when the things subject thereto are in such a condition that it can no longer be exercised. 560. It revives if the things be restored in such a man- ner that it may be used again, even after the time of pre- scription. 561. Every servitude is extinguished, when the land to which it is due and that which owes it are united in the same person by right of ownership. 562. Servitudes are extinguished by non-user during thirty years, between persons of full age and not privileged. 563. The thirty years commence to run for discontinu- ous servitudes from the day on which they cease to be used, and for continuous servitudes from the day on which any act is done preventing their exercise. 564. The manner of exercising a servitude may be pre- scribed like the servitude itself and in the same way. 565. If the land in favor of which the servitude is es- tablished belong to several persons by undivided shares, the enjoyment by one hinders the prescription with regard to the others. ■■'« ■ : wi, . (31 'i a I 666. If among the coproprietors there be one against whom prescription cannot run, such as a minor, he pre- serves the right for all the others. 106 Civil Code of Lower Canada. ii I i TITLE FIFTH. OP EMPHYTEUSIS. SECTION I. GENERAL PROYISIONS. 567. Emphyteusis or emphyteutic lease is a contract by which the proprietor of an immoveable conveys it for a time to another, the lessee subjecting himself to make im- provements, to pay the lessor an annual rent, and to such other charges as may be agreed upon. 568. The duration of emphyteusis cannot exceed ninety- nine years and must be for more than nine. 569. Emphyteusis carries with it alienation; so long as it lasts, the lessee enjoys all the rights attached to the quality of a proprietor. He alone can constitute it who hias the free disposal of his property. 570. The lessee who is in the exercise of his rights^ may alienate, transfer and hypothecate the immoveable so leased, without prejudice to the rights of the lessor; if he be not in the exercise of his rights, he can only do so with judicial authorization and formalities. 571. Immoveables held under emphyteusis may be seized as real property, under execution against the lessee by his creditors, who may bring them to sale with the formalities of a sheriff's sale. 672. The lessee is entitled to bring a possessory action against all those who disturb him in his enjoyment and even against the lessor. SECTION II. OF THE RIGHTS AND OBLIGATIONS OF THE LESSOR AND OF THE LESSEE. 673. ■ The lessor is obliged to guarantee the lessee, and to secure him in the enjoyment of the Immoveable leased, during the whole time legally agreed upon. Ewphyieiisis. 107 He is also obliged to resume such immoveable and to dis- ' charge the lessee from the rent or dues stipulated, in the case of the latter wishing to leave it, unless there is an agreement to the contrary. 574. On his part the lessee is bound to pay annually the emphyteutic rent; if he allow three years to pass without doing so, he may be judicially declared to have forfeited the immoveable, although there be no stipulation on that subject. 575. The rent is payable in the whole, without the lessee having a right to claim its remission or diminution, either on account of sterility or of unavoidable accidents which may have destroyed the harvest or hindered the enjoyment, or even for the loss of a part of the land. 576. The lessee is held for all the real rights and land charges to which the property is subjected. 577. He is bound to make the improvements which he has undertaken, as well as all greater or lesser repairs. He may be forced to make them even before the expira- tion of the lease, if he neglect to do so, and the land suffer thereby any considerable deterioration. 578. The lessee has not the right to deteriorate the im- moveable leased; if he commit any waste which greatly diminishes its value, the lessor may have him expelled and condemned to restore the things to their former con- dition. SECTION III. OF THE TERWiyATTON OF EMPHYTET'SIS. 679. Emphyteusis is not subject to tacit renewal. It ends: 1. Bv the expiration of the time for which it was con- tracted, or after ninety-nine years, in case a longer term has been stinulated: 2. By forfeiture iudiriallv pronounced for the causes set fo'-th in articles 574 and 578, or for other legal causes; ^. Pv the total 1^==! of the estate leased; 4. By abandonment. '•'II f'i ''Ml .-'St :«?* ' -J'f m 108 Civil Code of Lower Canada. { ! 680. The lesaee is only allowed to abandon if he have satisfied for the past all the obligations which result from the lease, and particularly if he have paid or tendered all arrears of the dues, and made the improvements agreed upon. 581. At the end of the lease, in whatever way it hap- pens, the lessee must give up, in good condition, the pro- perty received from the lessor, as well as the buildings he obliged himself to construct, but he is not bound to repair those which he has erected without being obliged to do so. 582. As to improvements which the lessee has made voluntarily, without being bound to do so, the lessor has the option of either keeping them, upon paying what they cost or their actual value, or permitting the lessee, if the latter can do so with advantage to himself and without deteriorating the land, to remove them at his own expense; otherwise, in each case, they belong, without indemnifica- tion, to the lessor, who may, nevertheless, compel the lessee to remove them, in conformity with the provisions of article 417. BOOK THIRD. OF THE ACQUISITION AND EXERCISE OP RIGHTS OF PROPERTY". GEKERAL PROVISIONS. 583. Ownership in property is acquired by prehension or occupation, by accession, by descent, by will, by con- tract, by prescription, and otherwise by the effect of law and of obligations. 584. Things which have no owner are held to belong to the crown. 585. There are tilings which have no owner and the use of which is common to all. The enjoyment of these is regulated by laws of public policy. Acquisition and Exercise of Eights of Property. 109 586. The ownership of a treasure r«sts with him who finds it in his own property; if he find it in the property of another, it belongs half to him, and the other half to the owner of the property. A treasure is any buried or hidden thing of which no one can prove himself owner, and which is discovered by chance. 587. The right of hunting and fishing is governed by particular laws of public policy, subject to the legally acquired rights of individuals. 588. Things which are the produce of the sea, or are drawn from its bottom, found floating on its waters, or cast upon its shores, and which never had an owner, belong, by right of occupancy, to the finder who has ap- propriated them. 589. Things once possessed, which are afterwards found at sea, or on the sea shore, or their price, if they have been sold, continue to be the property of the original owner, if he claim them, and if he do not, they belong to the crown; save in all cases the claims of those who find and preserve them, for the salvage and preservation. 590. Whatever relates to wrecked ships and their cargo, the articles and fragments coming from them, the mode of disposing of them and of the price they bring, and the right of salvage, is specially regulated (1) by the Federal Statute respecting wrecks, casualties and salvage. (1) The words following after the word "regulated" were made by R. S. C. c. 81 (R. S. Q., art. 6231), to replace the fol- lowing words in the original, "according to the same principles, by the imperial statute, entitled: The Merchant Shipping Act, 1854." 691. The grass upon the beaches of the river St. Law- rence which are not private property, is, in certain places, granted by special laws or particular titles to the riparian proprietor, under the restrictions imposed by law or by regulations. In other cases, if the crown have not otherwise disposed of it, it belongs by r'sfht of occupancy to him who cuts it. nr .1 592. Things found in or upon the river St. Lawrence, or the navigable portions of its tributaries, or upon the Mi J * fa .k "a "< >f I 1 ''■' 110 Civil Code of Lower Canada. banks thereof, must be advertised and disposed of in the manner provided by special laws. (1) (1) By art. 6232 R. S. Q. (36 Vict. (C), c. 55, s. 38, 23 May, 1873), the word "provincial" was struck out before the word "laws." 593. Things found on the ground, on the public high- ways or elsewhere, even on the property of others, or which are otherwise without a known owner, are, in. many cases, subject to special laws, as to the public notices to be given, the owner's right to claim them, the indemnification of the finder, their sale, and the appropriation of their price. In the absence of such provisions, the owner who has not voluntarily abandoned them, may claim them in the ordinary manner, subject to the payment, when due, of an indemnity to the person who found and preserved them; if they be not claimed, they belong to such person by right of occupancy. Unnavigable rivers are, for the purposes of this article, considered as places on land. 594. Among the things subject to the special provisions mentioned In the preceding article are: 1. Wood and other objects obstructing beaches and the adjoining lands; 2. Unclaimed goods in the hands of wharfingers, ware- house-keepers, and carriers either by land or by water; 3. Articles remaining in the post-office with dead letters; 4. Things suspected to have been stolen, remaining in the hands of ofScers of justice: 5. Animals found straying. See Arts. 5537 to 5549 R. S. Q. for provisions relating to grass growing on certain beaches, and to wharfingers. ►-jf 595. Certain matters which come under the heading of the present book are incidentally treated in the books preceding. Successions. 111. the grass TITLE FIRST. OF SUCCESSIONS. GENERAL PROVISIONS. 596. Succession is the transmission by law or by the will of man, to one or more persons, of the property and the transmissible rights and obligations of a deceased person. In another acceptation the word "succession" means the universality of the things thus transmitted. 697. Abintestate succession is that which Is established by law alone, and testamentary succession that which is derived from the will of man. The former takes place only in default of the latter. Gifts in contemplation of death partake of the nature of testamentary successions. The person to whom either of these successions devolves is called heir. 598. Abintestate succession is subdivided into legiti- mate succession, which is conferred by law upon relatives, and irregular succession, when, in default of relatives, it devolves upon persons not related. 599. [The law, in regulating a succession, considers neither the origin nor the nature of the property compos- ing it. The whole forms but one inheritance which is transmitted and divided according to uniform rules, or the dispositions made by the proprietor.] CHAPTER FIRST. OP THE OPENING OF SUCCESSIONS AND OF THE SEIZIN OF HEIRS. SECTION I. OF THE OPENING OP SUCCESSIONS. 600. The place where a succession devolves is deter- mined by the domicile. 112 Civil Code of Lower Canada. 'k 601. Successions devolve by natural death, and also by civil death. 602. Successions devolve by civil death from the moment it is incurred. 603. Where several persons, respectively called to the succession of each other, perish by one and the same acci- dent, so that it is impossible to ascertain which of them died first, the presumption of sui*vivor8hip is determined by circumstances, and, in their absence, by the consi'lera- tions of age and sex, conformably to the rules contalneartition shall be deferred during a limited time, if there be any reason of utility which justifies the delay. 690. Partition may be demanded even though one of the roheirs enjoys separately a part of the property of the I ■1 m h 12(] Civil Code of Lower Canada. ^'■Pv i 1 1 t j 1 1 H ^ ! !^^H j i 1 succession, if there have been no act of partition, nor a sufficient possession to acquire prescription. 691. Neither the tutor of a minor, nor the curator of an interdicted person or of an absentee, can demand the parti- tion of the immoveables of a succession which has devolved to such minor, interdicted person or absentee, but he may be compelled to join in it, and in such case the partition is effected judicially, and with the formalities required for the alienation of the property of minors. The tutor or curator may however demand the final partition of the moveables, and the provisional division of the immoveables of the succession. 692. A husband may, without the concurrence of his wife, demand the partition of the moveables or immove- ables which have accrued to her and have fallen into the community. As to things which are excluded from it, the husband cannot demand their partition without the concurrence of his wife; he may howeve', if he have a right to enjoy her property, demand a provisional division. The coheirs of the wife cannot demand a definitive parti- tion without suing both husband and wife. 693. If all the heirs be of full age, be present, and agree, the partition may be effected in such form and by such act a3 the parties interested deem proper. If any of the heirs be absent or unwilling, if there be among them minors or interdicted persons, in all such cases the partition can only be effected judicially, and the rules laid down in the succeeding articles are to be fol- lowed. If there be several minors represented by one tutor and having adverse interests, a special and separate tutor must be given to each, to represent him in the pirtition. 694. The action of partition and the contestations which arise in it are submitted to the court of the place where the succession devolves, iif it devolve in Lower Canada; if not, to the court of the place where the property is situate, or of the domicile of the defendant. It is before this tribunal that lioitations and the pro- ceedings connected with them are to be effected. 695. In the action of partition and its incidents the same proceedings are liad as in ordinary suits, saving Successions. 127 (re be such 1 the fol- pro- the iving any modifications introduced by the Code of Civil Pro- cedure. 696. The valuation of immoveables is made by experts who are chosen by the parties interested, or who, upon the refusal of such parties, are officially appointed. The report of the experts must declare the grounds of the valuation, it must indicate whether the thing esti- mated can be conveniently divided, and in what manner, and must determine, in case of division, each of the por- tions which may be made of it, and the value of such portion. 697. Each of the coheirs may demand his share in kind of the moveable and immoveable property of the succes- sion; nevertheless, if there be seizing or opposing creditors, or if the majority of the coheirs deem a sale necessary to discharge the liabilities of the succession, the moveable property is publicly sold in the ordinary manner. 698. If the immoveables cannot conveniently be divided tliey must be sold by licitation before the court. Nevertheless the parties, if they be all of full age, may consent to the licitation being made before a notary upon the choice of whom they agree. 699. After the moveable and immoveable property have been estimated, and sold if there be cause for it, the court may send the parties before a notary upon whom they have agreed, or who has been officially named if they do not agree in their choice. They are to proceed, before such notary, to the account to which they are bound towards one another, to the formation of the general mass, the composition of the shares and the fixing of the compensation to be furnished to each of the copartitioners. * 700. Each coheir returns into the mass, according to the rules hereinafter laid down, the gifts made to him and the sums in which he is indebted. 701. If the return be not made in kind, the coheirs entitled to it pretake an equal portion from the mass of the succession. These pretakings are made as much as possible in otbjecta of the same nature and quality as those which are not returned in kind. 'i?i - 'i *5 ./.'. 128 Civil Code of Lower Canada. in I I 702. After these pretakings, the parties are to proceed to the formation, out of what remains In the mass, of as many shares as there are partitioning heirs or roots. 703. In the formation and composition of the shares, the separation of immoveables into small parcels and the division of industrial establishments Is to be avoided as much as possible; it Is also proper to put Into each share, If possible, the same quantity ot moveables, Immoveables, rights and credits, of the same nature and value. 704. The Inequality of shares In kind, when It Is un- avoidable, Is to be compensated by payment of the differ- ence either in rent or In money. 705. The shares are to be formed by one of the coheirs, if they can agree amongst themselves In the choice, and if he who Is chosen accept the office; In the opposite case the shares are to be formed by an expert appointed by the court, and are afterwards to be drawn by lot. 708. Before proceeding to draw, each copartltioner is allowed to propose his objections as to the formauan of the shares. 707. The rules laid down for the division of the masses to be apportioned are also to be observed In the subdivisions of the partitioning roots. 708. If In the operations referred to a notary, contes- tations arise, he must draw up a statement of the difficul- ties and of the respective allegations of the parties, and submit them for the decision of the court that appointed him. These Incidents are proceeded upon according to the forms prescribed by the laws of procedure. 709. Where licitatlon takes place by reason of there being amongst the heirs, absentees, Interdicted persons, or minors, even emancipated, It can only be effected judicially, and with the formalities prescribed for the alienation of the property of minors. 710. Every person, even a relation, who is not entitlea to succeed to the deceased, and to whom one of the coheirs has assigned his right In the succession, may be excluded from the partition, either by all the coheirs or by one of them, on being reimbursed the price of such assignment. Successions. 129 711. After the partition, each of the parties has a right to be put In possession of the titles belonging to the objects which have fallen to him. The titles to a divided property remain with him who has the greater share In It, subject to the obligation (Jf giving the use of them, when retiulred, to the coparti- tloners Interested therein. The titles common to the whole Inheritance are delivered to him whom the heirs have chosen to be the dleposltaiy of them; subject to the obligation of giving the use of them to the other copartltloners whenever required. If they disagree In the choice, It Is made by tihe judge. SUCTION II. OP RETDRNS. 712. [Every heir, even the beneficiary heir, coming to a succession, must return to the general mass all that he has received from the deceased by gift inter vivos, directly or indirectly; he cannot retain the gifts made nor claim the legacies bequeathed by the deceased, unless such gifts and legacies have been given him expressly by preference and beyond his share, or with an exemption from return.] 713. The heir may nevertheless, by renouncing the suc- cession, retain the gifts or claim the legacies made to him. ■■■.«■ }^M I 714. [A donee who at the time of the gift was not an heir, but who at the time when the succession devolves is entitled to succeed. Is bound to return the gift, unless the testator has exempted him from doing so.] 715. Gifts and legacies made to the son of a person who, at the time when the succession devolves has become entitled to succeed, are subject to be returned. The father coming to the succession of the donor or testator is bound to return them. tii> It i;fi $1 716. A grandson coming to the succession of his grand- father is bound to return what has been given to his father, althougih he should .renounce the succession of the latter. 9 130 Civil Code of Lower Canada. 717. The obligiation to return the gifts and legacies made during the mairriage, either to the consort who is entitled to succeed, or to the other consort alone, or to both, depends upon the interest of the heir who is capable of succeeding and the advantage he derives therefrom, ac- cording to the rules laid down in the title concerning marriage covenants, as to the effect of gifts and legacies made to the consorts during marriage. 718. Return is only made to the succession of the donor or testator. 719. Whatever has been laid out for the establishment of one of the coheirs, or for the payment of his debts must be returned. 720. The expenses of nourishment, maintenance, educa- tion and apprenticeship, the ordinary expenses of equip- ment, of weddings, and customary presents, are not subject to be returned. 721. The same rule applies to the profits which the heir may have derived from agreements made with the de- ceased, if at the time at which they are made they do not confer an indirect advantage. 722. The profits and interest of the things subject to be returned are due only from the day when the succes- sion devolves. 723. Returns are due only from coheir to coheir; they are not due to the legatees nor to the creditors of the succession. 724. Returns are effected either in kind or by taking less. 725. The return of moveable property is only made by taking less; it cannot be returned in kind. 72B. The return of money received is also made by taking less in the money of the succession. In case of insufficiency the donee or legatee may dispense with the return of money, by abandoning a proportionate value in the moveable property, or in default of moveable property, in the immoveables of the succession. ■. I'i^ Successions. 131 727. An immoveable given or bequeathed, which has perished by a fortuitous event, and without the fault of the donee or legatee, is not subject to be returned. 728. [As to immoveables, the donee or legatee may at his option return them in all cases, either in kind or >by taking less according to valuation.] 729. If the immoveable be returned in kind, the donee or legatee has a right to be reimbursed the expenditures made upon it; those which were necessary, conformably to the rules established by article 417, and those which were unnecessary, according to article 582. they the 730. The donee or legatee must, on the other hand, ac- count for the injuries and deteriorations which have dimin- ished the value of the immoveable returned in kind, if they result from his own act or from that of his repre- sentatives. This rule does not apply If they have been caused by a fortuitous event, and without his or their participation. 731. [When the return is made in kind, if the immove- able returned be hypothecated or encumbered, the oopar- titioners may require the donee or legatee to discharge it from such hypothec or incumbrance; if he fail to do so, he can only return by taking less. The parties may however agree that the return shall be made in kind; this is effected without prejudice to the claims of the hypothecary creditors, which are charged in the partition of the succession to the party making the return.] 732. The coheir who returns an immoveable in kind may retain possession of it until he is effectively reim- bursed the sums due to him for disbursements and ameliora- tions. 733. The immoveables remaining in the succession are estimated according to their condition and value at the time of the partition. Those which are subject to return, or which have been returned in kind, whether they have been given or be- queathed, are to be estimated according to their value at the time of the partition, according to the condition in 132 Civil Code of Lower Canada. which they were at the time of the gift, or, as to legacies, at the time when the succession devolved; regard beinj^ had to the provisions contained in the preceding articles. 734. The moveable things found in the succession, and those which are returned as being legacies, are likewise estimated according to their condition and value at the time of the partition, and those which are returned as having been given, according to their condition and value at the time of the gift. SECTION III. OP PAYMENT OF DEBTS. 735. An heir who comes alone to the succession is bound to discharge all the debts and liabilities. The same rule applies to a universal legatee. A legatee by general title is held to contribute in pro- portion to his share in the succession A particular legatee is bound only in i sr of the insufli- ciency of the other property, and is als' . >ot to hypothe- cary claims against the property bequ.w^ed; saving his recourse against those who are held personally. 736. If there be several heirs or several universal lega- tees, they contribute to the payment of the debts and charges, each in proportion to his share in the succession. 737. A legatee under general title, who takes concur- rently with the heirs, contributes to the debts and charges in the same proportion. 738. The obligation resulting from the preceding articles is personal to the heir and universal legatees, or legatees under general title; it gives a direct action, against each of them respectively, to the particular legatees and to the creditors of the succession. . 739. In addition to the personal action, the heir and universal legatee, or legatee under general title, are held hypothecarily for whatever claims affect the immoveables included in their share; saving their .recourse against those who are personally liable, for their share, according to the rules applicable to warranty. Successions, 133 740. An iheir or universal legatee, or a legatee under general title, who, not being personally bound, pays the hypothecary debts charged upon the immoveable included in his share, becomes subrogated in all the rights of the creditor against the other coheirs or colegatees for their share; conventional subrogation cannot in such a case have a greater effect; saving the rights of the beneficiary heir as creditor. 741. A particular legatee who pays an hypothecary debt for which he is not liable in order to free the im- moveable bequeathed to him, has his recourse against those wno take the succession, each for his share, with subroga- tion in the same manner as any other person acquiring under particular title. 742. In the event of heirs or legatees exercising their recourse against their coheirs or colegatees, by reason of an hypothecary debt, the liability of such as are insolvent is divided rateably among all the others, in .proportion to their respective shares. 743. The creditors of the deceased and his legatees have a right to a separation of the property of the succession from that of the heirs and universal legatees, or legatees under general title, unless there is novation. This right may be exercised as long as the property exists in the hands of the latter, or upon the price of the sale, if it be yet unpaid. 741. The creditors of the heir or legatee are not allowed to claim this separation of property, nor to exercise any right of preference, against the creditors of the succession. 745. The creditors of the succession and those of the copartitioners have a right to be present at the partition if they require it. If the partition be made in fraud of their rigtts, they may attack it in the same manner as any other act made to their detriment. SECTION ir. OF THE EFFECTS OF PARTITION AND OF THE WARRANTY OF SHARES. 746. Bach copartitioner is deemed to have inherited alone and directly all the things comprised in his share, or which he has obtained by licitation, and to have never had the ownership of the other property of the succession. ]U ' Ir ' A^ ■' ( ; i; 134 Civil Code of Lower Canada, 747. Every act having for its object to put an end to indivision amongst coheirs and legatees is deemed to be a partition, although it should purport to be a sale, an ex- change, a transaction, or have received any other name. 748. The copartitioners are respectively warrantors towards each other for all disturbances or evictions pro- ceeding from a cause anterior to the partition. Such warranty does not take place if the kind of evic- tion suffered have been excepted by some provision of the act of partition; it ceases if the party suffer eviction through his own fault. 749. Each of the copartitioners is personally bound, in proportion to his share, to indemnify his coheir for the loss caused to him by the eviction. If one of the copartitioners be insolvent, the portion for which he is liable must be divided rateably among all the solvent coheirs, according to their respective shares. 750. There is no warranty against the insolvency of the debtor of a claim which has fallen to one of the coheirs, if such insolvency do not occur until after the partition. Nevertheless, there is an action of warranty in the case of a rent, when the debtor of it has become insolvent at any time since the partition; unless the loss arises from the fault of the party to whom the rent was allotted. The insolvency of debtors which exists at the time of the partition gives rise to warranty in the same manner as eviction. SECTION y. OF RESCISSION IN MATTERS OF PARTITION. 751. Partitions may be rescinded for the same causes as other contracts. [Rescission on the ground of lesion takes place in the case of minors only, according to the rules declared in the title Of Ohligations.'] The mere omission of an object belonging to the suc- cession does not give rise to the action of rescission, but only gives a right to a supplement of the act of partition. 752. When it becomes necessary to decide whether there is lesion, the value of the objects at the time of the partition is to be considered. Gifts inter vivos and by WiU. 135 753. The defendant in an action of rescission of parti- tion may arrest its progress and prevent the bringing of another, by offering and delivering to the plaintiff the supplement of his share in the succession, either in money or in kind. TITLE SECOND. OF GIFTS INTER VIVOS AND BY WILL. CHAPTER FIRST. GENERAL PROVISIONS. 754. A person cannot dispose of his property by gra- tuitous title, otherwise than by gift inter vivos or by will. 755. Gift inter vivos is an act by which the donor divests himself, by gratuitous title, of the ownership of a thing, in favor of the donee, whose acceptance is requisite and renders the contract perfect. This acceptance makes it irrevocable, saving the cases provided for by law, or a valid resolutive condition. 756. A will is an act of gift in contemplation of death, by means of which the testator, without the intervention of the person benefited, makes a free disposal of the whole or of a part of his property, to take effect only after his death, with power at all times to revoke it. Any accept- ance of it purporting to be made in his lifetime is of no effect. 767. Certain gifts may be made irrevocably inter vivos in a contract of marriage, to take elfect, however, only after deatli. They partake of gifts inter vivos and of wills, and are treated of specially in the sixth section of the second chapter of this title. 758. Every gift made so as to take effect only after death, which is not valid as a will, or as permitted in a contract of marriage, is void. 11, fit i M i IJ t, '!'i ' iii\ -■-..IL^ I 136 Civil Code of Lower Canada. ' 759. The prohibitions and restrictions as to the capacity^ for contracting, alienating or acquiring, established else- where in this code, apply to gifts inter vivos and to wills, with the modifications contained in the present title. 760. Gifts inter viros or by will may be conditional. An impossible condition, or one contrary to good morals, to law, or to public order, upon which a gift inter vivos depends, is void, and renders void the disjwsition itself, as in other contracts. In a will such a condition is considered as not written, and does not annul the disposition. CHAPTER SECOND. OF GIFTS INTER VIVOS. SECTION I. OF THE CAPACITY TO GIVE AND TO RECEIVE BY GIFT INTER VIVOS. 761. All persons capable of disposing freely of their property, may do so by gift inter vivos, save the exceptions established by law. 76?. Gifts purporting to be inter vivos are void, as pre- sumed to be made in contemplation of death, when they are made during the supposed mortal illness of the donor, whether it be followed or not by his death, unless circum- stances tend to render them valid. If the donor recover, and leave the donee in peaceable possession for a considerable time, the nullity is covered. 763. Minors cannot give inter vivos, even with the as- sistance of their tutors, unless it be by their contract of marriage, as provided in the title Of Obligations. Emancipated minors may nevertheless give moveable articles, according to their condition and means, and pro- vided they do not materially affect their capital. Tutors, curators and other administrators cannot givG the property intrusted to them, except things of moderate value, In the interest of their charge. The necessity of a wife being authorized by her husband applies to gifts inter vivos, whether for giving or for re- ceiving. Gifts inter vivos and by Will. 137 Public corporations, even thoee having power to alienate, besides the special provisions and formalities which con- cern them, cannot give gratuitously without the sanction of the authorities to whom they are subject and of the main body of corporators; those who administer generally for corporations may nevertheless give alone, within the limits above defined as to tutors and curators. Private corporations may give i?it€r vivos in the same manner as individuals, with the consent of the main body of corporators. 764. [The prohibitions and restrictions respecting gifts and benefits bestowed by future consorts in case of second marriages no longer exist.] 766. All persons capable of succeeding and of acquiring may receive by gift inter vivos, siaving any exception estab- lished by law, and subject to the necessity of legal accept- ance by the donee, or by a person qualified to accept for him. 766. Corporations may acquire by gift inter vivos, as by other contracts, such property as they are allowed to possess. 767. Minors become of age, and persons who have been under the control of others, cannot give inter vivos to their former tutors or curators, so long as their adminis'tration actually continues and they have not rendered their ac- count; [they may however give to their own ascendants who have exercised these offices.] 768. Gifts inter vivos made in favor of the person with whom the donor has lived in concubinage, or of the in- cestuous or adulterine children of such donor, are limited to maintenance. [This restriction does not apply to gifts made in a con- tract of marriage entered into between the concubinaries. Other illegitimate children may receive by gift inter vivos like all other persons.] 769. [Gifts ifiter vivos made in favor of the priests or ministers of religion having the spiritual direction of the donor, of the physicians and others attending him with. it 1 ! .1 rr 138 Civil Code of Lower Canada. ii I IK! I ill the view of reetoring his health, or of the advocates and^ attorneys engaged in lawsuits in his behalf, cannot be set aside by mere presumption of law, as defective by reason of undue influence or want of consent. The presump- tion in this case, as in all others, must be established by facts.] 770. The prohibition against consorts benefiting each other during marriage by acts inter vivos is set forth in the title concerning marriage covenants. 771. The capacity to give or to receive ititer vivos is to be considered relatively to the time of the gift. It must exist at each period, with the donor and with the donee, when the gift and the acceptance are effected by different acts. It suffices that the donee be conceived at the time of the gift or when it takes effect in his favor, provided he be afterwards born viable. 772. The favor given to contracts of marriage renders valid the gifts therein made to the children to be born of the intended marriage. It is not ncessary that the substitute should be in existence at the time of the gift by which the substitution is created. 773. A gift inter vivos of the property of another is void; it is however valid if the donor subsequently become proprietor of it. 774. Dispositions made in favor of persons incapable of receiving are void, whether they are concealed under the form of onerous contracts, or executed in the name of persons interposed. The ascendants, the descendants, the presumptive heir at the time of the gift, and the consort of the incapable person are held to be interposed, unless relations of kin- dred, or of services rendered, or other circumstances tend to destroy the presumption. This nullity takes place even when the person interpo^^ecl survives the person who is incapable. 77P. [Children of a deceased person cannot claim legitim in consequence of gifts made by him inter vivos.'i I • Gifts inter vivos and by Will. . 13t^ SECTION II. OF THE FORM OF GIFTS AND OF THEIR AOOEPTANCE. 776. Deeds containing gitta inter vivos must under pain of nullity be executed in notarial form and the original thereof be kept of record. The acceptance must be made in the same form. Gifts of moveable property, accompanied by delivery, may however be made and accepted by private writings, or verbal agreements. Gifts validly made out of Lower Canada, or within its limits but in certain localities excepted hy statute, need not be in notarial form. 777. It is essential to gifts intended to take effect inter ■vivos that the donor should actually divest himself of his ownership in the thing given. [The consent of the parties is sufficient, as in sale, with- out the necessity of delivery.] The donor may reserve to himself the usufruct or pre- carious possession, or he may pass the usufruct to one person, and give the naked ownership to another, provided he divests himself of his right of ownership. The thing given may be claimed, as in the case of sale, from the donor who withholds it, and the donee may de- mand the rescission of the gift in default of its being de- livered, without prejudice to his damages in cases where he may claim them. [If without reservation of usufruct or of precarious pos- session, the thing given remain unclaimed in the hands of the donor until his death, it may be revendicaied from his heirs, provided the deed has been registered during the lifetime of the donor.] The gift of an annuity created by the deed of such gift, or of a sum of money or other indeterminate thing which the donor promises to pay or to deliver, divests the donor in the sense that he becomes the debtor of the donee. 778. Present property only can be given by acts inter vivos. All gifts of future property by such acts are void, as made in contemplation of death. Gifts comprising both present and future property are void as to the latter, but the cumulation does not render void the gift of the present property. The prohibition contained in this article does not extend to gifts made in a contract of marriage. ' frrf !|i ^ 140 . Civil Code of Lower Canada. 779. A donor may stipulate for the right of talcing back the thing given, in the event of the donee alone, or of the donee and his descendants dying before him. A resolutive condition may in all cases be stipulated, either in favor of the donor alone, or of third persons. The right to take back, or any other resolutive right, is exercised in cases of gift in the same manner and with the same effects as the right of redemption in the case of sale. 780. A gift may consist of a person's whole property, and it is then universal; or of the whole of the movea/ole or immoveable property, of the whole of the property of the matrimonial community or of any other universality, or of an aliquot portion of such property, and is in such cases a gift by general title; or it may be limited to things particularly described, and is then a gift by particular title. 781. The abandonment or the partition of present pro- perty is considered as a gift inter vivos, and is subject to the same rules. The same disposition cannot be made in contemplation of death in an act inter vivos, except by means of a gift Inserted in a contract of marriage, such, as is treated of in the sixth, section of this chapter. 78'3. It may be stipulated tliat a gift inter vivos shall be suspended, revoked, or reduced, under conditions wfiioh do not depend solely upon the will of the donor. If the donor reserve to himself the right to dispose of or to take back at pleasure some object included in the gift, or a sum of money out of tbe property given, the gift holds good for the remainder, but is void as to the part reserved, which continues to belong to the donor, except in gifts by contract of marriage. 783. AJl gifts inter vivos stipulated to 1>e revocable at the mere wi.l of the donor are void. This does not apply to gifts made by contract of mar- riage. 784. Gifts inter vivos of present property are void if they are made subject to the condition of paying other debts or charges than those which exist at the time of such Gifts inter vivos and by Will. 141 be do of the the the Inor, gifts, or than those to come, the nature and amount ot which have been expressed and defined in the deed or in the statement annexed to it. This article does not apply to gifts by m 1.1 158 Civil Code of Lower Canada. 872. The rules concerning legacies and the presump- tions of the testator's intention, as well as the meaning as- cribed to certain terms, give way to the formal or other- wise sufficient expression of such intention, given in another sense or with a view to different effects. The testator may derogate from- these rules in all that is not contrary to public order, to good morals, to any law con- taining a prohibition or some other applicable declaration of nullity, or to the rights of creditors and third persons. § 2. Of universal legacies and legacies hg general title. 873. Universal legacies are testamentary dispositions by which the testator gives to one or to several persons the whole of the property he leaves at his death. Legacies are only by general title when the testator be- queaths an aliquot purt of his property, as a half, a third, or a universality, such as the whole of his moveable or immoveable property, or the whole of the private property excluded from the matrimonial community, or an aliquot part of any such whole. All other legacies are by particular title. The exception of particular things, whatever may be their number or value, does not destroy the character of universal legacies, or of legacies by general title. 874. The legatee has the same delays as the heir to make an inventory and to deliberate. If he have not as- sumed his quality within the delays, and be afterwards sued for the debts or charges attached to his legacy, he is not freed from the costs by his renunciation, any more than the heir would be. SS? ■I, ■■ 875. The liability of a universal legatee, or of a legatee by general title, or by particular title, for the debts and hypothecs, is explained in the title Of Successions, and, in certain respects, in the present section, and also in the title Of Usufruct. 878. The legatee of a usufruct bequeathed as a universal legacy, or as a legacy by general title, is personally liable towards the creditors for the debts of the succession, even for the principal, in proportion to what he receives; he is hypothecarily liable for whatever claims affect the immove- ables included in hi? share, as any other legatee by the Gifts inter vivos and by Will. 159 same title, and with the same recourse. The valuation is made proportionately between him and the proprietor in the manner and according to the rules set forth in article 474. 877. A testator may change, among his heirs and lega- tees, the manner and proportions in which the law holds them liable for the payment of the debts and legacies, without prejudice to the personal or hypothecary action ot the creditors against those who are legally subject to the right claimed, and saving the recourse of the latter against those upon whom the testator imposed the obligation. 878. [Universal legatees and legatees by general title cannot, after acceptance, free themselves from personal liability for the debts and legacies imposed upon them by law or by the will, without having obtained benefit of in- ventory; they are in this respect, and in all that concerns their administration, the rendering of their account and their discharge from liability, subject to the same rules as the heir, and to the O'bligation of registering. Legatees by particular title upon whom the will imposes debts and charges of uncertain extent, may, in the same manner as the heir and universal legatee, accept only under benefit of inventory.] 879. The creditors of a succession have a right to the separation of property against a legatee liable for a d3bt, in the same manner as against an heir, for the portion in which he is liable. § 3. Ot legacies ty particular title. 880. The debts of a testator must in all cases be paid in preference to his legacies. Particular legacies are paid by the heirs, or universal legatees, or legatees by general title, each in the proportion for which he is liable, as in the contribution to the debts, and the legatee has a right to demand the separation of property. If the legacy be imposed upon one particular heir or legatee, the personal action of the legatee by particular title does not extend to the others. The right to a legacy does not carry with it a hypothec upon the property of the succession, but the testator, what- i8 I'li^ i;J •:! ' I'iilt i I I. fn 'J: I 160 Civil Code of Lower Canada. ever may be the form of the will, may secure it by a special hypothecation requiring, as regards the rights of third parties, that the will be registered. 881. [The bequest of a thing which does not belong tc the testator, whether he was aware or not of another's right to it, is void, even when the thing belongs to the heir or legatee charged with the payment of it. The legacy is however valid, and is equivalent to the charge of procuring the thing or of paying its value, if such appear to have been the intention of the testator. In such case, if the thing bequeathed belong to the heir or the legatee charged with the payment of it, whether the fact was known or not to the testator, the particular legatee is seized of the ownership of his legacy.] 882. [If the thing bequeathed belonged to the testator for a part only, he is presumed to have bequeathed only the part which belonged to him, even when the remainder belongs to the heir or principal legatee, unless his intention to the contrary is manifest.] The same rule applies to the bequest made by one of the consorts of a thing belonging to the community; saving the right of the legatee to the whole of the thing be- queathed under the circumstances enumerated in the title concerning marriage covenants, and generally in the case of the following article. 883. [It thf testator since the making of the will have become, wholly or in part, owner of the thing bequeathed, the legacy is valid as regards whatever remains in his succession, notwithstanding the provisions contained in the preceding article; excepting the case in which the thing remains in the succession only by reason of the nullity of a subsequent voluntary alienation of it by the testator.] 884. When a legacy by particular title comprises a uni- versality of assets and liabilities, as for example a certain succession, the legatee of such universality is held personally and alone for the debts connected with it, without prejudice to the rights of the creditors against the heirs and uni- versal legatees, or legatees by general title, w')o have their recourse against the particular legatee. 885. In the case of insufficiency of the property of the succession or of the heir or legatee liable for the payment, Gifts inter vivos and ly Will. 161 the legacies entitled to preference are paid first, and the remainder is then divided rateably among the other legatees in proportion to the value of their respective legacies. Legatees of a certain and determinate object take it without being bound to contribute to the payment of the other legacies which have no preference over theirs. 886. To obtain the reduction of particular legacieij, the creditors must first have discussed the heir or legatee who is personally bound, and have availed themselves in time of the right to separation of property. The creditors exercise this reduction against each of the particular legatees for a share only, in proportii i to the value of his legacy, but the particular legatees may free themselves by giving up the particular legacies or their value. 887. Creditors of the succession, in the case of reduction of particular legacies, have a preferable right to the thing bequeathed, ovsr the creditors of the legatee, as In the case of separation of property. A particular legatee suffering such reduction has his recourse against the heirs or legatees who are personally liable, and is substituted by law in all the lights of the creditor thus paid. 888. When an immoveable bequeathed has been in- creased by further acquisitions of property, the property thus acquired, even if it be contiguous, is not deemed to form part of the legacy, unless from its destination and the circumstances it may be presumed that the testator intended it to form a mere dependency, constituting with the immoveable bequeathed but one and the same pro- perty. Buildings, embellishments and improvements are deemed to be adjuncts of the thing bequeathed. 889. [K before or since the will, ine immoveable be- queathed have been hypothecated for a debt of the testa- tor remaining still due, or even for the debt of a third person whether it was known or not to the testator, the heir, oi the universal legatee, or the legatee by general title is not bound to discharge the hypothec, unless he is obliged to do so by the will.] A usufruct established upon the thing bequeathed is 11 I n f-. .'1 ■ir^f 162 Civil Code of Lower Canaan. ■ IJ also borne without recourse by the particular legatee. The same rule applies to servitudes. If however the hypothecary debt of a third person, of which the testator was ignorant, affect at the same time the particular legacy and the propea-ty remaining in the succession, the benefit of division may reciprocally be claimed. 890. A legacy made in favor of a creditor is not deemed to be in compensation of his claim, nor that in favor of a servant in compensation of his wages. V 4. Of the seizin of legatees. 891. Legatees by whatever title, are, by the death of the testator, or by the evsnt which gives effect to the legacy, seized of the right to the thing i equea he condition in which it then is, together with all its neces- sary dependencies, and with the right to obtain payment, and to prosecute all claims resulting from the legacy, without being obliged to obtain legal delivery. SECTION V. OF THE REVOCATION AND LAPSE OF WILLS AND LEGACIES. 892. Wills and legacies cannot be revoked by the tes- tator except: 1. By means of a subsequent will revoking them either expressly or by the nature of its dispositions; 2. By means of a notarial or other written act, by which a change of intention is expressly stated; 3. By means of the destruction, tearing or erasure of the holograph will, or of that made in the form derived from the laws of England, deliberately effected by him or by his order, with the intention of revoking it; and in some cases by reason of the destruction or \om of the will by a for- tuitous event becoming known to him, as explained in the third section of the present chapter; 4. By his alienation of the thing bequeathed. 89'-<. The revocation of a will or of a legacy may also be demanded: 1. On the ground of the complicity of the legatee in the death of the testator, or by reason of "griev- ous Injury done to his memory, in the same manner as !';* Gifts inter vivos and hy Will. 163 in the case of legal succession, or, if the legatee hindered the revocation or modification of the will; 2. By reason of the resolutive condition; Without prejudice to the causes for which the validity of the will or legacy may be impugned. The subsequent birth of children to the testator does not effect a revocation. [Enmity springing up between him and the legatee does not establish a presumption of revocation.] 894. Subsequent wills which do not revoke the preced- ing ones in an express manner, annul only such disposi- tions therein as are inconsistent with or contrary to those contained in the later wills. 895. A revocation contained in a subsequent will retains its full effect, although such will should remain inopera- tive by reason of the incapacity of the legatee or of his refusal to accept. A revocation contained in a will which is void by reason of informality, is also void. 896. In the absence of express dispositions, the circum- stances and the indications of the intention of the testator determine whether, upon the revocation of a will which revokes another will, the former will revives. S^l. [Every alienation by the ^stator of the right of ownership in the thing bequeathed, even in a case of neces- sity, or by forced means, or with right of redemption reserved, or by exchange, carries with it, unless he has otherwise provided, a revocation of the will or legacy for all that has been thus disposed of, even though, if it were voluntary, the alienation be void.] The revocation subsists although the thing should after- wards have returned into the hands of the testator, [unless he appears to have intended the contrary.] 898. A person cannot, otherwise than by the effect of gifts in contemplation of death made by contract of mar- riage, forego his right to dispose of his property by will or by gift in contemplation of death, or to revoke his tes- tamentary dispositions. Nor can a person subject the validity of any future will to formalities, expressions or signs not required by law, or to other derogatory clauses. 'i' - H fii!i' ': 'i m t IrP il n| 1 11 1 11 ^ 1 h i-' 1 ;ii i!; i ■> ii i :i, 164 Civil Code of Lower Canada. 899. f Heirs cannot be excluded from successions, unless the act excluding them is clothed with all the formalities of a will.] 900. Every testamentary disposition lapses if the person in whose favor it is made do not survive the testator. 901. Every testamentary disposition made under a con- dition which depends on an uncertain event, lapses if the legatee die before the fulfilment of the condition. 902. Conditions which are intended by the testator to suspend only the executiv>n of a disposition, do not pre- vent the legatee from having an acquired right trans- missible to his heirs. 903. A legacy lapses if the thing bequeathed perish totally during the lifetime of the testator. The loss of a thing bequeathed which happens after the death of the testator falls upon the legatee, except cases wherein the heir or other holder may be responsible ac- cording to the rules applicable generally to things which form the subject of obligations. 904. A testamentary disposition lapses when the legatee repudiates it or is incapable of receiving under it. SECTION VI. OF TESTAMENTARY EXECUTORS, 905. A testator may name one or more testamentary executors, [or provide for the manner in which they shall be appointed; he may also provide for their successive re- placement.] Heirs or legatees may lawfully be appointed testamentary executors. Creditors of the succession may be executors without forfeiting their claims. Single women or widows may also be charged w^ith the execution of wills. The courts and judges cannot appoint nor replu,ce testa- mentary executors, [except in the cases specified in article 924.] If there be no testamentary executors, and none have been appointed in the manner in which they may be, the Oifts inter vivos and hy "Will. 165 execution of the will devolves entirely upon the heir or the legatee who receives the succession. 906. Married women cannot accept testamentary ex- ecutorship without the consent of their husbands. Single women and widows who marry while they are testamentary executors, do not forfeit their office by mere operation of law, even though they have entered into community of property with their husbands, but they re- quire the consent of the latter to continue the exercise of such omce. A testamentary executrix separated as to property from her husband, either by contract of marriage or by judgment, may, if he refuse the consent necessary for her to accept Qir to exercise the office, obtain judicial authorization as in the cases provided for in article 178. 907. Minors cannot act as testamentary executors, even with the authorization of their tutors. Nevertheless emancipated minors may do so, provided the executorships be of small importance in proportion to their means. 908. The incapacity of corporations to execute wills is declared in the first book. Persons who compose a corporation, or such persons and their successors, may be appointed to execute wills in their purely personal capacity, and may act in that behalf if such appear to have been the intention of the testator, although he may have designated them solely by the ap- pellation which belongs to them in their corr)o«T..te capacity. The same rule applies to persons designated by the title which belongs to their office or position, and to their successors. 909. Subject to the preceding provisions, persons who cannot obligate themselves cannot be testamentary ex- ecutors. 910. No person can be compelled to accept the office of testamentary executor. Its duties are performed gratuitously, -unless the testator has provided for t^eir remuneration. If a legacy made in favor of a testamentary executor have no other cause than such remuneration, and he do not accept the office, the legacy lapses by reason of the failure of the condition. iM W n :.;»■ I I ' i r hi I rA\ Jl ! iiii ![ u u f 1 'v. m E! ,, ill 166 Civil Code of Lower Canada. If he accept the legacy thus made, he is presumed to have accepted the executorship. Testamentary executors are not bound to be sworn; nor to give security, unless they have accepted with that con- dition. They are not liable to coercive imprisonment. 91], A testamentary executor who has accepted the office cannot renounce it [without the authorization of the court or of a judge, which may be granted for sufficient cause; the heirs and legatees and other executors, if fhere be any, being present, or having been duly called. Difference of opinion between an executor and the majority of his co-executors, as to the execution of the will, may constitute a sufficient cause.] 912. If several testamentary executors have been ap- pointed, and some of them only, or even one of them alone, have accepted, they or he may act alone, unless the testator has otherwise ordained. In like manner, if several have accepted, but some or one only of them survive, or retain the office, they or he may act alone until the others are replaced, in the cases ad- mitting of it, unless the testator has expressed himself to the contrary. 913. If there be several joint testamentary executors, with the same duties to perform, they have all equal powers and must act together, unless the testator has otherwise ordained. [Nevertheless if any of them be absent those who are in the place may perform alone acts of a conservatory nature and others requiring despatch.] The executors may also act generally as attorneys for each other, unless the intention of the testator appears to the contrary, and subject to the responsibility of the one who grants the power. The executors cannot delegate genera,lly the execution of the will to others than their co-executors, but they may be represented by attorney for determinate acts. Executors exercising these joint powers, are .jointly and severally bound to render one and the same account, unless the testator has divided their functions and each of them has kept within the scope assigned to him. They are responsible only each for his share for the pro- perty of which they took possession in their joint capacity. Gifts inter vivos and hy Will. 167 for and for the payment of the balance due, saving the distinct liability of such as are authorized to act separately. 914. The expenses incurred by the testamentary executor in the fulfilment of his duties are borne by the succession. 915. A testamentary executor may, before the probate of the will, perform acts of a conservatory nature or which require dispatch, provided he obtains such probate without delay, and furnishes proof of it when required. 916. The testator may limit the obligation incumbent upon the executor of making an inventory and rendering an account of his administration, and even free him from it entirely. This discharge does not release him from the payment of what remains in his hands, unless the testator intended to leave him the disposition of the property Without re- sponsibility, or to constitute him legatee, or that the terms of the will otherwise import the release from payment. 917. rif, having accepted, a testamentary executor refuse or neglect to act, or dissipate or waste the property, or otherwise exercise his functions in such a manner as would justify the dismissal of a tutor, or if he have become incapable of fulfilling the duties of his office, he may be removed by the court having jurisdiction.] 918. Testamentary executors, for the purposes of the execution of the will, are seizec^ as legal depositaries of the moveable property of the succession, and may claim possession of it even against the heir or legatee. This seizin lasts for a year and a day reckoning from the death of the testator, or from the time when the executor was no longer prevented from taking possession. When his duties are at an end, the testamentary executor must render an account to the heir or legatee who receives the succession, and pay him over the balance remaining in his hands. 919. The testamentary executor must cause an inventory to be made after notifying the heirs, legatees and other interested persons to be present. He may however per- form immediately all acts of a conservatory nature or which require dispatch. He attends to the obsequies of the deceased. !l ^ ■> ri': I . i.C -t— TTiG?;*.' 4 ¥1 1 ill 1 1 1^ 1 K P 11 fi r, 'i !ft 1 \l 168 Oivit Code 0^ Lower Canada. He procures the probate of the will and its registration when necessary. If the validity of the will be contested he may become a party to support it. He pays the debts and discharges the particular legacies, with the consent of the heir or of the legatee who receives the succession, or, after calling in such heir or legatee, with the authorization of the court. In the case of insufflciency of moneys for the execution of the will, he may, with the same consent, or with the same authorization, sell moveable property of the succes- sion to the amount required. The heir or legatee may how- ever prevent such sale by tendering the amount required for the execution of the will. The testamentary executor may receive the debts due and may sue for their recovery. He may be sued for whatever falls within the scope of his duties, saving his right to call in the heir or the legatee. 920, The powf3rs of a testamentary executor do not pass by mere operation of law to his heirs or other successors, who are however bound to render an account of his ad- ministration, and of whatever they may themselves have actually administered. 921. The testator may modify, restrict or extend the powers, the obligations and the seizin of the testamentary executor, and the duration of his functions. He may con- stitute the testamentary executor an administrator of his property, in whole or in part, and may even give him the power to alienate it with or without the intervention of the heir or legatee, in the manner and for the purposes deter- mined by himself. 992. A testator cannot appoint tutors to minors, nor curators to persons requiring their assistance or to substi- tutions. If he have assumed to appoint persons to such offices, the specific powers given to the persons thus named, and which he might have conferred upon them without such designation, may however be exercised by them as execu- tors and administrators of the will. The testator may oblige the heir or the legatee, in certain cases, to take the advice or to obtain the sanction of the testamentary executors, or of other persons. .iitij-,?,;} Oifts inter vivos and by Will. 169 923. The testator may provide for the replacing oi: testamentary executors and administrators, even succes- sively and for as long a time as the execution of the will shall last, whether by directly naming and designating those who shall replace them himself, or by giving them power to appoint substitutes, or by indicating some other mode to be followed, not contrary to law. 924. [If the testator desire that the appointment or the replacement should be made by the courts or judges, the powers necessary for such purpose may be exercised judicially, the heirs and legatees Interested being first duly notified. When testai.ientary executors and administrators have been named by the will, and, In consequence of their refusal to accept, or of their powers having ceased without their being replaced, or of unforeseen circumstances, none of them remain, and it is impossible to replace them under the terms of the will, the judges and the courts may likewise exercise the powers necessary to do so, proviuf^rt it appears that the testator intended the execution and al- minlstratlon of the will to continue independently of the heir or of the legatee.] CHAPTER FOURTH. OF SUBSTITUTIONS. SECTION I. RULES CONCERXING THE NATURE AND FORM OP SUBSTITUTIONS. 925. There are two kinds of substitution: Vulgar substitution is that by which a person is called to take the benefit of a disposition in the event of Its failure in respect of the person in whose favor it is first made. Fiduciary substitution is that in which the person re- ceiving the thing is charged to deliver it over to another either at his death or at some other time. Substitution takes its effect by operation of law at the time fixed upon, without the necessity of any delivery or other act on the part of the person charged to deliver over. 926. Fiduciary substitutions inchide vulgar substitutions without any expressions to that effect being necessary. I \\ If . 1 j;iU -■•■'M IMAGE EVALUATION TEST TARGET (MT-3) fe A^ « ^< ^^/^ 1.0 ^^Ki I.I us 1^ ^ 1.8 1.25 1.4 J4 •4 6" — ► *11 JV'^ o / Photographic Sciences Corporation 23 WEST AAAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 I 170 Civil Code of Lmocr Canada. I Whenever the vulgar is expressly joined to the fldupiary^ ,^ to meet particular cases, the substitution is called com- pendious. When the term substitution is used alone, it applies to the fiduciary, with the vulgar attached to it, unless the nature or terms of the disposition indicate the vulgar alone. 927. The person charged to deliver over is called the institute, and the one who is entitled to take after him is called the substitute. When there are several degrees in the substitution, the substitute who receives under the obligation of delivering over becomes in turn an institute with regard to the substitute who comes next. 928. A substitution may exist although the term usufruct be used to express the right of the institute. In general the whole tenor of the act and the intention which it sufficiently expresses are considered, rather than the ordinary acceptation of particular words, in order to de- termine whether there is substitution or not. 929. Substitutions may be created by gifts inter vivos^ made in contracts of marriage or otherwise, by gifts in contemplation of death made in contracts of marriage, or by will. The capacity of the persons is governed in each case by the nature of the act. The disposition which creates the substitution may be conditional like any other gift or legacy. Substitutions may be appended to dispositions that are either universal, or by general title, or by particular title. The substitute need not be present at the gift inter vivos^ which creates the substitution in his favor; he need not even have been born nor conceived at the time of the act. 930. Substitutions made by contract of marriage are irrevocable like gifts made in the same manner. Substitutions made by other gifts intei' vivos may be re- voked by the donor, notwithstanding the acceptance by the institute for himself, [so long as they have not opened; unless they have been accepted by the substitute, or in his behalf, either formally or in an equivalent manner, as in gifts in general.] The acceptance made for themselves by institutes, even when they are strangers to the donor, also renders irre- Gifts inter vivos and "by Will. 171 vocable the substitution in favor of their children born or to be born. The revocation of a substitution, when it is allowed, cannot prejudice the institute nor his heirs by depriving them of the iwsslble benefit of the lapse of the substitution, c^r otherwise. On the contrary, and although the substi- tute might have received but for the revocation, such re- vocation goes to the profit of the institute and not to the grantor, unless the latter has made a reservation to that effect in the act creating the substitution, substitutions by will may be revoked like all other tes- tamentary dispositions. 931. Moveable property as well as immoveables may be the subject of substitutions. Unless corporeal moveables are subjected to a different disposition they must be pub- licly sold and their price be invested for the purposes of the substitution. Ready money must also be invested in the same manner. The investment must in all cases be made in the name of the substitution. 932. [Substitutions created by will or by gifts inter viros cannot extend to more than two degrees exclusive of the institute.] 933. The rules concerning legacies in general also govern in matters of substitution, in so far as they are applic- able, save in excepted cases. Substitutions by gift inter riros, like those created by will, are subject to the same rules as legacies, as to their open- ing, and after they have opened. Whatever relates to me form of the act, and the acceptance and prehension of the property by the first donee, remains subject to the rules which belong to gifts i7iter vivos. An acceptance by the first institute under the gift is sufficient for the substitutes, if they avail themselves of the disposition, and if it have not been validly revoked. If the gift inter vivos lapse in consequence of repudia- tion or for want of acceptance on the part of the first donee, fiduciary substitution does not take place, nor does the vulgar unless the donor has so provided. 934. The testator may impose a substitution either upon the donee or the legatee whom he benefits, or upon his heir on account of what he leaves him as such. f" 172 Civil Code of Lower Canada. 935. The donor in an act inter vivos cannot subsequently \ create a substitution of the property he has given, even in favor of the children of the donee. Nor can he reserve the right of doing so, except it be in a contract of marriage. The grantor may however reserve to himself, in all cases, the right to determine the propor- tions in which the substitutes shall receive. Nevertheless the donor or testator may. In a new gift inter vivos of other property to the same person, or in a will, create a substitution of the property given uncondi- tionally in the first gift; such a substitution takes effect only by virtue of the acceptance of the subsequent dis- position of which it forms a condition, and does not pre- judice the rights acquired by third parties. 036. Children who are not called to the substitution, but are merely named in the condition without being charged to deliver over to others, are not deemed to be included in the disposition. 937. In substitutions, as in other legacies, representa- tion does not take place, unless the testator has ordained that the property shall pass in the order of legitimate successions, or his. intention to that effect is otherwise manifest. SECTION II. OF THE REGISTRATION OF SUBi^TITUTIGNS. 938. Besides the effect of registration or of the omission to register, as regards gifts and wills respectively as such, any of these acts containing fiduciary substitutions, either in respect of moveable or of immoveable property, must be registered in the interest of the substitutes and of third parties. Substitutions in the direct line in contracts of marriage, and those in respect of corporeal moveables accompanied with actual delivery to the first donee are not exempt from registration. The failure to register substitutions operates in favor of third parties, to the prejudice of the substitutes, though the latter be minors, or interdicted, or not yet bom, and even against married women, and they cannot be relieved from it; saving their recourse against those whose duty it was to procure the registration. Oifts inter vivos and by Will. 173 )n |h, ler 1st id 5d lit 938. The want of registration may be invoked against the substitution by all parties interested who are not within some particular exception. 940. Neither the grantor, nor the Institute, nor their heirs or universal legatees, can avail themselves of the want of registration, but it may be invoked by those who have acquired from them in good faith by a particular title, whether onerous or gratuitous, and by their creditors. 941. The registration of acts containing substitutions takes the place of their inscription in the offices of the courts, and of their judicial publication, which formalities are abolished. Such registration must be effected within six monins from the date of the gift inter vivos, or from the death of the testator. The effect of the registration of gifts inter vivos within such delay, as regards third parties whose claims are registered, is explained in the title Of Regis- tration of real riglits. As regards all other parties, and in cases of substitution by will, registration within the same delays has a retroactive effect to the time of the gift, or to that of the death. If it take place subsequently, its effect commences only from its date. Nevertheless the special delays established, as regards wills, for the cases where the .estator dies beyond Canada, or where the deed has been concealed, apply with equal retroactive effect to the substitution contained in the will in such cases. Substitutions affecting immoveables must be registered in the registry office of the division in which they are situated, and also, when they are created by gifts made in contemplation of death, or by will, at the registry office of the domicile of the grantor. If it affect moveable property, it must be registered in the registry office of the division in which the donor at the time of the donation, or the testator at the time of his death, had his domicile. 942. The following persons are bound to register sub- stitutions, when they are aware of their existence, namely: 1. The institute who accepts the gift or legacy; 2. The substitute of age, who is himself charged to de- liver over; 3. Tutors or curators of the institute or of the substi- tutes, and the curator to the substitution; If m m 11;: 174 Civil Code of Lower Canada. 4. The husband for his wife who is so bound. Those who are bound to effect the registration of the substitution, and their heirs and universal legatees, or legatees by general title, cannot avail themselves of the want of such registration. The institute who has neglected to register is moreover subject to lose the fruits, as in the case of neglect to have an inventory made. 943. The acts and declarations of investment of the moneys belonging to the substitution must also be regis- tered within six months from their date. U I SECTION III. OP SUBSTITDTIONS BEFORE THEIR OPENING. 944. The institute holds the property as proprietor, sub- ject to the obligation of delivering over, and without pre- judice to the rights of the substitute. 945. All substitutes, born and unborn, are represented in all inventories and partitions by a curator to the substitution, appointed in the maimer established as re- gards tutors. The curator to the substitution attends to the interest of such substitutes and represents them in all cases in which his intervention is requisite or proper. The institute who neglects to demand this nomination may be declared to have forfeited in favor of the substitute the benefit of the disposition. All persons who are competent to demand the appoint- ment of a tutor to a minor of the same family, may also demand the nomination of a curator to the substitution. (1) (1) As amended by R. S. Q., art. 5802 (38 Vict., c. 13, s. 1, 23 Feb., 1875). The original article read as follows:— " If all the substitutes be not born, the institute is bound to obtain, in the manner established as reg-ards tutors, the judicial appointment of a curator to the substitution, to repre- sent the substitutes yet unborn, and to attend to their interests in all inventories and partitions and other circumstances in which his intervention is requisite or proper. The institute who neglects to fulfil this obligation may be declared to have forfeited in favor of the substitute the benefit of the disposition. All persons who are competent to demand the appointment of a tutor to a minor of the same family may also demand the nomination of a curator to the substitution. Substitutes who are born but Incapable are represented as In ordinary cases." Gifts inter vivos and hy Will. 1T5 23 |>und the Ipre- Hsts in be leflt lent the as 946. The institute is bound, within three months to ' have an inventory made at his own expense of the pro- perty comprised in the substitution, as well as a valuation of the moveable effects, if they have not already been included as such and valued likewise in a general inventory of the property of the succession, made by other pevaons. All persons interested must either be present or have been notified to that effect. In default of the institute, the substitutes, their tutors or curators, and the curator to the substitution have the right, and are bound, except the substitutes when they are not obliged to deliver over, to cause such inventory to be made at the expense of the institute, after notifying him, and all others interested, to be present. So long as the institute fails to have such inventory and valuation made he is deprived of the fruits. 947. The institute performs all the acts that are neces- sary for the preservation of the property. He is liable on his own account for all rights, rents, charges and arrears falling due within his time. He makes all payments, receives moneys due anC reim- bursements, invests capital sums and exercises before the courts all the powers necessary for these purposes. For the same purposes he makes the necessary advances for law expenses and other necessary disbursements of an extraordinary nature, the amount of which is refunded to him or his heirs, either in whole or in part, according to what appears to be equitable at the time when he de- livers over. Ii' he have redeemed rents or paid the principal of debts due, without having been charged to do so, he and his heirs have a right to be paid back, at the same time, the moneys so disbursed, without interest. If such redemption or payment have been made in anti- cipation without sufficient reason, and would not have been demandable at the time of the opening, the substitute need not, until the time when they would have become exigible, do more than pay the rents or ini;erest. 948. The rules concerning indivision set forth in the title Of Successions, apply equally to substitutions, save the provisional nature of the partition while they last. In the case of forced sale of immoveables,, or any other lawful alienation of the property comprised in a substitu- tion, and in the case of redemption of rents or capital i ■(■'■y ne Civil Code of Lower Canada, sums, the Institute, or the testamentary executors author- ized to administer in his place, are bound to invest the price, in the interest of the substitutes, with the consent of all parties interested; or upon the refusal of sujch par- ties, the investment is made under judicial authorization, obtained sifter due notice to them being given. 949. The obligation of delivering over the property of the substitution in an undiminished state, and the nullity of all his acts in contravention thereof, do not prevent the institute from hypothecating or alienating such property, .ithout prejudice to the rights of the substitute, who takes it free from all hypothecs, charges or servitudes, and even from the continuation of leasie, unless his right has been prescribed according to the rules contained In the title Of Prescription, or unless a third party has a right to avail himself of the want of registration of the substitution. 950. Forced sales under execution, or by llcltatlon, are likewise dissolved In favor of the substitute by the open- ing of the substitution, if it have been registered, unless the sale comes within one of the oases mentioned In article 953. 951. The institute cannot compound as to the owner- ship of the property in such a manner as to bind the sub- stitute, except in cases of necessity, when the Interests of the latter are concerned, and after being judicially author- ized in the manner required for the sale of property belong- ing to minors. 952. The graator may indefinitely allow the alienation of the property of the substitution, which takes place, in such case, only when the alienation Is not made. . 953. The final alienation of the property of a substitu- tion may moreover be validly effected while the substitu- tion lasts: 1. By expropriation for public purposes or In virtue of some special law; 2. By forced judicial sale on account of a debt due by the grantor, or of hypothecary claims anterior to his possession. The obligation of the Institute to discharge the debt or hypothec does not prevent the sale from being valid In this case against the substitution, but the Insti- tute Is liable towards the substitute for all damages; oee page 5 1 7 Gifts inter vivos and hy Will. 177 LtU- itu- of by ihis iTge )ing Istl- 3. With the consient of all the substitutes, when they are in the exercise of their rlghte. If some of them only have consented, the alienation holds good as regards them, without prejudicing the others; 4. When the substitute as heir or legatee of the institute Is answerable to the purchaser for the eviction; 5. As regards moveable things sold in conformity with section I of this chapter. (1) (1) See as to alienation of lands to railway companies, Dom- inion Railway Act, 1888, 51 Vict., c. 29, s. 136; Quebec Railway Act, R. S. Q., art. 5164, sub-sec. 3. 954. [The wife of the institute has no subsidiary re- course against the property of substitutions for the se- curing of her dower or her dowry.] 855. If the institute deteriorate, waste or dissipate the property, he may be compelled to give security or to allow the substitute to be put in possession of it as a seques- trator. 056. The substitute may, while the substitution lasts, dispose by act inter vivos or by will, of his eventual right to the property of the substitution, subject to the contin- gency of its lapsing, and to its ulterior effects if it con- tinue beyond him. The substitute or his representatives may, before the opening, perform all acts of a conservatory nature con- nected with his eventual right, whether against the insti- tute or against third persons. 957. The substitute who dies before the opening of the substitution in his favor, or whose right to it has otherwise lapsed, does not transmit such right to his heirs, any more than in the case of any other unaccrued legacy. 958. As regards the repairs which the institute is bound to make, and the reimbursements he or his heirs may claim for the improvements he has made, the same rules apply as are laid down for the emphyteutic lessee in articles 581 land 582. 959. Judgments obtained by third parties against the institute cannot be impugned by the substitutes, on the ground of the substitution, if, in the same suits, they, or their tutors or curators, or the the curator to the substitu- tion, besides the executors and administrators of the will, if there were any in function, were impleaded. 12 V'i P. I I 1 1 III ill I 178 Civil Code of Lower Canada. If the substitutes, or those who may be thus impleaded ' in their place, have not been included in the suit, such Judgments may be impugned, whether the institute has or has not contested the action brought against him. 960. The institute may, but without prejudice to his crediltors, deliver over the property in anticipation of the appointed term, unless the delay is for the benefit of the substitute. SECTION IV. OP THE OPENING OF SUBSTITUTIONS AND ^'HE DELIVERING OVER OP THE PROPERTY. 961. When no period Is assigned for the opening of a substitution and the delivering over of the property, they take place at the death of the institute. 962. The substitute takes the property directly from the grantor and not tfrom the institute. The substitute, by the opening of the substitution in his favor, becomes immediately seized of the property in the same manner as any other legatee; he may dispose of it absolutely and transmit it in his succession, if he be not prohibited from doing so, or if the substitution do not continue beyond him. 963. If, by reason of a pending condition or some other disposition of the will, the opening of the substitution do not take place immediately upon the death of the institute, his heirs and legatees continue, until the opening, to exer- cise his rights, and remain liable for his obligations. 964. The legatee who is charged as a mere trustee, to administer the property and to employ it or deliver it over in accordance with the will, even though the terms used appear really to give him the quality of a proprietor subject to deliver over, rather than that of a mere executor or administrator, does not retain the property in the event of the lapse of the ulterior disposition, or of the impossi- bility of applying such property to the purposes intended, unless the testator ihas manifested his intention to that effect. The property in such oases passes to the heir or the legatee who receives the succession. Oifts inter vivos and ly Will. 179 966. The Institute or his heirs deliver over the property together with its accessories; they rendeir the fruits and interest accrued since the opening, if they have received them, unless the substitute, after being put in default to accept or repudiate the legacy, has failed to asaume his quality. 866. [If the institute were a debtor or a creditor of the grantoir, and in consequence of his accepting as heir, as universal legatee, or as legatee by general title, confusion take place so as to destroy his debt or his claim, such debt or claim, notwithstanding such confusion which is deemed to be only temporary, revives between the substi- tute and the institute or his heirs, when the property " comes to be delivered over; except as to Interest up to that time for which the confusion still holds. The Institute or his heirs are entitled to the separation of property In the prosecution of their claim, and may retain the property until they are paid.] 967. Institutes under age, Interdicted, or unborn, or under coverture, are not rellevable from the non-fulfilment of the obligations Imposed upon them, or upon their hus- bands, tutors or curators for them, by this and the preced- ing section; saving their recourse. SECTION V. OP THE PROHIBITION TO ALIENATE. 968. The prohibition to alienate contained In a deed may, In certain cases, be connected with a substitution or may even constitute one. It may also be made for other motives than that of sub- stitution. It may be stated in express terms, or may result from the conditions and circumstances of the act. It Includes the prohibition to hypothecate. In gifts inter vivos the undeirtaking by the donee not to alienate has the same effects as the prohibition by the donor. 969. The cause or consideration of the prohibition to alienate, may be the interest either of the party disposing, or of the party receiving, or it may be that of the substi- tutes, or of third parties. -??;u 180 CiLil Code of Lower Canada. 970. The prohibition to alienate things sold or conveyed ^ by purely onerous title is void. 971. The prohibition to alienate may be simply con- flrmatoi-y of a substitution. It may constitute one, although express terms be not used, according to the rules hereinafter laid down. 972. [Although the motive of the prohibition to alienate be not expressed, and it be not declared under pain of nullity or some other penalty, the Intention of the party disposing suffices to give It effect, unless the expressions are evidently within the limits of mere advice. When the prohibition Is not made for another motive, It Is Interpreted as establishing In favor of the party dis- posing and his heirs a right to get back the property.] 973. If the prohibition to alienate be made In favor of persons who are designated, or who may be ascertained, and who lare to receive the property after the donee, the heir, or the legatee, a substitution is created In favor of such persons, although It be not In express terms. 974. When the prohibition to alienate extends to several degrees and is at the same time interpreted as Implying a substitution, those to whom the prohibition successively applies after the first who receives, become substitutes in turn, as 11 they were the subject of express dispositions. 975. The prohibition to alienate may be confined to acts inter vicos, or to acts in contemplation of death, or may entend to both, or may be otherwise modified according to the win of the party disposing. Its extent Is determined according to the object which the party disposing had in view, and the other attending circumstances. If there be no restriction, the prohibition Is deemed to cover acts of every description. 976. The simple prohibition to dispose of property by \7ill, without other condition or Indication, Implies a sub- stitution in favor of the natural heirs of the donee, or of the heir or legatee, for so much of the property as raay remain at the death oif such donee, heir or legatee. 977. The prohibition to alienate out of the family, either of the party disposing or of the party receiving, or out of any other family, does not, in the absence of expressions Gifts inter vivos and by Will. 181 ' denoting continuance, extend to others than those to whom it is addressed; the persons belonging to the family who take after them are not subject to it. If the prohibition be addressed to no person in particular, it is deemed, in the absence of such expressions, to apply only to the person first benefited. Substitution:; made in a family are in all cases inter- preted according to the same rules. 978. The prohibition to alienate out of the family, when no dispositions require the following of the legitimate order of succession, or any other order, does not prevent the alienation, by gratuitous or onerous title, made in favor of the more distant members of the family. 979. The term family when It Is not limited, applies to all the relatives In the direct or collateral line belonging to the family, who come by successive degrees according to law or to the order Indicated, without however repre- sentation being allowed otherwise than in the case of legacies. 980. In the prohibition to alienate, as in substitutions, and in gifts and legacies in general, the terms children or grandchildren, made use of without aiiallflcatlon either in the disposition or in the condition, apply to all the descendants, with or without the effect of extending to more than one degree according to the terms of the act. 981. [Prohibitions to alienate, although not accompanied by substitution, must be registered, even as regards move- able property, in the same manner as substitutions them- selves. The person thus prohibited and his tutor or curator, and the husband in the case of a married woman, are bound to effect such registration.] CHAPTER FOURTH (A). OF TRUSTS, 981a. All persons capable of disposing freely of their property may convey property, moveable or immoveable, to trustees by gift or by will, for the benefit of any persons in whose favor they can validly make gifts or legacies. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) I I'M ;?i :.: I »;! li '■■i \ f ,3 i ! * i 1 . a i i '. "■( 1 282 Civil Code of Lower Canada. 9816. Trustees, for the purposes of their trust, are seized as depositaries and administrators for the benefit of tiie donees or legatees of the property, moveable or im- moveable, conveyed to them in trust, and may claim pos- eession of it, even against the donees or legatees for whose benefit the trust was created. This seizin lasts only for the time stipulated for the dura- tion of the trust; and while it lasts, the trustees may sue and be sued and take all judicial proceedings for the affairs of the trust. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 98 1 c. The donor or testator creating the trust may pro- vide for the replacing of trustees as long as the trust lasts, in case of refusal to accept, of death, or other cause of vacancy, and indicate the mode to be followed. When it is impossible to replace them under the terms of the document creating the trust, or when the replace- ment is not provided for, any judge of the Superior Court may appoint replacing trustees, after notice to the bene- fited parties. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981^. Trustees dissipating or wasting the property of the trust, or refusing or neglecting to carry out the pro- visions of the document creating the trust, or infringing their duties, may be removed by the Superior Court. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981 e. The powers of a trustee do not pass to his heirs or other successors, but the latter are bound to render an account of his administration. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981/. When there are several trustees, the majority may act, unless it be otherwise provided in the document creating the trust. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981^. Trustees act gratuitously, unless it be otherwise provided in the document creating the trust. All expenses incurred by trustees, in the fulfilment of their duties, are borne by the trust. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) Gifts inter vivos and by Will. 183 981A. Trustees are obliged to execute the trust which they have accepted, unless they be authorized by a judge of the Superior Court to renounce; and they are liable for damages resulting from their neglect to execute it, when not so authorized. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.> 9812. Trustees are not personally liable to third parties with whom they contract. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981;. The trustees, without the intervention of the parties benefited, administer the property vested in them and dispose of it, invest moneys which are not payable to the parties benefited, and alter, vary and transpose, fr(!m time to time, the investments, in accordance with the provisions and terms of the document creating the trust. In default of instructions, the trustees mnke investments without the intervention of the parties benefited, in accord- ance with the provisions of article 981o. Added by R. S. O , art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981 A;. Trustees are bound to exercise, in administering the trust, reasonable skill and the care of prudent admin- istrators; but they are not liable for depreciation or loss in investments made according to the provisions of the document creating the trust, or of the law, or for loss on deposits made in chartered banks or savings banks, unless there has been bad faith on their part in making such investments or deposits. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 9811. At the termination of the trust, the trustees must render an account, and deliver over all moneys and se- curities in their hands to the parties entitled thereto under the provisions of the document creating the trust, or entitled thereto by law. They must also execute all transfers, conveyances, or other deeds necessary to vest the property held for the trust in the parties entitled thereto. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 981 w. Trustees are jointly and severally bound to render one and the same account, unless the donor or testator f . H ■ .i,, '■ t'~. •;i;i ■-:'Ci,^h/- .■ 184 Civil Code of Lower Canada. i ] i I ' i i i! who created the trust has divided their functions, and each has kept within the scope assigned to him. They are also jointly and severally responsible for the property vested in them, in their joint capacity, and for the payment of any balance in hand, or for any waste or for any loss arising from wrongful investments, saving where they are authorized to act separately, in which case those having acted separately, within the scope assigned to them, are alone liabk for such separate administration. Added by H. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) 98 In. Trustees are liable to coercive imprisonment for whatever is due, by reason oif their administration, to those to whom they are accountable, subject to the pro- visions contained in the Code of Civil Procedure. Added by R. S. Q., art. 5803. (42-43 Vict., c. 29, 31 Oct., 1879.) CHAPTER FOURTH (B). OF THE INVESTMENT OF MONEYS BELONGING TO OTHER PERSONS. 98 lo. Except in the case of testamentary executors otherwise authorized by the will, in that of institutes under a substitution otherwise authorized by the instrument creating the substitution, and in that of trustees otherwise authorized by the instrument constituting such trust, every institute in whatever degree under a substitution, howso- ever created, every executor under any will, and every tutor, curator or trustee having as such the possession or administration of property belonging to another, or held by him for the benefit of another, bound by law to invest money held by him as such administrator, must invest moneys held by them as such in Dominion or Pro- vincial Stock or in public securities of the United Kingdom or of the United States of America, or in municipal stock or debentures, or in real estate in this Province, or on first privilege or hypothec upon real estate in this Province to an amount not exceeding three-fifths of the municipal valuation of such real estate. Added by R. S. Q., art. 5803. (33 Vict., c. 19, ss. 1 and 2, 1 Feb., 1870; 42-43 Vict., c. 29, ss. 1, 2 and 10, 31 Oct.. 1879; 42-45 Vict., c. 30, s. 1; 46 Vict., c. 24, ss. 1 and 2, 30 March, 1883.) 9Blp. The institute, executor, administrator, tutor, curator or trustee, making investments in accordance with Obligations, 185 the preceding article. Is exempt from all responsibility respecting the Investments so made, saving always in the case of fraud, which renders these persons responsible for the damages occasioned by their iraud, under pain of coercive imprisonment, subject to the provisions contained In the Code of Civil Procedure. Added by R. S. Q., art. 5S03. (42-43 Vict., c. 30, 31 Oct., 1879.) 981q. The institute, executor, administrator, tutor, curator and trustee, when investments are made otherwise than as provided in article 981o, or than as ordered by the will appointing the executors or administratoirs, or by the document creating the substitution or trust, are obliged to indemnify the parties to whom they are accountable for losses caused by the depreciation of the securities invested in, under pain of coercive imprisonment, subject to the provisions contained in the Code of Civil Procedure. Added by R. S. Q., art. 5803. (42-43 Vict., c. 30, 31 Oct., 1879.) 98 Ir. Whenever the terms of the instrument give such persons the power to invest moneys, and a full or restricted discretion as to the nature or manner of such investment, they are held to have the like power and discretion to change from time to time any such investment they may have made, by selling the property in which they had in- vested, and re-investing the proceeds as they might ori- ginally have done. Added by R. S. Q., art. 5803. (33 Vict., c. 19, s. 3, 1 Feb., 1870.) TITLE THIRD. OF OBLIGATIONS. GENERAL PROVISIONS. 982. It is essential to an obligation' that it should have a cause from which it arises, persons between whom it exists, and an object. 983. Obligations arise from contracts, quasi-contracts, offences, quasi-offences, and from the operation of the law solely. 'i!i -. mil ii 1^6 Civil Code of Lower Canada. CHAPTER FIRST. OF CONTRACTS. SECTION I. 01* THE REQUISITES TO THE VALIDITY OF CONTRACTS. 984. 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. i^ 1. Of the legal capacity to contract. 985. All persons are capable of contracting, except those whose incapacity is expressly declared by law. 986. Those legally incapable of contracting are: Minors in the cases and according to the provisions con- tained in this code. Interdicted persons; Married women, except in the cases specified by law; Those who, by special provisions of law, are prohibited from cont^^acting by reason of their relation to each other, or of the object of the contract; Persons insane or suffering a temporary derangement of intellect arising from disease, accident, drunkenness or other cause, or who by reason of weakness of under- standing are unable to give a valid consent; Persons civilly dead. 987. The incapacity of minors and of persons inter- dicted for prodigality, is established in their favor. Parties capable of contracting cannot set up the inca- pacity of the minors or of the interdicted persons with whom they have contracted. § 2. Of consent. 988. Consent is either express or implied. It is invali- dated by the causes declared in the second section of this chapter. Obligaiions. § 3. Of the cause or consideration of contracts. 187 989. A contract without a consideration, or with an unlawful consideration has no effect; but it is not the less valid though the consideration be not expressed or be incorrectly expressed in the writing which is evidence of the contract. 990. The consideration is unlawful when it is prohibited by law, or is contrary to good morals or public order. § 4. Of the object of contracts. See Chap. V. " Of the object of obligations." SECTION II. OF CAUSES OF NULLITY IN CONTRACTS. 991. Error, fraud, violence or fear, and lesion are causes of nullity in contracts; subject to the limitations and rules contained in this code. § 1. Of error. 992. Error is a cause of nullity only when it occurs in the nature of the contract itself, or in the substance of the thing which is the object of the contract, or in some thing which is a principal consideration for making it. § 2. Of fraud. 993. Fraud is a cause of nullity when the artifices prac- tised by one party or with his knowledge are such that the other party would not have contracted without them. It is never presumed and must be proved. I ^ 3. Of violence and fear. 994. Violence or fear is a cause of nullity, whether prac- tised or produced by the party for whose benefit the con- tract is made or by any other person. 995. The fear whether produced by violence or other- wise must be a reasonable and present fear of serious injury. The age, sex, character and condition of the party are to be taken into consideration. I I; f :' : ■}; p?" , nil ■m 1 w. } 188 Civil Code of Lower Canada. 996. Fear suffered by a contracting party is a cause of nullity whether it is a fear of injury to himself, or to his wife, children or other near kindred, and sometimes when it is a fear of injury to strangers, according to the circumstances of the case. 997. Mere reverential fear of a father or mother, or other ascendant, without any violence having been exer- cised or threats made, will not invalidate a contract, 098. If the violence be only a legal constraint, or the fear only of a party doing that which he has a right to do, it is not a ground of nullity; but it is, if the forms of law be used or threatened for an unjust and illegal cause to extort a consent. 999. A contract for the purpose of delivering the party making it, or the husband, wife or near kinsman of such party from violence or threatened injury, is not invalidated by reason of such violence or threats; provided the person in whose favor it is made be in good faith, and not in collusion with the offending party. 1000. Error, fraud, and violence or fear are not causes of absolute nullity in contracts. They only give a right of action, or exception, to annul or rescind them. § 4. Of lesion. 1001. Lesion is a cause of nullity only in certain cases and with respect to certain persons, as explained in this section. 1002. Simple lesion is a cause of nullity in favor of an unemancipated minor against every kind of act when not aided by his tutor, and when so aided, against every kind of act other than acts of administration; and in favor of an emancipated minor against all contracts which exceed his legal capacity, as established in the title Of Minority, Tutorship, and Emancipation ; subject to the exceptions spe- cially expressed in this code. 1003. The simple declaration made by a minor that he is of the age of majority forms no bar to his obtaining relief for cause of lesion. Is Obligations. 189 1004. A minor Is not relievable for cause of lesion, wtien it results only from a casual and unforeseen event. 1005. A minor wiho is a banker, trader or mechanic is not relievable for cause of lesion from contracts made for the purposes oif his business or trade. 1006. [A minor is not relievable from the stipulations contained in his marriage contract, wihen they have oeen made with the consent and assistance of those whose con- sent is required for the validity of Ms marriage.] 1007. A minor is not relievable from obligations result- ing from his offences and quasi-offences. 1008. A person is not relievable from a contract made by him during minority, when he has ratified it since at- taining the age of majority. 1009. Contracts by minors for the alienation or incum- brance of their immoveable pix)perty made with or without the intervention of their tutors or curators, unattended with the formalities required by law, may be avoided with- out proof of lesion. 1010. [When all the formalities required with respect to minors or interdicted persons for the alienation of im- moveable property, or the partition of a siiccession, have been observed, such contracts, and acts have tbe same force and effect as if they had been executed by persons of the age of majority and free from interdiction.] 1011. When minors, interdicted persons or married wo- men are admitted in these qualities to be relieved from their contracts, the reimbursement of that whiCh bas been paid in consequence of these contracts, during the minor- i^, interdiction or marriage, cannot b© exacted unless it is proved that what has been so paid ihas turned to their profit. 1012. [Persons of the age of majority are not entitled to relief from' their contracts for cause of lesion only. J SECTION III. OF THE INTERPRETATION OF OONTRAOTS. 1013 When the meaning of the parties in a contract is doubtful, their common intention must be determined by i iii ihijf J) f}m ■!.i'i ,. * . I ••» U! ^m: t ! I 14 (■ 1 11 ! ' ' I ■ i 1! • I 190 Cidi Code of Lower Canada. interpretation rather than by adherence to the literal mean- ing of the words of the contract. 1014. When a clause is susceptible of two meanings, it must be understood in that in whidh it may have some effect rather than in that in which it can produce none. 1016. Expressions susceptible of two meanings must be taken in the sense which agrees best with the matter of the contract. 1016. Whatever is doubtful must be determined accord- in to the usage of the country where the contract is made* 1017. The customary clauses must be supplied in con- tracts, although they be not expressed. 1018. All the clauses of a contract are interpreted the one by the other, giving to each the meaning derived from the entire act, 1019. In cases of doubt, the contract is interpreted against him who has stipulated and in favor of him who has contracted the obligation. 1020. However general the terms may be in which a contract is expressed, they extend only to the things con- cerning which it appears that the parties intended to contract. 1021. When the parties in order to avoid a doubt whether a particular case comes within the scope of a contract, have made special provision for such case, the general terms of the contract are not on this account restricted to the single case specified. SECTION IV. OP THE EFFECT OP CONTRACTS. 1022. Contracts produce obligations, and sometimes have the effect of discharging or modifying other contracts. They have also the effect in some cases of transfeprin^ the right of property. They can be set aside only by the mutual consent of the parties, or for causes established by law. a to Obligations. 191 1023. Contracts have effect only between the contract- ing parties; they cannot affect third persons, except in the cases provided in the articles of the fifth section of this chapter. 1024. The obligation of a contract extends not only to what is expressed in it, but also to all the consequences which, by equity, usage or law, are incident to the con- tract, according to its nature. 1026. [A contract for the alienation 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. The foregoing rule is subject to the special provisions contained in this code concerning the transfer and registry of vessels. The safe-keeping and risk of the thing before delivery are subject to the general rules contained in the chapters Of the effect of obligations and Of the extinction of obliga- tions in this title.] 1026. If the thing to be delivered be uncertain or inde- terminate, the creditor does not become the owner of it until It is made certain and determinate, and he has been legally notified that it is so. 1027. [The rules contained in the two last preceding articles, apply as well to third persons as to the contract- ing parties, subject, in contracts for the transfer of im- moveable property, to the special provisions contained in this code for the registration of titles to and claims upon such property. But if a party oblige himself successively to two persons to deliver to each of them a thing which is purely move- able property, that one of the two who has been put in actual possession is preferred and remains owner of the thing although his title be posterior in date; provided, how- ever, that ihis possession be in good faith.] (1) (1) The Act Intituled "An Act respecting the Civil Code of Lower Canada," 29 Vict., c. 41, at paragraph 5 of the schedule thereto, varies from the above as to the position of the word "subject" in the first clause of the above article. The Act makes the word "subject" follow the words "immoveable property" instead of preceding the words "in contracts," as in the official copy of the code above given. Chief Justice Dorion, in the case of Dupuis v. Gushing (22 L, C, J,, at pp. 206, 207), discussed this variation and held that the official copy of the code prevailed. The decision in the case was main- tained in the Privy Council. (5 App. Cas. 409.) t|!i m riiti if \m 1 m M ' f 192 Civil Code of Lower Canada, i\ SECTION V. or THE iFFEOT OP CONTRACTS WITH REGARD TO THIRD PERSONS. 1028. A person cannot, by a contract in his own name, bind any one but himself and his heirs and legal repre- sentatives; but he may contract in his own name that another shall perform an obligation, and in this case he is liable in damages if such obligation be not performed by the person indicated. 1029. A party in like manner may stipulate for the benefit of a third person, when such is the condition of a contract which he makes for himself, or of a gift which he makes to another; and he who makes the stipulation cannot revoke it, if the third person have signified his assent to it. 1030. A person is deemed to have stipulated for him- self, his heirs and legal representatives, unless the con- trary is expressed, or result from the nature of the contract. 1031. Creditors may exercise the rights and actions of their debtor, when to their prejudice he refuses or neglects to do so; with the exception of those rights which are exclusively attached to the person. SECTION VI. OF THE AVOIDANCE OP CONTRACTS AND PAYMENTS MADE IN FRAUD OP CREDITORS. 1032. Creditors may in their own name imipeach the acts of their debtors in fraud of their rights, according to the rules provided in this section. 1033. A contract cannot be avoided unless it is made by the debtor with intent to defraud, and will have the effect of injuring the creditor. 1034. A gratuitous contract is deemed to be made with intent to defraud, if the debtor be inisolventt at the time of making it. 1035. An onerous contract made by an insolvent debtor with a person who knows him to be insolvent is deemed to be made with Intent to defraud. Oblii/atiana. .*||| || 1Q36. Every payment by an ioaolvent debtor to a cre- ditor knowing hie insolvency, is 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 benefit of the creditors according to itheir respec- tive rights. I 1087. Repealed by the Federal Act respecting the Re- vised Statutes of Canada. 49 Vict. (C), c. 4, s. 5, schedule A. (2 June, 1886.) R. S. Q., art. 6233. 1038. An onerous contract nmde 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 not voidable; saving the special provisions applicable in cases of insol- vency of traders. 1039. No contract or payment can be avoided, by rea- son of anything contained in this section, at the suit of a Biibsequent creditor, unless he is soibrogated in the rights of an anterior creditor. (1) (1) The words, "saving-, nevertheless, the exception contained In the Insolvent Act of 1874," were eliminated from the original article by 43 Vict. (C.) c. 1 (1 April, 1880); 49 Vict. (C.) c. 4, s. 5, schedule A. R. S. Q., art. 6234. 1040. [No contract or payment can be avoided by reason of any thing contained in this section, at the suit of any individual creditor, unless such suit is brought within one year fax)m the time of his obtaining a knowledge thereof. If 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.] jjyiii «: :■■ f \' 1 ^ fit tl CHAPTER SECOND. OF QUASI-CONTRACTS. 1041. A person capable of contracting may, by his law- ful and voluntary act, oblige himself toward another, and sometimes oblige another toward him without the inter- vention of any contract between them. 1042. A person incapable of contracting may, by the quasi-contract which results from the act of another, be obliged toward him. 13 ::! i! ,1 1 -if ■; ! i! 194 Civil Code of Lower Canada. flEOTION 1. OP TUB (iUASI-OONTRAOT NKOOTIORUM 0E8TI0. 1048. He who of his own accord assumes the manage- ment of any business of anoither, without the Icnow ledge 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 him- self; he must also take charge of the accessories of such business. He subjects himself to all the obligations which result from an express mandate. 1044. He is obliged to continue his management al- though the person for whom he acts die before the bue>lness Is terminated, until such time as the heir or other legal re- presentative Is In a condition to take the management of It. 1045. He Is bound to exercise In the management of the business all the oare of a prudent administrator. Nevertheless the court may moderate the damages aris- ing from his negligence or fault, according to the circum- stances under which the management of the business has been assumed. 1040. He whose business has been well managed Is bound to fulfil the obligations that the person acting for him has contracted in his name, to Indemnify him for all the personal liabilities which he lias assumed, and to re- imburse him all necessary or useful expenses. SECTION II. OF THE QUASI-OONTRAOT RESULTING FROM THE RKOKPTION OF A THING NOT DUE. 1047. He who receives what is not due to him, tihrougft error of law or of 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, be Is not obliged to restore the profits of the thing received.] 1048. He who pays a debt believing blmself by error to be the debtor, has a rigbt of recovery aga'.nst the cre- ditor. I ObHfjationa. 196 Nevertheless that right ceases when the tlllfe has In good faith been cancelled or has become ineffective in conse- quence of the payment; saving the remedy of him who has paid against the true debtor. 1049. If the person receiving be In bad faith he la bound to restore the sum paid or thing received, with itto interest and profits which it ought to have produced from the time of receiving it, or from the time that his bad faith began. 1050. If the thing unduly received be a thing certain, he who haj? received it is bound to restore its value, if throuj^h his fault and his bad faith it have perished or deterioirated, or can no longer be delivered in kind. If he have received the thing in bad faith, or after hav- ing been put in default retain it in bad faith, he is answer- able for its loss by a fortuitous event; unless the thing would have equally perished or deteriorated in the posses- sion of the owner. 1051. If he who has unduly received the thing sell it, being in good faith, he is bound to restore only the price for which it is sold. 1062. He to whom the thing is restored, is bound to repay to the possessor, although he were in bad faith, the expenses which have been incurred for its preserva- tion. CHAPTER THIRD. OP OFFENCES AND QUASI-OFFENCES. 1063. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill. (1) (1) In connection with this and the following- articles, see the provisions contained in arts. 5550-5579 R. S. IQ., relating to damage to property, viz.— Trespass on property of others and damage caused thereto; obstructions upon lands; obstructions in rivers and streams; noxious weeds; vicious dogs; animals afL'ected by contagious diseases; suits and penalties; appeals. 1064. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of S\ ;( '■ 'I 'A It! i m I m- Mi' ''I n;ti m 'li 4 196 Civil Code of Lower Canada. ij ' ■ i .! persons under his control and by things which he has under his care; The father, or, after his decease, the mother, is re- sponsible for the damage caused by their minor children; Tutors are responsible in like manner for their pupils; Curators or others having the legal custody of insane persons, for the damage done by -the latter; Schoolmasters and artisans, for the damage caused by their pupils or apprentices while under their care. The responsibility attaches in the above cases only when the person subject to it fails to establish that he was unable to prevent the act which has caused the damage. Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed. (1) (1) " if a person in a state of intoxication commit an assault, or damage any property, the person who shall have delivered the liquor causing- such intoxication, in contravention of this section or any other law, is subject, as regards the person injured, to the same civil action of damages as he who com- mitted the assault or damaged the property. The responsibility is joint and several," (Art. 935 R, S. Q.) As to the liability incurred by the owners of vessels or rafts for damages to person cr property by reason of collisions, etc., see the Act intituled "An Act respecting the navigation of Canadian waters," R. S. C, c. 79. 1055. The owner of an animal is responsible for the damage caused by it, whether it be under his own care or under that of his servants, or have strayed or escaped from it. He who is using the animal is equally responsible while it is in his service. The owner of a building is responsible for the damage caused by its ruin, where it has happened from want of repairs or from an original defect in its construction. 1056. In all cases where the person injured by the com- mission of an offence or a quasi-offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi- offence, or his representatives, all damages occasioned by such death. In the case of a duel, action may be brought in like manner not only against the immediate author of the death, but also against all those who took part in the duel, whether as seconds or as witnesses. OhUgations. 197 i In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity which each is to receive. These actions are independent and do not prejudice the criminal proceedings to which the parties may be subject. 0) (1) "The master of an inn, restaurant or any othci house, where intoxicating liquors are sold, and every person employed by him in the establishment, are severally liable to an action of damages towards the representatives of a person who shall have become intoxicated there by means of liquors delivered to him by the said master or employee, and who, by reason of his drunkenness, shall have committed suicide, or died from some accident occasioned by such intoxication." (Art. 933 R. S. Q. "This right of action, which lasts but for three months from the date of death, may be joint and several, or distinct and separate, against each of the individuals so responsible," etc., etc. (Ibid, art. 934.) i 'f ; ^1 lile ige of )m- ice, I his ive rer isi- by like Ithe lel. CHAPTER FOURTH. OF OBLIGATIONS WHICH RESULT FROM THE OPERATION OF LAW SOLELY. 1057. Obligations result in certain cases from the sole and direct operation of law, without the intervention of any act, and independently of the will of the person obliged or of him in whose favor the obligation is imposed. Such are the obligations of tutors and other adminis- trators who cannot refuse the charge cast upon them; The obligation of children to funiish the necessaries of life to their indigent parents; Certain obligations of owners of adjoining properties; The obligations which in certain cases arise from for- tuitous events; And others of a like nature. CHAPTER FIFTH. OF THE OBJECT OF OBLIGATIONS. 1058. Every obligation must have for its object some- thing which a party is obliged to give, or to do, or not to do. 1059. Those things only which are objects of commerce can become the object of an obligation. I '^H ! !;:; i I i ■■i i ■: S ! i ft ill 198 Civil Code of Lower Canada. 1060. An obligation must have for its object something determinate at least as to its kind. The quantity of the thing may be uncertain, provided it be capable of being ascertained. 1061. Future things may be the object of an obligation. But a person cannot renounce a succession not yet de- volved, nor make any stipulation with regard to it, even with the consent of him whose succession is in question; except by marriage contract. 1082 The object of an obligation must be something possible and not forbidden by law or good morals. CHAPTER SIXTH. OF THE EFFECT OF OBLIGATIONS. SECTION I. GENERAL PROVISIONS. 1063. An obligation to give involves the obligation to deliver the thing and to keep it safe until delivery. 1064. [The obligation to keep the thing safely obliges the person charged therewith to keep it with all the care of a prudent administrator.] 1065. Every obligation renders the debtor liable in damages in case oif a breach of it on his part. The creditor may, in cases which admit of it, demand also a specific performance of the obligation, and that he be authorized to execute it at the debtor's expense, or that the contract from which the obligation arises be set aside; subject to the special provisions contained in this code, and without prejudice, in either case, to his claim for damages. 1066. The creditor, without prejudice to his claim for damages, may require also, that any thing which has been done in breach of the obligation shall be undone, if the nature of the case will permit; and the court may order this to be effected by its officers, or authorize the injured party to do it, at the expense of the other. Obligations. 199 SECTION II. or DEFAULTS. 1067. The debtor may be put in default either by the terms of the contract, when it contains a stipulation that the mere lapse of the time for performing it shall have that effect; or by the sole operation of law; or by the com- mencement of a suit, or a demand which must be in writ- ing unless the contract itself is verbal. 1068. The debtor is also in default, when the thing which he has obliged himself to give or to do could only have been given or done within a certain time which he has allowed to expire. 1069. [In all contracts of a commercial nature in which the time of performance is fixed, the debtor is put in de- fault by the mere lapse of such time.] SECTION III. OF THE DAMAGES RESULTING FROM THE INEXEOUTION OP OBLIGATIONS. 1070. Damages are not due for the inexecution of an obligation until the debtor is in default under some one of the provisions contained in the articles of the preceding section; except the obligation be not to do, when he who contravenes it is liable for damages by the fact of the con- travention alone. 1071. 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 imputed to him, although there be no bad faith on his part. 1072. The debtor is not liable to pay damages when the inexecution of the obligation is caused by a fortuitous event or by irresistible force, without any fault on his part, unless he has obliged himself thereunto by the special terms of the contract. 1073. The damages due to the creditor are in general the amount of the loss that he has sustained and of the profit of which he has been deprived; subject to the excep- tions and modifications contained in the following articles of this section. I-M; ■mi m 200 Civil Code of Lower Canada. n I 1074. The debtor is liable only for the damages which have been foreseen or might have been foreseen at the time of contracting the obligation, when his breach of it is not accompanied by fraud. 1076. In the case even in which the inexecution of the obligation results from the fraud of the debtor, the damages comprise only that which is an immediate and direct consequence of its inexecution. 1076. [When it is stipulated that a certain sum shall be paid for damages for the inexecution of an obligation, such sum and no other, either greater or less, is 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 con- trary.] 1077. The damages resulting from delay in the pay- ment of money, to which the debtor is liable, consist only of interest at the rate legally agreed upon by the parties, or, in the absence of such agreement, at the rate fixed by law. These damages are due without the creditor being obliged to prove any loss. They are due from the day of the default only, except in the cases where by law they are due from the nature of the obligation. This article does not affect the special rules applicable to bills of exchange and contracts of suretyship. 1078. Interest accrued from capital sums also bears Interest: 1. When there is a special agreement to that effect; 2. When in any action brought such new interest is specially demanded; 3. When a tutor has received or ought to have received interest upon the moneys of his pupil and has failed to invest it within the term prescribed by law. : i Obligations. 201 CHAPTER SEVENTH. OP DIFFERENT KINDS OF OBLIGATIONS. SECTION I. OF OONDITIONAL OBLIGATIONS. 1079. An obligatioii is conditional when it is made to depend upon an event future and uncertain, either by sus- pending it until the event happens, or by dissolving it ac- cordingly as the event does or does not happen. When an obligation depends upon an event which has actually happened, but is unknown to the parties, it is not conditional. It takes effect or is defeated from the time at which it is contracted. 1080. Every condition contrary to law or inconsistent with good morals is void, and renders void the obligation which depends upon it. An obligation which is made to depend upon the doing or happening of a thing impossible is also void. 1081. An obligation conditional on the will purely of the party promising, is void; but if the condition consist in the doing or not doing of a certain act, although such act be dependent on his will, the obligation is valid. 1082. If there be no time fixed for the fulfilment of a condition, it may always be fulfilled; and it is not deemed to have failed until it has become certain that it will not be fulfilled. 1083. When an obligation is contracted under the con- dition that an event will not happen within a fixed time, such condition is fulfilled by the expiration of the time without the event having occurred. It is equally so if before the time has expired it become certain that the event will not happen. If there be no time fixed, the con- dition is not deemed fulfilled until it is certain that the event will not happen. 1084. A conditional obligation becomes absolute when the party bound under the condition prevents the fulfil- ment of it. 1085. The fulfilment of the condition has a retroactive effect from the day on which the obligation has been con- ' ''71! I ■ I i If! (1. ■ I 1! E: 1'' ' I ! ^ i ! I IS I I 911 I 202 Civil Code of Lower Canada. traded. If the creditor be dead befoire the fulfilment of the condition, his rights pass to his iheirs or legal represen- tatives. 1086. The creditor may, before the fulfilment of the condition, do all acts conservatory of his rights. 1087. When the obligation has been contracted under a suspensive condition, the debtor is bound to deliver the thing which is the object of it, upon the fulfilment of the condition. If, without the fault of the debtor, the thing have alto- gether perished or can no longer be delivered, no obliga- tion exists. If the thing be deteriorated without the fault of the debtor, the creditor must receive it, in the state in which it is, without diminution of price. If the thing be deteriorated by the fault of the debtor, the creditor may either exact the thing in the state in v/hich it is, or demand the dissolution of the contract, with damages in either case. 1088. A resolutive condition, when accomplished, effects of right the dissolution of the contract. It obliges each party to restore what he has received, and replaces things in the same state as if the contract had not existed; subject nevertheless to the rules established in the last preceding article with respect to things which have perished or been deteriorated. SECTION II. OF OBLIGATIONS WITH A TERM. 1089. A term differs from a suspensive condition inas- much as it doer; not suspend the obligation, but only delays the execution of it. 1090. That which is due with a term of payment cannot be exacted before the expiration of the term; but that which has been paid in advance voluntarily and without error or fraud cannot be recovered. 1091. The term Is always presumed to be stipulated in favor of the debtor, unless it results from the stipu- lation or the circumstances that it has also been agreed upon in favor of the creditor. OUigations. 203 1092. The debtor cannot claim the benefit of the term when he has become a bankrupt or insolvent, or has by his own act diminished the security given to his creditor by the contract. SECTION III. OP ALTERNATIVE OBLIOATIONS. 1093. The debtor in an alternative obligation is dis- charged by giving or doing one of the two things which form the object of his obligation; but he cannot compel the creditor to accept a part of one of these things and a part of the other. 1094. The option belongs to the debtor unless it has been expressly granted to the creditor. 1095. An obligation is pure and simple although con- tracted in an alternative form, if one of the two things pro- mised could not be the object of the obligation. 1096. An alternative obligation becomes pure and simple if one of the things promised perish, or can no longer be delivered, even through the fault of the debtor. The value of such thing cannot be offered in its place; If both things have perisihed or can no longer be de- livered, and the debtor be in fault with respect to one of them, he must pay the value of that which remained last. 1097. When, in the cases provided for in the last pre- ceding article, the option has been granted by the contract to the creditor; Either one of the two things has perished or can no longer be delivered, and then, if it be without the fault of the debtor, the creditor shall have the one which re- mains, but if the debtor be in fault, the creditor may de- mand the thing which remains or the value of the other; Or both things have perished or can no longer be deli- verei', and if the debtor be in fault with regard to both or either of them, the creditor may demand the value of the one or of the other at his option. 1098. If both things have perished, the obligation is extinguished in the cases and subject to the conditions provided in article 1200. 204 Civil Code of Lower Canada, 1089. The rules contained in the articles of this section apply to cases where the alternative obligation comprises more than two things, or has for its object to do or not to do some thing. SECTION IV. OP JOINT AND SEVERAL OBLIGATIONS. § 1. Of joint and several interest among creditors. 1100. A joint and several interest among creditors gives to each of them singly the right of exacting the perform- ance of the whole obligation and thereupon of discharging the debtor. 1101. The debtor has the option of paying to either of the joint and several creditors, so long as he is not pre- vented by a suit instituted by one of them. [Nevertheless, if one of the creditors release the debt the debtor is discharged for the part only of such creditor. The same rule applies to all c? ^ s in which the debt is extinguished otherwise than by actual payment; subject to the rules applicable to commercial partnerships.] 1102. The rules concerning the interruption of pre- scription in relation to joint and several creditors are declared in the title Of Prescription. § 2. Of dehtors jointly and severally obliged. 1103. There is a joint and several obligation on the part of the codebtors when they are all obliged to the same thing, in such manner that each of them singly may be compelled to the performance of the whole obligation, and that the performance by one discharges the others toward the creditors. 1104. An obligation may be joint and several although one of the codebtors be obliged differently from the others to the performance of the same thing; for example, if one be obliged conditionally while the obligation of the other is pure and simple, or if one be allowed a term which is not granted to the other. 1105. An obligation is not presumed to be joint and several; dt must be expressly declared to be so. This rule does not prevail in cases where a joint and Obligations. 205 several obligation arises of right by virtue ol some provi- sion of law; Nor is it applicable to commercial transactions, in which the obligation is presumed to be point an*l seveiral, except in cases otherwise regulated by special laws. 1106. The obligation arising from the common offence or quasl-offence of two or more persons is joint and several. 1107. The creditor of a joint and several obligation may apply for payment to any one of the codebtors at his option, without such debtor having a right to plead the benefit of division. 1108. Legal proceedings taken against one of the co- debtors do not prevent the creditor from taking similar proceedings against the others. 1109. If the thing due have perished or can no longer be delivered, through the fault of one or more of the joint and several debtors, or after he or they have been put in default, the other codebtors are not discharged from the obligation to pay the price of the thing, but the latter are not liable for damages. The creditor can recover damages only from the co- debtors through whose fault the thing has perished or can no longer be delivered, and those in default. 1110. The rules concerning the interruption of prescrip- tion in relation to joint and several debtors are declared in the title Of Prescription. 1111. A demand of interest made against one of the joint and several debtors causes interest to run against them all. 1112. A joint and several debtor sued by the creditor may plead all the exceptions which are personal to him- self as well as such as are common to all the codebtors. He cannot plead such exceptions as are purely personal to one or more of the other codebtors. 1 1 13» When one of the codebtors becomes heir or legal representative of the creditor, or when the creditor be- comes heir or legal representative of one of the codebtors, the confusion extinguishes the joint and several debt only for the part and portion of such codebtor. 206 Civil Code of Lower Canada. 1114. The creditor who consents to the division of the debt with regard to one of the €Odebtors, preserves his joint and several right against the others for the whole debt. 1116. A creditor who receives separately the share of one of his codebtors, so specified in the receipt and without reserve of his rights, renounces the joint and several obligation with regard only to such codebtor. The creditor is not deemed to discharge the debtor from his joint and several obligation when he receives from him a sum equal to the share for which he is bound, unless the receipt specifies that it is for his share. The rule is the same with regard to a demand made against one of the codebtors for his share, if the latter have not acquiesced in the demand, or if a jutlgment of condemnation have not intervened. 1116. The creditor who receives separately and without reserve the share of one of the codebtors in the arrears or interest of the debt, loses his joint and several right only for the arrears and interests accrued and not for those which may in future accrue, nor for the capital, unless the separate payment has been continued during [ten] consecu- tive years. 1117. The obligation contracted jointly and severally toward the creditor is divided of right among the co- debtors, who among themselves are obliged each for his own share and portion only. 1118. The codebtor of a joint and several debt who has paid it in full, can only recover from the others the share and portion of each of them, even though he be specially subrogated in the rights of the creditor. If one of the codebtors be found insolvent, the loss oc- casioned by his insolvency is divided by contribution among all the others, including him who has made the payment. 1119. In case the creditor have renounced his joint and several action against one oif the debtors. If one or more of the remaining codebtors become insolvent, the sihares of those who are insolvent are made up by contribution by all the other codebtors, except the one so discharged whose part in the contribution is borne by the creditor. OhUgatlons. 207 and lore ires by lose 1120. If the matter for which the debt has been con- tracted jointly and severally concern only one of the codebtors, he is liable for the whole towards his codebtors, who, with regard to ihim, are considered only as his sure- ties. SECTION V. OF DIVISIBLE AND INDIVISIBLE OBLIGATIONS. 1121. An obligation is divisible when it has for its object a thing which in its delivery or performance is susceptible of division either materially or intellectually. 1122. A divisible obligation must be performed between the creditor and the debtor, as if it were indivisible. The divisibility takes effect only with their heirs or legal repre- sentatives, who, on the one hand, cannot enforce the obligation, and, on the other, are not held for the per- formance of it, beyond their respective shares as repre- senting the creditor or the debtor. 1123. The rule established in the last preceding article is subject to exception with respect to the heirs and legal representatives of the debtor, and the obligation must be performed as if it were indivisible, in the three following oases: 1. When the object of the obligation is a certain specific thing of which one of them is in possession; 2. When one of them alone is charged by the title with the performance of the obligation; 3. When it results either from the nature of the contract or of the thing which is the object of it, or from the end proposed by it, that the intention of the contracting parties was that the obligation should not be performed in parts. [In the first case, he who possesses the thing due, — in the second case, he who is alone charged, — and in the third case, each of the coheirs or legal representatives, may be sued for the whole thing due; saving in all cases the recourse of the one sued against the others.] 1124. An obligation is indivisible: 1. When it has for Its object something which by its nature is not susceptible of division, either materially or intellectuallv * 2. When although the object of the obligation Is divis- ible by Its nature, yet from the character given to It by 'M ::! IH ; ■ *.%, i- ft T 208 Civil Code of Lower Canada. the contract, this object becomes Insusceptible not only oC performance in parts but also of division. 1126. The stipulation of joint and several liability does not give to an obligation the character of indivis- ibility. 1126. Each one of those who have contracted an in- divisible obligation is held for the whole although the obligation have not been contracted jointly and severally. 1127. The rule established in the last preceding article prevails also with regard to the heirs and legal representa- tives of him who has contracted an indivisible obligation. 1128. The obligation to pay damages resulting from the non-performance of an indivisible obligation is divisible. But if the non-performance have been caused by the fault oi one of the codebtors, or of one of the coheirs or legal representatives, the whole amount of damages may be demanded of such codebtor, heir or legal representative. 1129. Each coheir or legal representative of the creditor may exact in full the execution of an indivisible obliga- tion. He cannot alone release the whole of the debt, or receive the value instead of the thing itself; if one of the coheirs or legal representatives have alone released the debt or received the value of the thing, the others cannot demand the indivisible thing without making allowance for the portion of him who has made the release or who has re- ceived the value. 1130. The heir or legal representative of the debtor sued for the whole of an indivisible obligation may de- mand delay to make the coheirs or other legal representa- tives parties to the suit, unless the debt is of such a nature that it can be discharged only by the one so sued, who may in such case be condemned alone, saving his recourse for indemnity against the others. SECTION VI. OF OBLIGATIONS WITH A PENAL CLAUSE. 1131. A penal clause is a secondary obligation by which a person, to assure the performance of the primary obli- gation, binds himself to a penalty in case of its inexecu- tion. Ohllyutlona. 20S) 1132. The nullity of the primary obligation for any other cause tlian want of interest, canies with it that of the penal clause. Tho nullity of the latter does not carry with it that of the i rimary obligation. 1133. The creditor may enforce the performance of the primary obligation, If he elect so to do, instead of demand- ing the stipulated penalty; But he cannot demand both, unless the penalty has been stipulated for a simple delay in the performance oi the primary obligation. 1134. The penalty is not incurred until the debtor Is In default of performing the primary obligation, or has done the thing which he had obliged himself not to do. 1136. [The amount of penalty cannot be reduced by the court. But If the obligation have been performed In part to the benefit of the creditor, and the time fixed for its complete performance be not material, the penalty may be reduced; unless there is a special agreement to the contrary.] 1136. When the primary obligation contracted with a penal clause Is Indivisible, the penalty is Incurred upon the contravention of it by any one of the heirs or other legal representatives of the debtor; and It may be de- manded In full against him who has contravened It, or against each one of them for his share and portion, and hypothecarily for the whole; saving their recourse against him who has caused the penalty to be so Incurred. 1137. When the primary obligation contracted under a penalty is divisible, the penalty Is Incurred only by that one of the heirs or other legal representatives of the debtor who contravenes the obligation, and for the part only for which he is held in the primary obligation, with- out there being any action against those who have exe- cuted It. This rule suffers exception when, the penal clause hav- ing been added with the Intention that the payment could not be made in parts, one of the coheirs or other legal representatives hsis prevented the execution of the obliga- tion for the whole; In this ca&e he Is liable for the entire penalty and the others are liable for their respective shares only, saving their recourse against him. 14 I u>fi If i \'im || ! I li li II li: 210 Civil Code of Lower Canada. CHAPTER EIGHTH. OP THE EXTINCTION OF OBLIGATIONS. SECTION I. GENERAL PROVISIONS. 1138. An obligation becomes extinct: By i>ayment; By novation; By release; By compensation; By confusion; By the performance of it becoming impossible; By judgment of nullity or rescission; By the effect of the resolutive condition, which has been explained in the preceding chapter; By prescription; By the expiration of the time limited by law or by the parties for its duration; By the death of the creditor or debtor in certain cases; By special causes applicable to particular contracts which are explained under their respective heads. SECTION II. OP PAYMENT. § 1. General provisions. 1139. By payment is meant not only the delivery of a sum of money in satisfaction of an obligation, but the performance of any thing to which the parties are re- spectively obliged. 1140. Every payment presupposes a debt; what has been paid where there is no debt may be recovered. There can be no recovery of what has been paid in voluntary discharge of a natural obligation. 1141. 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 offft'i . *' 214 Civil Code of Lower Canada. m n debtor cannot afterwards require the imputation to be made upon a different debt, except upon grounds for which contracts may be avoided. 1161. When the receipt makes no special imputation, the payment must be imputed in discha'-ge of the debt actually payable which the debtor has at the time the greater interest in paying. If of several d^bts one alone be actually payable, the payment must be Imputed in dis- charge of such debt although it be less burdensome than those which are not actually payable. If the debts be of like nature and equally burdensome, the imputation is made upon the oldest. All things being equal, it is made proportionally on each. § 4. Of tender and deposit. 1162. 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 afterward® brought for its recovery, he may plead and renew the tender, and if the thing due be a sum of money, may 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 ready and willing to deliver the thing or pay the sum of money. Whenever any person desires to pay any sum of money and is prevented from doing so by reason of the refusal of his creditor or of the absence of his creditor from the place where the debt is payable, such person may deposit such sum in the general deposit office for the Province in ac- cordance with the provisions of the law respecting judicial deposits; such deposit frees the debtor from the payment of interest from the date thereof, provided that the cre- ditor present had without lawful right refused to accept the off ens. (1) (1) The last paragraph of this article was added by R. S. Q., art. 5804 (35 Vict., c. 5, s. 8, 23 Dec, 1871; 49-50 Vict., c. 101, ss. 38 and following-). 1163. It is necessary to the validity of a tender: 1, That it be made to a creditor legally capable of re- ceiving payment or to some one having authority to re- ceive for him; Ohligations. 215 2. That it be made on the part of a person legally capable of paying; 3. That it be of the whole sum of money or other thing payable, and of all arrears of rent and interest, and all liquidated costs, with a sum for costs not liquidated, saving the right to make up any deficiency in the same; 4. That, if it be of money, It be made in coin declared by law to be current and a legal tender; 5. That the term of payment have expired if stipulated in favor of the creditor. 6. That the conditioil under which the debt has been contracted have been fulfilled; 7. That the sum of money or other thing tendered be offered at the place where, according to the terms of the obligation or by law, payment should! be made. (1) (1) Paragraph 4 of this article is affected by the provisions of the Act respecting Dominion notes, c. 31, R. S. C. Section 4 enacts that such notes shall be a legal tender in every part of Canada, except at the offices at which they are respectively made payable. 1164. [If, by the terms of the obligation or by law, payment is to be made at the domicile of the debtor, a notification lin writing by him to the creditor that he is ready to make payment has the same effect as an actual tender, provided that in any action afterwards brought the debtor make proof that he had the money or thing due ready for the payment at the time and place when and where the same was payable.] 1165. If a certain specific thing be deliverable on the spot where it is, the debtor must by his tender require the creditor to come and take it there. If the thing be not so deliverable and be from its nature difficult of transportation, the debtor must indicate by his tender the place where it is and the day and hour when he is 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 willingmess to accept, the debtor may, if he think fit, remove the thing to any other place for safe-keeping at the risk of the creditor. 1166. So long as the tendeo* and deposiit have not been accepted by the creditor, tlhe debtor may withdraw them by leave of the court, in the manner provided in the Code of Civil Procedure, and if he do so his codebtors or sureties are not discharged. Ih !lht !.,i| 216 Civil Code of Lower Canada. I li 1167. When the tender and deposit have been declared valid by the court, the debtor oanmot, even with the con- sent of the creditor, withdraw them to the prejudice of hi» codebtors or sureties or other third persons. 1168. The mode in which tenders and deposits must be made is provided in the Code of Civil Procedure. SEOTION III. OF NOVATION. 1169. Novation Is effected: 1. When the debtor contracts toward his creditor a new debt which is substituted for the ancient one, and the latter is extinguished; 2. When a new debtor is substituted for a former one who is discharged by the creditor; 3. When by the effect of a new contract, a new creditor is substituted for a former one toward whom the de^Hor is discharged. 1170. Novation can be effected only between persons capabl f contracting. 1171. Novation is not presumed. The intention to effect it must be evident. 1172. Novation by the substitution of a new debtor may be effected without the concurrence of the former one. 1173. The delegation by which a debtor gives to his creditor a nev/ debtor who obliges himself toward the cre- ditor does not effect novation, unless it is evident that the creditor intends to discharge the debtor who makes the delegation. 1174. The simple indication by the debtor of a person who is to pay in his plfc»ce, or the simple indication by the creditor of a person who is to receive in his place, or the transfer of a debt with or without the acceptance of the debtor, does not effect novation. 1175. A creditor who has discharged his debtor by whom delegation has been made, has no remedy against such debtor, if the person delegated become insolvent, unless there is a special reserve of the remedy. Obligations. 217 1176. The privileges and hypothecs which attach to an ancient debt do not pass to the one which is suibstituted ifor it, unless the creditor has expressly reserved them. 1177. When novation is effected by the substitution of a new debtor, the original privileges and hypothecs can- not be transferred to the property of the new debtor; nor can they, without the concurrence of the former debtor, be reserved upon the property of the latter. i 1178. When novation is effected between the creditor and one of joint and several debtors, the privileges and hy- pothecs which attach to the ancient debt can be reserved only upon the property of the codebtor who contracts the new debt. 1179. Joint and several debtors are discharged by no- vation effected between the creditor and one of the co- debtors. Novation effected with respect to the principal debtor discharges his sureties. Nevertheless, if the creditor have stipulated in the first case, for the accession of the codebtors, and in the second, for that of the sureties, the ancient debt subsists if the codeibtors or the sureties refuse to accede to the new con- tract. 1180. The debtor consenting to be delegated cannot oppose to his new creditor the exceptions which he might have set up against the party delegating him although at the time of the delegation he were ignorant of such excep- tions. The foregoing rule does not apply if at the time of the delegation nothing be due to the new creditor, and is with- out prejudice to the recourse of the debtor delegated against the party delegating him. SECTION IV. or RELEASE. 1181. The release of an obligation may be made either expressly or tacitly by persons legally capable of alienat- ing. It is made tacitly when the creditor voluntarily surren- ders to his detotor the original title of the obligation, unless there is proof of a contrary Intention. Mk;; :; I hll f. i I i 4r I 218 Ciuif Code o^ Lower Canada. 1182. The surrender of a thing given in pledge does not create a presumption of the release of the debt for which it was pledged. 1183. The surrender of the original title of an obligation to one of joint and several debtors is available in favor of his codebtors. 1184. An express release granted in favor of one of Joint and several debtors does not discharge the others; but the creditor must deduct from the detot the share of him whom he has released. 1185. An express release granted to the principal debtor discharges his sureties. If granted to the surety, it does not discharge the prin- cipal debtor. If granted to one of several sureties it does not discharge the others, except in cases in which the latter would have a recourse upon the one released and to the extent of such recourse. 1186. [That which the creditor receives from a surety as a consideration for releasing him from his suretyship is not imputed in discharge of the principal debtor, or of the other sureties, except as regairds the latter, in cases in which they have a recourse upon the one released, and to the extent of such recourse.] SECTION V. OP COMPENSATION. 1187. When two persons are mutually debtor and cre- ditor of each other, both debts are extinguished by compen- sation which takes place between them in the cases and manner hereinafter declared. 1188. Compensation takes place by the sole operation of law between debts which are equally liquidated and de- mandable and have each for object a sum of money or a certain quantity of indeterminate things of the same kind and quality. So soon as the debts exist simultaneously they are mutually extinguished in so far as their respective amounts correspond. 'm'"& ■?! Obligations. 219 1189. Compensation is not prevented by a term granted by indulgence for the payment of one of the debts. 1100. Compensation takes place whatever be the cause or consideration of the debts or of either of them, ©xcept in the following cases: 1. The demand in restitution of a thing of which the owner has been unjustly deprived; 2. The demand In restitution of a deposit; 3. A debt which has for object an alimentary provision not liable to seizure. 1191. The surety may avail himself of the compensa- tion which takes place when the creditor owes the principal debtor. But the principal debtor cannot set up In compensation what his creditor owes to the surety. A joint and several debtor cannot set up in compensation what the creditor owes to his codebtor, except for the share of the latter In the joint and several debt. 1192. A debtor who accepts purely and simply an assignment made by the creditor to a third person, cannot afterwards set up against the assignee the compensation which he might before the acceptance have set up against the assignor. An assignment not accepted by the detotor, but of which due notification has been given to him, prevents compensa- tion only of the debts due by the assignor posterior to such notification. 1193. When the two debts are payable at different places, compensation cannot be set up without allowing for the expenses of remittance. 1194. When compensation by the sole operation of law is prevented by any of the causes declared in this section, or by others of a like nature, the party in whose favor alone the cause of objection exists, may demand the com- pensation by exception; and in such case the compensation takes place from the time of pleading the exception only. 1195. When there are several debts subject to compen- sation due by the same person, the compensation is gov- erned by the rules provided for the imputation of payments. 220 Civil Code of Lower Canada. 1196. Compensation does not take place to the preju- dice of rights acquired by third parties. 1107. He who pays a debt which is of right extin- guished by compensation cannot afterwards in enforcing the debt which he has failed to set up in compensation avail himself, to the prejudice of third parties, of the privileges and hypothecs attached to such debt, unless there were just grounds for his ignorance of its existence at the time of payment. SECTION yi. OP CONFUSION, 1198. When the qualities of creditor and debtor are united in the same person, there arises a confusion which extinguishes the obli^^ation; nevertheless in certain cases when confusion ceases to exist, its effects cease also. 1199. The confusion which takes place by the concur- rence of the qualities of creditor and principal debtor in the same person, avails the sureties. That which takes place by the concurrence of the qualities of surety and creditor or of surety and principal debtor does not extinguish the principal obligation. SECTION VII. OF THE PERFORMANCE OP THE OBLIGATION BECOMING IMPOSSIBLE. 1200. When the certain specific thing which is the object of an obligation perishes, 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; it is also extinguished although the debtor be in default, if the thing would equally have perished in the possession of the creditor; unless in either of the above mentioned cases the debtor has expressly bound, himself for fortuitous events. The debtor must prove the fortuitous event which he alleges. The destruction of a thing stolen or the impossibility of delivering it does not discharge him who stole the thing, or him who knowingly received it, from the obligation to pay its value. i. •' lie ot |ng, to Obligations. 221 1201. When the performance of an obligation has become impossible, without any act or fault of the debtor, he is bound to assign to the creditor such rights of indemnity as he may possess relating to the obligation. 1202. When the performance of an obligation to do has become impossible without any act or fault of the debtor and before he is in default, the obligation is extinguished and both parties are liberated; but if the obligation be beneficially performed in part, the creditor is bound to the extent of the benefit actually received by him. CHAPTER NINTH. OF PROOF. SECTION I. GENERAL PROVISIONS. 1203. The party who claims the performance of an ob- ligation must prove it. On the other hand he who alleges facts in avoidance or extinctior of the obligation must prove them; subject nevertheless to the special rules declared in this chapter. 1204. The proof produced must be the best of which the case in its nature is susceptible. Secondary or inferior proof cannot be received unless it Is first shown that the best or primary proof cannot be pro- duced. 1205. Proof may be made by writings, by testimony, by presumptions, by the confession of the party or by his oath, according to the rules declared in this chapter and in the manner provided in the Code of Civil Procedure. 1206. The rules declared in this chapter, unless ex- pressly or by their nature limited, apply in commercial as well as in other matters. When no provision is found in this code for the proof of facts concerning commercial matters, recourse must be had to the rules of evidence laid down by the laws of England. i'" irt ; mi : \ t. ; i I ■I'M [M*. i 1 1 1 222 Civil Code of Lower Canada. I i SECTION II. or PROOF BT WRITINGS. § 1. Of authentic writings. 1207. The following writings, executed or attested with the requisite formalities by a public officer having authority to execute or attest the same in the place where he acts, are authentic and make proof of their contents, without any evidence of the signatuire or seal appended to them, or of the official character of such officer being necessary, that is to say: Copies of the acts of the Imperial Parliament, of the Par- liament of the Province of Canada, and of the Parliament of the Dominion of Canada, and copies of the Edicts and Ordinances, and of the Ordinances of the Province of Quebec, and of the statutes and Ordinances of the Pro- vince of Lower Canada, and of the statutes of Upper Can- ada, printed by the printer duly authorized by Her Majesty the Queen, or by any of her predecessors; Copies of acts of the Legislatures of the provinces form- ing the Dominion of Canada, or of any of the provinces or territories, hereafter admitted into the Dominion,, printed by a Queen's printer, or other printer by authority, for the Government of any of the said provinces or territories; Letters-patent, commissions, proclamations and other instruments issued by Her Mapesty the Queen, or by the executive Government of the Province of Canada or of the Dominion of Canada; Letters-patent, orders In council, commissions, proclama- tions and other Instruments Issued by the Government of this Province; Copies of official documents, proclamations or announce- ments, printed by a Queen's printer, or other printer by authority for the government of a province of the Do- minion of Canada and of the provinces or territories here- after admitted into the Dominion; Official announcements in the Canada Gazette and in the Quebec Official Gazette published by authority; The records, registers, journals and public documents of the several departments of the Executive Government and of the Parliament of the Province of Canada and of the Dominion of Canada, as well as those of the Executive Government and Legislature of this Province; The records and registers of courts of justice and of judi- cial proceedings in the Province; ice- by IDo- leire- in IS of land the ^tive udl- Ohligationa. S23 The books and registers of a puibllc character required by law to be kept by official persons in the Province; The books, registers, by-laws, records and other docu- ments and papers of municipal corporations and of other corporations of a public character in this Province; Official copies and extracts of and from the books, docu- ments and writings above mentioned,, and certificates and all other writings included within the legal Intendment of this article, although not enumerated. (1) (1) This article assumed its present form by virtue of R. S. Q,. art. 5805. (31 Vict., c. 13, s. 9. 24 Feb., 1868. being an Act respect- ing the office of Queen's Printer for this Province, and the publishing of the "Quebec Official Gazette;" 31 Vict., c. 18, ss. 1 and 2, being an Act respecting the Proof of the Laws and official Publications of the other Provinces of the Dominion; 32 Vict., c. 10. ss. 1 and 2. 5 April. 1869, being an Act toi give authenticity to certain writings; 49-50 Vict., c. 100. s. 13. being an Act respecting the Department of the Provincial Secretary.) See R. S. C, c. 139. 1208. A notarial instrument received before one notary is authentic if signed by all the parties. If the parties or any of them be unable to sign, it is necessary, to the authenticity of the instrument, that the consent given to the instrument by the party thereto, who does or cannot sign, be received in the presence of a sub- scribing witness. The witnesses may be of either sex and must not be less than twenty-one years of age, of sound mind, without interest in the instrument, not civilly dead, and not deemed Infamous by law. Aliens and married women (except the wife of the notary receiving the instrument) may act as witnesses. This article la subject to the provisions contained in the next following article, and to those relating to wills. It does not apply to the cases mentioned in article 2380, when a notary alone Is sufficient. (1) (1) The original article read as follows: "[A notarial Instru- ment received before one notary is authentic If signed by all If the parties or any of them be unable to sign, It Is necessary to the authenticity of the Instrument that It be received by one notary, In the actual presence of another subscribing notary, or of a subscribing witness. The witnesses must be males, not less than twenty-one years of age, of sound mind, not related to either of the parties within the degree of cousin-german, without interest In the Instrument, not civilly dead, and not deemed Infamous by law. Aliens may act as such witnesses.] . . ^ . ' .^ ^,* This article Is subject to the provisions contained In the next i I i iMii ,-^* '224 Civil Code of Lower Canada. I: II:! is ; + *' following article, and to those relating to wills. It does not apply to the cases mentioned in article 2380, where a notary alone is sufficient." This was amended by the R. S. Q., art. 5806, to read, "saving wills, a notarial deed received before one notary alone Is authentic." (46 Vict., c. 32, s. 48, 30 March, 1883.) The article assumed its present form by virtue of 56 Vict., C. 39, s. 1 (27 Feb., 1893). 1209. Notifications, summonses, protests and services, by wnich a reply is required, may be made by one notary, whetlier the party in wliose name they are made has or has not signed the deed. Such instruments are authentic and make proof of their contents until contradicted or disavowed. But nothing inserted in any such instrument, as the answer of the party upon whom, the same is served, is proof against him, unless it be signed by such party. With the exception of the notifications, summonses, protests and services wihich precede, all other njotifiications, summonses, protests and services may be made by an ordinary notarial deed signed in the office of the notary or elsewhere. In such case it is sufficient for the notary to serve a copy of such deed upon the person to be so notified, summoned or protested, or at his domicile. It is not necessary to deliver to the adverse party a copy of the proces-verhal of service; such proces-verbal may be drawn up and signed afterwards. (1) (1) The original article was amended by 47 Vict., c. 14, a. 1, 10 June, 1884; again amended as to the French version by 48 Vict., c. 18, 9 May, 1885. (R. S. Q., art. 5807.) The original article read as follows:— " Notlflcations, pro- tests and ser/Ices may be made by one notary, at the request of a party, whether such party has or has not accompanied him or signed the Act. Such instruments are authentic, and make proof of their contents until contradicted or disavowed. But nothing Inserted In any such instrument as the answer of the party upon whom the same is served is proof against him, unless it Is signed by such party." 1210. An authentic writing makes complete proof between the parties to it and their heirs and legal repre- sentatives: 1. Of the obligation expressed in it; 2. Of what is expressed in it by way of recital, if the recital have a direct reference to the obligation or to the object of the parties In executing the instrument. If the recital be foreign to such obligation and to the object of the parties in executing the Instrument, it can serve only as a commencement of proof. OUigationa, 226- 1211. An authentic writing may be contradicted and set aside as false in whale or in part, upon an improbation In the manner provided in the Code of Civil Procedure and in no other manner. 1212. Counter-letters have effect between the parties to them only; they do not make proof against third persons. 1213. Acts of recognition do not make proof of the primordial title, unless the substance of the latter is specially set forth in the recognition. Whatever the recognition contains over and above the primordial title, or different from it, does not make proof against it. 1214. The act of ratification or confirmation of an obli- gation which is voidable does not make proof unless it expresses the substance of the obligation, the cause of its being voidable and the intention to cover the nullity. § 2. Of copies of authentic writings. 1215. 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. 1216. Extracts duly certified and delivered by notaries or by the prothonotaries of the Superior Court from the originals of authentic instruments lawfully in their custody are authentic and make proof of their contents; provided such extracts contain the date, place of execution an3 nature of the instrument, the names and description of the parties to it, the name of the notary before whom it waa received, the clauses or parts of clauses extracted at full length, and that mention be made of the day on which the extract is delivered and be noted on tiie originals. 1217. When the original of any notarial instrument has been lost by unforeseen accident, a copy of an authentic copy thereof makes proof of the contents of the original, provided that such copy be attested by the notary or other public officer with whom the authentic copy flhuas been de- posited by Judicial authority for the puippose of granting •copiee thereof, as provided in the Code of Civil Prooedure. 16 ;'u t;;i liii 226 Civil Code of Lower Canada. 1218. Copies of notairial inBtruimeiits and ot extraots therefrom, of all authientic documents, whether judicial or not, of papers of record, and of all documents and instru- ments in writing, even those under private signature, or executed before witnesses, lawfully registered at full length, when such copies bear the certificate of the registrar, are authentic evidence of such documents, if the originals have been destroyed by fire or other accident, or otherwise lost. 12 18. If in such cases the original document be in the possession of an adverse party, or of a third party, without collusion on the part of the person who relies upon it, and it cannot be produced, the copy certified as in the preced- ing article makes proof in like manner. § 3. Of certain writings executed out of Lower Canada. 1220. The certificate of the secretary of any foreign state or of the executive government thereof, and the original documents and copies of documents hereinafter enumerated, executed out of Lower Canada, make prima facie proof of the contents thereof without any evidence being necessary of the seal or signature aflBxed to such original or copy, or of the authority of the officer granting the same, namely: 1. Exemplifications of any judgment or other judicial pro- ceeding of any court out of Lower Canada, under the seal of such court, or under the signature of the officer having the legal custody of the record of such judgment or other judicial proceeding; 2. Exemplifications of any will executed out of Lower Canada, under the; seal of the court wherein the original will is of record, jr under the signature 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; 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 exemplificc'. .ion and probate have been recorded, at the instance of an inter- ested party and by the order of a judge of such court; BUich probate is also received as proof of the death of the testator; 4. Certificates of marriage, baptism or birth, and burial of persons out of Lower Canada, under the hand of the clergyman or public officer wlio officiated, and extracts from any register of such marriage, baptism or birth, and )wer jinal le or and the lourt and iter- luTt; tlie irial the taote and Obligationa, 227 burial, certified by the clergyman or public officer having the legal custody thereof; 5. Notarial copies of any power of attorney executed out of Lower Canada, in the prese'uce of one or more witnesses and authenticated before the mayor of the place or other public officer of the country where it bears date, the original whereof is deposited with the notary public in Lower Canada granting the copy; 6. The copy taken by a prothonotary or a clerk of a cir- cuit court in Lower Canada of any power of attorney exe- cuted out of Lower Canada in the presence of one or more witnesses and authenticated before any mayor or other public officer of the country where it bears date, such copy being taken In a cause wherein the original is produced by a witness who refuses to part with it, and being cer- tified and deposited in the same cause; The original powers of attorney mentioned in the preced- ing paragraph? numbers five and six, are held to be duly proved; bu< i " truth of the exemplifications, probates, certificates o- « «3ts, and the oiiginal power© of attorney mentioned iL UiCle, may be denied and proof thereof be required in the manner provided in the Code of Civil Procedure. § 4. Of private toritings. 1221. A writing which is not authentic by reason of any defect of form, or of the incompetency of the officer, avails as a private writing, if it have been signed by all the parties; saving the provisions contained in article 895. 1222. Private writings acknowledged by the party against whom they are set up, or legally held to be acknowledged or proved, have the same effect in making proof betweeii the parties thereto, and between their heirs and legal re- presentatives, as authentic writings. 1223. If the party against whom a private writing is set up do not formally deny his writing or signature in the manner provided in the Code of Civil Procedure, it is held to be acknowledged. His heirs or legal representatives are only obliged to declare under oath (1) that they do not know his writing of signature. I '"iftj aia (1) The words "under oath" were added by 60 Vict., c. 50, 8. 18 (1 Sept., 1897). 1 i I' I -I i ' li|n ll'i T in I 1 1 1^ llll! itf 228 Ciyi? Code of Lower Canada. 1224. In the case of formal denial by a party of his writing or signature, or in the case of a declaration by his heirs or legal representatives that they do not know it, proof must be made in the manner provided in the Code of Civil Procedure. 1225. Private writings have no date against third per- sons but from the time of their registration, or from the death of one of the subscribing parties or witnesses, or from the day that the substance of the writing has been set forth in an authentic instrument. The date may nevertheless be established against third persons by legal proof. 1226. The rule declared in the last preceding article does not apply to writings of a commercial nature. Such writings are presumed to have been made on the day they bear date, in the absence of proof to the contrary. 1227. Family registers and papers do not make proof in favor of him by whom they are written. They are prooi against him: 1. In all cases in which they formally declare a payment received; 2. When they contain express mention that a minute is made to supply a defect of title to a person in whose favor an obligation is declared to exist. 1228. What is written by the creditor on the back or upon any other part of the title which has always remained in his possession, though the writing be neither signed nor dated, is proof against him' when it tends to establish the disdharge of the debtor. In like manner what is written by the creditor on the ■back or upon any other part of the duplicate of a title or of a receipt is proof, provided such duplicate be in the hands of the debtor. 1229. No indorsement or memorandum of any payment upon a promissory note, bill of exchange or other writing, made by or on behalf of the party to whom such x>ayment is made, is received in proof of such payment so as to take the debt out of tihe operation of the law respectlngr the limitation of actions. or lined nor tlie the I© or the lent ting, lent to kins Obligationa. SECTION III. ^29 OP TESTIMONY. 1230. Repealed 60 Vict., c. 50, s. 19, 1 Sept., 1897. The following- \a the text of the repealed article: "The testimony of one witness is sufficient in all cases In which proof by testimony is admitted." (See Code of Pro- cedure, art. 312.) 1231. Repealed 60 Vict., c. 50, s. 19, 1 Sept., 1897. The original article was amended by the R. S. Q., art. 5808 (35 Vict., c. 6, s. 9), which was repealed by the above Act. (See now C. C. P., art. 314.) 1232. Repealed 60 Vict., c. 50, s. 19, 1 Sept., 1897. (1) (1) The original article read as follows :— "Testimony given by a party in a suit cannot avail in his favor. A witness is not rendered incompetent by reason of rela- tionship or of being interested in the suit; but his credibility may be affected thereby." The following paragraph was added to the original article by 54 Vict., c. 45, ss. 1 and 3 (30 Dec, 1890) :— "Notwithstanding that which precedes, any party co a suit may give testimony on his own behalf in every matter of a commercial nature; but his credibility may be affected thereby." Article 316 of the Revised Code of Procedure now contains the following clause:— "He may also give testimony on his own behalf." Article 3597 of the Revised Statutes of Quebec Is amended by adding thereto the following paragraph :— "The oath of the advocate makes proof as to the services rendered by hfm having been required, and as to the nature and duration thereof, but such oath may be contradicted in the same way as any other evidence." Q.. 54 Vict., c. 32, s. 2. Any passenger who produces such check (to wit, the check which railway companies are bound by law to affix to passengers' baggage) may himself be a witness in any action or suit brought by him against the company to prove the contents and value of his baggage not delivered to him. (Sec. 252 Dominion Railway Act, 1888, 51 Vict., c. 29.) 1233. Proof may be made by testimony: 1. Of all facts concerning commercial matters; 2. In all maitters in which the principal sum of money or value in question does not exceed [fifty dollars;] 3. In cases in which real property is held by permission of the proprietor without lease, as provided in the title Of Lease and Eire ; 4. In cases of necessary deposits, or deposits made by travellers in an inn, and in other cases of a like nature; i! .11, I \ IH '' I; t ! m Civil Code of Lower Canada. IM I 5. In cases of obligations arising from quasi-contracts, offences, and quasi-ofCenoes, and all other oases in whicli the party claiming could not procure proof in writing; 6. In cases in which the proof in writing has been lost by unforeseen accident, or is in the possession of the adverse party or of a third person without collusion of the party claiming, and cannot be produced; 7. In cases in which there is a commencement of proof in writing. In all other matters proof must be made by writing or by the oath of the adverse party. The whole, nevertheless, subject to the exceptions and limitations specially declared in this section, and to the provisions contained in article 1690. 1234. Testimony cannot in any case, be received to con- tradict or vary the terms of a valid written instrument. 1235. In commercial matters in which the sum of money or value in question exceeds [fifty dollars,] no action or exception can be maintained against any party or his representatives unless there is a writing signed by the former, in the following cases; 1. Upon any promise or acknowledgment whereby a debt is taken out of the operation of the law respecting the limitation of actions; 2. Upon any promise or ratification made by a person of the age of majority, of any obligation contracted during his minority; 3. Upon any representation, or assurance in favor of a person to enable him to obtain credit, money or goods thereui>on; 4. Upon any contract for the sale of goods, unless the buyer has accepted or received pait of the goods or given something in earnest to bind the bargain; The foregoing rule applies a 1 chough the goods be intended to be delivered at some futare time or be not at the time of the contract ready for delivery. 1236. In any action for the recovery of a sum which does not exceed [fifty "dollars,] proof by testimony cannot be received if such sum be a balance or make part of a debt under a contract which cannot 'be proved by testimony. The creditor may, nevertheless, prove by testimony a promise made by the debtor to pay such balance, when it does not exceed [fifty dollars.] OhUgationa. II ?-■ ^31 1287. [If in the same action several sume be demanded which united form a sum exceeding fifty dollars, proof by testimony may be received if the debts have arisen from different causes or have been contracted at different times, and each were originally for a sum lese than fifty dollars.] BKOTION IV. OF PRESUMPTIONS. 1238. Presumptions are either established by law or arise from' facts which are leift to the discretion of the courts. I ii v^ii :he en a ly. a it 1239. Legal preaumptions are those which are specially attached by law to certain facts. They exempt from mak- ing other proof those in whose favor they exist; certain of them' may be contradicted by other proof; others are presumptions juris et de jure and cannot be contradicted. 1240. No proof is admitted to contradict a legal pre- sumption, when, on the ground of such presumption, the law annuls certain instruments or disallows a suit, unless the law has reserved the right of making proof to the contrary, and saving what is provided with respect to the oaths or judicial admissions of a party. 1241. The authority of a final judgment (res judicata) is a presumption juris et de jure; it applies only to that which has been the object of the judgment, and when the demand is founded on the same cause, is between the same parties acting in the same qualities, and is for the same thing as in the action adjudged upon. 1242. Presumptions not established by law are left to the discretion and judgment of the court. (1) (1) The furnishing' of copies, extracts, title-deeds or deeds of any nature whatsoever, is not to be considered a presump- tion of the payment of the costs and fees of the notary. (R. €. Q.. art. 3620, Notaries.) SEOTION V. OF ADMISSIONS. 1243. Admissions are extra-judicial or Judicial. They cannot be divided against the party making them. \h I i' m ! '\M 232 Civil Code of Lower Canada. II Nevertheless, an admission may be divided in the follow- ing cases, according to circunnstances, and in the disoretioo. of the court: 1. When It contains facts which are foreign to the issue; 2. When the part of the admission objected to is improb- able or Is invalidated toy indications of fraud or of bad faith, or by contrary evidence; 3. When the facts contained in the admission have no connection with each other. (1) . (1) This article assumed Its present form by virtue of the Act 60 Vict., c. 50, s. 20 (1 Sept., 1897). The original article read:— "Admissions are extra-judicial or judicial. They cannot be divided against the party making them." 1244. An extra-judicial admission must be proved by writing or the oath of the party against whom it is set up^ except in the cases in which, according to the rules de- clared in this chapter, proof by testimony is admissible. 1245. A judicial admission is complete proof against the party making it. It cannot be revoked unless it Isi proved to have been made througth an error of fact. SECTION VI, OP THE OATHS OF PARTIES. Arts, me, mi, ms, mo, 1250, 1251, 1252, 1253, 125^, 1255, and 1256, treating of the deeisory oath, and the oath put officially, have been repealed by 60 Vict., c. 50, s. 21 (1 Sept:, 1891). ^s to the oath put officially, see arts. 311, 312 G. G. P. TITLE FOURTH. OF MARRIAGE COVENANTS AND OP THE EFFECT OF MARRIAGK UPON THE PROPERTY OP THE CONSORTS. Uft CHAPTER FIRST. GENERAL PROVISIONS. 1257. All kinds of agreements, may be lawfully made in contracts of marriage, even those which, in any other act inter vivos, would be void; such as the renunciation of successions which have not yet devolved, the gift of future property, the conventional appointment of an heir, and other dispositions in contemplation of death. Marriage Covenants. 23a 1258. All covenants contrary to public order or to good morals, or forbiddem by any prohibitory law, are, how- ever, excepted from the above rule. 1250. Thus the consorts cannot derogate from tl^e rights incident to the authority of the husband over the persons of the wife and the children, or belonging to the husband as the head of the conjugal association, nor from the rights conferred upon the consorts by the title Of Paternal Author- ity and the title Of Minority, Tutorship and Emancipation in the present code. 1260. If no covenants have been made, or if the con- trary have not been stipulated, the consorts are presumed to have intended to subject themselves to the general laws and customs of the country, and particularly to the legal com.munity of property, and to the customary or legal dower in favor of the wife and of the children to be born of their marriage. From the moment of the celebration of marriage, these presumed agreements become irrevocably the law between the parties, and can no longer be revoked or altered. 1261. In the case of the preceding article, the com- munity is established and governed in accordance with the rules set forth in the second chapter, and those relating to dower are laid down in the third chapter in the present title. 1262. Community of property, which the consorts are free to exclude by stipulation, may be altered or modified at pleasure, by their contract of marriage, and is called, in such case conventional community, the principal rules concerning which are contained in the second section of the second chapter of this title. 1263. Legal or customary dower, which the parties are likewise at liberty to exclude, may also be altered or modified at pleasure, by the contract of marriage, and is called in such case, prefixed or conventional dower, the most ordinary rules concerning which are contained in the first section of the third chapter of this title. 1264. AiU marriagie covenants must be made in notarial form, and before the solemnizing of marriage, upon which; they are conditional. w^<. JH'i IV' 234 Civil Code of Lower Canada. Contracta of marriage made in certain localities, for whichi an exception has been created by ©pecial laws, are exempted from the necessity of being in notarial form. 1266. After marriage, tbe marriage coYenanta contained in the contract cannot be altered, (even by the donation of usufruct, which is abolished,) nor can the consorts in any other manner confer benefits inter vivos upon each other, except in conformity with the provisions of the law, under which a husband may, subject to certain conditions and restrictions, insure his life for his wife and children. (1) (1) This article assumed its present form by virtue of R. S. Q., art. 5809. The Act 29 Vict., c. 17, mentioned in the original article, as well as the Acts 32 Vict., c. 39. and 33 Vict., c. 21, were repealed by the Act 41-42 Vict., c. 13, intituled "An Act to consolidate and amend the law to secure to wives and children the benefit of assurance on the lives of their husbands See now art. 5580 et seq. R. S. Q., relative to life Insurance by husbands and parents. n \ u •• , r^ V, c.*v t? 1266. Alterations made in marriage-covenants, before the celebration of the marriage, muat, on pain of nullity, be established by act in notarial form, in the presence, and with the consent, of all such parties to the first con- tract as are interested in such alterations. 1267. [Minors capable of contracting mairriage, may validly make, in favor of their future consorts or children, all such agreements or gifts as the contract admits of, provided they are assisted by their tutors, if they have any, and by the other persons whose consent is necessary to the validity of the marriage; the benefits which they confer in such contracts upon third parties are subject to the rules which apply to minors in general.] CHAPTER Second. OF COMMUNITY OP PROPERTY. 1268. There are two kinds of community of property; legal community, the rules governing which are contained in the first section of this chapter, and conventional com- munity, the principal and most usual conditions of which are declared in the second section of the same chapter. 1269. [Community, whether legal or conventional, com- mences from the day the marriage Is solemnized; the parties cannot stipulate that it shall commence at any other period.] Marriage Covenants. 235 BXOTION I* OF LEGAL OOMMUNITT. 3270. Legal community is that which the law, in the absence of stipulation to the contrary, eotablishee between consorts, by the mere fact of their marriage, in respect of certain descriptions of property, which they are pre- sumed to have intended to subject to it. 1271. Legal community may be established by the simple declaration which the parties make in the contract of their intention that it shall exist. It also takes place when no mention is made of it, when it is not expressly nor im- pliedly excluded, and also when there is no marriage con- tract. In all cases it is governed by the rules set forth in the following articles. § 1. What things compose the assets and UaMlities of the community. 1272. The assets of the community consist: 1. Of all the moveable property which the consorts possess on the day when the marriage is solemnized, and also of all the moveable property which they acquire during marriage, or which falls to them, during that period, by succession or by gift, if the donor or testator have not otherwise provided; 2. Of all the fruits, revenues, interests, and arrears, of whatsoever nature they may be, which fall due or are received during the marriage, and arise from property which belonged to the consorts at the time of their mar- riage, or from property which has accrued to them during marriage, by any title whatever; 3. Of all the immoveables they acquire during the mar- riage. 1273. AH immoveables are deemed to be ioipt f onuests of the community, if they be not proved to have belonged to one of the consorts, or to have been in his legal pos- session, previously to the marriage, or to have fallen to him subsequently by succession or other equivalent title. 1274. Mines and quarries are subject as regards com- munity, to the rules laid down conoerniing them, in the title Of Usufruct, of Use and Occupation. t i I' I ■. ! I ) i- I: i I : f''m n .,f. ._. y W Added by G") Vict., c. 50, s. 25 (1 Sept., 1897). 1316. The separation can be demanded only by the wife lieretelf; her creditors cannot demand it, even with her consent. II life m [fe ter \ t Marriage Covenants. 245 Nevertlieless, in the case of insolvency of tihe husband, they may exercise the rights of their debtor, to the "extent of the amounts due them. 1316. The creditors oif the hueband may adopt proceed- ings against a separation of property which has been pro- nounced, or even executed, in fraud of their rights; they may even interveoie in the suit in which it is demanded, in order to contest it. 1317. The wife who has obtained a Beparation of pro- perty must contribute in proportion to her means and to those of her husband, to the expenses of thei household as well as to those of the education of their common chil- dren. She must bear these expenses alone if nothing re- main to the husband. 1318. The wife, when separated sither from bed and "board or as to property only, regains the uncontrolled administration of her property. She may dispose of and alienate her moveable property. She cannot alienate her Immoveables without the consent of her husband or, upon his refusal, without being judicially authorized. 1319. The husiband is not responsible for the omission to invest the price of, or to replace the immoveable alien- ated by his wife under judicial authorization, unless he has been a party to the contract, or unleso the moneys are proved to have been received by him, or to have accrued to his benefit. He is answerable for the omission to invest or to replace, if the sale have been made in his presence and with his consent. ^ 1320. Community dissolved by separation from bed and board, or by separation of property only, may be re-estab- lished, T/^ith the consent of the parties. In the first case, the return of the wife into the house of the husbajnd legally effects such re-establishment; in the second case. It can only be effected by an act passed before notaries as an original, a copy of whiclh is deposited in the office of the prothonotary of the court which rendered the judg- ment of separation, and is joined to the record in the case; ■ and mention of such deposit must be made in the register, at the end of such judgment, as also upon the list whereon, the separation is inscribed pursuant to article 1313. , ... .> m m » . 1^; I'.'li 1 I : Kl 111 • 1 ; mu !: ■■ M^ W |. w !*'' y I"!, ■ IS. m ma' ''' ft' 246 Civil Code of Lower Canada, 1321. In the case of the preceding article, the community so re-established resumes its effect from the day of the marriage; things are replaced in the same condition as if there had been no separation; without prejudice, however, to such acts as the wife may have done in the interval, in conformity with article 1318. Every agreement by which the consorts ire-establish their community upon conditions different from those by which it was previously governed, is void. 1322. The dissolution of the community effected by separation, either from bed and board or as to properly only, does not give rise to the rights of survivorship of the wife, unless the contrary has been expressly stipulated in the contract of marriage. II. Of the continuation of the community. Articles 1323 to 1337, inclusively, which related to continuation of community, were repealed by 60 Vict, c. 52 (1 Sept., 189T), and replaced by the following articles 1323 to 1332, inclusively, which create legal usufruct in certain cases. (1) 1323. After the dissolution of the community by death and in the absence of any will to the contrary, the surviv- ing consort has the enjoyment of the property of the com- munity coming to their children from the deceased con- sort; such usufruct lasts as to each child until he is of the age of eighteen years or until he is emancipated. 1324. The obligations incurred by this enjoyment are: 1. Those to which usufructuaries are held; 2. The food, maintenance and education of the children, according to their fortune; 3. The payment of arrears oi interest on capital; 4. The funeral expenses and those of the last illness of the predeceased consort. 1325. This enjoyment ceases in the event of a second marriage. 1326. It does not extend to the property given or be- queathed upon th« express condition that the father and mother shall not enjoy it. 1327. Within the three months next after the decease of one of the consorts, the survivor is obliged to make an inventory of the common property and effects. (1) This Act does not affect pending" cases. Marriage Covenants. 247 ^^1 1828. The Inventory must be authentic, be made in th« presence of a person qualified to contest, and be judicially closed within three months after Its completion. 1329. The survivor, upon petition presented to a judge of the Superior Court within the delay fixed by article 1327, may, in the discretion of the judge, obtain an enlarge- ment of the said delay. 1330. The want of an inventory within the delay men- tioned causes the surviving consort to lose the enjoyment of the revenue of his minor children. 1331. The subrogate tutor, who has not compelled the survivor to make an inventory within tihe delays. Is jointly and severally responsible with him for all the condemna- tions that may be pronounced in favor of the minora. 1332. The subrogate tutor may demand that the usu- fruct by the surviving consort do cease if the latter doea not fulfill the above obligations resulting from his usufruct. In default of the subrogate tutor so demanding that the usufruct do cease, any relation of the minor to the degree of cousin german Inclusive, may demand the appoint- ment of a tutor ad fioc for the purpose of prosecuting such demand. The following Is th© text of the repealed articles:— 1323. If at the time of the natural or civil death of on© of the consorts there be minor children Issue of their marrlapre, and the surviving consort fall to hav© an Inventory made of the com- mon property, the community continues in favor of such chil- dren. If they think proper. 1324 The inventory required to prevent the continuation of the community must b© authentic. It must be made In presence of a person qualified to contest, within three months from th© dissolution, and must be judicially closed within three months from Its completion. 1325. The continuation of th© community, when It Is demanded by the minor children, avails also those of the same marriage who are of age. if they choose to take advantage of It. 1326 The surviving consort does not succeed to his children who die during the continuation of the community, as regards property belonging to It; the shares of such children accrue to the others who survive. 1327. Th© continued community Is shared in halves between the survivor and his children. ., ^ ^ a If th© survivor remarry, It Is shared in thirds: th© husband and wife having each on© third, and the children of the flrat marriage the other third. t. 1:! a-f,<| K'l ': r 248 Civil Code of Lower Canada. If each of the consorts have minor children of a previoua marrlasre, the community continues in fourths, and is thus subdivided according to the number of marriages; the children of each marriage forming but one head. 1328. The continued community cannot be divided, that is, accepted for a portion of the time that it has lasted, and rejected for the remainder; it must be accepted or rejected in Its entirety. 1329. All the moveable property as well as the fruits of the immoveables which formed part of the first community remain In the continuation; but the immoveables which formed part of the first community are excluded from the second, and become the private property of the survivor for one half, and of the children for the other half. 1330. All property accruing to the surviving consort after the dissolution of the marriage and which would have fallen into the community, if It still existed, falls likewise into the con- tinuation. 1331. A different rule applies to the children; whatever they acquire during the continuation from other sources than the first community, by whatsoever title it may be, does not fall Into the continuation, either as regards the property itself or as regards its revenues. 1332. The liabilities of the continued community are: 1. The moveable debts of the first community, including the reprises and replacements due to either of the consorts, as well as the preciput of the survivor; 2. The arrears and the continuation of rents due by the first community; 3. The debts contracted by the survivor for the affairs of the continuation, but not those unconnected with it. 1333. The survivor is the head and the administrator of the continued community, and as such may dispose of all that belongs to it, provided it be otherwise than by gratuitous title and without fraud 1334. The survivor and his children take their food and main- tenance out of the continuation of the community, without compensation being due from either side, although their ex- penses be not equal. 1335. The continuation of the community is dissolved by the natural or civil death of the survivor, or in consequence of all the children dying without issue. It may also be dissolved at any time upon the demand of either of the parties, although some of the children should still be under age. 1336. If the dissolution be demanded by the survivor, and some of the children be still minors, his demand must be preceded by an Inventory, which he must make according to the form of that required to prevent the continuation of community, and for such purpose the subrogate tutor represents the minors, and stands as an adverse party. (This article owed its late form to 38 Vict., c. 13, s. 1, 23 Feb., 1875; R. S. Q., art. 5810. In the original article the words ,"of community" did not exist after the word "continuation." Also after the word "continuation," the original article read aa follows:—"; and for such purpose, a tutor ad hoc Is named In order to represent the minors and to Stand as an adverse party.") Marriage Covenants. 24» ^v^Y }^f, A°^ ^^ ^^°*- «• 23. s. 4 (23 Feb.. 1875), it waa enacted that All inventories made since the Civil Code came into force, in presence of the tutor and subrogate tutor, but without the presence of a tutor ad hoc, in conformity with article 1336 of the Civil Code, shall be deemed good and vfiJid; without pre- judice to pending causes." 1337. If such dissolution be demanded by the children, they may compel the survivor, either in their own name if they be all of full age, or in the name of their tutor, for such as are minors, to make an inventory and to render them an account. § 4. Of the acceptance of the community and of the renun- ciation that may he made thereof, with the conditions relative thereto. 1338. After the dissolution of the community, the wife or her heirs or legal representatives, have a right either to accept or renounce it; any agreement to the contrary is void. 1339. A wife who has intermeddled with the property, cannot renounce the community. Acts of mere administration or of a conservatory nature do not constitute intermeddling. 1340. A wife of full age who has once aiSsumed the quality of common as to property, can no longer renounce it, nor be relieved from such quality, unless there has been fraud on the part of the heirs of the husband. 1341. [If the wife be under age, she cannot acoei)t the community without the assistance of her curator, and the authorization of a judge, upon the advice of a family coun- cil; when made with these formalities, the acceptance is irrevocable, and has the same effect as if the wife had been of age.] 1342. The wife surviving her husband must, within thiree months from his death, cause a faithful and correct in- ventory of all the property of the community to be made in the presence of the heirs of the husband, or after having^ duly summoned them. [This inventory must be made in notarial form, as an original, and be judicially closed in the manner required by article 1324 in order to prevent the continuation of the community.] 1343. The wife may however renounce the community,, without making an inventory, in the following oases ; when ?;:: Si f f m ^\k^ I II I i; ft 260 Civil Code of Lower Canada. the dissolution takes place during the lifetime of the husband; when the heirs of the latter are in poeeeeedon of all the property; when an inventory has been made at their instance, or one has been made sihortly before the death of the husband; when a general seizure and sale of the property of the community have been recently made, or when it has been established by an official return ihBJt none existed. 1344. Besides the three months allowed the wife to make the inventory, she has, in order to deliberate upon her acceptance or repudiation, a delay of forty days, which commence to run from the expiration of the thiree months, or from the closing of the inventory, if it have been com- pleted within the three months. 1345. "Within these delays of three months and forty days, the wife must make her renunciation, by means of an act in notarial form, or of a judicial declaration, which the court orders to be recorded. 1346. The wife who Is sued as being in comimunity, may nevertheless, according to circumstances, obtain from the court an extens.ion of the delays established by. the foregoing articles. 1347. The wife who has neither made an inventory nor renounced within the delays above prescribed or .granted, is not therefor precluded from doing iso; she is, on the contrary, allowed to do so, so long as she has not inter- meddled or has not acted as being in community; but she can be sued as being in community so long as she has not renounced, and she is liable for the costs incurred against her up to the time of such renunciation. 1348. The widow who ha« abstracted or concealed any of the effects of the community is declared to be in com- munity, notwithstanding her renunciation; the same rule applies to her heirs. 1349. If the widow die before the expiration of the three months, without having made or completed the inventoiry, her heirs have, in order to make and complete it, a further delay of three months, reckoning from her death, and of forty days after the closing of the inventory, in order to deliberate.. e ^ if o Marriage Covenants, 251 If th« widow die after completing tlie laventory, her heirs have, In. order to deliberate, a fresh delay of forty daye from her death. They may moreover in all cases renounce the community, according to the forms established with regard to the wife, and articles 1346 and 1347 are applicable to them. 1360. The provisions of article 1342 and of those which follow it apply to the wives of individuals who are civilly dead, commencing fixxm the moment at which civil death took place. 1351. The creditors of the wife may impugn the renuncia- tion which she or her heirs may have made in, fraud of their claims and may accept the community in their own right. In such case, the renunciation Is annulled only in favor of the creditors and to the extent of the amount of their claims. It is not annulled in favor of the wife or of her heirs who have renounced. 1352. The widow, whether she accepts or renounces, has a right, during the delays which are prescribed or al- lowed her in order to make the inventory and to deliberate, to sustain herself and her domestics, upon the provisions then existing, and in default of these by means of loans obtained on account of the community, subject to the con- dition of making a moderate use thereof. She owes no rent for her occupation, during these delays, of the house in which she remains after the death of her husband, whether such house belongs to the community or to the heirs of the husband, or is held under lease; In the last case the wife does not contribute to the pay- ment of the rent during these delays but it is taken out of the mass. 1353. When the community is dissolved by the previous death of the wife, her heirs may renounce it within the delays and according to the forms prescribed by law with regard to the surviving wife, saving that they are not obliged for that purpose to make an inventory. § 5, Of the partition of the community. 1354. After the acceptance of the community by the wife or her heirs, the assets are divided and the liabilities borne in the manner hereinafter determined. ^'4 I-: fl ' ■■ II ■ I tt, fl; 1.1 ri. ;» -i:;| 252 Civil Code of Lotvcr Canada. I. Of the partition of the anseis. 1356. The consorts or their heirs return into the mass, of the community all that they owe it by way of compen- sation or indemnity, according to the rules above prescribed' in the second paragraph of this section. ' 1356. Each consort or his heirs return likewise the sums drawn from the community, or the value of the property taken therefrom by such consort, in order to endow a child of another marriage, or to endow personally their common child. •*i' 1357. Out of the mass of the community each consort or his heirs pretake: 1. Such of his private property as did not enter into the- community, if it exist in kind, or such property as has been acquired in replacement of it; 2. The price of such of his immoveables as have been alienated during the community and have not been re- placed; 3. The indemnities due him by the community. 1358. The pretakings of the wife take precedence of those of the husband. They are effected, as regards such property as no longer exists in kind, first upon the ready money, next upon the moveable property, and subsidiarily upon the immoveables of the community; in the last case, the choice of the immoveables is left to the wife and to her heirs. 1359. The husband takes his reprises only upon th« property of the community. The wife and her heirs, in case the community proves insufficient, may exercise theirs upon the private property of the husband. 1360. The replacements and compensations due by the community to the consorts, and the compensations and indemnities due by them to the community, bear interest, by law, from the day of its dissolution. 1361. After the pretakings have been effected and the debts have been paid out of the mass, the remainder is divided equally between the consorts or their representa- tives. Marriage Covenants. 253 1362. If the heirs of the wife be divided, so that some liave accepted and others have renounced the community, .those who have accepted cannot take out of the property falling to the wife's share any more than they would have received if all had accepted. The residue remains with the hustoand, who is liable toward the heirs who have renounced for such rights as the wife migiht have exercised in case of renunciation, but only to the extent of the hereditary share of each heir who has thus renounced. 1363. The partition of the community, in all that re- gards its forms, the licitation of immoveables when there is occasion for it, the effects of the partition, the warranty which results from it, and the payment of differences, is subject to all the rules established in the title Of Succes- sions for the partition among coheirs. 1364. The consort who has abstracted or concealed >effects belonging to the community, foirfeits his share of such effects. 136^. After the partition has been effected, if one of the consorts be the personal creditor of the other, as when lie price of a property of the former has been applied to the payment of a personal debt of the other, or for any other cause, he may prosecute his claim out of the share of the community allotted to his debtor or out of the per- sonal property of such debtor. 1368. The personal claims which the consorts may have to enforce against each other bear interest only according to the ordinary rules. 1387. GMfts made by one consort to the other are not taken out of the community, but only frrim the share of the donor therein, or from his private property. 1368. The mourning of the wife is chargeable to the heirs of her deceased husband. The cost of such mourning is to be regulated according to the fortune of the husband. It is due even to the wife who renounces the community. II. Of the Uahilities of the community and of the contribution to the debts. - . 13fi9. The debts of the community are chargeable one lialf to eacli of the consorts or his heirs. I "Ml 'M f ! I •i ! hiifi Hi 254 Civil Code of Lower Canada. ! If 111 The expenses of seals, inventories, sales of moveable pro- perty, liquidation, licitation and partition, are included in such debts. 1370. The wife even though ©he accepts the community, is not liable for its debts, either toward her husband or toward creditors, beyond, the amount of the benefit she derives from it; provided she has mad€ a good and faithful inventory and has rendered an account both of what is con- tained in such inventory and of what has fallen to her in the partition. 1371. The husband is liable toward the creditors for the whole of the debts of the community which were con- tracted by himself; saving his recouirse against his wife or her heirs, if they accept, for the half of such debts, or for an amount equivalent to the benefit which they have de- rived from the community. 1372. He is liable only for half of such personal debts of his wife as were chargeable to the community, unless the share coming to the wife proves insuflacient to pay her half. I 1373. The wife may be sued for the whole of the debts which are attributable to herself and have fallen into the community; saving her recourse against the husband or his heirs, for half of such debts, if she accept, and for the whole, if she renounce. 1374. The wife who, during the community, binds her- self for or together with heir husband, even jointly and severally, is held to have done so only }n her quality of common as to property; if she accept she is personally bound for her half only of the debt thus contracted, and she is not at all liable if she renounce. 1376. The wife who has paid more than her half of a debt of the community, cannot get back what she has over- paid, unless the receipt expresses that what she paid was for her half. But she retains her recourse against her husband or hift heirs. 1376. The consort who, by reaeon of the enforcing of a hypothec upon the immoveable which has fallen to his: Marriage Covenants. 256 m share, is sued for the whole of a debt of the community, has his legal recourse for one half of such debt against the other consort or Ms heirs. 1377. Notwithstanding the foregoing provisions, either of the copartitioneps may, by the partition, be charged with the payment of a proportion of the debts, other than half, or even with the payment of the whole. 1378. All that has been declared above in respect of the husband or of the wife applies to the heirs of eitheir, and such heirs exercise the same rights and are subject to the same actions as the consort whom they represent, § 6. Of renunciation of tlie community and of its effects. 1379. The wife who renounces, cannot claim any share in the property of the community, not even in the move- able property she herself brought into it. 1380. [She may, however, retain the wearing apparel and linen in use for her own person, exclusive of all other jewelry than her weddiag presents.] 1381. The wife who renounces has a right to take back:* 1. The immoveables belonging to her, if they exist in kind, or those which have been acquired to replace them; 2. The price of her immoveables which have been alienated, and the replacement of which has not been made and accepted as mentionied above in article 1306; 3. TJipi indemnities which may be due to her from the community. 1382. The wife who renounces is freed from an con- tribution to the debts of the community, both as regards her husband and as regards creditors, evon those towaius whom she bound herself jointly and severally with her husband. She remains liable however for debts which are attri- butable to herself and have fallen into the community, saving, In such case, '.er recourse against her husband or his heirs. 1383. She may exercise all the rights and reprises here- inabove enumerated, as well against the property of the community as against the private property of her hus- band. m 'hi .i,,| i I 11 , t ■ ! 256 Civil, Code of Lower Canada. Her heirs may do the same, except as regards the pre- takiag of linen and wearing apparel, and as regards lodg- ing and maintenance during the delays allowed tor the inventory and for deliberating; which rights are purely personal to the surviving wife. SECTION II. CF CONVENTIONAL COMMUNITr AND OF THE MOST ORDINARY CONDI- TIONS WHICH MAY MODIFY OR EVEN EXCLUDE LEGAL COMMUNITY. 1384. The consorts may modify the legal community by all kinds of agreements, not contrary to articles 1258 and 1259. The principal modifications are those which result from stipulating: 1. By way of realization, that the moveable property either present or future, shall not enter into the com- munity or shall only enter for part; 2. By way of mobilization, that the whole or a portion of the immoveables present or future sihall be included in it; 3. That the consorts shall be separately liable for their debts contracted before marriage; 4. That in case of renunciation, the wife may take back from the community, free and clear from all claims, what- ever she brought into it; 5. That the survivor shall have a preciput; 6. That the consorts shall have unequal shares; 7. That universal community, or a community by gen- eral title, shall exist between them. § 1. Of the clause of realization. 1385. By the clause of realization the parties exclude from the community, either wholly or in part, the move- able property which would otherwise fall Into it. When they stipulate that they will reciprocally put into the community moveable property to the extent of a cer- tain sum or of a determinate value, they are, by such stipulation alone, presumed to have reserved the remainder. 1386. This clause renders the consort debtor to the community for the amount which he promised to contri- bute, and obliges him to substantiate such contribution. Marriage Covenants. 267 1387. The contribution is sufficiently substantiated, as regards the husband, by the declaration made in the con- tract of marriage that his moveable property is of a certain value. It is sufficiently substantiated, as regards the wife, by the discharge which the husband gives either to her or to those who made the endowment. If such contribution be not claimed within ten years the wife is presumed to have made it; saving the right of proving the contrary. 1388. After the dissolution, each consort has a right to take back, before partition, out of the property of the community, the value of the moveable property which he brought into it at the marriage or which accrued to him after it, over and above what he bound himself to bring into the community. 1389. [In the case of the preceding article, the moveable property which accrues to either consort during marriage must be established by an inventory or some other equiva- lent title. As regards the husband, in default of such inventory or title, he forfeits his right to take back the moveable pro- perty which has fallen to him during the marriage. As regards the wife, on the contrary, she or her heirs are, in such case, admitted to moke proof either by titlea or by witnesses, or even by common rumor, of the move- able property, thus accrued to her.] § 2. Of the clause of mohilization. 1390. The clause of mobilization is that by which the consorts, or either cf them, bring into the community the whole or a portion of their immoveables, whether present or future. 1391. Mobilization is either general or special. It is genoral when the consorts declare their intention of being in community as to all their property, or that all successions falling to them shall belong to the community. It is particular when they have only undertaken to bring Into the community some determinate immoveables. 1392. Mobilization may be either determinate or inde- terminate. . , ... ^_ It is determinate, when the ronsort declares that he 17 '■ i f ■ 1 ! A ; '■■ i i I i I w 258 Civil Code of Lower Canada. brings as moveable Into the community, a certain immove- able, either wholly or to the extent of a certain sum. It is Indeterminate when the consort simply declares that he brinigs into the community his immoveables to the ex- tent of a certain sum. 1393. The effect of determinate mobilization Is to con- vert the immoveable or immoveables affected by it into community property, as moveables themselves would be. When the immoveable or im.moveables of the wife are contributed as moveable in whole, the huiSband may dis- pose of them as of the other eCects of the community and alienate them entirely. If the immoveable be contributed as moveable only to the extent of a certain sum, the husband cannot alienate it without the consent of his wife; he may however hypothe- cate it without such consent, but only to the extent of the portion so contributed. 1394. Indeterminate mobilization does not confer upon the community the ownership of the immoveables affected by it, its effect is merely to oblige the consort who has undertaken it to include in the mass, at the time of the dissolution, some of his immoveables to the extent of the sum which he has promised. The husband, without the consent of his wife, cannot alienate, in whole or in part, the immoveables subjected to indeterminate mobilization, but he may hypothecate them to the extent of such mobilization. 1395. The consort who has contributed an immoveable as moveable, has a right, when the partition takes place, to retain it, on account of his share, at the price it is then worth, and his heirs have the same right. g 3. Of the clause of separation of debts. 1396. The clause by which the consorts sitipulate that they will separately pay their personal debts, obliges them to account to each other respectively, at the time of the dissolution of the community, for such debts as are es- tablished to have been paid by the community in discharge of the consort who was liable for them. This obligation is the same, whether an inventory has been made or not; but if the moveable property brought in sli Marriaye Covenants. 269 by the consorts have not been determined by an inventory or an authentic statement anterior to the marriage, the cre- ditors of either consort withouit regard to any distinctions that may be claimed, have a right to be paid out of such property, as well as out of all the other property of the community. The creditors have the same right with regard to such moveable property as may ba-'^o fallen to the consorts dur- ing the community, if likewise it have not been deter- mined by an inventory or authentic statement. m m '1- :'■(■' 1397. When either of the consorts brings into the com- munity a certain sum or a determinate object, such a con- tribution implies a tacit agreement that it is not encum- bered with debts anterior to the marriage, and he must account to the other for all such incumbrances as lessen its value. 1398. The clause of separation of debts does not prevent interest and arrears which have accrued since the mar- riage from being chargeable to the comimunity. 1899. When the communty is sued for the debts of cue of the consorts, who is declared by the contract to be free and clear from all debts anterior to the marriage, the other consort has a right to an indemnity, to be taken from the share in the community which belongs to the in- debted consort, or from his private property; and in case of insufficiency, such indemnity may be prosecuted, by way of warranty, against the parties who made the decla- ration that such consort was free and clear. This right of warranty may even be exercised by the husband during the community, if the debt have originated with the wife; saving in such case, the right of the war- rantor to be reimbursed by the wire or ber heir . after the dissolution of the community. § 4. Of the right given to the wife of taking lack free and clear what she brought into the community. 1400 The wife may stipulate, that in case of renuncia- tion of' the community, she shall take back the whole or part of wliat she brought into it either before or since the marriage; but such stipulation cannot extend beyond things formally specified, nor to other persons than those who are designated. M ; ;lrt;;l 260 Civil Code of Lower Canada. I Thus, the right of taking back the moveable property- brought in by the wife at the time of the marriage, does not extend to similar property accrued to her during the marriage. Thus, the right given to the wife does not extend to the children; and that given to the wife and to the children, does not extend to her ascendants or collateral heirs. In all cases, the wife can only take back her contri- butions after deduction has been made of such of her private debts as have been paid out of the community. § 5. 0/ conventional prcciput. 1401. The clause by which the surviving consort is authorized to pretake, before any partition, a certain sum or a certain quantity of moveable effects in kind, does not take effect in favor of the surviving wife who does not accept the community; unless by the contract of marriage such right is reserved to her, even when she renounces. Excepting the case of such reservation, preciput can only be taken from the mass to be divided, and not from the private property of the predeceased consort. 1402. Preciput is not regarded as a benefit subject to the formalities of gifts, but as a marriage covenant. 1403. Natural death opens the right to preciput by the Bole operation of law. It does not open by civil death, unless this effect result from the terms of the contract of marriage; and if there be no stipulation concerning it, it remains suspended in the hands of the representatives of the person civilly dead. 1 04. When the community is dissolved during the life- time of the consorts in consequence of separation firom bed and board or of separation of property only, such dissolu- tion does not, unless the contrary be stlpiilaited, open the right to preciput in favor of either of the consorts. The right remains suspended until the death of the consort who dies first. In the interval, the sum or the thing which constitutes the preciput remains provisionally with the husiband, from whose succession the wife may claim it, if she have sur- vived him. Marriage Covenants. 26r 1405. The creditors of the community have always a right to cause the effects comprised in the preciput to be sold; saving the recourse of the consort, confoirmably to article 1401. § 6. Of the clauses hy which unequal shares in the community are assigned to the consorts. 1400. The consorts may depart from the equal division established by law, either by giving to the surviving con- sort or his heirs, only a share in the community less than half, or by giving him only a fixed sum in lieu of all rights in the community, or by stipulating that the entire com- munity, in certain cases, shall belong to the surviving con- sort, or to one of the consorts solely. 1407. When it is stipulated that the consoirt or his heirs sihall have only a certain share In the community, as a third, a fourth, the consort whose share la so reduced or his heirs bear the debts of the community only in propor- tion to the share they take in the assets. The agreement is void if it oblige such consort or his heirs, to bear a greater share, or If it exempt them from bearing a share of the debts equal to that which they take in the assets. 1408. When it is stipulated that one of the consorts or his heirs shall be entitled only to a certain sum in lieu of all rights of community, the clause is a definitive agree- ment which obliges the other consort or his heirs to pay the sum agreed upon, whether the community be good or bad, or sufficient or not to pay such sum. 1409. If the clause establishes this definite agreement with regard to the heirs only of one of the consorts, such consort, if he survive, has a right to the legal partition by halves. 1410. The husband or his heirs who, in virtue of the clause mentioned in article 1406, retain the whole of the community, are obliged to pay all its debts. The creditors in such case have no action against the wife or against her heirs. If it be the wife surviving who, in consideration of a stipulated sum, has the right of retaining the whole of the community against the heirs of the husband, she has m 'Ml :l I :i 262 Civil Code of Lower Canada. in the option of either paying such sum and iremaining liable for all the debts, or of renouncing the conim unity and abandoning to the heirs of the husband both the property and the debts. 1411. When the consorts stipulate that the whole of the community shall belong to the survivor, or to one of them only, the heirs of the other have a right to take back what had been brought into the community by the person they represent. Such a stipulation is but a simple marriage covenant, and is not subject to the rules and formalities applicable to gifts. g 7. Of community by general title. 141:3. The consorts may establish by their contract of marriage a general community of their property both move- able and immoveable, present and future, or of all their present property only, or of their future property only. Provisions common to the articles of this section. 1413. The above articles do not confine to their precise provisions the stipulations of which conventional com- munity is susceptible. The consorts may make any other covenants, as men- tioned in articles 1257 and 1384. 1414. Converitional community remains subject to the rules of legal community in all cases where they have not been implicitlj'' or explicitly departed from by the con- tract. § 8. Of convcnants excluding communittf. 1415. When the consorts stipulate that theire shall be no community, or that they shall be separate as to pro- perty, the effects of such stipulations are as follows: I. Of the clause simply excluding community. 1416. The clause which declares that the consorts marry without community does not give the wife the iright to administer her property, nor to receive the fruits thereof; these are deemed to be contributed by her to her husband to enable him to bear the charges of marriage. ■-,■' Marriage Covenants, 263 1417. The hu&band retains the administration of the moveable and immoveable property of his wife, and as a consequence the right to receive all the moveable property she brings with her, or which accrues to her during the marriage; saving the restitution he Is bound to make after its dissolution, or after a separation of property judicially pronounced. 141 b. If, amongst the moveable property brought by the wife or which accrues to her during marriage, there be things which cannot he used without being consumed, an appreclatory statement must be joined to the contract of marriage, or an Inventory must be made of them at the time when they so accrue to her, and the husband Is bound to give back their value according to the valuation. 1419. The husband, with regard to such property, has all the rights and is subject to all the obligations of a usufructuary. 1420. The clause which declares that the consorts marry without community, does not prevent its being agreed that the wife, for her support and personal wants, shall receive her revenues in whole or in part, upon her own ac- quittances. 1421. The immoveables of the wife which are excluded from the community in the cases of the preceding articles are not inalienable. Nevertheless they cannot be alienated without the con- sent of the husband, or, upon his refusal, without judicial authorization. II. Of the clause of separation of property. 1422. When the consorts have stipulated by their con- tract of marriage that they shall be separate as to property, the wife retains the entire administration of her property moveable and immoveable and the free enjoyment of her revenues. 1423. Each of the consorts contributes to the expenses of marriage according to the covenants contained in their contract, and if there be none, and the parties cannot come to an understanding upon the subject, the court determines the contributory portion of each, consort according to their respective means and circumstances. t m !><*'** IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^ 2.5 12.2 20 18 1.25 1.4 11116 = = nil— < 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^■: : iM (Mil SECTION II. OF DELIVERT. 1492. Deliveiy i© th© transfer of a thing sold into the power and possession of the buyer. 1493. [The obligation of the seller to deliver is satisfied when he puts the buyer in actual possession of the thing, or consents to such possession being taken by him, and all hindrances thereto are removed.] 1494. The delivery of incorporeal things is made by the delivery of the titles, or by the use which, the buyer makes of such things with the consent of the seller. 1495. The expenses of the delivery are at the charge of the seller, and those of removing the thing are at the charge of the buyer, unless it Is otherwise stipulated. - ; I i i l.i'fl II 276 Civil Code of Lower Canada. V 1496. The seller is not obliged to deliver the thing if the buyer do not pay the price, unless a tenn has been granted for the payment of it. 1497. Neither is the seller obliged to deliver the thing, when a delay for payment has been granted, if the buyer since the sale have become insolvent, so that the seller is in imminent danger of losing the price, unless the buyer gives security for the payment at the expiration of the term. 1498. The thing must be delivered in the state in which it was at the time of sale, subject to the rules relating to deterioration contained in the title Of Obligations. From the time of sale all the profits of the thing belong to the buyer. 1499. The obligation to deliver the thing comprises its accessories and all that has been designed for its per- petual use. 1600. The seller is obliged to deliver the full quantity sold as it is specified in the contract, subject to modifica- tions hereinafter specified. 1501. [If an immoveable be sold with a statement, in whatever terms expressed, of its superficial contents, either at a certain rate by measurement, or at a single price for the whole, the seller is obliged to deliver the whole quantity specified in the contract; if such delivery be not possible, the buyer may obtain a diminution of the price according to the value of the quantity not delivered. If the superficial contents exceed the quantity specified, the buyer must pay for such excess of quantity, or he may at his option give it back to the seller.] 1502. [In either of the cases stated in the last preceding article, if the deficiency or excess of quantity be so great, in comparison with the quantity specified, that it may be presumed the buyer would not have bought if he had known It, he may abandon the sale and recover from the seller the price. If paid, and the expenses of the contract, without prejudice in any case to his claim for damages.] 1603. [The rules contained in the last two preceding articles do not apply, when it clearly appears from the Sale. 277 description of the immoveable and the terms of the con- tract that the sale is of a certain determinate thing, with- out regard to its quantity by measurement, whether such quantity is mentioned or not.] 1504. The action for supplement of price on the i>art of the seller, or for diminution of price, or for vacating tne contract, on the part of the buyer, is subject to the general rules of prescription. 1605. If two immoveable properties be sold by the same contract, at a single price for the whole, with a de- claration of the contents of each, and in one the quantity be less than stated and in the other greater, the deficiency of the one is compensated by the excess of the other so far as it goes, and the action of the buyer or seller is modified accordingly. SECTION III. OP WARRANTY . General Provisions. 1506. The warranty to which the seller is obliged in favor of the buyer is either legal or conventional. It has two objects: 1. Eviction of the whole or any part of the thing; 2. The latent defects of the thing. 1507. Legal warranty is implied by law in the contract of sale without stipulation. Nevertheless the parties may, by special agreement, add to the obligations of legal war- ranty, or diminish Its effect, or exclude it altogther. (1) (1) See note to article 1522. § 1. Of icarranty against eviction. 1508. The seller Is obliged by law to warrant the buyer against eviction of the whole or any part of the thing sold, by reason of the act of the former, or of any right existing at the time of the sale, anid against Incumbrances not declared and not apparent at the time of the sale. 1609. Although It be stipulated that the seller Is not obliged to any warranty, he Is nevertheless obliged to a warranty against his personal acts. Any agreement to the contrary is null. I I M I' 1^ '.1 t 1-1 II 11 278 Civil Code of Lower Ca/naaa. 1610. In. like manner, wihen there is a stipulation ex- cluding warranty, the seller in case of eviction is obliged to return the price of the thing sold, unless the buyer knew at the time of the sale the danger of eviction or had bought at his own risk. 1611. Whether the warranty be legal or conventional, the buyer, in case of eviction, has a right to claim from the seller: 1. Restitution of the price; 2. Restitution of the fruits in case he is obliged to pay them to the party who evicts him; 3. The expenses incurred, as well in his action of war- ranty against the seller as in the original action; 4. Damages, interest and all expenses of the contract; Subject nevertheless to the provision contained in the article next following. 1612. If in the case of warranty the causes ot eviction were known to the buyer at the time of the sale, and there be no special agreement, the buyer has a right to recover only the price of the thing sold. 1513. The seller is obliged to make restitution of the whole price of the thing sold, although, at the time of eviction, it be found to be diminished in value, or dete- riorated, either by the neglect of the buyer, or by a for- tuitous event; unless the buyer has derived a profit from the deterioration caused by him, in which case the seller may deduct from the price a sum equal to such profit. 1514. If the thing sold be found, at the time of eviction, to have increased in value, either by or without the act of the buyer, the seller is obliged to pay him such in- creased value over the price at which the sale was made. 1515. The seller is obliged to indemnify the buyer, or to cause him to be indemnified, for all repairs and useful expenditures made by him upon the proiperty sold, accord- ing to their value. 1516. If the seller have sold the property of another, in bad faith, he is obliged to reimburse the buyer for all ex- penditures laid out by him upon it. Sale. 279 1617. If the buyer suffer eviction of a part only of the thing, or of two or more things sold as a whole, which part is nevertheless of such importance in relation to the whole that he would not have bought without it, he may vacate the sale. 1518. If in the case of eviction of a part of the thing, or things sold as a whole, the sale be not vacated, the buyer has a right to claim from the seller the value of such part, to be estimated proportionally upon the whole price, and also damages to be estimated accordiiig to the increased value of the thing at the time of eviction. 1619. [If the property sold be charged with a servitude not apparent and not declared, of such importance that it may be presumed the buyer would not have bought, if he had been informed of it, he may vacate the sale or claim indemnity, at his option, and in either case may bring his action so soon as he is informed of the eixistence of the servitude.] 1620. Warranty against eviction ceases in case the buyer fails to call in the seller within the delay prescribed in the Code of Civil Procedure, if the latter prove that there ex- isted sufficient ground of defence to the action of eviction. 1521. The buyer may enforce the obligation of war- ranty when, without the intervention of a judgment, he abandons the thing sold or admits the incumbrance upon it, if he prove that such abandonment or admission is made by reason of a right which existed at the time of sale. i;'.'if i'A. ii|:l ' \ ■ Hi M '■ti § 2. Of warranty against latent defects. 1522. The seller is obliged by law to warrant the buyer against such latent defects in the thing sold, and its ac- cessories, as render it unfit for the use for which it was intended, or so diminish its usefulness that the buyer would not have bought it, or would not have given so large a price, if he had known them. (1) (1) As to warranty of trade mark in the sale of an article, see R. S. C. c. 166, ss. 20, 21. 1523. The seller is not bound for defects which are ap- parent and which the buyer might have known of himself. li!i :(• 280 Civil Code of Lower Canada. 1524. The seller is bound for latent defects even when they were not known to him, unlesc it is stipulated that he shall not be obliged to any warranty. 1625. When several principal things are sold together as a whole, so that the buyer would not have bought one of them without the other, the latent defect in one en- titles him to vacate the sal^ of the whole. 1626. The buyer has the option of returning the thing and recovering the price of it, or of keeping the thing and recovering a part of the price according to an estimation of its value. 1627. If the seller knew the defect of the thing, he is obliged not only to restore the price of it, but to pay all damages suffered by the buyer. He is obliged in like manner in all cases in which he is legally presumed to know the defects. 1528. If the seller did not know the defects, or is not legally presumed to have known them, he is obliged only to restore the price and to reimburse to the buyer the ex- penses caused by the sale. 1629. If the thing perish by reason of any latent defect which it had at the time of the sale, the loss falls upon the seller, who is obliged to restore the price of it to the buyer, and otherwise to indemnify him, as provided in the two last preceding articles. If it perish by the fault of the buyer or by a fortuitous event, the value of the thing in the condition in which it was, at the time of the loss, must be deducted from his claim against the seller. 1530. The redhibitory action, resulting from the obliga- tion of warranty against latent defects, must be brought with ireasonable diligence, according to the nature of the defect and the usage of the place where the sale is made. 1531. In sales made under process of execution there is no obligation of warranty against latent defects. Sale, 281 CHAPTER FIFTH. OF THE OBLIGATIONS OF THE BUYER. 1532. The principal obligation of the buyer is to pay the price of the thing sold. 1533. If the time and place of payment be not fixed by agreement, the buyer must pay at the time and place of the delivery of the thing. 1534. The buyer is obliged to pay interest on the price in the cases following: 1. In case of a special agreement, from the time fixed by such agreement; 2. In case the thing sold be of a nature to produce fruits or other revenues, from the time of entering into posses- sion of it. But if a term be stipulated for the payment of the price, the interest is due only from the expiration of such term; 8. In case the thing be not of a nature to produce fruits or revenues, from the time of the buyer being put in default. 1535. If the buyer be disturbed in his possession or have just cauise to fear that he will be disturbed by any action, hypothecary or in revendication, he may delay the payment of the price until the seller causes such disturbance to cease or gives security, unless there is a stipulation to the con- trary. 1536. [The seller of an immoveable cannot demand the dissolution of the sale by reason of the failure of the buyer to pay the price, unless there is a special stipulation to that effect.] 1537. [The stipulation and right of dissolution of the sale of an immoveable, by reason of non-payment of the price, are subject to the rules relating to the right of redemption contained in articles 1547, 1548, 1549, 1550, 1551, 1552. The right can in no case be exercised after the expira- tion of ten years from the time of sale.] (1) • • (1) The right of revocation of locations, etc., of crown lands, conferred on the Commissioner, shall not be siibiect to the pro- visions of article 1537 C. C, or to the rules therein mentioned. 36 Vict., c. 8, ss. 6 and 9 (1872); now, R. S. Q., art. 1285. [iul tli i I i 282 Civil Code of Lower Canada. 1638. [The judgment of dissolution by reason of non- ];>ayment of the price is pronounced at once, without any delay being granted by it for the payment ot the price; nevertheless the buyer may pay the price with interest and costs of suit at any time before the rendering of the judgment.] 1589. The seller cannot have possession of the thing sold, upon the dissolution of the sale by reason of non- payment of the price, until he has repaid to the buyer such part of the price as he has received, with the costs of all necessary repairs, and of such improveanents as have increased the value of the thing, to the amount of such Increased value. If these improvements be of a nature to be removed, he has the option of permitting the buyer to remove them. 1540. The buyer is obliged to restore the thing with the fruits and profits received by him, or suoh portion thereof as corresponds with the part of the price remaining unpaid. He is also answerable to the seller for the deteriora- tions of the property which have been caused by his fault. 1541. The seller is held to have abandoned his right to recover the price when he has brought an action for the dissolution of the sale by reason of the non-payment of it. 1542. [A demand of the price by action or other legal proceeding does not deprive the seller of hlsi right to obtain the dissolution of the sale by reason of non-pay- ment] 1543. In the sale of moveable things the right of dis- solution by reason of non-payment of the price can only be exercised while the thing sold remains in the possession of the buyer, without prejudice to tlie seller's right of revendioation as provided in the title of Privileges and Hypothecs. In the case of insolvency such right can only be exer- cised during the thirty (1) days next after the delivery. (1) The word "thirty" in the second clause of this article was substituted for "fifteen" by 54 Vict., e. 39, s 1 (30 Dec, 1890). 1544. In the sale of moveable things the ibuyer is obliged to take them away at the time and place at which they Sale. 283 are deliverable. [If the price have not been paid the dis- solution of the sale takes place, in favor of the seller, of right and without the intervention of a suit, after the ex- piration oif the delay agfreed upon for taking them a,way, or if there be no such agreement, after the buyer has been put In default in the manner provided in the title Of Ohliffations;} without prejudice to the seller's claim for damages. was i90). liged they CHAPTER SIXTH. OF THE DISSOLUTION AND OF THE ANNULLING OF THE CONTRACT OF SALE. 1645. Besides the causes of dissolution and of nullity already declared in this title, and those which are common to contracts, the contract of sale may de dissolved by the exercise of the right of Tedemption. SECTION I, OP THE RIGHT OF REDEMPTION. 1646. The right of redemption stipulated by the seller entitles him to take back the thing sold upon restoring the price of it, and reimbursing to the buyer the expenses of the eale and the costs of all necessary repairs, and of such improvements as have increased the value of the thing, to the amount of such increased value. The seller cannot have possession of the thing until he has satisfied all these obligations. 1647. When the seller takes back the property under his right of redemption, he receives it Ifree from all int- cumbrances with which the buyer may (have charged it. 1648. [The right of redemption cannot be stipulated for a term exceeding ten years. If it be stipulated for a longer term, it is reduced to the term of ten years.] 1649. [The stipulated term is to be strictly observed. It cannot be extended by the court.] 1560. [If the seller fail to bring a suit for the enforce- ment of his right of redemption within the stipulated tferm, the buyer remains absolute owner of the thing sold.] "ftp ,, 'I I r ,1 ! m 'i' I '1^ ill 1 1 .■•1 284 Civil Code of Lower Canada. 1551. [The term runs against all persons, including minors and those otherwise incapable in law, reserving to the latter such recourse as they may be entitled to.] 1652. The seller of immoveable property may exercise his right of redemption against a seconid buyer, althougih the rigiht be not declared in the second isale. 1563. The buyer of a thing subject to a right off redemp- tion holds all the rights which the seller had in, the thing. He may prescribe as well against the true proprietor as against those having claims and hypothecs on the thing. 1554. He may set up the benefit of discussion against the creditors of the seller. 1555. If the buyer of an undivided part of an immove- able subject to the right of redemption become afterwards the buyer of the whole property, upon a sale by licitation instituted against him, and such right be not purged, he may oblige the seller who wishes to exercise it to take back the whole property. 1556. If several persons sell conjointly, and by one con- tract, an immoveable which is their common property, with a right of redemption, each of them can exercise his right for the part only which belonged to him. 1557. The rule declared in the last preceding article ap- plies also if one seller of an immoveable have left several heirs; each of the coheirs can exercise the right of redemp- tion for the part only which he has in the succession of the seller. 1558. In the case stated in the two last preceding articles the buyer may, if Tie think fit. compel the co-vendor or the coheir to take back the whole of the property ,sold with the right of redemption, and In default of his so doing, he may cause the suit of such co-vendor or coheir for a part of the property to be dismissed. 1559. If the sale of an immoveable belonging to several owners be made not conjointly of the whole property to- gether, bnt by each of them of his part only, they may exercise their right oi redemption separately, each for the portion which belonged to him. and the buyer cannot oblige him to take back the whole. Sale* 285 1560. If an Immoveable have been sold to several buyers, or to one buyer who leaves several heirs, the right of redemption can be exercised against each of the buyers or coheirs for h.is part only; but if • there have b€«n a partition of the property among thr coheirs, the right may be exercised for the whole property against any one of them to whom it has fallen. SECTION II. OF THB ANNULLINQ OF SALE FOR OAUSE OF LE SION 1561. The rules relating to the avoiding of contracts for cause ol lesion are declared in the title Of Ohliuations. SECTION II (a). OF RE-ENTRY UPON ABANDONED LANDS. lC61a. Repealed by 60 Viot., c. 50, s. 26, 1 Sept., 1897. 15616. Repealed by 60 Vict., c. 50, s. 26, 1 Sept., 1897. CHAPTER SEVENTH. OF SALE BY LICITATION. 1562. If a thing, either moveable or immoveable, held in common by several proprietors cannot be partitioned conveniently and without loss, or if a voluntary partition of a property held in common there be a part which none of the coproprietors is able or willing to take, a public sale of it is made to the higihest bidder, and the price is divided among them. Strangers are admitted to bid at such sale. 1568. The manner and formalities of proceeding in sales by llcltation are declared In the Code of Civil Procedure. CHAPTER EIGHTH. OF SALE BY AUCTION. 1564. Sales by auction or public outcry are either forced or voluntary. , The rules relating to forced sales are declared In chapters seven and eleven of this title, and In the Code of Civil Procedure. Mr'l H I 286 Civil Code of Lower Canada. 1666. The voluntary sale by auction of goods, wares, merchandise or effects cannot be made toy any person other than a licensed auctioneer, subject to the following excep- tions: 1. The sale of goods or effects belonging to the Crown or seized by a public officer under Judgment or process of any court or as being forfeited; 2. The sale of goods of minors by forced or by voluntary licitation; 3. The sale of property, at any bazaar held for religious or charitable purposes, or the sale of property for religious purposes; 4. The sale of goods and effects belonging to deceased persons or to any dissolution of community, or to any church; 5. The sale of personal property, grain, or cattle for non- commercial purposes by th© inhabitants of the rural dis- tricts, removing from the locality; 6. The sale at exhibitions of farm animals exhibited by agricultural societies; 7. Sales for municipal taxes under municipal laws. (R. S. Qm art. 5813.) This article of the code Is modified by reason of 53 Vict., c. 16. 1566. A sale by auction contrary to the provisions con- tained in the last preceding article, is not mull; it merely subjects the contravening parties to the penalties imposed by law. 1667. The adjudication oif a thing to any person on his bid or offer, and the entry of his name in the sale-book of the auctioneer completes the sale to him, and he becomes owner of the thing, subject to the conditions of sale an"- nounced by the auctioneer, notwithstanding the' rule con- tained in article 1235. The contract from that time is gov- erned by the rules applicable to the contract of sale. 1568. If the purchaser do not pay the price at which the thing was adjudged to him, in conformity with the condi- tions of sale, the seller may, after having given reasonable and customary notice thereof, again expose the thing- to sale by auction, and if at the resale the^ price ototained for the thing be less than that for which it was adjudged to the first purchaser, the seller may recover from him the difference and all the expenses of the resale. But, if at the Sale. 287 resale a greater price he obtained for the thing, the flrBt purchaser is not entitled to the benefit thereof, beyond the expenses of the resale, and he is not allowed to bid at such resale. CHAPTER NINTH. OF THE SALE OP REGISTERED VESSELS. 1569. Special provisions concerning the sale of registered ships or vessels are contained in the fourth book of this code in the title Of Merchant Shipping. CHAPTER TENTH. OP THE SALE OF DEBTS AND OTHER INCORPOREAL THINGS. SECTION I. OF THE SALE OF DEBTS AND RiaHTS OF ACTION. 1670. [The sale of debts and rights of action against third persons, is perfected between the seller and buyer by the completion of the title, 11 autheaUc, or the delivery of it, if under private signature.] (1) (1) See art. 5610 et seq. R. S. Q., relating to the volunitary salei, assignment and transfer of constituted rents replacing »elg- niorlal dues. 1571. The buyer . has no possession! available against third persons until signlfloatioii of the act of sale has been made, and a copy oif it delivered to the debtor. He may, however, be put in possession by the acceptance of the transfer by the debtor, subject to the special provisions con- tained in article 2127. 1571a. Whenever, In the case of a sale of a debt or a right of action, the debtor has left or has never had hia domicile in this Province, the signlfloation of tihe sale required by article 1571 may be effected, Ijy publishing a notice of the said sale, twice in the French language, in a newspaper published in the French language, and twice in the English language, in a newspaper published in the English language, in the district in which the debt was contracted or in which the action may ibe instituted; and in default of such newapapeirs in such district, then in similar newspapers in the nearest locality. ^W. {|'!| It i' • rit m '■M i.] i'i 288 Civil Code of Lower Canada. (I Thie delivery of a copy of the deed of sale, required by article 1571, may be effected by leaving such copy for the debtor In the handa of the prothonotary of the district in which the debt was contracted, or of the district in which the action may be brought. (1) (1) Added by R. 8. Q., art. 5814. (35 Vict., o. 6, b. 8.) Lrfiat paragraph as amended by 64 Vict., c. 40, 30 Dec., 1890. 16716. Whenever in either of the cases mentioned in the preceding article, an action has been brought against the debtor, the service otf the action, in the manner pre- scribed by article 68 (1) of the Code of Civil Procedure, is a sufficient signification of the deed of sale, if in the order published in virtue of the said article, the sale is mentioned and described; and the filing of a copy of the deed of sale together with the return of the action, is sufficient delivery thereof to the debtor. (2) (1) Now artlclo 136 of the Revised Code of Procedure. (2) Added by R. S. Q., axt. 5814. (35 Vict., c. 6, s. 4.) 15710. Whenever a whole class of rents or debts collec- tively are sold, the signification of the sale required by article 1571 may be effected by causing the deed of sale to be published in the manner prescribed by article 1571a, and the delivery of the copy may be effected by depositing a copy of the deed of sale in the office of the prothonotary of the district in which the succession opened, or in which are situated the lands charged with such debts, or of the district in which is or was the chief place of businessi of the original creditor. Such publication and deposit sihall be a sufficient signifi- cation and delivery with respect to each debtor indivi- dually. (1) (1) Added by R. S. Q., art. 5814. (35 Vict., c. 6, s. 5.) SCHEDULE. FORM OF NOTICE, In connection with article 1571a. To (name and designation of the debtor.) Notice is heineby given you that the debt (or right of action) which (name of the selling creditor) had) against you by virtue of (description of the title on which the debt Sale. or the right is founded) has beea sold and conveyed to' (name, dcslunatlon and residence of the purehasinu creditor) by virtue of an inatrument (before notaries or by private wiitiny) executed at the day of , in the year , In the presence of (witness or the name of the notary.) 1572. If before the signification of the act by one of the parties to the debtor he have paid to the seller, he is discharg&d. 1673. The two last preceding articles do no apply to bills, notes or bank checks payable to order or to ;bearer, no signification of the transfer of them i>eing necessary; nor to debentures (or the payment of money, nor to trans- fers of shares in the capital stock of incorporated com- panies, which are regulated by the irefipootive acts of in- corporation or the by-laws of such companies. Notes for the delivery of grain or other things, or for the payment of money, and payable to order or to bearer, may be transferred by endorsement or delivery, without notice, whether they are payable absolutely or subjiect to a condition. 1671. The sale of a debt or other right includes its accessories, such as securities, privileges and hypothecs. 1676. Arrears of interest accrued before the sale are not included in it as an accessory of the debt. 1676. The seller of a debt or other right is ibound by law to the warranty that it exists and is due to ihlm, although the sale be without warranty. Subject neverthe- less to the exception declared In article 1510. 1677. When the seller by a simple clause of warranty obliges himself for the solvency oif the debtor, the war- ranty applies only to his solvency at the time of sale, and is limited in amount to tine price paid by the buyer. 1678. The preceding articles of this chapter apply equally to transfers of debts and rights of aotioUi against third persons by contracts other than sales, except gifts to which article 1576 does not apply. 19 f- 29a CiM Code of Lower Canada, i ! ' iii SECTION II. ^ OF THE SALX OF SUCCESSIONS. 1579. [He who sells a right of succession without spe- cifying in detail the property of wihich it consists is bound by law to warrant only his right as heir.] 1680. If the seller have received the fruits or revenues of any property, or the amount of any debt, or sold any- thing making part of the succession, he is bound to re- imburse the same to the buyer, unless they have been expressly reserved. 1581. The buyer, besides his obligations common to the contract of sale, is obliged to Tieimburse the seller sfor all debts and expenses of the succession paid by him, to pay him the debts which the succession may owe him, and to discharge all debts and obligations of the succession for which he is liable; unless there is a stipulation to the contrary. SECTION III. OF THE SALE OF LITIGIOUS RIGHTS. 1582. When a litigious right is sold, he against whom it Is claimed is wholly discharged by paying to the buyer the price and incidental expenses of the sale, with interest on the price from the day that the buyer has paid it. 1583. A right is teld to be litigious when it is uncer- tain, and disputed or disputable by the debtor, whether an action for its recovery is actually pending or is likely to become necessary. 1684. The provisions contained in article 1582 do not apply: 1. When the sale has been made to a coheir or copro- prietor of the right sold; 2. When it has been made to a creditor in payment of what is due to him; 3. When it has been made to the possessor of a property subject to the litigious right; 4. When the judgment of a court has been rendered affirming the light, or when it has been made clear by evidence and is ready for judgment. :ni!.+|':^ Sale. 291 CHAPTER ELEVENTH. OF FORCED SALES AND TRANSFERS RESEMBLING SALE. SECTION I. OF FORCED SALES. 1685. The creditor who has a judigment against his debtor may take in execution and cause to be sold, in sat- isfaction of such judgr»ient, the property moveable or im- moveable of his debtor, except only the articles specially exempted by law; subject to the rules and formalities pro- vided in the Code of Civil Procedure. 1586. In judicial sales under execution, the buyer, in case of eviction, may recover ifrom the debtor the price paid with interest and the incidental expenses of the title; he may also recover, from the creditors who have received it, the price with interest ; saving to the latter their excep- tion of discussion of the property of the debtor. 1587. The last preceding article is without prejudice to the recourse which the buyer has against the prosecuting creditor, by reason of informalities in the proceedings, or of the seizure of property not ostensibly belonging to the debtor. 1588. The general rules concerning the effect of forced judicial sales in the extinction of hypothecs and of other rights and incumbrances, are declared in the title Of Privi- leges and Hypothecs, and in the Code of Civil Procedure; 1589. In cases in which immoveable property is re- quired for purposes of public utility, the owner may be forced to sell it or be expropriated by the authority otf law in the manner and according to the rulep prescribed by special laws. See an Act respecting expropriations, 5 Vict., c. 38 (1890). 1 590. In the case of sales and expropriations for pur- poses of public utility, the party acquiring the property cannot be evicted. The hypothecs and other charges are extinguished, saving to the creditors their recourse wpon the price and subject to the special laws relating' to the matter. li V: m m ■ ; i ;■:!:; SI i!^;! WKm-\ :l fit ill ». aai 292 Civil Code of Lower Canada. 1591. The rules concerning the formalities and proceed- ings in judicial and other forced sales and expropriations are contained in the Code of Civil Procedure and in the acts relating to municipal and other incorporated bodies; such sales and expropriations are subject to the rules generally applicable to the contract of sale, when these are not inconsistent with special laws or any article of this code. SECTION II. OP THE GIVING IN PAYMENT. 1592. The giving of a thing in payment is equivalent to a sale of it, and makes the party giving liable to the same warranty. The giving in payment, nevertheless, is perfected only by the actual delivery of the thing. It is subject to the provisions relating to the avoidance of contracts and pay- ments contained in the title Of OMigatious. SECTION III. OF ALIENATION FOR RENT. 1593. The alienation in perpetuity of immoveable pro- perty for an annual rent, is equivalent to a sale. It is subject to the same rules as the contract of sale in so far as they can be madie to apply. 1594. The rent may be payable either in money or in kind. Its nature and the rules to which it is subject are declared in the articles relating to rents contained in the second chapter of the first title of the secoind book. 1595. The obligation to pay the rent is a personal liability; the purchaser is not discharged firom it by abandonment of the property, nor is he discharged by reason of the de- struction of the property by a fortuitous event or by irre- sistible force. TITLE SIXTH. OF EXCHANGE. v:i 1596. Exchange is a contract by which the parties re- spectively give to each other one thing for another. [It is effected by consent, in the same manner as sale.] Lease and Eire, 29a 1697t If one of the parties, even after having received the thing given to him in exchange, prove that the other party was not owner of such thing, he cannot be com- pelled to deliver that which he has promised in counter- exchange, but only to return the thing which he has re- ceived. 1698. The party who is evicted of the thing he has re- ceived in exchange has the option of demanding damages or of recovering the thing given by him. 1599. The rules contained in the title Of Sale apply equally to exchange, when not inconsistent with any article of this title. TITLE SEVENTH. OF LEASE AND HIRE. 1 1 MlH CHAPTER FIRST. GENERAL PROVISIONS. 1600. The contract of lease or hire has for its object either things or work, or both combined. 1601. The lease or hire of things is a contract by which one of the parties, called the lessor, grants to the other, called the lessee, the enjoyment of a thing, during a certain time, for a rent or price which the latter obliges himself to pay. 1602. The lease or hire of work is a contract by which one of the parties, called the lessor, obliges himself to do certain work for the other, called the lessee, f^.c a price which the latter obliges himself to pay. 1603. The letting out of cattle on shares is a contract of lease or hire combined with a contract of partnership. 1604. The capacity to enter into a contract of lease or hire is governed by the general rules relating to the capa- city to contract, contained in chapter one of th© title Of OhUgations. im ' 'III - ■ .' ( F if 1 > Ik 11 294 Civil Code of Lower Canada. CHAPTER SECOND. OP THE LEASE OR HIRE OP THINGS. SECTION I. GENERAL PRO'VISIOKS. 1605. All corporea: things may be leased or hired, except such as are excluded by their special destination, and those which are necessarily consumed by the use made of them. 1606. Incorporeal things may also be leased or hired, except such as are inseparably attached to the person. If attached to a corporeal thing, as a right of siervitude, they can only be leased with such thing. 1607. The lease or hire of houses and the lease or hire of farms and rural estates are subject to the rules common to contracts of lease or hire, and also to particular rules applicable only to the one or the other of them. 1608. Persons holding real property by sufferance of the owner, without lease, are held to be lessees, and bound to pay the annual value of the property. Such holding is regarded as an annual lease or hire terminating on the first day of May of each year, if the property be a house, and on the [first day of October, if it be a farm or rural estate.] It is subject to tacit renewal and to all the rules of law applicable to leases. Persons so holding are liable to ejectment for non-pay- ment of rent for a period exceeding three months, and for any other causes for which a lease may b© rescinded. 1609. If the lessee remain in possession more than eight days after the expiration oif the lease, without any opposi- tion or notice on the part of the lessor, a tacit renewal of the lease takes place for another year, or the term for which such lease was made, if less than a year, and the lessee cannot thereafter leave the premises, or be ejected from them, unless notice has been given with the delay re- quired by law. 1610. When notice has been given the lessee cannot claim the tacit renewal, although he has continued in pos- session. Lease and Hire, 295 1611. The surety given for the lease does not extend to the obligations arising from the prolongation of it by tacit renewal. SECTION II. OF THE OBLIOATIONS AND RIGHTS OF THE LESSOR. 1612. The lessor is obliged by the nature of the con- tract: 1. To deliver to the lessee the thing leased; 2. To maintain the thing in a fit condition for the use for which it has been leased; 3. To give peaceable enjoyment of the thing during the continuance of the lease. 1613. The thing must be delivered in a good state of repair in all respects, and the lessor is obliged, during the lease, to make all necessary repairs, except those which, the tenant is bound to make, as hereinafter declared. 1614. The lessor is obliged to warrant the lessee against all defects and faults in the thing leased, which prevent or diminish its use, whether known to the lessor or not. 1615. The lessor cannot, during the lease, change the form of the thing leased. 1616. The lessor is not obliged to warrant the lessee against disturbance by the mere trespass of a third party not pretending to have any right upon the thing leased; saving to the lessee his right of damages against the tres- passer, and subject to the exceptions declared in the fol- lowing article. 1617. If the lessee's right of action for damages against the trespasser be ineffectual, by reason of the insolvency of the latter, or of his being unknown, his rights against the lessor are regulated according to article 1660. 1618. If the disturbance be in consequence of a claim concerning the right of property, or other right in and upon the thing leased, the lessor is obliged to suffer a reduction in the rent, proportional to the diminution in the enjoy- ment of the thing, and to pay damages according to cir- cumstances, provided the lessor be duly notified of the disturbance by the lessee; and upon any action brought I nil I.:, '^ u -', [J. 3 r ll 296 Civil Oode of Lower Canada. by reason of such claim, the lessee is entitled to be dis- missed from the cause, upon declaring to the plaintiff the name of the lessor. 1619. The lessor has,' for the payment of his rent and other obligations of the lease, a privileged right upon the moveable effects which are found upon the property leased. 1620. In the lease of houses the privileged right includes the furniture and moveable effects of the lessee, and, if the lease be of a store, shop or mamufactory, the merchan- dise contained in it. In the lease of farms and rural estates the privileged right includes every thing which serves for the labor of the farm, the furniture and move- able effects in the house and dependencies, and the fruits produced during the lease. 1621. The right includes also the effects of the under- tenant, in so far as he is indebted to the lessee. 1622. It includes also moveable effects belonging to third persons, and being on the premises by their consent, ex- press or implied, but not If such moveable effects be only transiently or accidentally on the premises, as the baggage of a traveller in an Inn, or articles sent to a workman to be repaired, or to an auctioneer to be sold. 1623. In the exercise of the privileged right the lessor may seize the things which are subject to it, upon the pre- mises, or within eight days after they are taken away. If the things consist of merchandise, they can be seized only while they continue to be the property of the lessee. 1624. The lessor has a right of action in the ordinary course of law, or by summary proceeding, as prescribed in the Code of Civil Procedure: 1. To rescind the lease: First, When the lessee fails to furnish the premises leased, if a house, with sufficient fur- niture or moveable effects, and, if a farm, with sufficient stock to secure the rent as required by law, — unless other security be given; Secondly, When the lessee commits waste upon the premispi, j. ased; Thirdly, When the lessee uses the premises leased for illegal purposes, or contrary to the evident intent for which they are leased; 2. To recover possession of the premises leased in all cases where there is a cause for rescission, and where the Lease and Hire. 297 lessee continues in possession, against tlie will of the lessor, more than three days after the expiration of the lease, or without paying the rent according to the stilpulations of the lease, if there be one, or according to article 1608, when there is no lease; 3. To recover damiages for violation of the obligations * arising from the lease or from the relation of lessor and lessee. He has also a right to join with any action for the purposes above specified, a demand for rent, with or without attachment, and attachment in recaption when necessary. I'M ■'''" iJ'M| It ' i : 1625. The judgment rescinding the lease by reason of the non-payment of the rent is pronounced at once without any delay being granted by it for the payment; nevertheless the lessee may pay the rent with interest and costs of suit and thereby avoid the rescission at any time before the rendering of the judgment. SECTION III. OP THE OBLIGATIONS AND RIGHTS OF THE LESSEE. 1626. The principal obligations of the lessee are: 1. To use the thing leased as a prudent administrator, for the purposes only for which it is designed and accord- ing to the terms and intention of the lease; 2. To pay the rent or hire of the thing leased. 1627. The lessee is responsible for injuries and loss which happen to the thing leased during his enjoyment of it, unless he proves that he is without fault. 1628. He is answerable also for the injuries and losses which happen from the acts of persons of his family or of his subtenants. 1620. When loss by fire occurs in the premises leased, there is a legal presumption in favor of the lessor, that it was caused by the fault of the lessee or of the persons for whom' he is responsible; and unless he proves the contrary he is answerable to the lessor for such loss. 1630. The presumptiv against the lessee declared in the last preceding article exists in favor of the lessor only, and not in favor of the proprietor of a neighbouring pro- 298 Civil Code of Lower Canada. pfPl i J.. m.' perty who suffers loea by Are which has originated in the premises occupied by such lessee. 1631. If there be two or more lessees of separate parts of the same property, each is answerable for loss by fire, according to the proportion of his rent to the rent of the whole property; unless it is proved that the fire began in the habitation of one of them, in which case he alone is answerable for it ; or some of them prove that the fire could not have begun with them, in which case they (are not answerable. 1632. If a statement have been made between the lessor and lessee, oif the condition of the premises, the latter is obliged to restore them in the condition in which the state- ment shews them to have been; with the exception of the changes caused by age or irresistible force. 1633. If no such statement as is mentioned in the pre- ceding article have been made, the lessee is presumed to have received the premises in good condition, and is obliged to restore them in the same condition; saving his right to prove the contrary. 1634. If during the lease the thing leased T3e in urgent want of repairs, which cannot be deferred, the lessee is obliged to suffer th^m to be made, whatever inconvenience they may cause him, and although he may be deprived, during the making of them, of the enjoyment of a part of the thing; If such repairs became necessary before the making oif the lease he is entitled to a diminution of the rent accord- ing to the time and circumstances; and in any case, if more than forty days be spent in making such repairs, the rent must be diminished in proportion to the time and the part of the thing leased of which he has been deprived. If the repairs be of a nature to render the premises unin- habitable for the lessee and his family, he may cause the lease to be rescinded. 1635. The tenant is obliged to make certain lesser repairs which become necessary in the house or its dependencies, during his occupancy. These repairs, if not specified in the lease, are regulated by the usage of the place. The following, among others, are deemed to be tenant's repairs, namely, repairs: Lease and Hire* 299 To hearths, chimney-backs, chimney-casings and grates; To the plastering of Interior walls and ceilings; To floors, when partially broken, but not when in a state of decay; To window-glass, unless it is broken by hail or other inevitable accident, for which the tenant cannot be holden; To doors, windows, shutters, blinds, partitions, hinges, locks, hasips and other fastenings. 1636. The tenant is not obliged to make the repairs deemed tenant's repairs when they are rendered necessary by age or by irresistible force. 1637. In case of ejectment or rescission of the lease for the fault of the lessee, he is obliged to pay the rent up to the time of vacating the premises and also damages, as well for loss of rent afterwards, during the time necessary for reletting, as for any other loss resulting from the wrongful act of the lessee. 1638. The lessee has a right to sublet, or to assign his lease, unless there is a stipulation to the contrary. If there be such a stipulation, it may apply to the whole or a part only of the premises leased, and in either case it is to be strictly observed. (1) (1) The words "subject to the provisions of The Insolvent Act of 1864 " were struck out of the original article by the Federal amendments to the Civil Code (R. S. Q., art. 6236); 43 Vict. (C), c. 1; 49 Vict., "An Act to repeal the Acts respecting Insolvency now in force in Canada," 1 April, 1880, (C), c. 4, s. 5, schedule A. 1639. The undertenant is heild towards the principal lessor for the amount only of the rent which he may owe at the time of seizure; He cannot set up payments made in advatnce; Payments made by the undertenant, either in virtue of a stipulation in the lease, or in accordance with the usage of the place, are not deemed to be made in advance. 1640. The lessee has a right to remove, before the ex- piration of the lease, the improvements and additions which he has made to the thing leased, provided he leaves it in the state in which he has received it; nevertheless if the improvements or additions be incorporated with the thing leased, with nails, lime, or cement, the lessor may retain them on paying the value. i I II' i!! m 300 Civil Code of Lower Canada. 1641. The lessee has a right of action in the ordinary course of law, or by summary proceeding as provided in the Code of Civil Procedure: 1. To compel the lessor to make the repairs and amelior- ations stipulated in the lease, or to which he is obliged by law; or to obtain authority to make the same at the ex- pense of such lessor; or, if the lessee so declare his option, to obtain the rescission of the lease in diefault of such repairs or amioliorations being made; 2. To rescind the lease for failure on. the part of the lessor to perform any other of the obligations arising from the lease or devolving upon him by law; 3. To recover damages for violation of the obligations arising from the lease, or from the relation of lessor and lessee. SECTION IT. RULES PARTICULAR To THE LEASE OR HIRB OF HOUSES, 1642. The lease or hire of a house or part of a house, when no time Is specified for Its duration, Is held to be annual, terminating on the first day of May of each year, when the rent Is at so much a year; For a month, when It Is at so much a month; For a day, when It Is at so much a day. If the rate of the rent for a certain time be not shown, the duration of t-'ie lease Is regulated by the usage of the place. 1643. The lease of moveables for furnishing a house or apartments, when no time Is Indicated for Its duration. Is goyemQd by the rules contained in the last preceding article, and when these do not apply. Is deemed to be made for the usual duration of leases of houses or apartments, according to the usage of the place. 1644. The cleansing of wells and of the vaults of privies is at the charge of the lessor, if there be no stipulation to the contrary. 1645. The rules contained in this chapter, relating to houses, extend also to warehouses, shops and manufactories, and to all Immoveable property other than faims and rural estates, In so far as they can be made to apply. £#««« and . N. ;;oi 8E0TIOK '. RULES PARTICULAR TO THE LFa^E AND HIRE OF FARMS AND RURAL ESTATES. 1646. He who cultivates land on condition of sharing the pi-oduce with the lessor can neither sublet nor assign his lease, unless the right to do >so has been expressly stipulated. If he sublet or aseigu, without such stipulation, the lessor may eject him, and recover damages resulting from the violation of the lease. 1647. The lessee is obliged to furnish the farm with sutticient stock and the implements necessary for its cul- tivation, and to cultivate it with reasonable care and skill. 1648. If the farm be found to contain a greater or less quantity than that specified in the lease, the rights of the parties to an increase or diminution of the rent are gov- erned by the rules on that subject contained in the title 0/ Hale. 1649. The lessee of a farm or rural estate is bound to give notice to the lessor, with reasonable diligence, of any encroachment made upon it; in default of so doing he is liable for all damages and expense. 1660. If the lease be for one year only, and, during the year, the harvest be wholly or in great part lost by a for- tuitous event or hy irresistible iforce, the lessee Is discharged from his obligation for the rent in proportion to such loss. 1651. [If the lease be for a term of two or more years, the lessee is not entitled to claim any reduction of rent in the case stated in the last preceding article.] 1652. When the loss happens after the harvest is separated from the land, the lessee is not entitled to any reduction of the rent payable in money. If the rent con- sist of a share in the harvest, the lessor must bear his proportion of the loss, unless the loss is caused by the fault of the lessee, or he be in default oif delivering such share. 1653. The lease of a farm or rural estate, when no term is specified, is presumed to be an annual lease, terminaiting iH*m %■ m 302 Civil Code of Lower CauiuiQ, (-' I' f fm yi.lii on the first day of October of each year, subject to notice as hereinafter provided. 1664. The lessee of a farm or rural estate muit leave, at the termination of his lease, the manure, and the 8» raw and other substances intended for manure, if he ha^ re- ceived them on taking possession; if he have not so received them, the owner may nevertheless retain them on paying their value. 8K0TION VI. OF THE TERMINATION OF THE LEASE OR HIRE OF THINGS. 1866. The contract of lease or hire of things is termin- ated in the manner common to obligations, as declared in the eighth chapter of the title Of Obli r W- i ' U -! j » 1' * ■; i * If r i V '■liM i i i 1 Ii: ii 1;; f ' ' '■ 'i • ill 1 j ■■■ 1 ; 310 i :;ii 00 o 03 CO ••A s o 02 O 1^ Oivit Code of Lower Canada. bo a 09 o o a S3 "*J> 8 1^ li CjP a g d g a Cm O GO Signature of witness to payment. 1 • Signature of work- man upon payment. Total amount due. Price of contract. Nature of contract. Salary per day. Number of days. Name of the work- men. kUi Least and Hire, 311 Schedule B. FoRu: OF Claim. In connection with Article 16976. OLAIM OF WORKMAN TO BE DELIVERED TO THE PROPRIETOR. To C. D., (name of the proprietor.) Sir, In presence of the undersiigned witness, I {or we), B. F. (name of the workman or workmen) declare that A. B. (name of the contractor) owes me {or us) a sum of $ for (number of days), employed at your work, at (place) (or a sum of $ , if by the piece or contract), which sum the said A. B. (name of the contractor), your contractor, refuses or neglects to pay me {or us). Made in duplicate at (Signed), , this day of , 18 (Signed), E. F. ' Signature of workman or workmen, G. H. Witness. nm e lis I i-. 11 m;U! nil i ii- CHAPTER FOURTH. OF THE LEASE OP CATTLE ON SHAilES. 1698. The letting out of cattle on sihares is a contract by which one of the parties delivers to the other a stock of cattle to keep, feed, and take care of, upon certain con- ditions as to the division of profitsi between them. 1699. Every kind of animaJl whicfli Is susceptible of in- crease or profit, in agriculture or commerce, may be the object of this contnact. 1700. It there be no special a^eement the contract is regulated by the usage of the place where the cattle are kept. \i m 1 . K ■ * , i' \r\ J i I .1 ., u i I ^ t 11 ii i 1 1. u Ii 312 Civil Code of Lower Canada. TITLE EIGHTH. OF MANDATE. CHAPTER FIRST. GENERAL PROVISIONS. 1701. Mandate is a contract by w*hicli a person, called the mandator, commits a lawful business to the management of another, called the mandatary, who by his acceptance obliges himself to perform it. The acceptance may be implied from the acts of the mandatary, and in some cases from his silence. 1702. Mandate is gratuitous unless there is an agree- ment or an established usage to the contrary. 1703. The mandate may be either special, for a par- ticular business, or general, for all the affairs of the mandator. When general it includes only acts of administration. For the purpoise of alienation and hypothecation, and for all acts of ownership other than acta of administration, the mandate must be express. 1704. The mandatary can do nothing beyond the author- ity siven or implied by the mandate. He may do all acts which are incidental to sucli authority and necessary for the execution of the mandate. 1705. Powers granted to persons of a certain profession or calling to do any thing in the ordinary course of the business wliicih they follow, need not be specified: they are inferred from the nature of such professlom, or calling. - 1706. An agent employed to buy or sell a thing cannot be the buyer or seller of it on his own account. 1707. Emancipated minors may be mandataries, but in such cases the action of the mandator against the minor is subject to the general rules relating to the obligations of minors. -»^.« Mandate. .313 1708. A married woman, who executes a mandate given to her, binds the mandator, but no acUon can be brought against her otherwise than as provided in the title Of Marriage. CHAPTER SECOND. OP THE OBLIGATIONS OF THE MANDATARY. SECTION I. OF THE OBLIGATIONS OP THE MANDATARY TOWARD THE MANDATOR. 1709. The mandatary is obliged to execute the mandate which he has accepted, and he is liable for damages re- sulting from his non-execution of it while his authority continues. He is obliged, after the extinction of the mandate, to do whatever is a necessary consequence of acts done before, and if the extinction be by the deatih of the mandator, he is obliged to complete business whicli is urgent and cannot be delayed without risk of loss or injury. 1710. The mandatary is bound to exercise, in the exe- cution of the mandate, reasonable skill and all the care of a prudent administrator. Nevertheless, if the mandate be gratuitous, the court may moderate the rigor of the liability arising from his negligence or tault, according to the circumstances. 1711. The mandatairy is ansiweiraible for tihe iperson wihom he substitutes in the execution off the mandate, when he is not empowered to do so; and if the mandator be injured by reason of the substitution he may repudiate the acts of the substitute. The mandatary is answerable in like manner when he is empowered to substitute, without designation of the person to be substituted, and he appoints one w(ho is notoriously unfit. In all these cases the mandator has a direct action against the person substituted by the mandatary. 1712. When several mandataries are appointed together for the same business, they are jointly and severally liable for each other's acts of administration, unless it is other- wise stipulated. i: lit t' ■ iff ;i; 1 ■ , ■f 1 ' 1 f It 1 I , i k • Mi m I I- 1 ',''. n m i 314 Civil Code of Lower Canada. i 1713. The mandiatary Is bound to render an account of his administration, and to deliver and pay over all that he has received under the authority of the mandate, even if it were not due; subject nevertheless to his right to deduct therefrom the amount of his disbursements and charges in the execution of the manidate. If he have received a determinate thing he is entitled to retain it until such disbursements and charges are paid. 1714. He Is bound to pay interest upon the money of the mandator which he emp«loys for his own use, from the day of so employing it, and upon any remainder due to the mandator, Irom the time of being put in default. SECTION II* OF THE OBLIGATIONS OF THE MANDATARY TOWARD THIRD PERSONS. 1716. The mandatary acting in the name of the man- dator and within the bounds of the mandate is not per- sonally liable to third persons with whom he contracts, except in the case of factors hereiniafter specified in article 1738, and in the cases of contracts made by the rnaster of a ship for her use. 1716. A mandatary who acts in his own name is liable to the third party with whom he contracts, without pre- judice to the rights of the latter against the mandator also. 1717. He is liable in like manner when lie exceeds his powers under the mandate, unless he has given the party with whom he conitraots sufficient communication of such powers. 1718. He is not held to have exceeded his powers when he executes the mandate in a manner more advantageous to the mandator than that specified by the latter. 1719. He is held to (have exceeded his powers, when he does alone anything which, by the mandate, he is charged with doing conjointly with another. Mandate- 315 CHAPTER THIRD. > OF THE OBLIGATIONS OP THE MANDATOR. SECTION I. OF THE OBLIGATIONS OF THE MANDATOR TOWARD THE MANDATARY. 1720. The mandator Is bouind to indemnify the man- datary for all obligations contracted by him toward third persons, within the limit of his powers; and for acts exceed- ing such powers, whenever they have been expressly or tacitly ratified. 1721. The mandator or ihis legal reipresontative is bound to indemnify the mandiatary for all acts done by him within the limit of his powers, after the extinction of the mandate by death or other cause, wihen he is ignorant of such extinction. 1722. The mandator is bound to reimburse the expenses and charges which the mandatary has incurred in the execution of the mandate, and to pay him the salary or other compemsation to which he may be entitled. When there is no fault imputable to the mandatary, the mandator is not released from such reimbursement and payment, although the business has not been successfully accomplished; nor can he reduce the amount of the reim- bursement upon the ground that the expenses and charges might have been made less by himself. 1725. The mandatary has a privilege and right of pre- ference for the payment of the expenses and charges men- tioned in the last preceding article, upon the things placed in his hands and upon the proceeds of the sale or disposal thereof. 1724. The mandator is obliged to pay Interest upon money advanced by the mandatary in the execution of the mandate. The interest is computed from the day on which the money is advanced. - 1725. The mandator is obliged to indemnify the man- datary who is not in fault, for losses caused to him by the execution of the mandate. 1726. If a mandate be given by several persons, their obligations towards the mandatary are joint and several. W: ■ , i i .!.! 1 ! 1 - t, > [ ■ il: 1 itit i 1 i ! m Civil Code of Lower Canada. SECTION II. OF THE OflLiaATIONS OF THE MANDATOR TOWARD THIRD PERSONS. 1727. The mandator la bound in favor of third persona for ail the acts of his mandatary, done in execution and • within the powers of the mandate, except in the case pro- vided for in article 1738 of this title, and the cases wherein by agreement or the usage of trade the latter alone is bound. The mandator is also answerable for acts which exceed such power, if he have ratified them either expressly or tacitly. 1728. The mandator or his legal representative is bound toward third personis for all acts of the mandatary, done in execution and within the powers of the mandate after it has been extinguished, if its extinction be not known to such third persons. 1729. The mandator or his legal representative is bound for acts of the mandatary done in execution and within the powers of the mandate after its extinction, when such acts are a necessary consequence of a business already- begun. He is also bound for acts of the mandatary done after the extinction of the mandate by death or cessation of author- ity in the mandator, for the completion of a business, where loss or injury might have been caused by delay, 1730. The mandator is liable to third parties who in good faith contract with a person not his mandatary, under the belief that he is so, when the mandator has given rea- sonable cause for such belief. 1731. He is liable for damages caused by the fault of the mandatary, according to the rules declared in article 1054. ■ » CHAPTER FOURTH. OF ADVOCATES, ATTORNEYS AND NOTABIES. 1732. Advocates, attorneys and notaries are subject to the general rules contained in this title, in so far as they can be made to apply. The profession of advocate and attorney is regulated by the provisions contained In an act 1 Mandate. 817 Intituled: An Act resiievtlny the Bar of Lower Canada, and that of notary by an act Intituled: An Act rvspectinu the \ old rid I l'rnj'r.sxu)n. (1) (1) As to the Bar of the Province of Quebec, see R. S. Q.. art. 3G04 et seq.; amended 52 Vict,, cc. 37, 38; 54 Vict., c. 02, BS. 1 and 2. The oath of the advocate makes proof as to the services rendered by him havlnj? been required, and a.* to the nature and duration thereof, but such oath may be contradicted in the ^ame way aa any other evidence. 54 Vict., c. 32, s. 2. As to the Notarial Profession, see R. 8. Q., art. 3604 et seq. ; amended 54 Vict., c. 33; 57 Vict., c. 36; 59 Vict., c. 29; 60 Vict., c. 40. 1733. The rule» ooncernlng the difties and righta of advocates and attorneys, in the exenclse of their func- tions 'before the sevenal courts of Lower Canada, are con- tained in the Code of Civil Procedure, and in the rules of practice of soich courts respectively. 1734. Tlie rules of presoripitioii relating to advocates, attorneys and notaries are contained in article 2260. ill lifl CHAPTER FIFTH. OP BROKERS, FACTORS AND OTHER COMMERCIAL AGENTS. 1736. A broker la one who exercises the trade and calling of neigoitiating between parties the business of buy- ing land flielling or an.y otlier laiwful transactions. He may be the mandatary of boith parties and bind both by hi® acts in the buedness for whdch he is engaged by them. 1736. A factor or commission-menohant is an agent who is employed to buy or sell goods for anotiher, either in h/l« own name or in thie niame of Ms principal, for whichi he receives a compensation coimmonly called a oommiission. 1737. Brokers and faotiors are snibjeot to the general rules declared in /th.is title, when these are not inconsiistent with the articles of this ohiapiteir. 1738. A factor wliose princilpal reeldles in another coun- try is personally liable to third persons with whom he con- tracts, whether the name of the principal be known or not. The principal Is not liable on such oontnacts to the ' i Idil I I'.y ' i 1^ nil li'i 1 IfS i •;. 1 H 9h '■ i 1 ^^H 1 l| ' 1 ,. 318 Civil Code of Lower Canada. third parties, unless it is proved tlnat the credit was given to both principal and factor, or to the prinicipal alone. 1739. Any person may contract fk>r the purchase of goods with any agent entrusted wltlh tiheir possession or to wfhoni the fiiame have been consigned, and may receive the same from such agent amd pay him the iprice thereof, and such contract and payment is binding upon tihe owner of the goods, notwithstaniding the purchaser ihas notice that he is contracting only with an agent. 1740. Any agent entrusted with the possessdon of goods, or of the documeuts of title thereto, is deemed the own«er thereotf for the following purposes, that is to say: 1. To make a sale or contract, as mentioned in the last preceding lartiole; 2. To entitle the consignee of goods consigned by such agent, to a lien thereon for any money or nieigotiable secur- ity advanced or given by him to or for the use of such agent, or received for h.im by such agent for the use of tihe consignee, in like nuanmer as if such agent were the tmie owner of the goodis; 3. To give validity to> any contract or agreement, by way of pledge, lien or security, made in good faith, with such agetnt, as well for an original loan, advance or payment made upon the security of the goods or documents, as for any other or continuing advance in respect thereof; , 4. To make such contract binding upon the owner of the goods and on all other persons interested therein, not- withstanding the persion claiming sudh pledge or lien had notice that he was contracting only with an agent, 1741. In case any person having a valid lien and security on any goods or documents of title or negotiable security, in respect of a previous advance upon a oontract with an agent, gives up the same to such agent, upon a contract for the pledge, lien or security of other gioods, or of another document or security, by such agent delivered to him in exchange, to be held upon the same lien as the goods, document or security so given uip, then, such new contmct, if in good faith, is deemed a valid icontraot, made in con- sideration of a present advance in money, within the pro- visions of this chapter, but the lien acquired under such new contract, on the goods, document or security, deposited in exchange, cannot exceed the value of the goods, documeint or security, so delivered up and exchanged. Mandate. 31£(, 1742. Such contracts onJy are valid as are mientioned in this chapter, and such loans, advances and exchanges only are valid as are made in good faith and without notice that the agent making the same has no authority so to do, or that he is acting in bad faith lagainst the owner of the goods. 1743. Loans, advances and exchanges in good faith, though made with notice of the agent not being the owner, but without notice of his acting without authority, bind the owner and all other persons interested in the goods, documents or security, as the case may be. 1744. No antecedent debt owed by an agent entrusted with the poiSflessiom of goods or the documents of title thereto, can be the subject of any lien or pledge of such goods or documents, nor can the agent for any purpose relating to such, goods deviate from the orders or authority received from his principal. 1745. Bills of lading, warehouse-keeper's or wharfinger's receipts or orders for delivery of goods, bills of inspection of potash or pearlash, and all other documents used in the ordinary course of business, as proof of the possession or control of goods, or purporting to authorize, either by en- dorsement or by delivery, the possessor of any such docu- ment to transfer or receive goods thereby represented, are deemed documents of title within the provisions of this chapter. 1746. Any agent possessed of any document of title, whether derived immediately from' the owner of the goods, or obtained by reason of the agent having been entnisteid with the possessilon of the goods, or of any document of title thereto, is deemed to be entrusted with the possession of the goods represented by such document of title. 1747. Any contract pledging or giving a lien upon any document of title, is deemed a pledige of and Men upon the goods to which it relates, and the agent is deemed the possessor of the goods or documents of title, whether the same be in his actual custody or ibe held by any other per- son for him or subject to his control. 1748. When a loan or advance is made in good faith, to an agent entrusted with and in possession of goods or documents of title, on the faith of any contract in writing : i K.: ii I; I P: III ! 5' in J) s 320 Civil Code, of Lower Canada. to consign, deposit, transfer or deliver such goods, or docu- ments of title, and tlie same are actually received by tlie person making the loan or advance, either at the time of the contract or at a time su/bsequent thereto, without notice that the agent is not authorized to make the pledge or se- curity, suoh loan or advance is deemed a loan or advance upon the security oif the goods or documents of title within the provisions of this chapter. 1748. Every contract, wihether made directly with the agent or with a clerk or other person on his behalf, is deemed a contract with such agent. 1750. Every payment, whether made by money, bill of exchange or other negotiable seicurlty, is deemed an ad- vance within the provisions of this chapter. 1751. Every agent in poS(Sesslon ol goods or documents as aforesaid is for the purposes of this chapter taken to be entrusted therewith by the owner, unless t^e contrary is shewn in evidence. 1752. Nothing contained in this chapte. • . jsens or affects the civil responsibility of the agent for the breach of any obligation, or the non-fulfilment of his orders or authority. 1753. Notwithstanding any of the foregoing articles, the owner may redeem any goods or documents of title pledged as aforesaid, at any time before the same have been sold, upon repayment of the amount of the lien thereon, or restoration of the securities in respect of which the lien exists, and upon payment or satisfaction to the agent, of any sum' of money for or in respect of which such agent is entitled to retain the goods or documents by way of lien against such owner; or he may recover from the person with whom any goods or documents bave been pledged, or who hag any lien thereon, any balance or sum of money remaining in his .hands as the produce of the sale of the goods, after deducting the amoaint of the lien under the contract. 1754. In case of the bankruptcy of any agent, and in case the owner of the goods redeem the same, he is held, in respect of the sum paid by him on account of the agent for such redemption, to have paid the same for the use Mandate, 321 of such agent before his bankruptcy, or in case the goods have not been so redeemed, the owner is deemed a creditor of the agent for the value of tihe goods so pledged at the time of the pledge, and may in either case claim or set off the sum so paid, or the value of such goods, as the case may be. CHAPTER SIXTH. OF THE TERMINATION OF MANDATE. 1755. Mandate tenminiates: 1. By revocation; 2. By the renunciation of the mandatary ; 3. By the natural or civil death of the mandator or man- datary; 4. By interdiction, bankruptcy, or other change in the condition of either party by which hi® civil capacity is affected; 5. By the cessation of authority in the mandator; 6. By the accomplishment of the 'businesis or the ex- piration of the time for which the mandate is given; 7. By otheir causes of extinction common to obligations. 1756. The mandator may at any time revoke the man- date, and oblige the mandatary to return to him' the pro- curation, if it be an original instrument. 1757. The appointment of a new mandatary for the same business has the effect of a revocation of the first appoint- ment from the day on wlhich the former mandatary has> been notified of the new appointment. 1758. If notice of the revocation be given to the man- datary alone, it does not affect third persons who in ignorance of it have contracted with the mandatary, saving to the mandator his right against the latter. 1759. The mandatary may renounce the mandate after acceptance, on giving due notice to the mandator. But if such renunciation be injurious to the latter, the mandatary is answerable in damages, unless there is a reasonable cause for the renunciation. If the mandatary be acting for a valuable consideration he Is liable according to the general rules relating to the inexecution of obligations. 1760. Acts of the mandatary, done in ignorance of the death of the mandator or other cause Whereby the mandate is extingnisihed, are valid. 21 322 Cii>il Code of Lower Canada. 1761. The legal repreaenitatives of the nuanidatary, having a knowledge of the mandate and not being incapacitated by minority or otdieirwiise, are (bound to give notice of his death to the mandator and to do, in business already begun, whatever is immediately necessary to protect the latter from loss. TITLE NINTH. OF LOAN. GENERAL PROVISIONS. 1762. Loans are of two kinds: 1. The loan of tlhings which may be usied without being destroyed, called loan for use icommodatum) ; 2. The loan of things whicih are consumed by the use made of them, called loan for consumption imutuum). CHAPTER FIRST. OP LOAN FOR USE {COMMODATUM). SECTION I. GENERAL PROVISIONS. 1763. Loan for use is a contract by which one party, called the lender, gives to another, called the borrower, a thing to be used by the latter gratuitously for a time, and then to be returned by Mm to the former. 1764. The lender continues to be tihe owner of the thing lent. 1765. Every thing may be loaned for use whioh may be the object of the contract of lease or hire. SECTION II. OP THE OBLIGATIONS OF THE BORROWER. 1766. [The borrower is bound to bestow the care of a prudent adiministrator in the safe-keeping and preservation of the tning loaned.] Loan. 323 He cannot apply the tihing to any other use tlian that for which it is intended by its nature or by agreement. 1767. If the borrower apply the thing to any other use than that for which it i© intended, or use it for a longer time than is agreed upon, he is liable for the loss of it arising even from a fortuitous event. 1768. If the tihing lent be lost by a fortuitous event from which the borrower might 'have preserved it by using his own, or if being unable to save both things he prefer to save his own, he is liable for the loss. 1769. If the thing deteriorate by the use alone for which it Is lent and without fault on the part of the borrower, he is not liable for the deterionabion. 1770. The borrower cannot retain the thing lent for a debt due to him by the lender, unless such debt is for expenses necessarily incurred in the pireservation of the thing. 1771. If in order to use the thing the borrower have in- curred expense, he is not entitled to recover it from the lender. 1772. If several persons conjointly borrow the same thing, they are jointly and severally obliged toward the lender. SECTION III. OP THE OBLIGATIONS OF THE LENDER. 1773. The lender cannot take bock the thing, or disturb the borrower in the proper use of it, until after the expira- tion of the term agreed upon, or, if there be no agreement, until after the thing has been used for the purpose for which it was borrowed; subject neveTtheless to the excep- tion declared in the next following article. 1774. If before the expiration of the term, or, if no term have been agreed upon, before the borrower has com- pleted his use of the thing, there occur to the lender a pressing and unforeseen need of it, the court may, according to the circumstances, oblige the borrower to restore it to him. i! 1 11*1 m m J '•'■ ■ ' ' ' i! it nil 324 Civil Code of Lower Co/nada. » ■ '],« j I ' ilif 1775. If during the continuance of the loan the borrower be obliged, for the preservation of the thing lent, to incur any extraordinary and necessary expense, of so urgent a nature that he cannot notify the lender, the latter is bound to reimburse it to him. 1776. When the thing lent has defects which cause injury to the person usiing it, t/he lender is responsible if he knew the defects and did not make them known to the borrower. CHAPTER SECOND. OF LOAN FOR CONSUMPTION (MUTUUM). SECTION I. GENERAL PROVISIONS. 1777. Loan for consumption is a contract by which the lender gives the borrower a certain quantity of things which are consumed by the use made of them, under the obligation by the latter to return a like quantity of things of the same kind and quality. 1778. By loan for consumption the borrower becomes owner of the thing lent, and the loss of it falls upon him. 1779. The obligation which results from a loan in money is for the numerical sum received. If there be an increase or diminution in the value of the currency before the time of the payment, the boiTower is obliged to return the numerioal sum lent, and only that sum, in money current at the time of payment. 1780. If the loan be in bullion or of provisions, the bor- rower is obliged to return the same quantity and quality as he has received and nothing more, whatever may be the increase or diminution of the price of them. SECTION II. OF THE OBLIGATIONS OF THE LENDER. 1781. In making a loan for consumption the lender must have the right to alienate the thing loaned, and he is subject to the obligations declared in article 1776, relating to loan for use. Loan, 325 in money SECTION 111. OF THE OBLIGATIONS OF THE BORROWER. 1782. The borrower is obliged to return for the things lent a like quantity of other things of the same kind and quality, at the time agreed upon. 1783. If there be no agreement by which the time for the return can be determined, it is fixed by the court ac- cording to circumstances. 1784. If the borrower make default of satisfying the obligation to return things lent, he is bound at the option of the lender to pay the value which they bore at the time and place at which, according to the agreement, the return was to be made; If the time and place of the return be not agreed upon, payment must be made of the value which the things bore at the time and place of the borrower being put in default ; With interest in both cases from the default. CHAPTER THIRD. OF LOAN UPON INTEREST. 1785. Interest upon loans is either legal or conven- tional. The rate of legal interest is fixed by law at six per cent, yearly. The rate of conventional interest may be fixed by agree- ment between the parties, with the exception: 1. Of certain corporations mentioned in the law respect- ing interest, which cannot receive more than the rate per cent, therein mentioned; 2. Of certain other corporations wihich are limited as to the rate of interest by special acts; 3. Of banks, which are not subject to any penalty for usury, but which cannot recover more than seven per cent. (1) (1) This article assumed its present form by virtue of R. S. Q., art. 6240. (R. S. C. cc. 120 and 127.) In the original article, clftuse 1 read as follows:— "Of certain corporations mentioned in the Act intituled: ' An Act respecting interest,' which cannot receive more than the legal rate of six per cent." Clause 3 read as follows:— "Of banks, which cannot receive more than seven per cent." See 60-61 Vict., c. 8. 1 \^\- :ili!i ;: i-: ' t,' .! t ' 1 ■ i t \ i i r 1 ' 326 Civil Code of Lower Canada. 1786. An acquittanoe for the principal debt creates a presumption of payment of the interest, unless there is a reserve of the latter. 'IH CHAPTER FOURTH. OF CONSTITUTION OF RENT. 1787. Constitution of rent is a contract by which parties agree that yearly interest shall be paid by one of them upon a sum of money due to the other or furnished by him, to remain permanently in the hands of the former as a capital of which payment shall not be demanded by the party furnishing it, except as hereinafter provided. It is subject with respect to the rate of interest to the same rules as loans upon interest. 1788. Constitution of rent may likewise be made by gift or will. 1789. Rents may be constituted either in perpetuity or for a term. When constituted in perpetuity they are es- sentially redeemable by the debtor; subject to the pro- visions contained in articles 390, 391 and 392. 1790. The capital of a rent constituted in perpetuity may be demanded: 1. When the debtor of it fails to furnish and maintain the security to whidi he is obliged by the contract; 2. When the debtor becomes bankrupt or insolvent; 3. In the cases provided in articles 390, 391 and 392. 1791. The rules concerning the prescription of arrears of constituted rents are contained in the title Of Prescnp- tioti. 1792. The creditor of a constituted rent secured by the privilege and hypothec of a vendor has a right to demand that the sale under execution of property upon which such privilege and hypothec exists shaiU be made subject to the rent. 1793. The rules concerning life-rents are declared under the title Of Life-Rents. Deposit, 327 1 ■ i ; ■ TITLE TENTH. OF DEPOSIT. 1794. There are two kinds of deipoeit; simple deposit, and sequestration. CHAPTER FIRST. OF SIMPLE DEPOSIT. SECTION I. GENERAL PROVISIONS. 1795. It is of the essence of simplei deposit that it be gratuitous. 1796. Moveable property only can be the object of simple deposit. 1797. Delivery is essential to the formation of the con- tract of deposit. The delivery is sufflcient when the depositary is already in possession, under any other title, of the thing which is the object of deposit. 1798. Simple deposit is either voluntary or necessary. SECTION II. OF VOLUNTARY DEPOSIT. 1799. Voluntary deposit Is that wihich is made by the mutual consent of the party making and of the party re- ceiving it. 1800. Voluntary deposit can take place only between persons capable of contracting. Nevertheless If a person capable of contracting accept a deposit made by a (person inoapaible, he is liable to all the obligations of a depositary; which oibligations may be enforced against him by the tutor or other adminis- trator of the incapable person. 1801. If the deposiit have been made with a person in- capable of contracting, the party making it has a right to •M I % ti >'.; I ij : t.l IT It . ! i h' Ml m 328 Civil Code of Loxoer Canada. revendicate the thing deposited, so long as it remains in the hands of the former, and afterwards a right to demand the value of the thing in so far as it has been profitable to the depositary. f" l^'if' m ill SECTION III. OP THE GBLiaATlONS OP THE DEPOSITARY. 1802. [The depositary is bound to apply In the keeping of the thing deposited the care of a prudent adminis- trator.] 1803. The depositary has no right to use the thing deposited without the permission of the depositor. 1804. The depositary is bound to restore the identical thing which he has received in deposit. If the thing have been taken from him by irresistible force and something given in excihange for it, he is bound to restore whatever he has received in exchange. 1805. The depositary is only held to restore the thing deposited, or such portion of it as remains, in the condition in which it is at the time of restoration. Deteriorations not caused by his fault fall upon the depositor. 1806. The heir or other legal representative of the de- positary who sells the thing deposited, in good faith and in ignorance of the deposit, is held only to restore the price received for it, or to transfer his right against the buyer if the price have not been paid. 1807. The depositary is bound to restore any profits re- ceived by him from the thing deposited. He is not bound to pay interest on money deposited unless he is in default of restoring it. 1808. The depositary cannot exact from the depositor proof that he is owner of the thing deposited. 1809. The restoration of the thing deposited must be made at the place agreed upon, and the cost of conveying it there is boTne by the depositor. If no place be agreed upon, the restoration must be made at the place where the thing is. 'k Deposit. 329 1810. The depositary Is obliged to restore the thing to the depositor whenever It is demanded, although the delay for its restoration may have been fixed by the contract, unless he is prevented from so doing by reason of an at- tachment, or oipposition, or other legal hindrance, or has a right of retention of the thing, as declared In article 1812. 1811. All the obUgatioins of the depositary cease if he establish that he is owner of the thing deposited. SECTION IV. OF THE OBLIGATIONS OF THE DEPOSITOR. 1812. The depositor is bound to reimburse the depositary for the expenses incurred by the latter in the preservation and care of the thing, and to Indemnify him for all losses that the deposit may hiave caused to him. The depositary has a right to retain the thing deposited until such expenses and losses are paid to him. If SECTION V. OF NE0E8SARV DEPOSIT. 1813. Necessary deposit is that which takes place under an unforeseen and pressing necessity arising from accident or irresistible force, as in case of fire, shipwreck, pillage or Other sudden calamity. It is, in other respects, subject to the same rules as voluntary deposit, with the exception of the mode of proof. 1814. Keepers of inns, of boarding-houses and of taverns, are responsible as depositaries for the things brought by travellers who lodge in their houses. The deposit of such things is considered a necessary deposit. 1815. The persons mentioned in the last preceding article are responsible if the things be stolen or damaged by their servants or agents, or by strangers coining and going in the house, but are not liable to make good to any guest, any theft of, or injury to goods or property brought to their houses, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the sum of two hundred dollars, except in the following cases: ' i i- i'i i: ': HI 330 Civil Code of Lower Canada, 'y." ! \%\ 1. Where such goods or property have been stolen, lost, or Injured through their wilful act, default, or neglect, or of any servant in their employ; 2. Where such goods or iproperty have been deposited expressly for safe custody with them. Provided always, that, in case of such deposit, such per- sons may, If they think fit, require, as a condition of liability, that such goods or property be deposited in a box or other receptacle fastened and. sealed by the person de- positing the same. If any such persons refuse to receive for safe custody, any goods or property of thedr guests, or if any such guest, through any default of such person, be unaible to deposit such goods or property, suioh persons are not entitled to the benefit of this article, In .respect of such goods or property. Such persons must cause to he kept consipicuousily posted in the office and public rooms, and in every bed-room in their establishments, a copy of this article, printed in plain type; and they are entitled to the benefit of its provi- sions in respect of such goods or property only as are brought to their establishment while siuch copy is so posted. Such persons are not responsible if the theft be com- mitted by force of arms or the diamage be caused by irre- sistible force; nor are they resporsible if it be proved tnat the loss or damage is caused by a stranger and has adsen from neglect or carelessness on the part of the person claiming. (1) (1) The orig-inal article read as follows:— " The persons men- tioned in the last preceding article are responsible If the things be stolen or damaged by their servants or agents, or by strangers coming and going in the house. But they are not responsible if the theft be committed by force of arms, or the damage be caused by irresistible force; nor are they responsible If it be proved that the loss or damage is caused by a stranger, and has arisen from neglect or care- lessness on the part of the person claiming it." This was amended by 39 Vict., c. 23, ss. 2, 3, 4 and 5, 24 Dec, 1875. (R. S. Q., art. 5818.) 1816. The rules declared In article 1677, siulbject to the provisions of the preceding article (1) apply also to the liability oi keepers of inns, boarding-houses and taverns and as regards the oath to be offered. (1) The words "subject to the provisions of the preceding article" were added by virtue of 39 Vict., c. 23, s. 6, 24 Dec, 1875. (R. S. Q.. art.. 5819.) Deposit. SECTION V (A). 331 OF THE LIEN OF INNKEEPERS UPON TUE GOODS OF THEIR QUESTS, .1816a. Persons keeping a hotel, Inn, tavern, public house or other place of refresthmenit, and boarding-house- keepers and lodging houac-keepera have a Hen on the bag- gage and property of their guests, boarders, or lodJrers, for the value or price of any food or accommoiiatlon furnished to them. They have, in addition to all other remedies, the right, In ^ase the amr .nt remains unpaid for three months, to sc'ii sucn bagrage and property by public auction, on giving one week's noitice of such intended sale, by advertisement In a no;.'spti>er published in the municipality in whlcih such hotel, 'nn, tav«>^rn, :>ub lie-house, pUice of refreshment, boarding-house, c lodging-house, is situate, or in case there la no nev-iaper published in such municipality, in a newspaper pu>iished learest thereto. The no.li must stal -he name of the guest, boarder or lodgei tl "^ amount of his indeibtedness, a deseriptlon of the baggage or other property *o be sold, the time and place of sale, and the name of 'iiu lauotioneer. After such saie, such innkeeper, hotel-keeper, boarding house-keepei , or lodging-house-keeper may apply the pro- ceeds of fiToh sale in payment of the amount due to him, a.n.d the costs of such advertising and sale, and must pay the surplus (if any) to the person entitled thereto on application being made by him therefor. (1) (1) Added by R. S. Q., art. 5820. (39 Vict., c. 23, ss. 1 and 5, 24 Dec. 1875.) CHAPTER SECOND. OF SEQUESTRATION. 1817. Sequestration is either conventional or judicial. SECTION I. OF CONVENTIONAL SEQUESTRATION. 1818. Conventional sequestration is the deposit made by two or more persons of a thinig in dispute, in the hands of a third person who obliges himself to restore it after the ' f ^ 111 f > ' '.- ■ !■' . .1! it iff if 'i if; '1 ill .332 Civil Code of Lower Canada. termination of the contest, to the person to whom it m.ay . be adjudged. 1819. Sequestration is not essentially gratuitous. It Is In other respects subject to the rules generally applicable to simple deposit, when these are not inconsiiatent with the articles of this chapter. 1820. Sequestration may have for its object immove- able as well as moveable property. 1821. The sequestrator cannot be discharged until the termination of the contestation, unless it is by the con- sent of all the parties interested, or by the court for suffi- cient cause. 1822. When the sequestration is not gratuitous it is as- similated to the contract of lease and hire, and the obliga- tions of the sequestrator for the safe-keeping of the thing are the same as those of the lessee. SECTION II. \'i f, M OF JUDICIAL SKQUE8TRATI0N. 1823. Sequestration or deposit may take place by judicial authority: 1. Of moveable property seized under process of attach- ment, or taken in execution of a judgment; 2. Of money or other things tendered and deposited by a debtor in a suit pending; 3. The court or the judge (1) upon application by the Interested party may, according to circumstances, ordeor the sequestration of a thing, moveable or immoveable, con- cerning the property or possession of which two or more persons are in litigation. (1) The words "or the judge" were added by 60 Vict., c. 50, s. 27 (1 Sept., 1897). 1824. The sequestration may also take place by judicial authority in the following cases specified in this code: 1. When the usufructuary cannot give security as spe- cified in article 465; 2. When the substitute is put in possession under article $55. Deposit. 333 1826. The gfuardian or sequestrator appointed by judi- cial authority is bound to apply to the safe-keeping of the things seized the care of a prudent administrator. He is subject to the duties and obligations imposed upon guardians in seizures under execuition. (1) He is bound to produce the things either for the purpose of being sold in due course of law or to be delivered to the party entitled to them under thie judgment of the court. He is also bound to render an (account of his administra- tion when judgment is rendered in the cause, and as often OS is ordered by the court or the judge (2) during its pen- dency. He is entitled to be paid, by the party seizing, such com- pensation as is fixed by law or by the court or the judge; (3) unles® he has been presented^ by the party on whom the seizure is made. (1) This paragraph was added by 60 Vict., c. 50, s. 28 (1 Sept., 1897). (2) (3) The words "or the judge" were added by 60 Vict., c. 50, s. 28 (1 Sept., 1897). 1825a. If among the things sequestrated some are con- sumable or perishable, the sequestrator may cause them to be sold, njpon observing the formalities prescribed for the sale of moveable (property under execution. (1) (1) Added by 60 Vict., c. 50, s. 29 (1 Sept., 1897). 1825&. If thiB' thing sequestrated consists in a right of enjoyment, the sequestrator, if there i® no conventional lease, is bound to give out the lease by auction. (1) (1) Added by 60 Viet., c. 50, s. 29 (1 Sept., 1897). 1826. The thing sequestered cannot be leased directly nor indirectly to any of the parties in the contest concerning it. 1826a. Repairs or other necessary expenditure cannot be made upon the premises sequestrated without the authori- zation of the court or of the judge, upon petition of which the parties have received notice. (1) (1) Added by 60 Vict., c. 50, s. 30 (1 Sept., 1897). 1827, The sequestrator appointed hy judicial authority, lo whiom the thing has been delivered, is subject to all the obligations which attajch to conventional sequestration. liip :'' ... ■::il y I i I;! II 334 Civil Code of Lower Canada. 1827a. A sequestrator is discliarged by law upon his delivering the property sequestrated to the party named in the judgment. (1) (1) Added by 60 Vict., c. 50, s. 31 (1 Sept., 1897). 1828. The judicial sequestrator may obtain his discharge after the lapsi© of three years, unless, for special reasons, the court haa continued his functions beyond that period. He may also be discharged by the court within that time upon cause shewn. 1829. The special rules concerning judicial sequestra- tion or deiK)sit are contained in the Code of ClvU Procedure. liiiiii : k TITLE ELEVENTH. OF PARTNERSHIP. i ^ ' J Mil ^ 1 1 W CHAPTER FIRST. GENERAL PROVISIONS. 1830. It is esseintial to the contract of partnership that it should be for the common profit of the partners, each of whom must contribute to it property, credit, skill, or in- dustry. 1831. Participation in the profits of a partnership car- ries with it an obligation to contribute to the losses. Any agreement by which one of the partners is excluded from participation in the profits is null. An agreement by which one partner is exempt from liability for the losses of the partnership is null only as to third persons. 1832. If no time for the commencement of the partner- ship be designated, it takes effect from the date of the contract. 1833. If the term of the partnership be not desiignated, it is considered to be for the life of the partners; subject to the provisions contained in the fifth chapter of this title. «ijwj ym Fartnership. 335 1834. In partnerships for trading, mamiufacturing or me€hanioal purposes, or for the construction of roads, dams and bridges, or for the purpose of colonization, or of settlement, or of land traffic, the partners must deliveir to the prothonotary of the Superior Court in each district, and to the registrar of each county, in which they carry on business, a declaration in writing. In the foran and subject to the rules provided in tihe statute intituled: An Act respecting Partnerships. The omission to deliver such declaration does not render the partnership null; it subjects the contravening parties to the penalties and liabilities imposieid' by the statute. (1) (1) As to the declaration ta be made by persons enteringi into partnership for certain purposes. See R. S. Q., art. 5635. 1834a. A similar declaration must be also made by any person carrying on business alone under a firm name. (1) (1) Added by R. S. Q., art. 5821. (48 Vict., c. 29, s. 1, 9 May, 1885.) 1835. Tihe allegations contained in the declaration men- tiomeid in the last preceding article cannot be controverted by any person who h;as signed the same, nor can they be controverted, as against any party not being a partner, by a person who bas not signed but was really a memiber of the partnersihip at the time the declaration was made; and no partner, whether he has signedl or not, is deemed to have ceased to be a partner until a new declaration has been made and filed as aforesaid, stating tbe alteration in the partnership. 1836. Any partner, altlhougb not mentioned in the de- claration, may be sued jointly and severally with the partners mentioned therein, or the latter may be sued alone, and, if judgment be recovered against them, any other partner or partners may be sued on the original cause of action on which such judgment was rendered. 1837. When persons are associated as partners in Dower Canada for any of the purposes mentioned in article 1834, and no declaration has been filed as aforesaid, any action which migbt be brouglht against all the membens of tbe partnership, may also be brougM against any one or more of them, as carrying on or as having carried on trade jointly with others, without naming sncb others in the writ or declaration, under the name land style of their partnership ' , ' ' ! t ; 1 ii! i -I m 336 Civil Code of Lower Canada. firm; and if judgiment be recovered against him or them, any other partner or partners may be sued jointly or sever- ally on the original eause of action on which suoh judgment has been rendered ; but when amy such action is founded on an obligation or instrument in writing in which all or any of the partners bound by it are named, then all the partners named therein must be made parties to such action. 1838. The service of summons or pirocess, for any claim or demand founded upon any liability of an existing part- nership, at the office or place of business of such partner- ship within the province of Canada, has the same effect as a service made Uipon the members of such partnership personally, and any judgment rendered against any mem- ber of such existing partnership, for a partnership debt or liability, may be enfoj^ied by process of execution against the partnership property in the same manner as if the judgment had been rendered against the partnership. CHAPTER SECOND. OF THE OBLIGATIONS AND RIGHTS OF PARTNERS AMONG THEMSELVES. 1839. Each partner is a debtor to the partnership for all that he has agreed to contribute to it. When such contriibution consists of a certain thing and the partnership is evicted of it, the partner is subject to warranty in the same manner as a seller is in favor of the buyer. 1840. A partner who fails to pay any sum of money which he has agreed to contribute to the partnership is liable for interest on such sum from the day of his default. He is also liable for interest upon any sum taken by him from the partnership funds for his particular benefit, from the day that he has withdrawn it. 1841. The provisions contained in the last two preceding articles are without prejudice to the rights of the other partners to damages against the partner in default, and to obtain a dissolution of the partnership, according to the rules contained in the title Of Obligations and in article 1896. 1842. A partner cannot carry on privately any business or adventure which deprives the partnership of a portion hem, ever- jmenit inded ill or 11 the ction. claim part- ,rtner- effect ership meim- Lebt or I gainst if the ONG for all ng and Dject to of the money rship is default. iken by beneifit, receding le other and to to the article business , portion Partnership. 337 of the skill, industry, or capital iwhicih he is bound to employ therein. If he do so, he is obliged to account to the pa.rtners.hip for the profits of such business. 1848. When a partner is creditor individually of a person who is also indebted to the partnership, and both debts are actually payable, the impuitation of any payment received by him from the debtor, is made upon both debts in proportion to their respective aimounts, although by the receipt, he may have imputed it upo^n his private debt only; but if by the receipt he impute the paym.ent wholly upon the partnership debt, such imputation is to be main- tained. 1844. When a partner has been paid his full share of a debt due to the partnersihip, and the debtor becomes insol- vent, such partner is obliged to return to the partnership what he has received, although he may have given a dis- charge specially for his part. 1845. Each partner is liable to the partnership for damages caused by his fault. He cannot set up in compen- sation of such damages the profits which the partnersihip has derived from his industry in other affairs. 1846. A certain and determinate thing which does not consume by use, and of which the enjoyment only is con- tributed to the partnership, is at the risk of the partner who is the owner of it. Things which consume by use or deteriorate by keeping, or which are intended to be sold, or are contributed to the partnership at a fixed valuation, are at the risk of the partnership. 1847. A partner has a right against the partnership not only to recover money disbursed by him for it, but also to be indemnified for obligations contracted by him in good faith in the business of the partnersihip, and for the risks inseparable from his management. 1848. [When there is no agreement concerning the shares of the partners In the profits and losses of the part- nersihip, they share equally.] 1849. A partner charged with the management of the business of the partnership by a si>ecial clause in the con- 22 ; i If I ,-' 'I i H Ii iii: 838 Civil Code of Lower Canada. 1 1 M m ? tract, may perform all acts connected with his manage- meni, notwiihstanaing the opposition of the other partners, provided he act without fraud. Such power of management cannot be revoked without suflficient cause while the partnership continues ; but if the power be given toy an instrument i>o9terioir to the contract of partnership, it is revokable in the same manner as a simple mandate. 1850. When several of the partners are charged with the management of the business of the partnership gen- erally, and without a provision that one of them shall not act without the others, each of them may act separately; but if there be such a provision, one of them cannot act in the absence of the others, although it be Impossible lor the latter to join in the act. 1851. If there be no' special stipulation as to the man- agement of the business of the partnership, the following rules apply: 1. The partners are pi-esumed to have mutually given to each other a mandate for the management, and whatever is done by one of theni binds the others; savinjg the right of the latter, together or separately, to object to any act before it is concluded; 2. Each partner may use the things belonging to the partnership, provided he apply them to their customary and destined use, and that h© do not use them against the interest of the partnership, or in a manner to prevent his copartners from making use of them accoPding to their riffht; 3. Each partner may compel his copartners to bear with him the expenses which are necessary for the prieservation of the property of the partnership; 4. One of the partnere cannot make lalterations in the immoveable property of the paPtnership without the con- sent of the others, although he slLOild establish that such alterations are advantageous. lii 'I 1852. A partner who has no right of mianagement cannot alienate or otherwise dispose of any thing w'hich ' belongs to the partnership; saving the rights of third pe^rsons as hereinafter declared. 1853. Bach i)airtner may, without the consent of his co- partners, associate with himself a third person in the share ''^'H Partnership. 339 lie has in the partnership. He cannot without such con- sent associate him. in the partnership. CHAPTER THIRD. OP THE OBLIGATIONS OF PARTNERS TOWARD THIRD PERSONS. 1854. Partners are not jointly and severally liable for th€ debts of the partnership. They are liable to the cre^- ditor in equal shares, although their shares in the partner- ship may be unequal. This article does not apply in commercial partnerships. 1855. A stipulation that the obligation is contpacted for the partneirship binds only the partner contracting, when he acts without the authority, express or implied, of hia co-partners; unless the partnership is ibemefited by his act, in which case all the partners are bound. 1856. The liabilities of partners for the acts of each other are subject to the rules contained in the title Of Mandate, when not regulated by any article of this title. CHAPTER FOURTH. OP THE DIFFERENT KINDS OP PARTNERSHIPS. 1857. Partnerships are either uniivereal or particular. They are also either civil or commercial. t v:' Kl SECTION I. OP UNIVERSAL PARTNERSHIPS. 1858. Universal partnership may be either of all the property or of all the gains of the partners. 1859. lu universal partnership of property all the piro- perty of the partners, moveable and immoveable, and all their gains, as well present as future, are put in common. 1860. Parties contracting a universal partnership are presumed to intend only a partnership of gains, unless the contrary is expressly stipulated. 1881. In a universal partnership of gains Is Included all that the partners acquire by their Inidustry In whatever ... ti 340 Civil Code of Lower Canada. employment they are engaged during the continuance of the partnership. The moveable property and the enjoyment of the immoveables poisses&ed by the partners at the date of the contract are also included; but the immoveables themselves are not included. SECTION II. OF PARTICULAR PARTNERSHIPS. 1862. Particular partnersliips are those which apply only to certain determinate objects. A partners-hip contracted for a single enterprise or for the exeircise of any art or profession is also a particular partnership. III? SECTION III. OF CUMMEROIAL PARTNERSHIPS. 1863. Commercial partnerships are those which are contracted for carrying on any trade, manufacture or other business of a commeiPcial nature, whether general or limited to a special branch or adventure. All other partnerships are civil partnerships. 1864. Commercial partnersMpe' are divided into: 1. General partnerships; 2. Anonymous partnerships; 3. Partnerships en commandite, or limited partnerships; 4. Joint-stock companies. They are governed by the rules common to other partner- ships, when these are not Inconsisitent with the rules con- tained in this section, and with the laws and usages spe- cially applicable in commercial matters. § 1. Of general partnerships. 1865. General partnersihips are those contracted for the purpose of carrying on (business under a collective name or firm consisting ordinarily of the names of the partners, or of one or more of them, all of whoan are Jointly and severally liable foi" the obligations of the partnersMp. 1866. The partners may make suich stipulations among themselves conoecming their respective powers in the man- agement of tlie partnership business as they see fit, but with respect to tMrd persons dealing witli them in good faith. Partnership. 341 each, partner has an implied power to bind the partnership for all obligations contracted in its name and in its usual onurae of dealing: and ibusiness. 1867. The partners are liable for obligations contracted by one of them, in his own name, only when the obligation is for objects wh'ch are in the usual course of dealing and business of the pa^nership, or are applied to its use. 1868. Dormant or unknown partners are, during the continuance of the partnership, subject to the same lia- bilities toward third persons as ordinary partners under a collective name. 1869. Nominal partners, and persons who give reason- able cause for the belief that they are partners, although not so In fact, are liable as such to third parties dealing in good faith under that belief. § 2. Of anonymous partnerships. 1870. In partnerships having no name or Arm, whether they are general or confined to a single object or adventure, the partners are subject to the same liaibilities in favor of third persons as in ordinary partnerships under a collec- tive name. § 3. Of partnerships en commandite or limited partnerships. 1871. Partnerships en commamdite, or limited partner- ships, for the transaction of any mercantile, mechanical, or manufacturing business, other than the business di banking and insurance, may he formed under the statute intituled. An act respecting limited partnerships. (1) (1) As to certificates of formation of limited partnerships, see R. S. Q., art. 5640. 1872. Such partnerships consist of one or more persons called general partners, and of one or more persons who contribute in cash payments a specific sum or canital to the common stock and who are called special partners. 1873. The general partners are jointly and severally re- sponsible in the same manner as ordinary partners under a collective name; but special partners are not liable for the debts of the partnership beyond the amounts con- tributed by them to the capital. {1 ' ii '::■ i I : » 342 Civil Code of Lower Canada. • J ,; -« 1874. The general partners only can be autihorizd to transact business and sign, for the partnership, and to bind the same. 1876. Persons contracting limited partnerships are bound to make and severally sign a certificate containing: 1. The name or firm of the partnership; 2. The general nature of the businiees to be carried ou; 3. The names of all the general and special partners, distinguishing which are general and which special, and their usual place of residence; 4. The amount of capital atock contributed by each special partner; 5. The period at which the partnership commences and that of its termination. Such certificate is to be made, filed and recorded In the form' and manner prescribed in the statute specified in article 1871. 1876. The partnership is not deemed to be formed until the certificate is made, filed and recorded, as indicated in the last preceding article. 1877. If any false statement be made in the certificate, all the persons Interested in the partnership are liable for its obligations, In the same manner as ordinary partners under a collective name. 1878. In ease of any renewal or continuance of the partnership beyond the time originally fixed for Its duration, a certificate thereof must be made, filed and recorded In the manner required for the original formation. Any partner- ehlp otherwise renewed or continued is deemed a general partnership. 1879. Eveiry alteration In the names of the [generarj partners, in the nature of the business, or in the capital or shares, or in any matter, [other than the names of the special partners,] specified in the original certificate, is deemed a disisolution of the partneirship; and if It be car- ried on after such alteration, it Is deemed a general part- nership, unless renewed as a limited partnership In the manner provided In the last preceding article. 1880. The business of the partnership is to be con- ducted under a partnership name or firm, in which the Partnership, 34.S name of the general partners only, or of one or more of them, is used; and If the name of a special partner be ' used in the firm with his privity, he is deemed a eeneral partner. 1881. Suits in relation to the business of th© partnerflhlp miay be brought and conducted by and against the general partners, 'i the same manneu^ as if there were no special partners. 1882. No part of the sum which any special partner has contributed to the capital stock can be withdrawn by him, or paid or transferred to him in the form of dividends, profits or otherwise, during the continuance of the partner- ship; but he may annually receive lawful interest on the sum so contributed by him, if the payment of sj^h interest do not reduce the original amount of the capital, and he may also receive his portion of the profits. 1883. If by the payment of interest or supposed profits the original capital be reduced, the partner receiving the same is bound to restore the amount necessary to make good his share of the deficient capital, with interest. 1884. A special partner may, from time to time, examine into the state and progress of the affairs of the partner- ship, and may advise as to its management; but hei cannot transact any business on account of the partnersihlp, nor be employed by it as agent, attorney or otherwise. If he act in contravention of the provisions of this article, he is deemed a general partner. 1885. The general partners are liable to account to each other and to the special partners for the management of the business of the partmeirship, in the same manner as ordinary partners under a collective name. 1886. In case of the insolvency or bankruptcy of the partnership, no special partner is allowed, under any cir- cumstancesi, to claim as a creditor, until the claims of all the other creditors of tlie partnership have been satisfied. 1887. No dissolution of the partnership by the acts of the parties can take place previously tO' the time specified in the certificate of its formation, or the certificate of its renewal, until notice of such dissolution has been filed and published in the manner providled in the act specified in article 1871. 1 f r i.^i III Y"^ 844 Civil Code of Lower Canada. 1888. Partnerships for the businesfl of banking are re- gulated by special acts of Incorporation, and by the Federal Act respecting banks and banking. (1) (1) This article assumed Its present form by virtue of art. 6241 R. S. Q. (R. S. C, ch, 120. J The article originally read as follows:— " Partnerships for the business of banking are regulated by special acts of incorpora- tion, and by the Acts intituled, ' An Act respecting- incorporated banks,' and ' An Act respecting banks and the freedom of banking.' " § 4. Of joint-stock companies. 1889. Joint-stock companies are formed either under the authority of a royal charter, or otf an act of the legislature, and are governed by its provisiions; or they are formed without such authority, and In the latter case, are subject to the same general rules as portnerahlps under a collective name. 1890. The names of the partners or stockholders do not appear In joint-stock companies, which are generally known under an appellation indicating the object of their forma- tion. The business Is carried on by directors or other man- dataries, who are appointed from time to time, according to the rules established for the governance of such com- panies respectively. 189 J . Any seven or more persons may in like manner as- sociate themselves together for the purpose of carrying on any labor, trade or business, except the working of mines, minerals or quarries, and the bustness of banking or in- surance, in conformity with the provisions of the act of 1865, intituled An Act to authorize the formation of com- panies or co-operative associations for the purpose of carrying on, in common, any trade or husiness. The formation and governance of joint-stock companies and corporations for particular objects aire provided for by special statutes. As regards the Incorporation of companies by the Dominion authorities, see now the act Intituled: "An Act respecting the incorporation of Joint-Stock Companies by Letters Patent." R. S. C, c. 119; amended 50-51 Vict,, c. 20 (Lioan Companies); 58-59 Vict., c. 21 (Holding real estate). As regards the incorporation of companies by the Province of Quebec, see now the section cited as "The Joint-Stock Com- panies' Incorporation Act," R. S. Q., art. 4694 et seq. ; amended 54 Vict., c. 35 (Power to Issue notes and bonds, etc.). Piirin rship. 313 CHAPTER FIFTH OP THE DISSOLUTION OP PARTNERSHIP. 1892. Partnership Is dissolved: 1. By the efflux of time; 2. By the extinction or loes of tbei partnership property; 3. By the accomplishment of the business for which It was contracted; 4. By bankruptcy; 5. By the death of one of the partners; 6. By the civil death, or Interdiction, or bankruptcy of one of the partners; 7. By the will of one or more of the partners not to continue the partnership, according to articles 1895 and 1896: 8. By the business of the partnership becoming impos- sible or unlawful. Limited partnerships are also determined by the causes declared in article 1879, to which article the causes of dis- solution declared in the above paragraphs 5 and 6 are subjected. The causes ol dissolution declared In paragraphs 5, 6, 7, do not apply to joint-stock companle® formed under the authority of a royal charter or of an act of the legisilature. Commercial partnerships are also terminated by judg- ment maintaining, at the instance of a creditor of one of the partners, the seizure of such partner's share in the stock of the partnership, or at the instance of one of the partners after such seizure. (1) (1) Last paragraph added by 60 Vict., c. 50, s. 32 (1 Sept., 1897). 1893. When one of the partners has promised to put In common the property in a thing, the loss of such thing before the contribution of it has been made, dissolves the partnership with respect to all tbe partners. The partnership is equally dissolved by the loss of the thing when only the enjoyment of It is put in common, and the property of the thing remains with the partner. But the partnership Is not dissolved by the loss of the thing of which the property has already been brought into the partnership; unless such thing constitutes the whole capital stock of the partnership, or Is so Important a part of it that the business of the partnership cannot be carried on without it. t »», i: i . 346 Civil Code of Lower Canada. 1894. It may be stipulated that in case of the death of one of the partners, the partnerahip shall continue with his legal representative, or only between the surviving partners. In the latter case, the' representative of the de- ceased i>aptner is entitled to a divisiion of the partnership property, only as it exists at the time of the partner's death. He cannot claim the benefit of any transaction sub- sequent thereto, unless such transaction is a necessary consequence of something done before the death occurred. 1895. Those partnersihips only which are not limited as to duration can be dissolved at the will of any one of the partners, by a notice to all the others of his renunciation. Such renunciation musit be in good faith, and not made at a time unfavorable for the partnership. 1896. The dissolution of a partners.hip limited as to duration, may be demanded by one of the partners before the expiration of the stipulated term, upon just cause shewn, or when another partnier fails to fulfil his engage- ment, or is guilty of gross misconduct, or from habitual Infirmity or physical impossibility is unable to attend to the business of the partnership, or when his condition ana status are essentially changed, and in other eases of a like nature. 1 '!•■; !■■ t t ' 1896a. If a partnership be dissolved or a judicial de- mand be made for sudh dissolution, the court or the judge, upon the demand of one of the partners, after notice given to the others, has power to appoint one or more liquidators. The liquidators so appointed must be sworn to well and faithfully perform the duties of their office. They immediately give notice of their appointment by an advertisement to that effect published in the Quebec Official Gazette and in two newspapers, one in the French and the other in the English language, published at the place of business of the partnership or at the nearest place, and in such other manner as the court or judge may prescribe. They become pleno jure seized of the assets of the part- nership for the purposes of the liquidation; they furnish the security prescribed by the court or judge, and are in all respects subject to the summary jurisdiction of such court or judge. They possess all the powers and are subject to all the 7 arinersMp. 347 obligations of judicial sequestrators', with the exception of the putting into possession, which Is done without the intermediary of a bailiff. Acts, exceeding those of administration, cannot be per- formed by the liquidators without the consent of all the partners, and, in default of such consent, only with the approval of the court or judge, after previous notice to the members of the ipartnershlp. The remuneration of the liquidators is fixed by the court or judge. Proceedings respecting the appointment of liquidators and the periformance of the duties of their office are sum- mary. Provisional execution takes place notwithstanding the appeal, saving the right of the court to which the cause is taken in appeal to summarily suspend such execution. Two judges of the court seized of the appeal may also give such order for siuspension after notice to the adverse party. (1) (1) Added by 48 Vict., c. 20, 9 May, 1885. (R. S. Q., art, 5822.) CHAPTER SIXTH. OF THE EFFECTS OF DISSOLUTION. 1897. The mandate and powens of the partners to act for the partnership cease with its dissolution, except for such acts as are a necessary consequence of business already begun; nevertheless whatever is done in thei uisaial course of dealing and business of the partnership, by a partner acting in gooid faith and in ignorance of the dissolution, binds the other partners, in the same manner as if the partnership still subsisted. 1898. Upon the dissolution of the partnership, each pait- ner or his legal representative may demand of his copart- ners an account and partition of the property of the partnership; such partition to be made ac3ordin?; to the rules relating to the partition of successions, in iso far a -5 they can be made to apply. Nevertheless, in commercial partnersihlp thesiei rules are to be applied only when they arc consistent with the laws and usages specially applicable in comimercial matters. 1899. The property of the partnership is to be applied to the payment of the creditors of the firm, in preference t' , i! ' \V- " ■ i ' \ ^^ 1 ■ 1' p!|: I 348 Civil Code of Lower Canada. Si- te the separate creditors of any partner; and in case such property be found insufficient for the purpose, tihe private pi-operty of the partners, or of any one of them ig also to be applied to the payment of the debts of the partnership; but only after the payment out of it, of the separate cre- ditors of such partners or partner respectively. 1900. The dissolution of a partnership by the terms of the contract, or the voluntary act of the partners, or by the expiration of time, or by the death or retirement otheiiwise of a partner, does not affect the rights of third persons dealing afterwards with any of the partners on account of the partnership firm; except in the cases following: 1. When notice is given as required by law or the usage of trade; 2. When the partnership is limited to a particular enter- prise or adventure which is terminated before the transac- tion takes place; 3. When the transaction is not within the usual course of dealing and business of the partnership; 4. When the transaction is in bad faith or illegal, or otherwise void; 5. When the partner sought to be charged is a dormant or unknown partner, to whom no credit is actually given, and who has retired before the transaction takes place. TITLE TWELFTH. OF LIFE- RENTS CHAPTER FIRST. GENERAL PROVISIONS. 1901. Life-rents may be constituted for valuable con- sideration; or gratuitously, by gift or will, 1902. The rent may be upon the life of the person who constitutes it, or who receives it, or uDon the life of a third person who has no right to the enjoyment of it. 1903. It may be constituted upon one life or upon several lives. But if it be for more than ninety-nine years or three suc- cessive lives, and affect real estate, it becomes extinct thereafter as provided in article 390. Life Rents, 349 1904. It may be constituted for the benefit of a person other than the one who gives the consideration. 1905. A life-rent constituted upon the life of a person who is dead at the time of the contract produces no effect, and the consideration paid for it may be recovered back. 1906. [The rule declared in the last preceding article applies equally when the person upon whose life the rent is constituted is, without the knowledge of the parties, dan- gerously ill of a malady of whiidh he dies within twenty days after the date of the contract.] :if'' i CHAPTER SECOND. OF THE EFFECTS OF THE CONTRACT. 1907. Non-payment of arrears of a life-rent is not a cause for recovering back the money or other considera- tion given for its constitution. 1908. The creditor of a life-rent secured by the privilege and hypothec of a vendor upon immoveable property, after- wards seized to be sold under execution, has a right to de- mand that the property shall be sold subject to the life-rent as a charge upon it 1909. The debtor of the rent cannot free himself from the payment of it by offering to reimburse the capital and renouncing all claim to receive back the payments made. 1910. The rent is due only for the num'ber of days that the person upon whose life it is constituted lives; unless it is made payable in advance. 1911. A stipulation thtit the life-rent cannot be seized or taken in execution is without effect, unless it is consti- tuted by a gratuitous title. 1912. The obligation to pay a life-rent is not extin- guished by tihe civil death oif tihe person upon whose life it is constituted. It oontimies during his maturaJl life. 1913. The creditor of a life-rent on demanding payjaent of it must establish the existence of the person on whose life it is constituted, up to the time for which the arrears are claimed. n I'-V \i 350 Civil Code of Lower Canada. 1914. [When an immoveable hypotbecated for the pay- ment of a life-rent is sold by a forced sale or other proceed- ing having the same effect, or by a voluntary sale followed by confirmation of title, the posterior creditors are en- titled to receive the proceeds of the sale on giving sufficient security for the continued payment of the rent, and in default of such security being given, the creditor of the rent is collocated, according to the order of his hypothec, for a sum equal to the value of the rent at the time of collo- cation.] 1915. [The value of a life-rent is estimated at the sum which, at the time of collocation, would be sufficient to purchase from a life assurance company a life-annuity of like amount.] 1916. If the price of the immoveable be less than the estimated value of the life-renit the creditor of It is entitled to receive such price, according to tihe order of his hypo- thec, or security from the posterior creditors for the pay- ment of the rent until the price received by them and the interest is exhausted by such payments. 1917. The estimation of the life-rent and its payment, in all oases in which the creditor is entitled to claim the value of it, are subject to the rules contained in the fore- going articles in so far as they can be made to apply. TITLE THIRTEENTH. OF TRANSACTION'. 1918. Transaction is a contract by which the parties terminate a lawsuit already begun, or prevent future liti- gation by means of concessions or reservations made by one or both of them. 1919. Those persons only can enter into the contract of transaction who have legal capacity to dispose of the things which are the object of it. 1920. Transaction has between the parties to it the authority of a final judgment (res judicata). Gaming Contracts and Beta, 351 1921. Error of law is not a cause for annulling trans- action. With this exception, it may be annulled for the same causes aa oontracta generally; subject nevertheless to the provisions of the articles following. 1922. Transaction may also be annulled when it is made in execution of a title which is null, unless the parties have expressly referred to and covered the nullity. 1923. [Transiaction upon a writing whieh has since been found to be false, is altogether null.] 1924. Transiaction upon a suit terminated by a judg- ment having the auithority of a final judgment, and not known to either of the parties, is null. But if the judg- ment be appealable the transaction is valid. 1926. When parties have transacted generally upon all the matters between them, the subsquent discovery of docu- ments of which they were them in ignorance does not fur- nish a cause for annulling the transaction; unless such dccumonts have been kept back by one of the parties. But transaction is null when it relates only to bm. object respecting which the newly discovered documents prove that one of the parties had no right whatever 1926. Errors of calculation in transaction may be re- formed. TITLE FOURTEENTH. OF GAMING CONTRACTS AND BETS. 1927. There is no right of action for the recovery of money or any other thing claimed under a gaming contract or a bet. But if the money or thing have been paid by the losing party he cannot recover it back, unless fraud be proved. 1926. The denial of the right of action declared ^n the preceding article is subject to exception in favor of ex- ercises for promoting skill in the use of arms, and of horse and foot races, and other lawful games which require bodily activity or address. Nevertheless the court may in its discretion reject the action when the sum demanded appears to be excessive. Ml Hi, ! ;':3 352 Civil Code of Lower Canada. ^m TITLE FIFTEENTH. OF SURETYSHIP. IS'-* CHAPTER FIRST. OF THE NATURE, DIVISIOM, AND EXTENT OF SUKETy:sillP. 1929. Suretyship is the act by which a person engages to fulfil the obligation of another in case of its non-fulflil- ment by the latter. The person who contracts this engagement is called surety. 1930. Suretyship is either conventional, legal, or judicial. The first is the result of agreement between the parties, the second is required iby law, and the third is ordered by judicial authority. 1931. The surety is not bound to fulfil the obligation of the debtor unless the latter fails to do so. 1932. Suretyship can only be for the fulfilment ot a valid obligation. It may however be for the fulfilment of an obligation which is purely natural or from which, the principal debtor may free himself by means of an exception which is purely personal to himself; for example, in the case of minority. 1933. Suretyship cannot toe contracted for a greater sum nor under more onerous conditions than the principal obligation. It may be contracted for a part only of the debt, or under conditions less onerous. The suretyship w^iich exceeds the debt, or is contracted under more onerous conditions, is not null; it is only re- ducible to the measure of the principal obligation. 1934. A person may become surety without the request and even without the knowledge of the party for whom he binds himself. A person may become surety not only of the principal debtor but even of the surety of such debtor. Suretyship, 353 1035. Suretyship is not presumed; it must be expressed, and cannot be extended beyond the limits witMn whicli it is contracted. 1936. Indefinite suretyship extends to all the accessories of the principal obligation, even to the costs of the prin- cipal action, and to all coats subsec[uent to notice of such action given to the surety. 1937. The obligations of the smrety pass to liis heirs, except the liability to coercive imprisonment when the obligation of the surety was such that he would have been subject to it. 1938. The debtor who is bound to find a surety liiust offer one who has the capacity of contracting, who has sufficient property in Lower Canada to answer the obliga- tion, and whose domicile is within the limits of Canada. 1939. The solvency of a surety is estimated only with regard to his real property; except in commercial matters, or when the debt is small, and in icases otherwise provided for by some special law. Litigious immoveables are not taken Into account. 1940. When the surety, in conventional or judicial suretyship, becomes insolvent, another must be found. This rule admits of exception in the case only in which the surety was eolely given in virtue of an agreement by which the creditor has required that a certain person should be the surety. CHAPTER SECOND. OF THE EFFECT OF SUKETYSHir. SECTION I. OP THE EFEECT OF SFRETTPHIP BETWEEN THE CREDITOR AND THE SURETY. 1941. The surety Is liable only upon the default of the debtor, who must previously be diiscuaeed, unless the surety has renounoed the benefit of discussion, or has bound him- self jointly and severally witlh the debtor, in whicli case his liability is govf.med by the rules established with respect to joint and several obligations. 23 'ii iff If m i i Hi n-f h ^ 1 ' V U M ;' i fi i Ih 364 Civil Code of Lower Canada. 1942. The creditor is not bound to discuss the prin- cipal d^btoi* unless the surety demands it when he Is first sued. 1043. The surety who demands the discussion must point out to the creditor the property of the principal debtor and advance the money necessary to oibtain the disousslon. He must not Indicate property situated out of Ijower Canada, nor litigiouis property, nor property ihypotiheoaJted for the debt and no longer iu the hands of the debtor. 1944. Whenever the surety has indicated property in the manner prescribed by the preceding article, and has advanced suflacient money for the discussion, the creditor is, to the extent of the value of the property indicated, re- sponsible as regards the surety, for the insolvency of the principal debtor which occurs after his default to proceed against him. 1945. When several persons become sureties of the same debtor for the same debt, each of them is toonnd for the whole debt. 1946. Nevertheless each of them may, unless he has renounced the benefit of division, require the creditor to divide his action and reduce it to the share and proportion of eacTi surety. If, at the time that one of the sureties obtained! judgment of division, some of them were insolvent, such surety is proportionately liable for their Insolvency; but he can- not ^be made liable for insolvencies happening after the division. 1947. If the creditor have himself voluntarily divided his action, he can no longer recede from such division, al- though at the time some of the sureties had become in- solvent. SECTION ii. OF THE ErFEOT OP SURETYSHIP BETWEEN THE DEBTOR AND THE SURETY. 1948. The surety, who has bound himself with the con- sent of the debtor, may recover from him all that he has paid for him in principal, interest and costs, together with t{he costs dncurred against ihimj and those legally Suretyship, 356 incurred by him in notifying the debtor and subsequently to such notiflcation. He has also a claim for damages, it there be iground lor it. 1849. The surety, who has bound himself without the consent of the debtor, has no remedy for what he has paid beyond what the debtor would have been obliged to pay had the suretyship not been entered into, saving the costs subsequent to the notice of payment by the surety, whicli are borne by the debtor. The surety has also his recourse for such danuajges as the debtor would have been liable foi in the absence of such suretyship. 1960. The surety who has paid the debt is subrogated in all the rights which the creditor had against the debtor. 1951. When there are several principal debtors jointly and eevera^lly bound to the same obligation, the surety who has become answerable ifor all of them, has his remedy against each of them for the recovery of all that he has paid. 1952. The surety who has paid first (has no remedy against the principal debtor who has paid a second time without being notified of the first payment; saving his right to recover back from the creditor. When the surety has paid before being sued and has not notified the principal debtor, he loses his remedy against such debtor if, at the time of the payment, the latter had the means of having the debt declared extinct; saving his right to recover back from the creditor. 1953. The surety who has bound hlmbelf with the con- sent of the debtor may, even before paying, proceed against the latter to be indemnified: 1. When he is sued for the payment; 2. When the debtor becomes bankrupt or insolvent; 3. When the debtor has obliged himself to effect his dls^ charge within a certain time; 4. When the debt becomes payable by the expiration of the stipulated term:, without regard to the delay given by the creditor to the debtor without the consent of the surety; 5. After ten years, when the term of the principal oibllga- tlon is not fixed, unless the principal olbllgation, such as ' Ml !i i^ill ■ I :il (• I u ii 1 ■I i^s- J! S 2 . I 356 Ciuil Code of Loicer Canada. that of a tutor, is of a nature not to be discharged before a determinate period. 1954. The ru^ ^ contained In the last paragraph of the preceding article does not apply to sureties given by public officers, or other employees, in order to secure the fulfil- ment of the duties of their office; such sureties have a right at all times to free themselves from future liability under their sairetyship by giving sufficient notice unless it has been otherwise agreed. (1) (1) The surety of a public officer or employee may free the moneys or debentures given In security, or the real estate hypothecated by him, from future liability under his surety- ship, by giving- at least three months' previous notice to that effect to the Provincial Treasurer. R. S. Q., art. 616. If, within three years after the death, resignation, or removal of any registrar, or If within three years next after the three months after the notice of the withdrawal of his security, no negligence, misconduct, or malversation, appear to have been committed by hira, the security entered Into by such registrar shall be void. R. S. Q., art. 5690. SECT ION III. OP THE EPFEOr OP SUBBTYSHIP BETWEEN OO-SURETIES. 1955. When several persons become sureties for the same debtor and the same debt, the surety who discharges the debt has his remedy against the other sureties, each for an equal share. But he can only exercise this remedy when his payment has been made in one of the cases specified in article 1953. CHAPTER THIRD. OP THE EXTINCTION OP SURETYSHIP. 1956. Suretyship becomes extinct by the same causes as other obligations. 1957. The confusion which takes place in the person of the principal debtor or of his surety when one of them becomes heir of the other, does not destroy the action of the creditor against the surety of such surety. 1958. The surety may set up against the creditor all the exceptions which belong to the principal debtor and are inherent to the debt; but he cannot set up exceptions that are purely personal to the debtor. Pledge. ri.T 1959. The suretyship is at an end when by the act 1 7 whe creditor the surety can no longer be subrogated iu the rights, hypothecs and privileges of such creditor. , 1960. When the creditor voluntarily accepts an immove- able or any object whatever in payment of the principal debt, the surety is discharged, though such creditor should afterwards be evicted of It. 1961. The surety who has become bound with the con- sent of the debtor is not discharged by the delay given to such debtor by the creditor. He may in the case of such delay sue the debtor in order to compel him to pay. CHAPTER FOURTH. OF LEGAL AND JUDICIAL SUEETYSHIP. 196?* Whenever a person is required by law or by order of a court to find a surety, he must conform to the con- ditions prescribed by articles 1938, 1939 and 1940. In the case of judicial suretyship, the person offered must moreover not be exempt from civil imprisonment. 1963. When a person cannot find .surety he may In lieu thereof deposit some sufficient pledge. 1964. A judicial surety cannot demand the discussion of the principal debtor. 1966. He who is simply surety of a judicial surety can- not demand the discussion of the principal debtor nor of the surety. TITLE SIXTEENTH. OF PLEDGE. 1966. Pledge is a contract by which a thing is placad in the hands ol a creditor, or, being already in his possession, is retained by him with the owner's consent, in security for his debt. The thing may be given either by the debtor or by a third person in his behalf. 1966a. Articles 1488, 1489 and 2268 apply to the con- tract of pledge. R. S. Q., art. 5823; (42-43 Vict., c. 18, s. 1). '11 I I 1 1, 1 ■ i , ]■ " ■' It ■ ; 1. 1 ; ; i 4- M ilii m 1 ', ill i ■>. 1^ ^)^ IMAGE EVALUATION TEST TARGET (MT-S) fe y^ /a 1.0 I.I 11.25 fj^ IIIIIM !^ "" IIIIIM 1^ 2.0 1.8 \A. III! 1.6 '/ Photographic Sciences Corporation *%" 23 WEST MAI<^ STREET WEBSTER, NY. 14580 (716) 872-4503 A (5 ^ i d^ Civil Code of Lower Canada. CHAPTER FIRST. • - OP THE PLEDGE OF IMMOVEABLES. 1967. Immoveables may be pledged upon siuch. terms and conditions as may be agreed upon between the parties. If no special agreement b« made, th© fruits are imputed first in payment of interest upon the debt and afterwards upon the principal. If no interest be payable the imputation is made wholly upon the principoal. The pledge of immoveables Is subject to the rules con- tained in the following dhapter, in so far as they can be made to apply. CHAPTER SECOND. OP PAWNING. 1968. The pledging of moveable property is called pawn- ing. 1969. The pawn of a thing gives to the creditor a right to be paid from it by privilege and preference before other creditors. 1970. The privilege subsists only while the thing pawned remains in the hands of the creditor or of the person ap- pointed by the parties to hold it. 1971. Saving pawnbrokers, no creditor can, in default of payment of the debt, dispose of the thing given in pawn. He may cause it to be seized and sold in the usual course of law under the authority of a competent court and obtain payment by preference out of the proceeds. Thiia provision, however, does not apply to timber which is pledged under the provisions of the act 29 Victoria, chapter 19, nor to banks as regards goods and merchandise given in security, under the provisions of the law resipecting banks and banking. The creditor may also stipulate that in default of pay- ment he shall be entitled to retain the thing. (1) (1) The origrlnal article was amended by adding: an exception in the case of pawnbrokers, 41 Vict., c. 3, s. 141 (9 March, 187S); R. S. Q., art. 6242. . /. J^^^ words "nor to banks as regards g-oods and merchand'ge given in security, under the provisions of the law respecting SfiiS! ^^\^^^^}^,^'l. ^^^^ necessitated by the Federal amend- aJid 128 • ®- ^^ ^^*- ^^'^^' ^- S- ^•' ^^- 120 Pledge, m 1972. The debtor is owner of thQ thing pledgped until it , iB sold or otherwise disposed of. It remain^ in the hands of the creditor only as a deposit to secure his debt. 1973. The creditor is liable for the loss or deterioration of the thing pledged according to the rules established in the title Of Obligations. On the other hand, the debtor is obliged to repay to the creditor the necessary expenses incurred by him in the preservation of the thing. 1974. If a debt bearing interest be given in pledge, the interest is imputed by the creditor in payment of the interest due to him. If the debt for the security of which the pledge is given do not bear interest, the imputation of the interest of the debt pledged is made upon the capital of the former. 1975. The debitor cannot claim the restitution of the thing given in pledge, until he has wholly paid the debt in principal, interest and costs; unless the thing is abused by the creditor. If another debt be cQntnacted after the pledging of the thing and become due before that for which the pledge was given, the creditor is not obliged to restore the thing until both debts are paid. 1976. The pledge is indivisible although the debt be divisible. The heir of the debtor who pays his portion of the debt cannot demand his portion of the thing pledged while any part of the debt remains due. Nor can the heir of the creditor who receives his poirtion of the debt restore the thing pledged to the injury of those of his coheirs who are not paid. 1977. The rights of the creditor in the thing pledged to him are subject to those of third parties upon it, according to the provisions contained in the title Of Privileges and Eypotliccs. 1978. The rules contained in this chapter, are subject in commercial matters to the laws and usages of com- merce. 1979. The special rules relating to the trade of pawn- broking are contained in the laws respecting pawnbrokers and pawnbroking. f »;: ;) 360 Civil Code of Lower Canada, The Federal Acts respecting banks and banking, in so far £is banks are concerned, and chapter 54 of the Con- solidated Statutes of Canada, as respects private persons, contain certain specifications for the transfer by endorse- ment of bills of lading, specifications of timber and re- ceipts by warehousemen, millers, whai'fingers, masters of vessels or carriers, to incorporated banks or to private persons, as collateral security, and for the sale of the mer- chandi.se and effects rteipresented by such instruments. (1) (1) This article owes its present form to the Federal amend- ments to the Civil Code, art. 6243 R. S. Q.; R. S. C, oc. 120 and 128. As to transfer of Bills of Ladingr, Cove receipts, etc., see H. S. Q., art. 6643 et seq. TITLE SEVENTEENTH. OF PRIVILEGES AND HYPOTHECS. CHAPTER FIRST. PRELIMINARY PROVISIONS. 1980. Whoever incurs a personal obligation, renders liable for its fulfilment all his property, moveable and im- moveable, present and future, except such property as is specially declared to be exempt from seizure. 1981. The property of a debtor is the common pledge of his creditors, and where they claim together they share its price rateably, unless there are amongst them legal causes of preference. 1982. The legal causes of preference are privileges and hypothecs. CHAPTER SECOND. OP PRIVILEGES. GENERAL PROVISIONS, 1983. A privilege is a right which a creditor has of being preferred to other creditors according to the origin of his claim. It results from law and is indivisible of its nature. Privileges and Eypotheca, 361 1984. Among privileged creditors preference is regulated by the difforent qualities of tlie privileges, or the origin of the claims. 1886. Privileged claims of equal rank are paid rateably. 1986. Person© who are suibrogated in the rights of a privileged creditor may exercise his irigfht of preference. Such creditor has iowever a preference, for any re- mainder due him, ovetr subrogated parties to whom he has not guaranteed the payment of the amount for which they have obtained subrogation. 1987. Persons who are merely subrogated by law in the rights of one and the same privileged creditor are paid rateably. 1988. The transferees of different portions of a privi- leged claim are also paid rateably, if their respective trans- fers have been made without warranty of payment. Those whose transfers were made with warranty of payment, are preferred to the others; as between them- selves, however, regard is had to the date of the notice given of their respective transfers. 1989. The crown has certain rights and privileges re- sulting from the laws relating to customs, and from other provisions contained in special statutes concerning matters of public administration. 1990. The creditors and legatees of a deceased person who are entitled to separation of property, retain, against the creditors of Ws heirs and legatees, a right of preference and all their privileges upon such property of the 'succes- sion as may be subject to their claims. The same right of preference exists in the cases specified in articles 802 and 966. 1991. The rule as regards the creditors of a partnership and those of the partners individually is declared in article 1899. (1) (1) The words "and In the Insolvent Act of 1864" were struck out by R. S. Q., art. 6244 (43 Vict. (C), c. 1, repealing the Insolvent Act: 49 Vict. (C), c. 4, s. 5, schedule A.) In the English version of the Revised Statutes of Quebec, art. 6244, the reference to the article 1899 has been erroneously changed to 1898. I'i (I I \ 'I ' 'I . ' I' ii (I If : 1^ 8ia Civil Code of Lower Canada. 1992. Privileges may be upon moveable or upon im- moveable property or upon botli together. SECTION I. OP PRIVILEGES UPON MOVEABLE PROPERTY. 1993. Privileges may be upon the whole of the moveable property, or upon certain moveable property only 1994. The claims which carry a privilege upon moveable property are the following, and where several of them conie together they take precediemoe In the following order, and according to the rules hereinafter deolajred. unless some special law derogates therefrom: 1. Law costs and all expenses incurred in the interest of the mass of the creditors; 2. Tithes; 3. The claims of the vendoor; 4. The claims of creditors who have a right of pledge or of retention; 5. Funeral expenses; 6. The expenses of the last illness; 7. Municipal taxes; 8. The claim of the lessor in accordance with article 2005; 8a. The claim of the owner of a thing lent, leased, pledged or stolen, in accordance with article 2005a. 9. Servants' wages and those of employees) of railway companies engaged in manual labor, and sums due f6r sup- plies of provisions. 10. The claims of the Orown against persons ac&ountable for its moneys. The privileges specified under the numbers 5, 6, 7, 9 and 10 extend to all the moveable property of the debtor, the others are special, and affect only some particular objects. (1) PpraeraDh 8a was added bv 60 Vict., o. 50, g. 33 (1 Sept., 1897). Paragraph 9 was amended by 59 Vict, c. 41 (21 Bee., 1895), which added after the word "wapree," the words "and those of employees of railway companies eng-ag^ed in manual labor." Paragraph 8 was amended by 49-50 Vict., c. 12, s. 2 (21 June, 1886), (art. 5825 R. S. Q.), which added after the words "the claims of the lessor," the following words: "in accordance with the provisions of article 2005 of this code." 1994a. Each person engaged to fish, or assist at any fishery, or in the dressing of fish, either by written agree- r Privileges and Hypothecs. 363 ment or otiierwise, has, for securizig hia yra^es or share, a first lien pireferable to any other creditor upon the pro- duce of his employer's fishery. Added by R. S. Q., art. 5826 (32 Vict., c. 37, s. 3, 5 April, 1869). 1994&. Mutual fire insurance companies have a privi- lege upon the moveable property of the insured for tKe payment of assessments which may ibe imposed on the de- posit notes of the memibers, which privilege takes irank im- mediately after municipal taxes and rates and remains in force for the same time. Added by R. S. Q.. art. 5826 (45 Vict., c. 51, s. 49, 27 May, 1882; as amended by 47 Vict., c. 76, s, 2, 1 Sept., 1884, whicli added after tlie word "rates" the following words: "and shall remain in force and be valid in law for the same time "). 1994c. Every petrson engaging himself to cut or manu- facture timt)er, or to draw it out of the forest, or to float, raft or bring it down rivers and streams, hasi, for securing his wages or salary, a privilege, ranking 'with the claims of creditors who have a right of pledge or of retention, upon all the timber belonging to the person for wliom he worked, and, if he worked for a contractor, siuib-contractor or fore- man, upon all the timber belonginig to the person in wthose service such contractor, sub-contractor or foreman were, and which was out, drawn or floated, by such conbractor, sub-contractor or foreman; but said privilege is extin- guished as soon as the lumiber shall have passed into the hands of a third person who has bought it, has received delivery thereof, and has paid the price therefor in full. Such privilege in no wise affects that wihich the banks may acquire in virtue of the Banking Act. However, in the case in which the creditor has worked for a contractor or sub-contractor, sudh privilege shall not exist unless the person having a right thereto has given a verbal notice to the person affected by the exercise thereof, and to the debtor or their agents or employees, in the presence of two witnesses, or a notice in writing, of the amount due to him at each term of payment, as soon as possible, and such notice may be given by one creditor for and in the name of all the others who are unpaid. In the event of a contestation between the creditor and the debtor respecting the amount due, the creditor shall, without delay, give written notice to the person affected by the exercise of such, right, and the latter shall then re- tain the amount in dispute until he receives a written noti- i!:l :!■"( r- m : i 'i; fi I [ill • if: III!- 'IP i yM 364 Civil Code of Lower Canada. fication of an amicable settlement or of a Judicial de- cision. (1) (1) 57 Vict., c. 47. 1996. Law costs are all those incurred tor the seizure and sale of the moveable property and those of judicial proceedings for enabling the creditors generally to obtain payment of their claims. 1996. The expenses incurred in the interest of the mass of the creditors, include such as have served for the preser- vation of their common pledge. 1997. Tithes carry with them a privilege upon such crops as are subject to them. 1998. The unpaid vendor of a thing has two privi- leged rights: 1. A right to revendicate; 2. A right of preference upon its price; In the case of insolvent traders these rights must be exercised within thirty (1) days after the delivery. (1) By the R. S. Q., art. 5827 (48 Vict., c. 20, s. 1), the last word of the article, "delivery," wsls substituted for the word "sale" in the original article. By 54 Vict., c. 39. s. 2 (30 Dec, 1890), the word "thirty" was substituted for the word "fifteen" in the last line of the original article. 1999. The right to irevendicate is subject to four condi- tions: 1. The sale must not have been made on credit; 2. The thing must still be entire and in the same con- dition; 3. The thing must not have passed into the hands of a third party who has paid for it; 4. It must be exercised within eight days after the de- livery; saving the provision concerning insolvent traders contained in the last preceding article. 2000. If the thing be sold pending the proceedings in revendication, or if, when the thing is seized at the suit of a third party, the vendor be within the delay and the thing in the conditions prescribed for revendication, the vendor has a privilege upon the proceeds in preference to all other privileged creditors hereinafter mentioned. - Privileues and Hypothecs. 365 If the thing be still in the same condition, but the vendor be no longeir within the delay, or have given credit, he has a like privilege upon the proceeds, except as regards the lessor or the pledgee. 2001. Creditors, having a right of pledge or of retention, rank according to the nature of their pledge or of their claim. The following is the order among them: Carriers; Hotel-keepers; Mandataries or consignees; Borrowers in loan for use; Depositaries; Pledgees; Workmen upon things repaired by them, and persons having a privilege in virtue of article 1994c; Purchasers against whom the right of redemption is ex- ercised, for the reimbursement of the price and the moneys laid out upon the property. This privilege cannot, however, be exercised unless the right is still subsisting, or could have been claimed at the time of the seizure, if the thing lias been sold (1) (1) That part of this article which relates to the order In which the creditors rank was added by 60 Vict., c. 50, s. 34 (1 Sept., 1897). 2002. Privileged funeral expenses Include only what is suitable to the station and means of the deceased, and are payable out of all his moveable property. They include the mourning of the widow, within the same restriction. 2003. The exf^ensee of the last Illness include the ]5.harges of the physicians, apothecaries and nurses during the illness of which the debtor died, and are taken out of all the moveaible property of the deceased. [In cases of chronic disease, the privilege avails only for the expenses during the last six months before the decease.] 2004. The municipal taxes which rank before all other privileged claims hereinafter mentioned, are limited to taxes on persons and personal property imposed by certain municipalities, and taxes to which a like privilege is at- tached by special statutes. 2005. The privilege of the lessor extends to all rent that is due or to become diie, under a lease in authentic form. /•■'■ ' Q • ■ ■r'rs :- \ y • 1:1 iUl !•!! \ ■ ! i ! S'' I ' , r.i m lit " I. t !i m ^66 Civil Code of Loxoer Canada. But in tlie case of the Uquidation of property abandoned by an Insolvent trader vtho baa made an abandonment In favor of his creditors, the leBsor's pirivilege is restnacd to the whole of the rent due and to become due diurins the current year, if there remain more than four mouths to Xiomplete the year; and if there remain Ifies than four months to complete the year, to the whole of the rent due and to the rent becoming due during the current year and the whole of tlie loUo-wingi year. If the lease be not in authentic form, the privilege can only be claimed for three overdue instalments and for the remainder of the current year. (1) (1) The second paragraph of this article was added by 49-50 Vict., c. 12, s. 3, 21 June, 1886. (R. S. Q., art, 5828.) 2005a. The owner of a thing wtho has lent, leased or pledged it, and who has not prevented its sale, has a right to be paid the proceeds of its sale, after the claims men- tioned in articles 1995 and 1996, and the claim of the lessor, have been collocated. The same rule applies to the owner of a thing which has been stolen, who would not have lost his right to revendicate it, had it not been judicially sold. (1) (1) Added by 60 Vict., c. 50. a 35 (1 Sept, 1897). 2006. Domestic servants and hired persons are next entitled to be collocated by preference upon all the move- able property of the debtor for whatever wages may be due to them, for a period not exceeding [one year previous to the time of the seizure or of the death.] Clerics, apprentices and journeymen are entitled to the same preference, but only upon the merchandise and effects contained in the store, shop or worlcshop in which their services were required, [for a period of arrears not exceea- ing three months.] Employees of railway companies engaged in manual labour, have also the same privilege upon all the moveable property of the company, for arrears not exceeding three months. (1) Those who have supplied provisions have likewise a privilege, concurrently with domestic servants and hired persons, for the supplies furnished during the last twelve months. , . . (1) The matter In this article relating- to railway employees was added by 59 Vict., c. 41, s. 2 (21 Dec., 1895). 49-50 PHvilvffca tmd Hypothecs, 367 2006a. The privileges of t»he Crown are defined by spe- cial statutes. (1) — — (1) Added by 60 Vict., c. 50, s. 86 (1 Sept., 1897). 2007. The privileges upon ships, upon their cargo and their freight, are declared In the title Of Merchant Shipping. 2008. Other rules concerning the collocation of certain privileged claims, are to be found in the Code of Civil Pro- cedure. SECTION II. OF FRIVILEOfiS UPON IMMOVEABLES, 2000. The privileged claims upon immoveables, are here- inafter enumerated and rank in the following order: 1. Law costs and the expenses Incurred for the common interest of the creditors; 2. Funeral expenses, such as declared in article 2002, when the proceeds of the moveable property have proved insufficient to pay them; 3. The expenses of the last Illness, such as declaired in article 2003, and subject to tihe same restriction as funerajl expenses; 4. The expenses of tilling and sowing; 5. Assessments and rates; 6. Seigniorial dues; 7. The claim of the laborer, workman, architect and builder, subject to the provisions of article 2013. (1) 8. The claim of the vendor; 9. Servants' wages, and those of employees of railway companies engaged in manual labour, (2) under the same restriction as funeral expenses. (1) Paragraph 7 of this article was mad© by 57 Vict., c. 46, s. 1, to read as follows:—" The claim of the labourer, workman, supplier of building materials and builder (chief contractor), subject to the provisions of article 2013." The Act 57 Vict., c. 46, was repealed, and this paragraph was made to assume Its present form by 59 Vict., o. 42, s. 1 (21 Dec, 1895). (2) Re railway employees added by 59 Vict., c. 41 (1895). 2009a. Companies for stoning roads have a privilege upon the lands of all persons bound to the maintenance of the road and being shareholders to the amount of their contribution on account of such lands, and a privilege upon all lands belonging to persons not being shareholders bound ii I. ■f ' ^. i 1 I'M 111 w 't I il ! I I f lii' tl. HP; i.U 863 Civil Code of Lower Canada. to the mainitenance of the road, for three years of arrears of commutation reat of such malntenaace. NotwithBtanuing the pro I t ■ iu; i ! r 1 > 'J\ > . i ! ill! I ill Hi ri ■ ![! 390 Civil Code of Lower Canada. K- I the limits of Canada, or within three years from such de- cease, if it occur beyond such limits. 2111. In the case of the concealment, suppression or con- testation of a will, or of any other difllculty, parties inter- ested, who, without negligence or participation on their part, are disabled from effecting its registration within the delay prescribed by the preceding article, may nevertheless preserve their right by registering within the same delay a statement of such contestation or other impediment, and registering the will within six months after it or its pro- bate has been obtained, or after the removal of the impedi- ment. 2112. Nevertheless the registration of the statement mentioned in the preceding article has no retroactive effect unless the will be registered within five years from the death of the testator. 2113. Married men of full age are bound to register, without delay, the hypothecs and incumbrances to which their immoveables are subject in favor of their wives, on pain of punishment as for misdemeanor and of being liable for all damages. 2114. If the married man be a minor, his father, mother, or tutor, who consented to his marriage, is bound to effect the registration mentioned in the preceding article, on pain of being held liable for all damages in favor of the wife. 2115. The legal hypothec of the wife affects the im- moveables of her husband by means only of the registra- tion of her debt, right or claim, and such immoveables only as are described and specified in a notice for that purpose, registered either at the same time as the right claimed, or at any time afterwards; and the hypothec dates only from such last mentioned registration. 2116. [The right to legal customary dower, cannot be preserved otherwise than by the registration of Ihe mar- riage certificate with a description of the immoveables then subject to such dower. As regards immoveables which may subsequently fall to the husband and become subject to customary dower, the right to dower upon such immoveables does not take effect Registration of Real Rights, 391 until a declaration for that purpose has been registered, setting forth the date of the marriage, the names of the consorts, the description of the immoveable, its liability for dower and how it has become subject to it.] 2116a. In default of registration, no real, discontinuous and unapparent servitude, constituted by title, has any effect as regards third parties who become subsequent pro- prietors or creditors, whose rights have been registered. (1) (1) Added by R. S. Q., art. 5834. (44-45 Vict., c. 16, s. 5, 30 June 1881.) 2117. Tutors to minors, and curators to interdicted per- sons are bound to register, without delay, the hypothecs to which their real estate is subject in favor of such minors or interdicted persons, under the pains hereinabove de- clared against married men in article 2113. 2118. Subrogate tutors are bound to see that the regis- tration required in favor of the minor is effected, and if they fail to do so are liable for all consequent damages that may be sustained by such minor. 2119. [Every notary cailled upon to make an inventory is bound to see that the tutorships of the minors, or the cunatorships of the interdicted peirsions interested in snch inventories are duly registered, and, if necessary, to cause such registration to be effected at the expense of such tutors or curators, before proceeding with the inventory, on pain of all damages.] 2120. The hypothec of minors against their tutor or of interdicted persons against their curator affects such im- moveables only as are described and specified in the act of tutorship or curatorship, and, in default of such description, such immoveables as are described in a notice for that pur- pose registered either at the same time as the aippointment of the tutor or afterwards; and the hypothec dates only from such registration. 2121. The judgments and judicial acts of the civil courts confer hypothecs when they are registered, from the date only of the registration of a notice specifying and t -icrib- ing the immoveables of the debtor upon which the creditor intends to exercise his hypothec. The same rule applies to all claims of the crown to which any tacit hypothec or privilege is attached by law. .*: t' ( ■ I't \n\ "'\i -i if in'.. ■\\\ I. ill 392 Cicil Code of Lower Canada. 2122. Registration of a deed of sale secures to the vendor in the same order of preference as for the principal, the interest for five years generally and that which is due upon the current year. 2123. Registration of a deed constituting a life-rent or other rent preserves a preference for the arrears of five years generally and for those which are due upon the cur- rent year. 2124. Registration of any other claim preserves the same right of preference for the interest of only two years generally and for mich interest as is due upon the current year. 2 125. The creditor has a hypothec for the remainder of the arrears of interest or of rent from the date only of the registration of a claim or memorial specifying the amount of arrears due and claimed. Nevertheless tiLz arrears of interest due at the time of the first registration and therein specified are preserved by such registration. 2126. [Renunciations of dower, of successions, of lega- cies, or of community of property cannot be invoked against third parties unless they have ibeen registered in the registry oflice of the division in which the right accrued.] 2127. [Every conveyance or transfer, whether voluntary or judicial, of a privileged or hyipothecary claim must be registered in the registry oflice in which the title creating the debt has been registered. A duplicate of the certificate of its registration must be furnished to the debtor together with the copy of the trans- fer. If these formalities be not observed the conveyance or transfer is without effect against subsequent tramsferees who have conformed to the above requirements. All subrogations in such rights granted by authentic deeas or by private writings must likewise be registered and notice thereof be given. If the subrogation take place by the sole operation of law, it may be registered by transcribing the document from' which it results, with a declaration to that effect. The transfer or subrogation must be mentioned in the Registration of Real Rights. 393 margin of the registry of the title creating the debt, with a reference to the number of the entry of such transfer or subrogation.] 2128. [The lease of an Immoveable for a period exceeding one year cannot be invoked against a subsequent pur- chaser unless It has been registered.] 2129. [No act containing a discharge from the rent of an immoveable for more than one year In anticipation, can be Invoked against a subsequent purchaser unless it has been registered, together with a description of the immove- able.] CHAPTER THIRD. OP THE ORDER OP PREFERENCE OP REAL RIGHTS. 2130. Privileged rights which are not subject to regis- tration take precedence according to their respective rank. Rights subject to registration and which have been regis- tered within the prescribed delays, take effect according to the provisions contained in the preceding chapter. Except the above cases and the case of articles 2088 and 2094, real rights rank according to the date of their regis- tration. If however two titles creating hypothec be entered for registration on the same day and at the same hour they rank together. If a deed of purchase, and a deed creating a hypothec^ both affecting the same immoveable, be entered at the same time, the more ancient deed takes precedence. [No hypothec has any effect without registration, except that of mutual Insurance companies for the amount which the parties Insured are liable to contribute.] i ; r i i ii ■ Ii I'M CHAPTER FOURTH. OP THE MODE AND FORMALITIES OF REGISTRATION. 2131. Registration is effected at length or by memorial. It may from time to time, without however interrupting prescription, be renewed upon the demand of the creditor or his assigns or of any other i)erson interested or entitled to demand registration. The renewal Is made by tran-^ scribing. In a register kept for that purpose, a notice to ! irfr i r '!' \ !H ii 394 Civil Code of Lower Canada. . the registrar designating the document, the dajte of Its original reiglstration, the immoveable affected and the per- son who is then in possession of it; and the volume and page in which the notice of renewal is registered must be referred to in the margin of the original registration. If the title were originally registered in another r'egistra- tion division and a copy thereof have not been transmitted to the registry office of the new division, auch renewal must mention the place where the title has been so regis- tered. An index must be kept for the books used for the regis- tration of notices of renewal, and each notice is entered in th« index both under the names of the creditor and of the debtor and under that of the owner of the immoveable as given in the notice. .«! SECTION I. OP REGISTRATION AT LENGTH. 2182. Registration at length is effected by transcribing on the register the title or document which creates or gives rise to the right, or an extract from such title made and certified according to the provision® of article 1216! Errors of omission or commission in tha registration at length of any dooument or in the document presented for registration do not affect the validity of such registration unless they occur in some material provision which should be noticed in a miemorial or in a registrar's certificate. 2133. The notices mentioned in articles 2026, 2106, 2115, 2116, 2120 and 2121 must be registered at length. 2134. Registration at length of an authentic deed may be obtained upon the production of a copy or extract there- of certified by the notary, if he have kept the original of record, or of the original itself, if it have been delivered hy the notary. If the title be a private writing it must be proved in the manner hereinafter prescribed with respect to memorials. 2135. The certificate of registration at length is written upon the document itself and mentions the day and hour at which it was entered, and the book and page in which It has been so registered, with the numiber under which it was so entered and registered. Kvylstration of Rail Ififfhta. 395 SECTION II. OF REGISTRATION BY MEMORIAL. 2136. Registration by memorial is effected by means of a summary setting forth the real rights which the party interested wishes to preserve, which is diolivered to the registrar and transcribed upon the register. 2137. The memorial must be in writing and may be made at the request of any party interested in or bound to effect the registration, and must be attested by two subscribing witnesses. The memorial may also be made according to article 2144a. The party requiring the memorial must subecribe his name to it, and if he cannot write, his name may be sub- scribed by another, provided it be accompanied by the or- dinary mark of such party made in the presence of the attesting witnesses. The memorial may be made on behalf of the crown by the Provincial Treasurer or other officer of the crown, in whose hands the docume-nt is, a^nd it must state the name, office and domicile of the person by whom it is made. (1) (1) The second paraprraph of this article was added by 47 Vict., c. 13. 8. 2 (10 June. 1884); R. S. Q.. art. 5835. It was amended to Its present form by 52 Vict., c. 26, s. 1 (21 March, 1889), which struck out the words "in duplicate and acknow- ledged" after the word "made." 2138. When there are more writings than one to complete the rights of the person requiring registration, they may be all Included in one memorial without its being necessary to insert more than once therein the description of the parties or of the Immoveables or other property. 2138a. One memorial is sufficient, In the ease of several obligations, titles or claims, from the same debtor, upon one or more immoveables In favor of the same creditor or acQulrer, and also In the case of several successive titles and transfers of the same property. (1) Added by 47 Vict., c. 13, s. 3 (10 June, 1884); R. S. Q., art. 5836. 2139. The memorial must set forth: 1. The date of the title and the name of the place where It was executed; I; I 1: M'' 1 1 1 : it ■ ' ': *',■( ; ; hill M E'vi 896 Civil Code of Lower Co/nada. If It be a notarial act, the name of the notary who keeps the original thereof, or the name of the notaries or of the notary and witnesses who signed it, if the original have been delivered; if it be a private writing the names of the sub&crlblng witnesses; if It be a Judgment or other Judicial act, it must designate the court; 2. The nature of the title; 3. The description of the creditors and debtors and other parties thereto; 4. The description of the property subject to the right claimed, and that of the party requiring registration; 5. The nature of the right claimed, and, if it he a claim for money, the amount due, the rate of interest, and the costs if there be any. If the rate of interest be not specified, the registration does not preserve the right to interest beyond the legal rate. 1 I ii 2140. The memorial is delivered to the registrar to- gether with the title or document, or an authentic copy of the title, and must be acknowledged by all or one of the parties to it, or be proved by the oath of one of the sub- scribing witnesses. 2141. When the memorial Is executed in any part of Canada It may be proved In Lower Canada, by the affidavit of onr of the witnesses, sworn to before a judge of the Court of Queen's Bench, or of the Superior Court, or a commissioner of the latter court for taking affidavits, or before a justice of the peace, a notary, the registrar, or his deputy. 2142. When the memorial is executed in Upper Canada, proof thereof may be there made and attested in the same manner before a judge of the Court of Queen's Bench or of the Court of Common Pleas, or before a justice of the pcEce, or a notary, or before a commissioner of the Supe- rior Court for Lower Canada. 2143. When it is executed in any other British posses- sion it may be proved therein by an affidavit sworn to before the mayor of the place, the chief justice or a judge of the supreme court, or before a commissioner authorized to take affidavits to be used in the courts of Lower Canada. 2144. If it be executed in a foreign country the affidavit may be sworn to before any minister, or cJiarge d'aif aires, or consul of Her Majesty in such foreign state. i» h Rcyintrution of Ifml Rlyhts. 397 a 2144a. The memorial may also be executed before notary by deed en minute or en brevet. The memorial so executed need not be attested before a witneHf nor proved under oath, nor be accompanied by the tltie of which It Is a memorial, notwithstanding the provisions of articles 2137 and 2140 of this code, and may contain the official number even If such number be not In the title of which It Is a memorial. (1) This article was added by 11. S. Q.. art. 5837. This was replaced and the artlcMi assumed its present form by virtue of 52 Vict., c. 2G, ». 2 (21 March. 1889). The original article read aa followe;— " The memorial ex- ecuted in duplicate may be acknowledgped before a notary or In the presence of two wltueeses, but need not be proved under oath, If executed in the Province and acompanled by the title of which it is a m«morlaJ." 2146. When any memorial of a title is presented for registration the registrar is bound to endorse upon such title the words "registered by memorial," mentioning the day, the hour and time at which such memorial is entered, and also in what book and page and under what number the same Is entered and registered. And he must sign such certificate. The memorial nemains among the records of the registry office and forms part thereof. 2145a. Repealed by 52 Vict., c. 26, s. 3 (21 March, 1889). This article was added to the Code by 47 Vict., c. 13, s. 5 (10 June, 1884). Amended by 48 Vict., c. 19, s. 1, by the addition of the last paragrraph. The article as contained In the Revised Statutes, art. 5838, read as follows:— "In the case of the registration of a memorial In duplicate executed before a notary or two witnesses, one remains among the records of the registry office; the certificate. If required, is written at the end of the other, and returned to the party giving it, without Its being necessary to mention it on the title. ^ „ Such certificate is prima facie proof of Its contents." 2146. Every claim or memorial for the preservation of interest or of arrears of rent must ispeclfy the amount thereof and the title under which they are due, [and be accompanied by the affidavit of the creditor that such amount is due.] 2147 The .provisions of this section apply if necessary to any documents or titles which do not affect immoveables, but the registration of which is required by some special law, unless it be otherwise provided. ' 1 1 !l li' 398 Civil Code of Lower Canada. s;!! H;i. !i;i 2147a. The notices, declarations and memorials men- tioned in articles 2026, 2098, 2106, 2107, 2111, 2115, 2116, 2120, 2121, 2125, 2131, 2132, 2133, 2136, 2146, 2161, 2168, and 2172 may be given either under deed en minute or en brevet. Such notices, declarations or memorials, if en brevet or under private seal, must remain in the registry office, but if en minute the delivery of an authentic copy is sufficient. The certificate of registration is affixed to such notices, declarations or memorials only if it be demanded. (1) Added by 47 Vict., c. 13, s. 6 (10 June, 1884); 48 Vict., c. 19, The article as contained In the Revised Statutes, art. 5839, read as follows:— "The notices, declarations and memorials, mentioned in articles 2026, 2098, 2106, 2107, 2111, 2115, 2116. 2120. 2121, 2125, 2131, 2146, 2168 and 2172, may be given either under private seal or by notarial deed, en minute or en brevet. An authentic copy of such notices or a duplicate, if executed en brevet or under private seal, shall remain in the registry office. A certificate of registration is not required upon such notices, but it may be required by the parties interested, and Is prima facie proof of its contents." The article assumed its present form by virtue of 52 Vict., c. 26, s. 4 (21 March, 1889). The Act intituled "An Act to render valid certain regis- trations and to amend certain articles of the Code," assented to the 10th June, 1884, contained the following provisions, which are still in force. (This section of the Act was not consoli- dated in the Revised Statutes of the Province of Quebec, it being merely a matter of validation.) " Whereas certain notices and memorials mentioned in articles 2026, 2098, 2106, 2107, 2111, 2115, 2116, 2120, 2121, 2125, 2131, 2133, 2146, 2161, 2168 and 2172 of the Civil Code have been given by notarial deeds en minute or en brevet or by deeds under private seal; Whereas certain of the notices hereinbefore mentioned have been returned to the party giving the same, after their enregis- tration, instead of remaining deposited with the registrar, and in both cases with and without certificates; Whereas it is necessary to remove the doubts which exist touching enregistrations so effected; Therefore Her Majesty, by and with the advice and consent of the Legislature oi Quebec, enacts as follows: 1. Are hereby declared valid and sufficient; " 2. The enregistrations of notices and memorials mentioned In articles 2026, 2098, 2106, 2107, 2111, 2115, 2116, 2120, 2121, 2125, 2131, 2133, 2146, 2161, 2168 and 2172 of the Civil Code, and given by notarial deed either en minute or en brevet; " 3. The enregistration of the notices above mentioned, whether notarial or under private seal, although such notices have been returned to the parties giving the same, instead of remaining deposited with the registrar, and In either case whether the certificate of registration has or has not oeen thereon entered; " 4. The renewals of the enregistration of several titles of claims against several persons, or against several immoveables, made by one notice, provided the entries have been regularly made in the Index to immoveables. (Q. 47 Vict., c. 13, s. 1.) Reyistration of Real Rights. 399 The section above cited was amended as follows:— The second paragraph of section 1 of the Act 47 Victoria, chapter 13, is amended by adding in the third line, after the figures "2133," the figures "2136," and by striking out, in the third and fourth lines of the fourth paragraph of the said sec- tion, the words "provided the entries have been regularly made in the index to immoveables. (Q. 52 Vict., c. 26, s. 5.) 21476. The notices and declarations mentioned in articles 2098, 2131 and 2172, may be given to registrars for those interested, by any person whomsoever, whether reilated or not. They may also be given by married women, inter- uicted persons, and the minors themselves. Added by R. S. Q., art. 5839 (38 Vict., c. 14, s. 1). CHAPTER FIFTH. OF THE CANCELLING OF REGISTRATIONS OF REAL RIGHTS. 2148. The registration of real rights, or the renewal thereof, may be cancelled with the consent of the parties, or in virtue of a judgment from which there is no appeal, or which has become final. The acquittance of a debt implies a consent to its being cancelled. Any notary who executes a total or partial discharge of a hypothec, is bound to cause the same to be registered in the proper division, according to the statute 27th and 28th Vict. ch. 40. The creditor is bound to see that the discharge is regis- tered, and is responsible for any costs that may be incurred in consequence of non-registration, and he cannot be com- pelled to grant a discharge, unless a sufficient sum is placed in his hands to pay for the registration and trans- mission. 2149. If the cancelling be not consented to, it may he demanded from the proper court by the deibtor or other holder, by any subsequent hypothecary creditor, lyy a surety, or by any party interested, together with whatever damages may be due. 2150. The cancelling is ordered when the registration, or the renewal, has been effected without right or irreigu- larly, or upon a void or informal title, or when the right registered has been annulled, rescinded or extinguished by prescription or otherwise. 2151. The consent to the cancelling and tihe acquittance or certificate of discharge may be in authentic form or under private signature. if' ! !;!'; ! I 400 V,ivU Code of Lower Canada. ill' When under private signature they must be attested by two witnesses, and cannot be received by the registrar unless they are accompanied by an affidavit of one of such witnesses sworn to before one of the functionaries men- tioned in articles 2141, 2142, 2143 and 2144, as the case re- quires, and establishing that the money has been paid in whole or in part, and that such acquittance, certificate of discharge, or consent to the cancelling was signed in the presence of such witness by the party granting it. The discharge of any hypothec in favor of the crown may be entered in the margin against the registry of such hypothec upon the production of a copy: 1. Of an order of the Governor in iCouncil, certified by the Clerk of the Executive Council or his deputy; 2. Or of a certificate of Her Majesty's attorney-general or solicitor-general for Lower Canada, stating" that such hypo- thec is discharged in whole or in part. The discharge of any hypothec securing a life-rent is entered on the margin upon production of the certificate of death of the person on whose life the rent is created, accompanied by an aflldavit identifying such person, and such affidavit may be received and certified by one of the functionaries mentioned In articles 2141, 2142, 2143 and 2144, as the case requires. 2162. The consent to the cancelling and the aoquitbance or certificate of disdharge, or the judgment rendered to avail in lieu thereof, must when produced be mentioned in the margin of the registry of the title or memorial estab- lishing the creation or existence of the right so cancelled. The consent to the cancelling, the acquittance or the cer- tificate of discharge, when they are private writings, or a certified copy thereof when they are in notarial form as well as the copy of any judgment rendered to avail in lieu thereof, registered in conformity with the present article and the succeeding articles of this chapter must remain deposited in the office where such registration takes place. 2152a. The cancellation of the registration of real rights is made by simply presenting and depositing in the registry office to which it appertains, to remain among and form part of the records thereof, documents or authentic copies or extracts from documents, as the case may be, authorizing the cancellation, and by the noting of such documents thus Registration of Real Riijlits. 401 ;ed by ^Istrar f such men- ise re- laid in ^ate of in the m may £ such fied by Leral or 1 hypo- rent is rtificate created, on, and of the nd 2144, uittanoe ered to oned in 1 eatab- oelle^. Ithe cer- Igs, or a Iform as ivail in present ir must m takes a rights I registry ^rm part )pies or Ihorizing Ints thus presented and deposited, in the margin of the registration of the document creating or showing such cancelled rights. (1) -«i (1) Added by R. S. Q., art. 5840. (42-43 Vict., c. 27, s. 1, 31 Oct.. 1879.) 2163. The judgment declaring the nullity, extinction or dissolution of the right registered cannot however be regis- tered, unless it is accompanied by a certificate that the delays allowed to appeal from such judgment have expired, without such appeal having taken place. 2154. Such judgment must have been served upon the defendant in the usual manner. 2165. The sheriff is bound to cause all his deeds of sale of immoveables under execution to be registered, ' at the expense of the purchaser, as soon as possible, and before delivering to any person whatever any duplicate thereof. 2156. The prothonotary of the Superior Court is bound to cause to be registered as soon as possible, at the expense of the applicant or the purchaser, as the case may be, all judgments of confirmation of title and all decrees of adju- dication upon forced licitation, before delivering copies thereof to ar./ person whatever. 2167. The registration at length of confirmations of title, forced licitations, sheriff's sales, sales in bankruptcy, and other sales having the effect of discharging property from hypothecs, whether made before or after the ninth day of June, one thousand eight hundred and sixty-two, is equiva- lent to the registration of a certificate of the discharge or of the extinction of all rights which are discharged by such sales, forced licitations or confirmations of title, even of hypothecs for conventional dower; and it is the duty of the registrar in such case to make mention thereof in the margin of each entry establishing a previous right extin- guished by such sale, confirmation of title, or decree of adjudication. 2167d. Articles 2148, 2152, 2152a, 2153 and 2154 apply to the registration of any judgment for the re-entry upon abandoned lands, and apply also to the cancelling of the re- gistration of any deed of sale declared void by such judg- ment; but article 2154 does not apply if the buyer has been 26 ■S! r! ■ i 1 !i I i ! ! V 1 !i I 'I 111' m ■i -.1 1 402 Civil Code of Lower Canada. notified in the manner prescribed by article 68 of the Code of Cicil Procedure. (1) (1) Added by R. S. Q., art. 5841. (33 Vict., c. 16. s. 11, 1 Feb., 1870.) The provisions relative to re-entry upon abandoned lands, which were contained in articles 1561a and 1561b of the Civil Code, were repealed by 60 Vict., c. 50, s. 26 (1 Sept., 1897). The Code of Procedure no longer contains any provision upon this subject. CHAPTER SIXTH. OP THE ORGANIZATION OF REGISTRY OFFICES. SECTION I. OP REGISTRY OFFICES AND THE REGISTERS. 2158. At the chief-place of each county, or in each re- gistration division set apart by law or by proclamation of the governor, a registry office is established for the regis- tration of all real rights affecting immoveables situate within such county or registration division, and of all other acts requiring registration. (1) i (1) As to the org-anization of registry offices, see arts. 5651 to 5708 R. S. Q., as amended by 56 Vict., c. 37; 57 Vict., c.41, and 59 Vict., c. 36. 2159. A public officer called a registrar is appointed by the governor to keep such registry office, who is charged to execute the duties prescribed by this title; and every act of fraud which he commits or allows to be committed in the exercise of the duties of his office, subjects him to pay to the party injured triple damages with costs, besides loss of office and other penalties imposed by law. 2160. Registry offices must be kept open every day, Sundays and holidays excepted, from nine o'clock in the morning until four o'clock in the afternoon. (1) (1) The word "four" in the last line of this article was sub- stituted for "three" by 46 Vict., c. 23, s. 1 (30 March, 1883). R. S. Q.. art. 5842. 2161. Every registrar sihall keep: 1. An alphabetical index or repertory of the names of all persons mentioned in the acts or document® registered as acquiring or conveying any right affected by such registra- tion, with a reference to the number of the document, and ;ii Itvuistration of Real Kiyhts. m. the page of the register in which it is entered, and, when immoveables are concerned, tihe name of the place where they are situated; 2. An alphabetical list of all parisihes, townsships, seig- niories, cities, towns, villages, and extra-parochial places within his registry division, containing a reference under the head of each local divisiom to all entries of documents concerning immoveables comprised within such, /dlivision, or giving the number and other references mentioned in the preceding paragraph, so as to serve as an index to immove- ables, and such list must be made in conformity with the provisions of article 2171; 3. An entry-book in which are entered the year, month, day and hour when each document is brought for registra- tion, the names of the parties to the same and of the per- son by whom the same is bix)ught, the nature of the right of which registration is required, and a general description of the immoveable affected thereby; 4. A register in which all documents presented for regis- tration are transcribed; 5. A book in which are registered the notices required by articles 2115, 2116, 2120, 2121, with an index to be made in the same manner as the index prescribed in article 2131. 2161a. A register for the addresses or elections of domi- cile of hypothecary creditors must be kept in each registry office. Added by R. S. Q.. art. 5843. (43-44 Vict., c. 25, s. 1, 24 July. 1880). 21616. Every hypothecary creditor or every transferee, heir, donee or legatee of an hypothecary creditor, sihall give to the registrar of the registration division wherein the immoveables hypothecated are situated notice of his address or of his elected domicile, and if he afterwards changes his residence, of his new address. Added by R. S. July. 1880). Q., art. 5843. (43-44 Vict., c. 25, s. 2, 24 2161c. Each address or elected domicile is enitered in the register of addresses, and the number of the entry of the same is noted in the index to immoveables. In the page or space allotted for the lot or subdivision hypothecated in favor of the person giving the notice. Added by R. S. Q.. art. 5843. (43-44 Vict., c. 25, s. 2, 24 July. 1880). f 111 I'S i i^ ^i'i ', \ i I! III! 404 Civil Code of Lower Canada. 21Qld. A copy of the notice for the sale of immoveables under seizure must be given by the sheriff to the regis- trar to remain deposited in his office, and an entry must be made by the latter in his index to immoveables or in the margin opposite the lasit entry in the books, for each lot or piece of land mentioned in suci notice, by writing the words "under seizure No. »> Added by R. S. Q.. art. 5843. (43-44 Vict., c. 25, s. 3, 24 Julj". 1880). 2161e. A notice must be immediately s-ent by the regis- trar, by registered letter, to each hypoithecary creditor, whose name is entered in the register of addresses, in- forming him that the immoveable hypothecated to him is under seizure and of the place where and the time when it will be sold. Added by R. S. Q., art. 5843. (43-44 Vict., c. 25, s. 4, 24 July. 1880). 2161/. The iregistrar must, until the notice of seizure is cancelled, mention it in all certificates demanded cf him, either against the immoveable described in such notice, or against the person upon wihoim the immoveable was seized. Added by R. S. Q., art. 5843. (43-44 Vict., c. 25, s. 6, 24 July. ISSO). 2161^. When the seizure is followed by judicial expro- priation, the notice of seizure will be cancelled by the regis- tration of the sheriff's deed of sale. Added by R. S. Q.. art. 58^3. (43-44 Vict., c. 25, s. 6, 24 July. 1880). 2161A. When the (seizure is released, the notice of seizure is cancelled by the deposit in the registry office of a oeirtifi- cate establishing such release, given by the prothonotary, and by the noting of the release in the index to immove- ables or in the margin of the last entry in his books after the noting of the seizure. Added by R. S. Q., art. July. 1880). 5843. (43-44 Vict., c. 25, s. 7, 24 2l61i. A list of the lands sold for taxes must, within the eight days following the adjudication, be transmitted by the secretary-treasurer of each county council to the 7, 24 Registration of Real RiyUts. 405 registrar to be deposited in his office; and the regisitrar must make an entry of the sale in his index to immoveables, or in the margin opposite the last entry in his boolcs, for each lot or piece of land so sold, by writing the words "sold for municipal taxes No. ." Added by R. S. Q., art. 5843. (43-44 Vict., c. 25, s. 10, 24 July. 1880). 2161/. The registrar must, until the entry of such muni- cipal sale is cancelled, mention it in all certificates de- manded of him affecting any lot or piece of land men- tioned in the lis-t. Added by R. S. Q., art. 5843. (43-44 Vict., c. 25, s. 11, 24 July. 1880). 21Qlk. The cancellation of the entry of such municipal sale is effected by the registration of a municipal deed of sale, or by the deposit of a certificate from the secretary- treasurer that the land has been redeemed, and by the noting of such redemption in the index to immoveables or by the noting of the municipal sale in the margin of the last entry in the books. Added by R. S. Q.. art. 5843. (43-44 Vict., c, 25, s. 12, 24 July. 1880). 21612. The omission to comply with any of the pro- visions of article 2161a to 2161fc does not inval' -ate any proceeding in any cause or matter in which su ,ii omission may occur; but the officer in default is responsible for all damages wfhich may result therefrom. Added by R. S. Q., art. July. 1880). 5843. (43-44 Vict., c. 25, s. 14, 24 2162. In the registration divisions of Quebec and Mont- real the register mentioned in paragraph 4 of the preced- ing article may be kept in several parts in separate books, according to the foUlowing classification: 1. Bonds, recognizances and other securities and obliga- tions in favor of the crown; wills, and the probates thereof; 2. Marriage contracts and gifts; 3. Appointments of tutors and curators; judgments and judicial acts and proceedings; 4. Deeds conveying the ownership of property other than those above mentioned; [the leases mentioned in article 2128, and acquittances for rent paid in anticipation;] I ; iU ! i \m t i(i' ■s i m\ iiu.-'i l\i\ I' ■! ■ :i,-; 406 Civil Code of Lower Canada. 5. Deeds, instruments and writings creating hypotliecs, * privileges or cliarges, and not comprised in any of the preceding classes; 6. All other acts of which registration may be required in the interest of any party whatever. [The foregoing provisions may be extended by a procla- mation of the governor to any registry division the popula- tion of which exceeds fifty thousand souls. J 2163. The governor may also by proclamation direct that the registrars for the registration divisions of Quebec and Montreal, or either of them, shall keep separate regis- ters and books for the immoveables situate within, and for those situate without the limits of the said cities respec- tively. ! 2164. The Governor in Council may alter the form of any books, indexes or other official documents to be kept by registrars, or direct new ones to be kept; and all orders to that effect are published in the Canada Gazette and take effect from the day therein appointed, provided such day be not fixed at less than one month from the publication of such order. 2165. Other provisions are contained in the statutes re- specting registration. SECTION II. OF THE OFFICIAL PLANS AND BOOKS OF REFERENCE AND OF MATTERS CONNECTED THEREWITH. 2166. The Commissioner of drown Lands furnisihes each registry office with a copy of a correct plan, made in con- formity with tbe provisions of chapter 37 of the Consolidated Statutes for Lower Canada and the statute 27th and 28th Vict., ch. 40, shewing distinctly all the lots of land of each city, town, village, parish, township, or part thereof, com- prised within the division to which guch office belongs. 2167. Such plan must be accompanied by a copy of a book of reference in which are set forth: 1. A general description of each lot of land shewn upon the plan; 2. The name of the owner of each lot, so far as it can be ascertained; Reyistration of Real Rlyhts. 407 3. All remarks necessary to the right understanding of the plan. Each lot of land shewn upon the plan is designated thereon by a number, which is one of a single series, and is entered in the book of reference to designate the same lot. 2168. When a copy of the plans and books of reference for the whole of a registration division has been deposited in the office for such division, and notice has been given by proclamation in the manner mentioned in article 2169, the numbeir given to a lo't upi>n the plan and in the book of reference Is the true description of such lot, and is suffi- cient as such in any document whatever; and any part of such lot is sufficiently designated by stating that it is a part of such lot and mentioning who is the owner thereof and the properties conterminous thereto; and any piece of land composed of parts of more than one numbered lot is sufficiently designated by stating that it is so composed and mentioning what part of each numtoered lot it contains. No description of an immoveable in the notice of appli- cation for confirmation of title, or in the notice of a sale by the sheriff or by forced licitation, or of any sale having the effect of a sheriff's sale, or in the sheriff's deed, or in the judgment of confirmation, will be deemed sufficient unless it is made in conformity with the provisions of this article. As soon as such plans and books of reference have been deposited and notice thereof has been given, notaries pass- ing acts concerning immoveables indicated on such plan are bound to designate such immoveables by the number given to them upon such plan and in the book of reference, in the manner above prescribed; in default of such desig- nation the registration does not affect the lot in question, unless there is filed a requisition or notice indicating the number on the plan and book of reference as being that of the lot intended to be affected by sucli registration. 2169. The deposit of the original plans and books of reference in any registration division is declared by a pro- clamation froim' the Governor in Council, fixing at the same time the day on which the provisions of article 2168 shall come into force therein. ir riU 1 i W. \S.\ 2170. The registrar so soon as such deposit has been made, must prepare the index to immoveables mentioned in the second place in article 2161. 408 Civil Code of Lower Canada. f 2171. From and after the day appointed by such pro- clamation the registrar must, from day to day, malce up and continue the index to immoveables by entering under the number of each lot separately designated upon the plan and book of reference a reference to each entry thereafter made in the other books and registers affecting such lot, so as to enable any person easily to ascertain all the entries con- cerning it made after that time. 2172. Within two years after the day fixed by the pro- clamation of the Lieutenant-Governor, bringing the pro- visions of article 2168 into force in any registration division, the registration of any real right upon any lot of land within such division must be renewed by means of the registration at length, in the book kept for that purpose, of a notice describing the immoveable affected, in the mt^nner prescribed in article 2168 and conforming to the other formalities prescribed in article 2131 for the ordinary renewal of the registration of hypothecs. An index must be kept for the books used for the re- gistration of the notices mentioned in this article, in the same manner as the index mentioned in article 2131. (1) (1) In the original article the delay for renewal of registra- tion was eighteen months after the proclamation. By 35 Vict, c. 16, s. 4, this delay was extended to two years. (R. S. Q., art. 5844.) 37 Vict., c. 16, s. 4. and 39 Vict., c. 26, s. 1 were enacted to explain 35 Vict., c. 16. The Act Intituled "An Act to render valid certain registra- tions and to amend certain articles of the Code," assented to on the 10th June, 1884, contains the following provisions which are still in force. (This section of the Act was not consolidated in the Revised Statutes of the Province of Quebec, it being merely a matter of validation.) "Whereas certain notices for the renewal of hypothecs re- quired by article 2172 of the Civil Code, have been indifferently given under both forms Nos. 25 and 26 of the appendix to the Code of Civil Procedure; "Whereas it is necessary to remove the doubts which exist touching enregistrations so effected; therefore Her Majesty, etc.. etc.. enactfi rjc^ lollows: — I. Are hereby declared valid and sufficient; 1. The renewal oi the registration of hypothecs required by article 2172 of the Civil Code, effected by notice prepared ac- cording to either of forms Nos 25 and 26 of the appendix to the Code of Civil Procedure." (Q. 47 Vict., c. 13, s. 1.) 2172a. If the hypothec is in part extinguished, the renewal may be maCe for the balance only. (1) (1) Added by 47 Vict., c. 13, s. 7 (10 June, 1884); (R. S. Q., art. 5845). Kegistration of Real Kiylita. 409 2173. If such renewal be not effected, the real rights preserved by the first registration have no effect against other creditors and subsequent purchasers whose claims have been regularly registered. 2174. The registrar cannot In any way correct or alter the plans or books of reference; and at any time If he find therein errors or omissions In the description or dimensions of any lot or parcel of land, or in the name of the owner, he must report the same to the Commissioner of Crown Lands, who may when the case requires It correct the original and the copy likewise anid) certify such cor- rection. Such correction must however be made without changing the number of the lots; and In the case of the omission of a lot it must be inserted by distinguishing It by characters or letters, so as not to Interfere with the original num- bering:. No right of ownership can be affected by any error In the plan or book of reference, nor can any error of description, dimensions or name be interpreted to give any person any better right to the land than his title gives him. 2174a. After the coming into force of the provisions of article 2168, resipeotlng the cadastre of any locality, if it be ascertained that there are certain lots of lands desig- nated erroneously under several numbers, or whenever a renumbering becomes necessary, in consequence of the con- struction of a new road or the closing of an old one or for any other cause, the Commissioner of Crown Lands may, on being so required by the parties Interested, amend and correct the official plan and book of reference thereto of such locality, and, provided that there are no registrations of mortgages againsit the numbers which it is proposed to cancel, he may strike out the numbers found to be useless. If it be found that the game territory is Included In the cadastre of two different localities, or that some territory is included in the cadastre of a locality to which such territory does not belong, the official plan and book of re- ference of the locality to which such territory does not belong, and the one to which It does belong, may be oor^ rected In consequence. Notice of such corrections must be given in the Quebec [ i n ■f.r 1 ' ifir Mi ■1 ■'! H 1 :,, . ! ! i 410 Civil Code of Lower Canada, Official Gazette so soon as the correction has been certified by the Commissioner. (1) i (1) Added by 49-50 Vict., c. 11, s. 1 (21 June. 1886) to art. 2174, but afterwards made a separate article (2174a) by R. S. Q., art. CS46. 2176. Whenever the owner of a property designated upon the plan or book of reference, subdivides the same into town or village lots, he must deposit in the office of the Commissioner of Crown Lands a plan and book of re- ference certified by himself, with particular numbers and designations, so as to distinguish them: from the original lots; and if the Commissioner of Crown Lands find that such particular plan and book of reference are correct, he transmits a copy certified by himself to the registrar of the division. Another subdivision of the property may be substituted for any subdivision deposited with the registrar, or any part of the subdivision for any other part of the subdivision, by the proprietor or other person interested, provided that the plan and book of reference be made and deposited in co.nformity with this article. (1) (1) The second paragraph of this article was added by R. S. Q.. art. 5847. (38 Vict., c. 15, s. 3, 23 Feb., 1875.) The words "[exceeding the number of sixj" which occurred In the original article after the words "town or village lots'* were eliminated by the same statute. The Act 53 Vict., c. 53 (Que.), makes provisions relating to lands theretofore subdivided into and sold by lots, without proper plans having been made. 2176. When by reason of the subdivision of the lots in any locality it is deemed necessary, the Governor in Council may from time to time order an amended plan and book of reference to be made out and a copy thereof to be de- posited with the registrar of such locality ; but such amended plan and book of reference must he based upon and refer to the former ones; and the governor may by proclamation fix the day upon which they will begin to be used together with the former ones; and from and after the day so fixed the provisions of this code shall apply to such amended plan and book of reference. 2170a. Whenever the plan of the lots of land of any city, town, village, parish, township or of any division whatsoever of such localities, forming part of any regis- tration division, has been lawfully made, the Lieutenant- Registration of Real Kiyhts. 411 Governor in Council may cauae to be deposited in tlie re- gistry office of tlie proper registration division, a correct copy of such plan, together with, a copy of the book of re- ference relating thereto. The deposit of such plan, and book of reference Is an- nounced by a proclamation of the Lieutenant-Governor In Council, determining the day iipon which the provisions of article 2168 shall come into force in such registration division, respecting the localities whereof the plan of the lands has been so filed; and from the date of the period fixed in such proclamation, all the provisions of this Code apply to such plan and book of reference and +0 all lands and property comprised in the said plan, and to all con- tracts, hypothecs or deeds whatever, concerning or affect- ing such lands In. the same manner as if the plan of the whole registration division had been deposited, In con- formity with article 2166. Added by 32 Vict., c. 25, s. 5 (5 April, 1869); R. S Q.. art. 5848. ' 21766. The Commissioner of Crown Lands may cause to be published in the Quebec Official Gazette the book of reference of any or all the localities Included In any regis- tration division. Added by 32 Vict., c. 25, s. 6 (5 April, 18G9); R. S. Q., art. 5848. 2176c. Whenever the plan and book of reference of any locality are worn out or have become defective, owing to corrections or from decay or otherwise, the Lieutenant- Governor in Council may order that such plan and book of reference be renewed, and that a copy thereof be de- posited in the registry office of such locality. Added to art 2176 by 49-50 Vict., c. 12. s. 2. 21 June, 1886, and made art. 2176c by R. S. Q., art. 5848. SECTION III. OF THE PUBLICITY OF THE REGISTERS. 2177. The registrar is bound to deliver to any person demanding the same a statement certified by himself of all the real rights affecting any particular immoveable or Which may affect the whole of any person's property or of all hypothecs created and registered during a stated period or only against certain proprietors of the immoveable desig- I Hi :i,r ' f'l !l I.I .' ' ' r ; ^n Civil Code of Lower Canada. nated in a written requisition to that effect, containing a sufficient description of the owners, in which case the re- quisition is mentioned in the certificate and the registrar is not responsible for any o'miissions in the certificate resulting from errors or omissions of names in the requisi- tion; and if such proprietors he not named in the requisi- tion, the registrar is bound to ascertain who were pro- prietors during the given period in the manner provided with respect to the certificate to be given in cases of sheriff's sales. Nevertheless, in places where there are no official num- bers given to the lands belonging to railways, registrars,, when required to give certificates respecting the lands traversed by any such railway, are not Ibound to mention the judgments and hypothecs registered against such rail- way, unless specially requested so to do. (1) (1) The last paragraph was added by 53 Vict,, c. 54. 2178. He is bound to deliver, to all persons demanding the same, copies of the acts or documents registered, but he must mention thereon the discharges, cancellations, [conveyances or subrogations] thereof which are entered in such register or in the margin. 2179. He is also bound to allow all persons desirous of examining the entry book during his office hours to take communication of the same without removing it, and free from charge. He must likewise, upon payment of the lawful fee, ex- hibit the register to any person who has required the registration of an act and wisihes to be assured of such re- gistration. He is also bound, upon payment of the fee lawfully exigible, to communicate the index to immoveables to all persons who desire to examine the same without re- moval. (1) (1) The last paragraph was added by 39 Vict., c. 25, s. 1 (24 Dec, 1875); R. S. Q., art. 5849. 2180. The entries upon the registers and books kept by the registrar must be consecutive without blanks or inter- lineations. Every document registered must be numbered and tran- scribed in the order in which it is produced, and mention must be made in the margin of the register, of the hour, day, month and year when it was deposited in the office for registration. Prescription. 413 The registrar is bound, when required to do so, to give the person who presents a document for registna/tion a receipt indicating the number under which such document is entered in the entry-book. 2181. Every register for registration must, before any entry is made therein, be authenticated in the manner prescribed in the Code of Civil Procedure. (1) (1) The matter which the original article contained relative to the details of reg-istration has been relegated to the Code of Civil Procedure, art. 1317, by 60 Vict., c. 50, s. 37 (1 Sept., 1897). 2182. [The provisions of the preceding article apply equally to the entry-book and to the index to immove- ables.] TITLE NINETEENTH. OF PRESCRIPTION. CHAPTER FIRST. GENEBAL PROVISIONS. 2183. Prescription is a means of acquiring, or of being discharged, by lapse of time and subject to condition® es- tablished by law. In positive prescription title is presumed or confirmed and ownership is transferred to a posisessor by the con- tinuance of his possession. Extinctive or negative prescription is a bar to, and in some cases precludes, any action for the fulfilment of an obligation or the acknowledgment of a right when the creditor has not preferred his claim within the time fixed by law. 2184. Prescription cannot be renounced by anticipation. That acquired may be renounced, and so may also the benefit of any time elapsed by which prescription is begun. 2185. Renunciation of prescription is express or tacit. Tacit renunciation results from any act by which the abandonment of the right acquired may be presumed. ' ' : \ ^% T»' ' ii m m i '\ ' 1'! 1 : [ ; ^^r . : -a m :i \' 414 Civil Code of Lower Canada. 2186. Persons who cannot alienate cannot renounce pre- scription acquired. 2187. Any person interested in the lacqulring of a pre- scription, may set it up although the debtor or the pos- sessor have renounced it. 2188. The court cannot of its own motion supply the defence resulting from prescription, except in, cases where the right of action is denied. 2189. Prescriptions in respect of immoveable property are governed by the law of the place where it is situated. 2190. [As regards moveable property and personal ac- tions, even in matters of bills of exchange and promissory notes and comimecial matters in general, one or more of the following prescriptions may be Invoked: 1. Any prescription entirely acquired under a foreign law, when the cause of action did not arise or the debt was not stipulated to be paid in Lower Canada, and such pre- scription has been so acquired before the possessor or the debtor had his domicile therein; 2. Any prescription entirely acquired in Lower Canada, reckoning from the date of the maturity of the obligation, when the cause of action arose or the debt was stipulated to be paid therein, or the (debtor had his domicile therein at the time of such maturity; and in other cases from the time when the debtor or possessor becomes domiciled therein; 3. Any prescription resulting from the lapse of succee- fiive periods in the cases of the two preceding paragraphs, v/hen the first period elapsed under the foreign law.] 2191. [Prescriptions commenced according to the law of Lower Canada, are completed according to the eame law, without prejudice to the right of invoking those acquired previously under a foreign law, or by a union of periods under both laws, conformably to the preceding article.] CHAPTER SECOND. OF POSSESSION. 2192. Possession Is the detention or enjoyment of a thing or of a r ght, which a person holds or exerclsee Ihim- eelf. pr which is held or exercised in his name by another. Prescription. 415 of B. Iblm- Lotber. 2198. For the purposes of prescription, the possesaion of a person must be continuous and uninterrupted, peace- able, public, unequivocal, and as proprietor. 2194. A person Is always presumed to possess for him- self and as proprietor, if it be not proved that his possession was begun for another. 2196. When possession is begun for another, it is alwayia presumed to continue so, if there be no proof to the con- trarv. 2196. Acts which are merely faculative or of sufCranoe cannot be the foundation either of possession or of pro- scription. 2197. Nor can acts of violence be the foundation of Buch a possession as avails for prescription. 2198. [In cases of violence or clandeatinity, the posses- .^'on which avails for prescription begins when the defect Vis ceased. Nevertheless the thief, his heirs and successors by uni- versal title, cannot by any length of time prescribe the thing stolen.] Successors by particular title do not suffer from these defects in the possession of previous holders, when their own possession has been peaceful and (public. 2199. An actual possessor who prove ; that he was in pos- session at a former period is presumed to have possessed during the intermediate time, unless the contrairy is proved. 2200. A successor by particular title may join to hie possession that of his author in order to complete nre- ecription. Heirs and other successors by universal title continue the possession of their author, saving the case of inter- version of title. CHAPTER THIRD. OP THE CAUSES WHICH HINDER PRESCRIPTION, AND SPE- CIALLY OP PRECARIOUS POSSESSION AND OP SUBSTITUTIONS. 2201. Things which are not objects of commerce cannot be prescribed. t;: m ■ ■ i i] T ' (■-] ^ i '.iiljV ■ iiiii! r. Hil-, I 4U UicU Code of Lower Canada. Special provisions explanatory of the present article aw to be found in the fourth chapter of this title. 2202. [Good faith is always presumed.] He who alleges bad faith must prove it. 2203. Those who possess for another, or under acknow- ledgment of a superior domain, never prescribe the owner- ship, even by the continuance of their possession after the term fixed. Thus emphyteutic lessees, tenants, depositaries, usufruc- tuaries and those who hold precariously the property of another cannot acquire it by prescription. They cannot by prescription liberate themselves from the obligation of paying dues attadhed to their possession, but the measure of such dues and any arrears thereof are pre- Bcriptible. Emphyteusis, usufruct and other like proprietary rights are susceptible of a distinct ownership and of a possession available for prescription. The proprietor is not hin- dered by the title which he has granted from prescribing against these rights. He who has been put in definitive possession of the pro- perty of an absentee only begins to prescribe against him or his heirs or legal representatives, when such absentee returns or his death becomes known or may be legally presumed. 2204. Heirs and successors by universal title of those whom the preceding article hinders from prescribing, can- not themselves prescribe. 2205* Nevertheless the persons mentioned in articles 2203 and 2204 and also ipersons charged with a substitution, may, if their title have been interverted, 'begin a possession available for prescription, dating from the information given to the proprietor by notification or other contradic- tory acts. Such notification of title and other contradictory acts only avail when made to or in irespect of a person against whom prescription can run. 2206. Subsequent purchasers in good faith, under a ti*anslatory title derived either firom a precarious or sub- ordinate possessor, or from any other person, may pre- scribe by [ten years] against the ;:roprietor during such subordinate or precarious holding. *;SH Prescription. 417 ► aro wner- >r tlie ifruo- riy of m tlie n, but >e pre- riglits session yt Mn- cribing he pro- ;st liim Ibsentee legally those ig, can- jiry acts against Lnder a [or sub- lay pre- ig such Third parties may also, during a subordinate or pre- carious holding, prescribe against the proprietor by thirty years with or without title. 2207. In cases of substitution prescription dioes not run against the substitute, before the oipening of the rig'ht, in favor of the institute, nor of hi® heirs or successors by universal title. [Prescription runs against the substitute, before the open- ing of the right, in favor of third pairties, unless he is protected as a minor, or otherwiise. Any substitute, against whom prescription thus runs, may bring an action to interrupt it.] The possession of the institute avails the substitute, for the purposes of prescription. Prescription runs against the institute during the time of his possession and in his favor against tbird parties. After the opening, prescription may begin to run in favor of the institute and of his heirs and successors by universal title. 2208. No one can prescribe against hiis title, in this sense that no one can change the cause and nature of bis own possession, except by interversion. 2209. A person may prescribe against bis titl3^ in the sense that he may be freed by prescription from, an obliga- tion he has contracted. 2210. Positive prescription by thirty years takes place, for the contents of corporeal Immoveables in excess of what is given by tihe title, and negative prescription takes place by the same time in all cases, in diminution of obli- gations which the title Imposes. In the matter of dues and rents, the enjoyment of more than the title shews a right to does not give rise to the acquisition of such excess by prescription. CHAPTER FOURTH. OP CERTAIN THINGS IMPRESCRIPTIBLE AND OP PRIVILEGED PRESCRIPTIONS. 2211. The crown may avail Itself of prescription. The subject may interrupt such prescription by means of a petition of right, apart from the oases in wttiioh the law gives another remedy. 27 w Hi; hi - 111 ■ l- ill ! (■] 11 1 mm 1 Ii^i '■i -1 II 1 418 Civil Code of Lower Canada. Among privileged persons, the privilege takes effect in the matter of prescription. 2212. The rights of the crown with regard to sovereignty and allegiance are imprescriptible. 2213. Sea-beaches and lands reclaimed from the sea, poirts, navigable or floatable rivers, their banks and the wharfs, works and roads connected with them, public lands, and generally all immoveable property and real rights forming part of the domain of the crown ar'ei imprescrip- tible. 2214. The rights of the crown to the principal of rents, dues, and revenues owing- and payable to it, and to the capital sums accruing from the alienation or from' the use of crown property, are ajlso imprescriptible. 2215. All arrears of rents, dues, interest and reveuues, and all deibts and rights, belonging to the crown, not de- clared to be imprescriptible by the preceding articles, are preiscribed by thirty years. Subsequent purchasers of immoveable property chairged therewith cannot be liberated by any shorter period. 2216. Property escheated to the crown, by failure of heirs, bastardy or forfeiture, is not considered as incor- porated or asisimilflted to the orown domain for purposes of prescription until a declaration to that effect is made, or until aftei ten years of enjoyment and actual possession, in the name of the crown., of the totality of the rights thus escheated in the particular case. Until such incorporation or assimilation, such property continues to be subject to the ordinary prescriptions. 2217. Sacred things, so long as theiir destination (has not been changed otherwise than by encroachment, cannot be acquired by prescription. Burial-grounds, considered as sacred things, cannot have their destination changed, so aisi to be liable to prescription, until the d^ad bodies, sacred by their nature, have been removed. 2218. [Positive prescription of corporeal imimoveablea not sacred, and negative presaription as regards the prin- cipal of rents and dues, legacies and rights of hypothec. Prescription. 419. take place against the church in. the same manner and ac- cording to the same rules as against private persons. Purchasers with title and good fadth prescribe against the church by ten yeans, whether positively or negatively^ in the same way as against private persons. Positive prescription of corporeal moveables not saored, and the other negative prescriptions, including that of capital sums, take place against the church as against pri- vate persons.] 2219. The right to tithes and the rate of the tithe are imprescriptible. Positive prescription by forty years runs between neighbouring rectors. Airrears of tithes can only 'be demanded for one year. Tithes must be paid at the rector's residence. (1) (1) The English version of this article was amended by 42-43 Vict., c. 16, s. 2 (R. S. Q., art. 5850), by replacing the word "thirty" in the first paragraph by the word "forty." 2220. Roads, streets, wharfs, landing-places, scLuares, markets and other places of a like nature, possessed for the general use oif the public, cannot be acquired by pre- scription, so long as their destination has not been changed otherwise than by tolerating the encroachment. 2221. Any other property belonging to municipalities or corporations, the presciription of which is not otherwise determined by this code, is subject even when held in mortmajin, to the same prescription as the property of private i>ersons. CHAPTER FIFTH. OP THE CAUSES WHICH INTERRUPT OR SUSPEND PRESCRIPTION. SECTION I. OP THE CAUSES WHICH INTERRUPT PRESCRIPTION. 2222. Prescription may be interrupted either naturally or civilly. 2228. Natural interruption takes place when the pos- sessor is depirived, dTiring more than a year, of the enjoy- ment of the thing, either by the foriner proprietor or by^ any one else. \\\ m '-■ ;M 420 Civil Code of Lower Canada. 2224. A judicial demand in proper fotnm, served upon the person whose prescription it is sought to hinder, or filed and served conformably to the Code of Civil Procedure when ta personal service is not required, creates a civil in- terruption. Seizures, set-off, interventions and oppositions, are con- sidered as judicial demands. No extra- judical demand, even whem made by a notary or bailiff, and accompanied with the titles, or even signed by the party notified, is an interruption, if there be not an acknowledgment of the right. 2226. A demand brought before a court of incompetent jurisdiction does not interrupt prescription. 2226. Prescription Is not interrupted: If the service oo* the procedure be null from informality; If the plaintiff abandon his suit; If he allow peremption of the suit to be obtained; If the suit be disimissed. 2227. Prescription is interrupted civilly by renouncing the benefit of a period elapsed, and by any acknowledg- ment which the posseissor or the debtor makes of the right of the person against whom, the prescription runs. 2228. A judicial diemand brought against the principal debtor, or his acknowledgment, interrupts prescription as regards the surety. The same acts against or by a surety interrupt presciription as regards the principal debtor. 2229. Renunciation by any person otf a prescription acquired does not prejudice his codebtors, his sureties, or third parties. 2230. Every act which interrupts! presoriptlon with regard to one of joint and several creditors benefits the others. When the obligation is indivisible, acts of interruption with regard to some only of the heirs of a creditor, benefit the others. If the obligation be divisible, even, when the debt is hypothecary, acts of interruiption in beOialf of some only of such heirs do not benefit the other heirs. In the same -case these acts only benefit the other joint and several Prescription. 421 creditors lor the share ot the heirs with regard to whom such acts have been done. In ordeir that the interruption should in this case produce the full effect with regard to the other joint and several creditors, it is necessary that the acts which interrupt should have been done as to all the heLrs of the deceased creditor. 2231. Every act which interruptsi prescription by one of joint and several (debtors, interrupts it with regard to all. Acts of interruption with regard to one of the heirs of a debtor, interrupt prescription with reigard to the other heirs and joint and several debtors, when the ohligation is indivisible. If the obligation be divisibtle, even when the debt is hypothecary, a judicial demand brought against one of the heirs of a joint and several debtor, or his acknowledigment, does not interrupt prescription with regard to the other heirs; withouit prejudice to the right of the creditoir to exer- cise his hypothec within the proper time on the whole of the immoveable proiperty charged, for that portion of the debt for which he iretains his right. In the same case, these acts only interrupt prescription with regard to the joint and several codebtors for the share of the heir who ia sued or has acknowledged the right. In order that in this case the interniption should take place for the whole with regard to the joint and several codebtors, it is necessary that the judicial demand or the acknowiledg- ment should take place with regard to all the heirs of the deceased debtor. Acts which interrupt prescription with regard to the debtor do not interrupt the prescription by a third party holding the imTOoveable property burthened with any charg;e or hypothec; they affect him in the sense that they hinder the extinction by prescription of the debt to which the hypothec is attached. These acts against the holders of other immoveables or of other poirtions of the same immoveable, do not prejudice the holder of a separate portion of the property, with re- gard to whom they have not taken place. When done with regard to one joint holder of undivided property they interrupt prescription with regard to the others. In natural interruption, however, it suflSces that one of the posisessors of undivided property, or an heir of one of them should have kept useful possession of the whole in order to secure the advantage of it to the others. ii .i t il tl-' 'W. : i ■< 422 Civil Code of Lower Canada. SECTION II. OP THE CAUSES WHICH SUSPEND THE COURSE OF PRESCRIPTION. 2232. [Prescription runs against all persons, unless they are included in some exception established by this code, or unless it is absolutely impossible foip them in law o-r in fact to act by themiseilves or to be represented by others. Saving what Is declared in article 2269, prescription does not run, even in favor of subsequent purchasers, against thoee who are not born, nor against minors, idiots, mad- men or insane i)ePsons, with or without tutors or curators. Those to whom a judicial adviser is given and persons in- terdicted for prodigality do not enjoy this privilege. Prescription runs against absentees as against persons present and by tlhe same lapse of time, saving what is de- clared as to persons authorized to take provisional posses- sion of the estate of an absentee.] 2233. Husband and wife cannot prescribe against each other. 2234. Prescription iruns against a married woman, whether separated or in community, with respect to her private property, including her dowry, even when her hus- band has the administration of It, saving her recourse against her husband. Nevertheless, wihen the husband is liable as warrantor for having alienated the property of the wife without her consent, and in all oases where the action against the debtor or possessor would turn against the husband, prescription does not run against the married woman, even in favor of subsequent purchasers. 2235. Neither does preseription run against the wife during marriage, eiven in favor of subsequent purchasers, with respect to dower and other rights of survivorship, nor with respect to the preciput or other distinct irights which she can only exercise after the disisolution of the commu- nity, either by accepting or renouncing, unless the com- munity has been dissolved durimg the marriage; at the time of which dissolution prescription begins against the wife, as regards the rigthts which she may then exeircise in consequence of such dissolution. Saving what is excepted in the present article, prescrip- tion acquired or which has Tun against the property of the community affects the share of the wife who accepts. PrcscriiUion. 42 2236. Prescription of personal actions does not run: With respect to debts depending on a condition, until suchi condition liappens; Witli respect to actions in warranty, until the eviction takes place; With respect to debts with a term, until the term has expired. 2237. Prescription does not run against a beneficiary heir, with rfjspect to claims he has against the succession. It runs aijainst a vacant succession, although there be no curator. ■ff, Un 2238. It runs during the delays for making an inventory and deliberating. 2239. The particular rules concerning the suspension of prescription with regard to joint and several creditoo^ and their heirs are the same as those concerning interruption in like cases, explained in the preceding section. CHAPTER SIXTH. « OF THE TIME REQUIRED TO PRESCRIBE. SECTION I. GENERAL PROVISIONS. 2240. Prescription is reckoned by days and not by hours. [Prescription is acquired when the last day of the term has expired; the day on which it commenced is not counted.] 2241. The rules of prescription in other matters than those mentioned in the present title are explained in the particular titles (relating to such matters. SECTION II. OF PRESCRIPTION BY THIRTY YEARS, OF PRESCRIPTION OF RENTS AND INTEREST, AND OF THE DURATION OF THE PLEA OP PRESCRIPTION. 2242. All things, rights and actions the prescription of which is not otherwise regulated by law, are prescribed by K [ !■■ F ■ '. : - ii ■ 4% ■i -ill:! t *1 I . iii f b. 1 1 424 Civil Code of Lower Canada. I i thirty years, without the party prescribing ib«lng bound to produce any title, and notwithstanding any exception plead- ing bad faith. 2248. Prescription of the action to account and of the other personal actions of minors against their tutors, re- lating to the acts of the tutorship, takes place conformably to this rule, and is reckoned from the majority. 2244. If a title be shewn, it helps to establiah the defects of the possession which hinder prescription. 2245. [Prescription by thirty years, has, in all presoript- Ible cases, the same effects as that by a (hundred years or as immemorial prescription formerly had, whether as regards the right, or for covering the deifeots of title, in- formalities or bad faith.] i € 1^ 3' il 2246. Any person who is In possession as proprietor of a thing or a right, preserves, by reason of such possession, his right to set up by plea against any demand in revendi- catlon of such thing or right, all such grounds of nullity or other grounds as tend to defeat tbe action, although his right to do so by direct action may have been pre- scribed. In personal actions, likewlisio, the defendant may effec- tively plead all grounds tending to defeat the action, although the time during which he could urge such grounds by direct action may have elapsed. The foregoing provisions of this article apply only to such grounds of exception as istrike at the principle of the action and desitroyed it at a time when no acquired pre- scnption could prevent them from doing so. Thus a claim prescribed cannot be pleaded in compensation unless the compensation had taken effect before it was pregcribed, and then it may be pleaded [whether the claim be for a debt of a commercial nature or for any other cause.] The adoption of the grounds of such plea does not revive the right to urge them by direct action. 2247. The hypothecary action joired to the personal Is not subject to a longer prescription than the latter alone. 2248. [The term attached by law or by stipulation to a right of redemption is absolute without prescription being required. Prescription. 426 So is the term attached to the right of a vendor to take l/ack an immoveable, by reason of non-payment of the price.] The right to redeem rents comes from the law; It is im- prescriptible. 2249. After twenty-nine years from the date of the last title, the debtor of emphyteutic dues or of a rent may be obliged, at his own cost, to furnisih the creditor or hla legal representatives with a renewal-deed. 2260. [With the exception of "hat Is due t the crown, all arrears of irents, including life-rents, all arrears of Interest, of house-rent or land-rent, and generally all fruits natural or civil are prescribed by fiy., yea. a. This provision applies to claimb result ag fro'i omi^hy- teutic leases or other real rights, even where tl "e is pri- vilege or hypothec. Prescription of arrears takes place alth ni^h the prin« ^al be imprescriptible by reason of precar'jut, possession.] Prescription of the principal carriefi 'vith It that of the arrears. 'I ■': i1 SECTION III. OP PRESCRIPTION BY SUBSEQUENT PURCHASERS. 2251. He who acquires a corporeal immoveable In good faith under a translatory title, prescribes the ownership thereof and liberates himself from the sei*vitude3, charges and hypothecs upon it by an effective possession in virtue of such title [during ten yea '.."; 2252. A subsequent purchaiser of dues or rents, with title and in good faith, prerfcribes the capital thei'eof by means of an indefectiv' v^njoyment duiring [ten years.] against the creditor v rix> has during that time entirely failed to enjoy and neglected to act. 2253. It is sufficient that the good faith of subsequent purchasers existed at the time of the purdhase, even when their effective possession only commenced later. The same rule is observed with regard to every preceding purchaser whose possesision is added to theirs for this pre- scription. > 1 I , It ,1;. 426 Civil Code of Lower Canada. I 't 2254. A title which, is null by reason of informality cannot serve as a ground for prescription toy ten years. 2255. After prescription by ten yeansi has been renounced or interrupted, prescription by thirty years alone can be commenced. 2256. Pesoription by ten years and tb© other lesser pre- eoriptions may be invoked separately against the same demand together with that by thirty years. 2257. In cases where prescription by ten years can run, each new holder of an immoveable burthened with a ser- vitude, charge or hypothec, may be obliged to furnish a renewal-title at his own cost. }$■ S;^ -J f SECTION IV, OP CERTAIN PRESCRIPTIONS BY TEN YEARS. 2258. The action in restitution of minors for lesion, the action in rectification of tutors' accounts and tlhat in rescis- sion of contracts for error, fraud, violence or fear, are pre- scribed by ten years. This time runs in the case of violence or fear ifrom the day it ceased; and in the case of erroir or fraud from the day it was discovered. This time only runs with regard to Interdicted persons from the day the interdiction is inemoved, except for prodi- gals or persons to whom a judicial adviser has been given. It does not run against idiots, madmen and insane persons although not interdicted. It does not run against minors until they become of age. 2259. After ten years, architects and contractors are dis- charged from the warranty of the work they have done or directed. SECTION V. OP CERTAIN SHORT PRESCRIPTIONS. 2260. The following actions are prescribed by five years: 1. For professional services and disbursements of advo- cates and attorneys, reckoning from the date of the final judgment in each case; 2. For professional services and disbuirsements of no- taries and fees of ofiioers of justice, reckoning from the time when they became payable; 3. Against advocates, attomeys, notaries and other Prescription. 427 oflBicers or functionaries who are depositaries in virtue of tlieir office, for the recovery of papers and titles confided to them, reckoning from the termination of the proceed- ings in which such papers and titles were made use of, or, in other oases, from the idate of their reception; 4. Upon inland or foreign bills of exchange, promissory notes, or notes for the delivery of grain or other things, whether negotiable or not, or upon any claim of a com- mercial nature, reckoning from' maturity; this pr^cription however does not apply to ibank notes; 5. Upon sales of moveable effects between non-traders, or between traders and non-traders, these latter sales being in all cases held to be commercial matters; 6. For hire of labor, or for the price of manual, profes- sional or intellectual work and materials furnished, saving the exceptions contained in the following articles; 7. For visits, services, operations land medicines of phy- sicianis or surgeons, reckoning firom each service or thing furnished. The oath of the physician or surgeon makes proof as to the naA^ure and duration of the services. (1) (1) Paragraph 7 of this article was amended to reaxJ as at present by 32 Vict., c. 32. s. 1 (5 April, 1869); R. S. Q., art. 5851. In the original paragraph the words "as regards whatever is sued for within the year," preceded the words "the oath of the physician," etc. B : ill Ml f 4^ 11:11 I! 2261. [The following actions are prescribed by two yearisi: 1. For seduction, or lying-in expenses; 2. For damages resulting from offences or quasi-offences, wheniever other provisions do not apply; 3. For wag:es of workmen not reputed domestics and who are hired for a year or more; 4. For sums due schoolmasters and teachers, for tuition, and board and lodging furnished by them. The Dominion Act 51 Vict., c. 29. s. 287, makes the time for prescription for damages, sustained by reason of the railway, one year, instead of fix '^-ontbs. As regards Quebec Railway, Act,, seo R. S. Q., art. 5175, sub-sec. 1. 2262. The following- actions are prescribed by one year: 1. For slander or libel, ireckoning from the day that it came to the knowledge of the party ogigrieved; 2. [For bodily injuries, saving the special provisions contained in article 1056 and oases reguilated by special laws.] m 428 Civil Code of Lower Canada. I 1. ii ■'ii !l 3. [For ^ages of domestic or larm servaats, merchants' clerks and other employees who are hired by the day, week or month, or for less than a year;] 4. [For hotel or boarding-house charges.] 2263. Short limitations and prescriptions established by acts of parliament, follow the rules peculiar tO' them, as well in matters respecting the irdghts of the crown as in those respecting the rights of all others. 2264. After renunciation or Interruption, except asi to prescription by ten years in fjivor of subsequent purchasers, prescription recommences to run for the same time as before, if there be no novation, saving the provisionis of the following article. 2265. Any action which is not declared to be perempted, and any judicial condemnation, constitute® a title which is only prescribed by thirty years, although the suibject matter thereof be sooner prescriptible. A judicial admission interrupts prescription, even in an action the peremption of which is declaredl or which ia otherwise insufficient to interrupt it alone; but the pre- scription which recommences is not thereby pro/longed. 2266. A continuation of like seTVices, work, sales or supplies, does not hinder a prescription, if there have been no acknowledgment or other cause of interruption. 2267. [In all the cases mentioned in articles 2250, 2260, 2261 and 2262 the debt is absolutely extinguislhed and no action can be maintained after the delay for prescription has expired.] 2268. Actual possession of a corporeal moveable, by a person as propr" tor, creates a presumption of lawful title. Any party claiming such moveable must prove, beside® his own right, the defects in the possession or in the title of the possessor who claims prescription, or who, under the provisions of the present article, is ^exempt from doing so. Prescription of corporeal moveables takes place after the lapse of three years, [reckoning from the loss of posses- sion,] in favor of possessor® in good faith, [even when the loss of possession has 'been occasioned by theft.] Imprisonment in Civil Cases. 429 This prescription is not, however, necessary to prevent revendication, if the thing have been ibought in good faith in a fair or market, or at a public sale, or from a trader dealing in similar articlfs, [nor in commercial matters generally;] saving the ti.ception contained in the follow- ing paragraph. Nevertheless, so long as prescription has not been ac- quired, the thing lost or stolen may be trevendioated, althouigh it have been bought in good faith in the cases of the preceding paragraph; but the revendication in such cases can only take place upon reimbursing the purchaser for the price which he has paid. If the thing have been sold under the authority of law, it cannot, in any case, be revendicated. The stealer or other violent or clandestine possesisor of a thing, anid his successors by general title, are debarred froim prescribing by articles 2197 and 2198. 2269. Prescriptions which the law fixes at less than thirty years, other than those in favor of subsequent purchasers of immoveables with title and in good faith, and that in case of rescission of contracts mentioned in article 2258, run against minors, idiots, madmen and insane persons, whether or not they have tutors or curators, saving their recourse against the latter. Ms < ! \ I i 1 SECTION VI. TRANSITORY PROVISIONS. 2270. Prescriptions begun before the promulgation of this code, must be governed by the former laws. [Nevertheless prescriptions then begun, for which, ac- cording to these laws, an immemorial duration or one of a hundred years is required, are acquired without respect to such necessity.] J' it t'l I \'^ TITLE TWENTIETH. OF IMPRISONMENT IN CIVIL CASES. Articles 2271 to 2277 were repealed hy 60 Yict., c. 50, 8. S8 (1 Sept., 1897). See now Code .3eptio'n Day: (2) (1) This clause was added by 57-58 Vict. (C), c 55 (23 July, 1894). (2) The following holidays were struck out by 56 Vict. (C), c. 30 (1 April, 1893): The Annunciation; Corpus Christl; St. Peter and St, Paul's Day. (r.) And also, in any one of the Provinces of Canada, any day appointed by proclamation of the Lieutenant Governoir of such Province for a public holiday, or for a fast or thanksgiving within the same, or being a non- juridical day by virtue of a statute of such Province: 3. Where a bill is payable at sight, or at a fixed period afteir date, after sight, or after the happening of a sipecified event, the time of payment Is detenmined by excluding the day from which the time is to begin to run and by includ- ing the day of payment: 4. Where a bill is payable at sight or a fixed period after sight, the time ibegins to run from the datei of the accep- tance if the bill is accepted, and from the date of noting or protest if tihe bill is noted or protested for non-accept- ance, or for non-delivery: Bills of Exchange, Notes and Cheques, 437 in a bill means the calendar 5. The term " Month" month: 6. Every bill which is made payable at a month or months after date becomes due on the aame num)bered day of the month in which it Is made payable as tlie day on which it is dated — unless theiri© is no such day in the month in which it is made payable, in which case it be- comes due on the last day of that month— ^ith the addi- tion, in all cases, of the days of grace. • 16. The drawer oif a bill and any indorser may insert therein tlie name of a person to whom the holder may resort in case of need, that is to say, in case the ibill is dishonored toy 'inlom-aooeptance or non-payment. Such person is called the referee in case of need. It Is in the option of the holder to resort to the referee in case of need or not, as he thinks fit. 16. The drawer of a bill, and any Indorser, may insert therein an expres® stipulation — (a.) Negativing or limiting his own liability to the ho'ldCT; (6.) Waiving, as regards himself, some or all of the holder's duties. '10 ^1 , ' ' i (H- 17. Tlie acceptance of a bill is the signification by the drawee of his assemt to the cirder of the drawer: 2. An acceptance is invalid unless it complies with the following conditions, namely: — (a.) It must be written on the bill and be signed toy the drawee. The mere signature of the drawee without addi- tional words is sufficient; (h.) It must not express that the drawee will perform his promise by any other means than the payment of money; 3. Where in a bill the drawee is wrongly designated or his name is misspelt, he may accept the bill as therein described, adding, if lie thinks fit, his proper signature, or he may accept by his proper signature. 18. A bill may toe accepted — (a.) Before it has been signed toy the drawer, or while otherwise incomplete; (6.) Wlien it is overdue, or after it has been dishonored toy a previous refusal to accept, or toy non-payment: ; f m t f'.l' ;i! 4SS Civil Code of Lower Canada. p 2. When a bill payable at aight, or (1) after sight, la dis- honored by non-aceeptanoe, and the drawee subsequently accepts it, the holder, In the absence of any different agree- ment, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance. (1) The words "at slg-ht, or" were added by 54-55 Vict. (C), C. 17, 8. 3 (28 Aug., 18yi). 19. An acceptance Is either («) general, or (b) qualified: a general acceptance assents without qualification to the order of the drawer; a qualified acceptance in express terms varies the effect of the bill as drawn: 2. In particular,' an acceptance is qualified which is — (a.) Conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated; but an acceptance to pay at a particular specified place is not conditional or qualified. (6.) Partial, that ie to say, an acceptance to pay part only of the amount for which the bill is drawn; (c.) Qualified as to time; id.) The acceptance of some one or more of the drawees, but not of all. 20. Where a simple signature on a blank paper is de- livered by the signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount, using the signature for that of the drawer, or the acceptor, or an indorser; and, in like manner, when a bill is wanting in any material particular, the person in possession of it has a prima- facie authority to fill up the omiasiion in any way he thinks fit: 2. In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time, and strictly in accordance with the authority given; reasonable time for this purpose is a question of fact: Provided, that if any such instrument, after completion, is negotiated to a holder in due course, it shall be valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given. 21. Every contract on a bill, whether it is the drawer's, the acceptor's or an indorser's, is incomplete and revocable. '^^1'!^ Bills of Exchanyc, Notts and Cheques. 439 (C), part until delivery of the Instrument In order to give effect thereto: Provided, that where an acceptance is writtein on a bill, and the drawee gives notice to, or according to the direc- tions of, the person entitled to the bill that he has ac- cepted It, the acceptance then becomes complete and Irre- vocable: 2. As between Immediate parties, and as regards a re- mote party, other than a holder in due course, the de- livery — (a.) In order to be effectual muflt be made either by or under the authority of the party drawing, accepting or in- dorsing, as the case may be; (/>.) May be shown to have been conditional or for a special purpose only, and not for the purpose of transfer- ring the property in the bill; But if the bill is in the hands of a holder in due course, a valid delivery of the bill by all parties prior to him, so as to make them liable to him, is conclusively presumed: 3. Where a bill is no longer in the possession of a party ■who has signed it as drawer, acceptor or indorser, a valid and unconditional delivery by him is presumed until the contrary is proved. Capacity and Authority of Parties. 22. Capacity to incur liability as a party to a bill is co-extensive with capacity to contract: Provided, that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor or indoTser of a bill, unless it is competent to it so to do under the law for the time being in force relating to such corporation: 2. Where a bill is drawn or indorsed by an Infant, minor, or oorporation having no capacity or power to inoujr liability on a bill, the drawing or indorsement entitles the holder to receive payment of the bill, and to enforce it against any otheir party thereto. 23. No peraon is liable as drawer, indorser, or aooeptor of a bill who has not signed it as such: Provided that — (a.) Where a person signs a bill in a trade or assumed name, he is liable thereon asi if he had signed it in his own name; (ft.) The signature of the name of a firm is equivalent to the signature by the person so signing of the names of a'l persons liable as partners in that firm. ,:! M}h m i ■ L M 1 hi::! 440 Civil Code of Lower Canada. I ' I it I II i' Ml I 24. Subject to the provisions of this Act, where a signature on a bill is forged, or placed thereon without the authority of tJhe person wihose signature it purports to be, the forged or unauthorized signature is wholly inopera- tive, and no right to retain the bill or to give a discharge therefor or to enfore© payment thereof against any party thereto can be acquired through or under that signature, unless the party against w'hom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority: Provided, that nothing in this section shall affect the ratification of an unauthorized signature not amounting to a forgery: And r.rovided also, that if a cheque, i>ayable to order, is paid iby the dinawee upon a forged indorsement out of the funds of the drawer, or is so paid and charged to his acci unt, the drawer shall have no right of acti»>n against the drawee for the recovery back at the amount so paid, or no defence to any claim, made by the drawee for the amount so paid, as the case may be, unless he gives notice in writing of such forgery to the drawee within one year after he has acquired notice of such foirgery; and in case of failure by the drawer to give such notice within the said period, such cheque shall be held to have been paid in due cciurse as respects ev&ry other party thereto or named therein, who has not previously instituted proceed- ings for the protection of his rights. 2. If a bill bearing a forged or unauthorized indorse- ment is paid in good faith and in the ordinary course of business, by or on behalf of the drawee or acceptor, the person by whom or on whose behalf such payment is made shall have the right to recover the amount so paid from the person to whom it was so paid, or from any indorser who has indorsed the bill su'bsequently to the forged or unauthorized indorsement, provided that notice of the indorsement being a forged or unauthorized indorsement is given to each such subsequent indorse'r within the time and in the manner hereinafter mentioned; and any such person or indoirser from whom said amount has been recovered shall have the like right of recovery against any prior indorser subsequent to the forged or unauthorized indorsement. 3. The n^^ice of the indorsement being a forged O'r un- authorized indorsemeint shall be given within a reasoTiable time after tho person seeking to recover the amount has acquired notice that the indorsement is forged or un- i If Bills .of Exchanuc, JSotes and Cheques. 441 authorized, and may be given in the same manner, and if sent by post may be addressed in the samie way, as notice of protest or dishonour of a bill may be given or addressed under this Act. The above sub-sections 2 and 3 were substituted by 60-61 Vict. (C), c. 10 (29 June, 1897), for sub-section 2 enacted by 54-55 Vict. (C), o. 17, s. 4 (28 Aug., 1891). 25. A signature ^by procuration operates as notice that the agent has but a limited authority to sign, and the principal is bound by such signature only if the agent in so signing was acting within the actual limits of his authority. 26. Where a person signs a bill as drawer, indorser or acceptor, and adds words to his signature indicating that he signs for or on behalf of a principal, or in a represen- tative character, he is not personally liable thereon; but the mere addition toi his signature of word© describing him as an agent, or as filling a TCpresentative character, does not exempt him from personal liability: 2. In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favc'rable to the validity of the instrument shall be adopted. 27. Valuable consideration for a bill may be consitituted by- (a.) Any consideration suiflcjent to support a simple contract; (h.) An antecedent debt or liability; such a de.bt cr liability is deemed valuable consideration, whether the bill is payable on demand or at a future time: 2. Where value has at any time been given foT a bill, the holder is deemed to he a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time: 3. Where the holder of a bill has a lien on it, arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. 28. An accommodation party to a bill is a person who has signed a bill as drawer, acceptor, or indorser, without receiving value therefor, and for the pupose of lending his name to some other person: vm "i ' ! i 1 ; i ( 1 ' ; ; 1 ■ ! i t i i I ■( ! 1 1 1 i ■- i • i; i i j ■ n, ! ; 1 ■ M 442 Civil Code of Lower Canada. L An accommodation party is liable on the bill to a. holder for value; and it is immaterial whether, when such holder took the bill, he knew such party to be an accom- modation party or not. 29* A holder in due course is a holder who has taken a bill, complete and regular on the face oit it, under the following conditions, namely: — («.) That he became the holder of it before it was over- due and without notice that it had been previously dis- honored, if such was t le fact; (6.) That he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who ne- gotiated it: 2. In particular, the title of a person who negotiates a bill is defective within the meaning of this Act when he obtained the bill, or the acceptance thereof, by fraud, duress, or /force and fear, or other unlawful means, or for an illegal consideration, or whem he negotiates it in breach of faith, or under such eircumstances as amount to a fraud: 3. A holder, whether for value or not, who derives his title to a bill through a holder in due course, and who is not himself a party to any fraud or illegality afCectiag it, has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder. 30. Every party whose signature appears on a bill is prima facie deemed to have become a prer9on can there be found; (d.) A bill is presented at the proper place: — (1.) Where a place of payment is specified in the bill or acceptance, and the bill is there presented; (2.) Where no place of payment is specified, but the address of the drawee or acceptor ia given in the bill, and the bill is there presented; !l Bills of Exchange, Notes and Cheques. 449 (3.) Where no place of payment is specified and no ad- dress given, and ttie bill Is presenbed at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence, if known; (4.) In any other case, if presented to tihe drawee or ax;- ceptor wherever he can be found, or if presented a;t his last known place of business or residence: 3. Where a bill is presented at the piroper place, and, after the exercise of reasonable diligence, no person author- ized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required: 4. Where a bill is drawn upon, or accepted by two or more persons who are not partners, and no place of pay- ment is specified, presentment must be made to them all: 5. Where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment must be made to a personal representative, if such there is, and with the exercise of reasonable diligence he can be found: 6. Where authorized by agreement or usage, a present- ment through the post office is sufficient: 7. Where the place of payment speicified in the bill or ac- ceptance is any city, town or village, and' no place therein is specified, and the bill is presented at the drawee's or acceptor's known place of business or known ordinary resi- dence therein, and, if there is no such place of business or residence the bill Is presented at the post office, or principal post office In such city, town or village, such presentment is sufficient. -^ 1 '] n 1: 1 ii 1 1 m ' < ' 1 ' I i,' II .j'l; m )ill or it the I, and 46. Delay in making presentment for payment is ex- cused when the delay Is caused by cilrcumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence: 2. Presentment for payment is dispensed with — (fl.) Where, after the exercise of reasonable diligence, presentment, as required by this Act, cannot be effected; The fact that the holder has reason to believe that the bill will, on presentment, be dishonored, does not dispense with the necessity for presentment; (&.) Where the drawee is a fictitious person; (c.) As regards the drawer, where the drawee or ac- ceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if preseiUted; 29 *^r' 1 450 CUil Code of Lower Canada. ,/■ ((/.) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill wouM be paid if presented: (c.) By waiver of presentment, express or implied. [i;^47. A bill is dishonored by non-payment («) when it is duly presented for payment and payment is refused or cannot be obtained, or (h) when presentment is excused and the bill is overdue and unpaid: 2. Subject to the provisions of this Act, when a bill is dishonored by non-payment, an immediate right of re- course against the drawer, acceptor and indorsers accrues to the holder. 48. Subject to the provisions of this Act, when a bill has been dishonored by non-aoceptance or by non-payment, notice of dishonor must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged; Provided that — (a.) Where a bill is dishonoreid by non-acceptance, and notice of dishonor is not given, the rights of a holder in due course subsequent to the omdssion shall not be pre- judiced by the omission; (fi.) Y/here a bill is dishonored by non-acceptance and due notice of dishonor is given, it shall not be necessary to give notice of a subsequent dishonor by non-payment, unless the bill shall in the meantime have been accepted. 49. Notice of dishonor. In order to be valid and effectual, must be given in accordance with the following rules: — (a.) The notice must be given by or on behalf of the holder, or by or on behalf of an indorser who, ait the time of giving it, is tiimself liable on the bill; (h.) Notice of dishonor may be given by an agent either in his own name, or in the name of any party entitled to give notice, whether that party is his principal or not; (c.) Where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given; (d.) Where notice is given by or on behalf of an in- dorser entitled to give notice as hereinbefore provided, it enures for the benefit of the holder and all indorsers euib- sequent to the party to whom notice is given; (e.) The notice may be given in waiting or hy personal Bills of Exchange, Notts and Cheques. 451 communication, and may be given in any terma which sufficiently identify the bill and Intlma^tei that the bill has been dishonored by uon-acceptance or non-payment; if.) The return of a dishonored bill to the drawer or an indorser Is, In point of form, deemed a sufficient notice of dishonor: ifj.) A written notice need not be signed, and an Insuffi- cient written no'tlce may be supplemented and validated by verbal communication. A misdescription of the bill shall not vitiate the notice, unless the party to whom the notice Is given is in fact misled theireby; (/».) Where notice of dishonor is required to be giveoi to any person, it may be given either to the party himself, or to his agent In that behalf; (i.) Where the drawer or Indorser In dead, and cue party giving notice knows it, the notice must be given to a per- sonal representative. If such there Is and, with the exercise of reasonable diligence, he can be found; (/.) Where there are two or more dirawers or Indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the O'thers; (A".) The notice may be given as soon as the bill Is dis- honored, and must be given not later than the next fol- lowing juridical or business day: 2. Where a bill, when dishonored, is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he gives notice to his principal, he must do so wlthiln the same time as if he were the hoider, and the principal, upon receipt of such notice, has himself the same time for giving notice as If the ag^^nt (had been an independent holdeir: 3. Where a party to a bill receives, due notice of dis- honor, he has, after tl^e receipt ol such notice, the same period of time for giving notice to antecedent parties that the holder has after the dishonor: 4. Notice of the protest or dishonor of any bill payable in Canada shall, notwithstanding anything in this section contained, be sufficiently given if it is addiieissed in due time to any party to such bill entitled to such notice, at his customary address or place of residence or at the place at which such bill is dated, unless any such party has, under his signature, designated another place; and in such latter caae such notice shall be sufficiently given if addressed to hiim in due timiei at such, other place; and such notice so addressed shall be sufficient, altihougih the plaxje of iJiiUI ■%. ->. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 IM IIIII2J_ 1^ I ^ IIIIM :^ lis iliiio 1.8 U 116 V <^ /J ^c^l Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 S> /> "5? , ^^ f/j ^ i 1 ■: ii 452 Civil Code of Lower Canada. residence oif sudh. party is otiher tihaai either of suoh above- mentioiied places; and such notice shall be deemed to have been duly served and given for all purposes if it is deposited in any post office, with the postage paid thereon, at any time during the day on which such protest or presentmemt has been made, or on the next following juridical or business day; such notice shall not be invalid by reason of the fact that the party to whom it is addessed is dead: 5. Wheire a notio© of dishonor is duly addressed and posted, as above provided, the sender is deemed to have giiven due notice of dishonor, notwithstanding any mis- carriage by the post office. 60. Delay in giving notice of dishonor is eixcusedl where the delay is caused by circumstances beyond the control of the party giving notice, and not imputable to his default, misconduct, or negligence; when the cause of delay ceases to operate the notice must be given with reasonaible dili- gence: 2. Notice of dishonor is dispensed with — (a.) When, after the exercise of reasonable diligence, notice as required hy this Act cannot be given to or does not reach the drawer or indorser sought to be charged ; (b.) By waiver express or Implied: notice of dishonor may be waived before the time of giving notice has arrived, or after the omission to give due notice; (c.) As regards the drawer, in the following oases, namely, (1) where drawer and drawee are the same person, (2) where the drawee is a fictitious person or a person not having capacity to oontraot, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is, as between himself and the drawer, under no obligation to accept or pay the bill, (5) wheire the drawer has countermanded payment; (d.) As regards the Indoirseir, In the following cases, namely, (1) where the drawee Is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he Indorsed the bill, (2) where the indorser is the person tO' whom the bill Is presented for payment, (3) where the hill wasi accepted or made for his accommodation. 61. Where an Inland bill has been dishonored It may, if the holder thinks fit, be noted and protested for non- acceptance or non-payment, as the case may be; but, subject to the provisions of this Act wltih respect to notice Bills of Exchange, Notes and Cheques. 463 of dishonor, it aliall not, except in tlie Province of Quebec, be necessary to note or protest any such bill in order to preserve the recourse against the dirawer or indorser; but in the case of a bill drawn upon any person in the Pro- vince of Quebec, or payable or accepted at any place therein, in default of protest for non-acceptance or non- payment, aa the case may be, and of notice thereof, the parties liable on the bill other than the acceptor are dis- charged, subject, nevertheless, to the exceptions in this section hereinafter contained; 2. Where a foireign bill, appearing on the face of it to be suoh, has been dishonoired (by non-acceptance, it must be duly protested for non-acceptance, and where suah a bill, which has not been previously dishonored by non-aocept- ance, is dishonored by non-payment, 4t must be duly pro- tested for non-payment. If it is not so protested, the drawer and indorsers are discharged. Where a biW does not appear on the face of it to be a foreign bill, protest thereof in case of diiahonor, except as in this section pro- vided, is unnec^sary: 3. A bill which has been protested for non-acceptance, or a bill of wihiicih protest 'for nonHacoeptance has been waived, may be subsequently protested for non-payment: 4. Subject to the provisions of this Act, when a bill is protested the protest must be made or noted on the day of its dishonor. When a bill has heen duly noted, the protest may be subsequently extended as of the date of the notine: 5. Where the acceptor of a bill (1) suspends payment before it matures, the holder may cause the bill to be protested for better security against the drawer and in- dorsers : 6. A bill must be protested' at the place where it is dis- honored, or at some other place in Canada situate within five miles of the place of presentment and dislhonor of such bill: Provided that— (a.) When a bill is presented through the post office, and returned by post dishonored, it may be protested at the place to which it is returned, not later than on the day of its return or the next juridical day; (6.) Every protest for dishonor, either for non-accept- ance or non-payment, may be made on the day of such dishonor at any time after non-acceptance, or in case of non-payment, at any time after three o'clock in the after- noon: i.l '*! ! mh !:ii Ml. 1 454 Civil Code of Loiver Canada. 7. A protest must contain a copy of the bill, or the original bill may be annexed thereto, and the protest must be signed by the notary making it, and must specify — (a.) The person at whose request the bill is protested; (b.) The place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor could not be found: 8. Where a bill is lost or destroyed, or is wrongly or accidentally detained from the person entitled to hold it, or is accidefntally retained in a place other than where payable, protest may be made on a copy or written par- ticulars thereof: 9. Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when the delay is caused by cir- cumstances beyond the control of the holder, and not im- putable to his default, misconduct or negligence. When the cause of delay ceases tO' operate, the hill must be noted or protested with reasonable diligeince. 10. No clerk, teller or agent of any bank shall act as a notary in the protesting of any bill or note payafble at the bank or at any of the blranidhes of tlhe bank in which he is employed. (1) The words "becomes bankrupt or' "bill" by 54-55 Vict. (C), c. 17, s. 7. were struck out after 62. When no place of payment is specified in the bill or acceptance, presentment for payment is not necessary in order to render the acceptor liable: 2. When a place of payment is specified in the bill or ac- ceptance, the acceptor, in the absence of an express stipu- lation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures, but if any suit or action be instituted thereon before pre- sentation the costs thereof shall be in the discretion of the court: 3. In order to render the acceptor of a bill liable, it is not necessary to protest it, or that notice of dishonor should be given to him: 4. Where the holder of a bill presents it for payment, he shall exhibit the bill to the person from whom he demands payment, and wihen a bill is paid the holder shall forthwith deliver it up to the party paying it. Bills of EacchcDigt', Notes and Cheques. Liabilities of Parties. 455 53. A bill, of itself, does not operate as an assignment of funds in tihe hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not liable on the in- strument. 64. The acceptor of a bill, by accepting it— (a.) Engages that he will pay it according to the tenor of his acceptance; (/>.) Is precluded from denying to a holder in due course — (1.) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill; (2.) In the case of a bil'l payalble to drawer's order, the then capacity of the drawer to indorse, but not the gen- uineness or validity of his indorsement; (3.) In the case of a bill payable to the oTider of a third person, the existence of the payee and his them capacity to indorse, but not the genuineness or validity of his indorsement. 66. The drawer of a bill, by drawing it — (a.) Engages that on due presemtment it s;hall be ac- cepted and paid according to its tenor, and that if it is dis- honored he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite pro- ceedings on dishonor arei duly taken; (&.) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorser 2. The indO'Pser of a bill, by indorsing it — (a.) Engagfes that on duei presentment it shall be ac- cepted and .paid according to its tenor, and that if it is dishonored he will compensate the holder or a subsequent indorser who is comipelled to pay it, provided that the requi- site proceeidiings on dishonor are duly taken; (h.) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorsements; (c.) Is precluded from denying to his immediate or a subsequent indorsee that the bill was, at the time of his indorsement, a valid and ^subsisting bill, and that he had then a good title thereto. 66. Where a person signs a bill otherwise than as a drawer or acceptor, he thereby incurs the liabilities of an ■ ';! tj iil II ' ■ 1 I'm 11 ';M ■ . I L i 'N I,- M- 456 CiuU Code of Lower (Janada. I indorser to a holder in. due course, and is subject to all the provisions of this Act respecting indorsers. 57. Where a bill is disihonored, the measure o>f damages which shall be deemed to be liquidated damages, sihall be as follows: — (o.) The holder may recover fro^m any party liable on the bill, the drawer who has been compelled to pay the bill may recover from the acceptor, and' an indorser who has been compelled to pay the bill may recover from the ac- ceptor cir from the drawer, or (from a prior indorser — (1.) The amount of the bill; (2.) Interest thereon from the time of presentment for payment, if the bill is payable on demand, and from the maturity of the bill in. any other case; (3.) The expenses of noting and protest; (6.) In the case of a bill which has been dishonored abroad, in addition to the above damages, the holder may recover from the drawer en* any indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from .any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. 58. Where the holder of a bill payable to bearer nego- tiates it by delivery without imdlorsinig it, he is called a "transferrer by delivery:" 2. A transferrer by delivery is not liable on the instru- ment: 3. A transferrer by delivery who negotiates a bill thereby warrants to his immediate transferee, being a holder for valiiie, that the bill is what it purports to be, thiat he has a right to transfer it, and that at the time of tramsfer he is not aware of any fact which renders it valueless. Discharge of Bill. 59. A bill is discharged by payment in due course by or on behalf of the drawee or acceptor: " Payment In due course" means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defec- tive: 2. Subject to the provisions hereinafter containeid, Nvhen a bill is paid by the drawer or an indorser, it is not dis- charged, but — Bills of Exchange, Notes and Cheques. 457 (a.) Where a bill payable to, or to the order of, a third party is paid by the drawer, the drawer may enforce pay- ment thereof against the acceptor, but may not re-iasue the bill; (&.) Where a bill is paid by lan indorser, cir where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rigihts as regards the acceptor cir antecedent parties, and he may, if he t>hinks fit, sitrike out his own and! subsequent indorsements, and again negotiate the bill: 3. Where an accommodation bill is paid in due course by the party accommodated, the bill is discharged. 60. When the acceptor of a bill is or becomes the holder of it at or after its maturity, in his own right, the bill is discharged. 61. When the holder of a bill at or after its maturity absolutely and unconditionally renounces his rights against the acceptor, the bill is discharged: the renunciation must be in writing, unless the bill is delivered up tc the ac- ceptor: 2. The liabilities of any party to a bill may in like man- ner be renounced by the holder before, at or after its maturity; but nothing in this section shall affect the rights of a holder in due course without notice of renunciation. 62. Where a bill is intentionally cancelled by the holder or his agent, and the cancellation is apparent thereon, the bill is discharged: 2. Tn like manner, any party liable on a bill may be discharged by the intentional cancellation of his signa- ture by the holder or his agent. In such case, any in- dorser who would have had a right of recourse against the party wbose signature is cancelled is also dicharged: 3. A cancellation made uniintentionally, or under a mis- take, or without the authority of the holder, is inoperative; but where a bill or any signature thereon appears to have been cancelled, the burden of proof lies on the party who alleges that the concellation was made unintentionally, or under a mistake, or without authority. 63. Where a bill or axjceptance is materially altered without the assent of all parties liable on the bill, the bill is voided, except as against a party who has himself made, authorized, or assented to the alteration, and subsequent indorsers: L ' 1 r ■4 i i ) n 458 Ciiil Code of Lower Canada. I! : I Provided, that where a bill has been materially altered, but the alteiration. is not apparent, and the bill is in the hands of a holder in due course, such holder may avail himself of the bill as if it had not b€€n altered, and may enforce payment of it according to its original tenor: 2. In particular, the following alterations are material, namely, any altenation of the date, the sum payable, the time of payment, the place of payment, and where a bill lias been accepted generally, the addition of a place of pay- ment without the acceptor's assent. Acceptance and Payment for Honor. 64. Where a bill of exchange has been protested for dis- honor by non-acceptance, or protested for better security^ and is not overdue, any person, not being a i)arty allready liable thereon, may, with the consent of the holder, inter- vene and accept the bill supra protest, for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn: 2. A bill may be accepted for honor for part only of the sum for wihich it is drawn: 3. An acceptance for honor supra protest, in order to be valid, must — (a.) Be written on the bill, and indicate that it is an ac- ceptance for honor; (b.) Be signed by the acceptor for honor: 4. Where an acceptance for honor does not expressly state for whose honor it is maide, it is deemed to be an acceptance for the honor of ttoe drawer: 5. Where a bill payiable after sight is accepted for honor, its maturity is calculated from the date of protesting for non-acceptance, and not from the date of the acceptance for honor, 65. The acceptor for honor of a bill by accepting it en- gages that he will, on due presentment, pay the bill accord- ing to the tenor of his acceptance, if it is not paid by the drawee, provided it has been duly presented for payment and protested for non-payment, and that he receives notice of these fiacts: 2. The acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has laccepted. 66. Where a disihonored bill has been accepted for honor supra protest, or contains a reference in case of need, it Bills of Exchange, Notes a?id Cheques. 459 must be protested for non-payment before It is presented for payment to the acceptor (or .homor, or referee In case of need: 2. Where the addnesai of the accieptoir for ihonor 1© in the siame place wiiere the bill is protested for non-payment, the bill must be presented to him not later than tihe day following its maturity; and where the address of the ac- ceptor for honor is in some place other than the place where it was protested for non-paymenit, the bill must be forwarded not later than the day following its maturity for presentment to him: 3. Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in present- ment for payment or non-tpresentment for payment: 4. Wihen a bill of excShange is dishonoured by the acceptor for honor, it must be protested for non-payment by him. 67 c Where a bill has 'been protested for non-payment, any person may intervene and pay it supra protest for the honor of any party liaible tiheneon, or for the honor of the person for whose account the bill is drawn: 2. Where two or more persons offer tO' pay a bill for the honor of different parties, the person w'hose payment will disdharge most parties to the bill sihall have the pre- ference: 3. Payment for honor supra protest, in order to operate as such and not las a imere voluntavry payment, must be attesteld by a notarial act of honor, wMdh may be appended to the protest or form an extension of it: 4. The notarial act of honor must be fooinded on a d >- claration made by th.e payer for honor, or his agent in that behalf, declarinig his intention to pay the bill for honor, and for whose lionor ihe pays : 5. Where a ibill has been paid for honor, all parties sub- sequent to the party for wht)s© honor it is paid are dis- charged, but the payer for honor is sub-rogated for and suc- ceeds to both tIhe riights and duties of the holder as regards the party for w^hose honor he pays, and lall parties liable to that party: 6. The payer for ihonor, on paying to the holder the amount of the ,bill and the notarial expenses incidental to its dishonor, is entitled to receive tooth the bill itself and the protest. If the holder does not on demand de- liver them up, Ihe shall be liable to the payer for honor in damages: u '111' M 5 ill ^ I I titr 1 I li y I ill; 11 tl) 460 Civil Code of Lotver Canada. W< 7. Wlhere the holder of a bill refuses to receive payment supra proitesit, he slhall lose his right of recourse against any party who would have been discharged by such pay- ment. Lost Instruments. 68. Where a bill has been losit before it is overdue, the person who was holder of it may apply to the drawer to give him another bill oif the eiame tenor, giving secuirity to the drawer, if required, to indemnify him agiainst all per- sons whatever in case the bill ,allegeu to have been lost shall be found again: 2. If the drawer, on request as aforesaid, refuses to give sudh duplicate bill, he imiay be ooirapelled to do so. 69. In any action lor proceeding upon a bill, the court or a judge may order that the loss of the instrument sihall not be set up, provided' an indemnity is given to the satis- faction of the court or judge against the claims o«f any other person upon the insitrument in question. Bill in a Set. 70. Where a bill is drawn in a set, each part of the set being numbered, and oombainiing a reference to the other parts, the whole of the parts constitute one bill: 2. Wihiere the holder of a set indorse© two or more parts to different persons, he Is liable on every such part, and every indorser sulbsequent to him is liable on the part he has himself indoa^sed as if the said parts were separate bills: 3. Where two or moire parts of a set aire negotiated ito different holders in due course, the holder who©© title first accrues is, as between such holders, deemed the true owner of the bill; but nothing in this subsection shall affect the rights of a pefrson who in due course aooepts or pays the part first presented to him: 4. The acceptance may be written on any part, and it must be written on one part only: 5. If the drawee accepts more than one part, and such accepted parts get into the toands of different holders in due course, he is liable on every sudh part as if It were a separate bill: 6. When the acceptor of a bill driawn in a set pays it without requiring the part bearing his acceptance to be UHl8 of Exvhanye, Notes and Cheques. 461 delivered up to bim, and that part at maturity la out- standing in the hands of a holder In duo course, he Is Jlable to the hoider thereof: 7. Subject to the preceding rules, where any one part of a bill drawn in a set is diaohiarged by payment or otherwise, the whole bill is dlBciliarged. Conflict of Laws. 71. Where a bill idrawn in one country Is negotiated, accepted or payable In another, the rights, duties and liabilities of the parties thereto are determined as follows: (a.) The validity of a Mil as regards requisiites in form is determiined by the law of the place of issue, and the validity as regards requisites in form of tihe supervening contracts, such as acceptance, or indorsement, or acceptance supra protest, is determined iby the law of the place where sucby the omission to present the note for payment on the day that it matures. But if any suit or action is instituted thereon against him before presentation, the costs thereof shall be in the discretion of the court. If no place of payment is specified in the body of the note, presentment for payment is not necessary in order to render the maker liable: 2. Presentment for payment is necessary in order to render the indorser of a note liable: 3. Where a note is in the body of it made payable at a particular place, presentment at that place 4s necessary in 30 it! ■a IM m ; )■ I H n\iv:i\ ' f lis; i \H ;i > 1 1 II I 466 Civil Code of Lower Canada. order to render an indorser liable; but wihen a place of payment is indicated by way of memorandum only, pre- sentment at that place is sufficient to render the indorser liable, but a presen.bment to the maker elsewlhieire, if suffi- cient in other respects, shall also suffice. 87. The maker of a promissory note, by making it — (a.) Engages tha^ he will pay it according to its tenor; (6.) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. 88. Subject to the provision® in this part, and except as by this section provided, tihe provisions of this Act re- lating to bills of exchange apply, with the necessary modi- fications, to promissory notes: 2. In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's ordej: 3. The following provisions as to bills do not apply to notes, namely, provisions relating to — (a.) Presentment for acceptance; (6.) Acceptance; (c.) Acceptance supra protest; (d.) Bills in a set: 4. Where a foreign note is dishonored, protest thereof is unnecessary, except for the preservation of the liabilities of indoirsers. PART v. SUPPLEMENTARY. 89. A thing is deemed to be done in good faith, within the meaning of this Act, where it is in fact done honestly whether it is done negligently or not. 90. Where, by this Act, any instrument or writing is required to be signed by any peirson, it is not necessary that he should sign it with his own hand, but it is sufficient if his signature is written thereon by some other person by or under his authority: 2. In the case of a corporation, where, by this Act, any instrument or writing is requineid to be signed, it is suffi- cient if the instrument or writing is duly sealed with the )lace of ly, pr«- ndorser if sutfi- ; it- tenor; e course indorse. jxcept as Act re- Liy modi- lote shall bill, and jrrespond drawer's apply to St thereof liabilities ,th, within e honestly writing is necessary s sufficient ler person Is Act, any I it is suffi- Id with the Bills of Exchange, Notes and Cheques. 467 corporate seal; but nothing in this section shall be con- strued as requiring the bill or note- of a corporation to be under seal. 91. Where, by this Act the time limited for doing any act or thing is less than three days, in reckoning time, non-business days are excluded: " non-business days," for the purposes of this Act, mean the days mentioned in the fourteenth section of this Act; ajny other day is a business day. 02. For the purposes of this Act, where a bill or note is required to be protested within a specified time or before some further proceeding is taken, it is sufficient that the bill or note has been noted for protest before the expiiration of the specified time or the taking of the proceedinig; and the formal protest imay be extenidleid at any time thereafter as of the date of the noting. 93. Where, by this Art, the time limited for doing any be protested, and the services of a notary cannot be ob- tained at the place where the bill is dishonored, any justice of the peace resident in the place may ipresent and protest such bill and give all necessary notices, and shall have all the necessary powers of a notary in respect thereto: 2. The expense of noting and protesting any bill or note, and the postages thereby incurred, shall be allowed and paid to the holder in addition to any interest thereon: 3. Notaries may charge the fees in each Province here- tofore allowed them: 4. The forms in the first schedule to this Act may be used in noting or protesting any bill or note and in giving notice thereof. A copy of the bill or note and indorsement may be included in the forms, or the original bill or note may be annexed and the necessary changes in that behalf made in the forms: 5. A protest of any bill or note, and any copy thereof as copied by the notary or justice of the peace, shall, in any action be prima facie evidence of presentation and dishonor, and also of service of notice of such presentation and dis- honor as stated in such protest. 94. The provisions of this Act as to crossed cheques shall apply to a warrant for payment of dividend. 95. The enactments mentioned in the second schedule to this Act are hereby repealed, as from the commencement of i' f . ■ 1 r ; ■^' ■ ! \ i': \ - '; i t> ^B ■\ . I (ft ; 1 u VM 1 1 1 m i :r ! i I' nm Ml;. 468 Civil Code of Lower Canada. this Act, to the extent in that schedule mentioned: » Provided, that such repeal shall not affect anything done or suffered, or a,ny right, title or interest aoquired or ac- crued hefore the commencement of this act, or aaiy Letgal pro- ceeding or remedy in respect of any such thing, right, title or interest: 2. Nothing in this Act or in any repeal effected thereby shall affect the provisions of " The Bank Act:" 3. The Act of the Parliament of Great Britain passed in the fifteenth year of the reign of His late Majesty George III., intituled "An Act to restrain the negotiation of Pro- missory Notes and Inland Bills of Exchange under a limited sum within that part of Great Britain called Eng- land," and the Act of the said Parliament passed in the seventeenth year of His said Majesty's reign, intituled "An Act for further restiraining the negotiation of Promissory Notes and Inland Bills of Exchange under a limited sum within that part of Great Britain called England," shall not extend to or be in force in any Province of Canada, nor shall the said Acts make void any bills, notes, drafts or orders which have been or may be made or uttered therein. 98. Where any Act or document refers to any enactment repealed by this Act, the Act or document shall be construed and shall operate as if it referred to the corresponding pro- visions of this Act. 97. This Act sihall come into force on the first day of September next. FIRST SCHEDULE. FORM A. NOTING FOR NON-ACCEPTANCE. (Copy of Bill and Indorsements.) On the 18 , the above bill was, by me, at the request of , presented for acceptance to E. P., the drawee, personally (or, at his residence, office or usual place of business). In the city (town or village) of and I received for answer, " The said bill is therefore noted for non-ar^''T>tance. A. B., Notarj PiihUc. (Date and place.) IS »». ": i Bills of Exchange, Notes and Cheques. 469 Due notice of the above was by me served upon { p ^■' \ *^® { fndo/^r. } Personally, on the day of (or, at his residence, oflSce or usual place of business) in , on the day of (or, by depositing such notice, directed to him, at , in Her Majesty's post office in the city [town or villagis], on the day of , and prepaying the postage thereon.) A. B.. Notary PuUic. (Date and place,) 18 . FORM B. PROTEST FOR NON-ACOEPTANCE OR FOR NO>f-PAYMENT OF A BILL PAYABLE GENERALLY. (Copy of Bill and Indorsements.) On this day of , in the year 18 , I, A. B., notary public for the province of , dwelling at , in the Province of , at the request of , did exhibit the original bill of exchange, whereof a true copy is above written, unto B. P , the \ ?!!^^^^ \ thereof ' / acceptor \ personally (or, at his residence, office or usual place of busi- ness) in , audi sipeaking to himself (or his wife, his clerk, or his servant, &c.,) did demand j payment^^ ! thereof; unto which demand | ?^ i answered: " ." Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest against the acceptor, drawer and indorsers (or drawer and endorsers) of the said bill, and other parties thereto- or therein concerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want of j ^^^^^^ } of the said bill. All of which I attest by my signature. (Protested in duplicate.) A. B.. Notary Public. il ■ ! fl I ■;;)■' •Ml: . ■ i i ■ i i 'IP ■ ! lit III li 1 ! Ill ! I i 470 Civil Code of Lower Canada. FORM c. to did demand PROTEST FOB NON-AOOEPTANOB OR FOR NON-PAYMENT OF A BILL PAYABLE AT A STATED PLACE. (Copy of Bill and Indorsements.) On this day of , in the year 18 , I, A.B., notary public for the Province of , dwelling at , in the Province of , at the request of , did exhibit the original bill of exdhange, whereof a true copy is above written, unto E. F. the ) acceptor ( ^^®^^^' ^^ ' ^^^^^ the stated place where the said bill is payable, and there, speaking acceptance i payment \ of the said bill; unto which demand he answered: " ." Wherefore 1, the said notary, at the request aforesaid, have protested, and by these presents do protest against the acceptor, drawer and indorsers (or drawer and indorsers) of the said bill, and all other parties thereto or therein conoeirned, for all exchange, re-exchange, costs, damages and interest, present and to come, for want of | ^ a^y^^^^t^^ j of the said bill. All of which I attest by my signature. (Protested in duplicate.) A. B.. Notary Piihlic. Form d. protest for non-payment of a bill noted, but not protested for nox-acceptancb. If the protest is made hy the same notary who noted the hill, it should immediately folloiv the act of noting and memoraiulnm of service thereof, and hegin with the words "and afterwards on, &c.," continuing as in the last preceding form, hut intro- ducing between the words "did" and "exhibit." the word "again," and, in a parenthesis, between the words "written" and "unto," the words: "and which bill was by me duly noted for nom-acceptance on the day of " But if the protest is not made by the same notary, then it should follow a copy of the original bill and indorsements and noting marked on the bill — and then in the protest introduce, in Bills of ExcMnge, Notes and Cheques, 471 a parenthesis, between the words "written" and "unto," the words: "and which bill was on the day of , by , no(ta/ry puiblic for the Province of , noted for non-aoceptance, as ap^ars by "his note thereof marked on the said bill." FORM E. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. (Copy of Note and Indorsements.) On this day of , in the year 18 , I, A. B., notary public for the province of , dwelling at , in the Province of , at the request of , did exhibit the original promissory note, whereof a true copy is abovo written, unto , the promisor, personajlly (or, at his residence, office or usual place of lausiness), in , and speaking to himself (or his wife, his clerk or his servant, &c.), did demand payment thereof; unto which demand | j I answered: " ." Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest against the promisor and indorsers of the said note, and all other parties thenato or thenein coincerned, .for all costs, damaiges and interest, piresent and to come, for want of payment of the said note. All of which I attest by my signature. (Protested in duplicate.) A. B.. Notary Pvhlic. FORM F. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE AT A STATED PLACE. (Copy of Note and Indorsements.) On this day of , in the year 18 , I, A. B., notary public for the Province of . , dwelling at , in the Province of ,at the request of , di& exhibit the original promissory note, whereof a true copy is above written, unto the promisor, at , being the stiated place where the said note is payable, and there, speaking to > t :h ; 1 ; ! ■ 1 f -1 . I It ' m 472 Civil Code of Lower Canada. I !:- ii h it tt; • ■ !■■ ill did demand payment of the said note, unto which demand he answered: " ." Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest against the promisor and indorsers of the said note, ami all other parties thereto or therein oonoeimed, for all costs, damages, and interest, present and to come, for want of payment of the said note. All of which I attest by my signature. (Protested tin duplicate.) A. B.. Notary Puhlic. FORM G. NOTARIAL NOTICE OF A NOTING, OR OF A PROTEST [FOR NON- ACOEPTANCE, OR OF A PROTEST FOR 'NON- PAYMENT OF A BILL. J (Place and date of Noting or of Protest.) 1st. . ' \. : To P. Q. (the drawer.) at Sir. Your bill of exchange for $ , dated at the , upon B. F., in favor of C. D., payable days after | ^^f ♦ I } was this day, at the request of dulv i ^^^^^ \ bv me for 1 non-acoeptance. ) ^"^y i protested i ^^ ™® ^^' j non-payment. S A. B.. Notary Public. (Place and date of Noting or of Protest.) 2nd. To C. D. (indorser), (or F. G.) at Sir. Mr. P. Q.'s bill of exchange for $ , dated at , the , upon E. F., in your favor (or in favor of C. D.,) payable days after I ^Si j and by you indorsed, was this day, at the request of • , duly { protested I "^ »« '»■• / non-acceptance. \ non-payment. j |-,q-rn-,r-r;. A. B.. Notary PuhVic. Bills of Exchange^ Notes and Cheques, 473 FORM H. • I NOTARIAL NOTICE OF PROTEST FOR N( N-PAYMEKT"oF A^KOTE. (Place and date of Protest.) To at Sir. Mr. P. Q.'s promissory note for $ , the , dated at ( days ) If v#- ;, payables months > after date to i on- 1 ^^F I ^^ order, and indorsed by you, was this day, at tlie request of , duly protested by me for non- payment. A. B.. ' Notary Public. FORM I. NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-ACCEPT- ANCE OR NON-PATMENT OF A BILL, OR OF NON-PAYMENT OF A NOTE (/o be subjoined to the Protest.) And afterwards, I, the aforesaid protesting notary public, did serve due notice, in the form prescribed by law, of the foregoing protest for j '^Z-IZT^ \ »' '"« 1 SI } thereby protested upon{ P; «- j the j f^sers ! »«■- sonally, on the day of (or, at his residence, office, or usual place of business) in , on the day of ; (or, by depositing such notice, directed to the said ] n D ' I ^^ ' ^^ ^^^ Majesty's post office. In on the day of , and prepaying the postage thereon). In testimony whereof, I have, on the last mentioned day and year,- at aforesaid, signed these presents. A. B.. Notary Public. ' ■ ! fcl : f\ ! '-i "t '■ V^ 1;. \\i t^'- ^h ■t : i'f.'^ '|! ! 474 Civil Code of Lower Canada. FORM J. PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE 13 NO NOTARY) FOR NoN-ACOEPTANCE OP A BILL, OR NON- PAYMENT OF A BILL OR NOTE. (Copy of Bill or Note and Indorsements.) On this day of , in the year 18 , I, N. O., one of Her Majesty's justices of the peace for the district (or county, &c.), of , in the Province of , dwelling at (or near) the village of , in the said district, theire being no practioinig notary public ajt or nietar the said village (or any other Icyal cause), did, at the request of and in the presence of well known unto me, exhibit the original j ^' j whereof a true copy is above written ( drawer ] unto P. Q., the ■ acceptor v thereof, personally (or at his ( promisor ) residence, office or usual place of business) in and speaking to himself (his wife, his clerk or his ser- vant, &c,). did demand j «™;P',*°'=" he i she ( Wherefore I, the said justice of the peace, at the request aforesaid, have protested, and by these presents do protest drawer and indorsers ] against the-| promisor and indorsers V of the said acceptor, drawer and indorsers j thereof, unto which demand | answered: bill 1 note r cerned, for { and all other parties thereto and therein con- all exchange, rei-exchange, and all costs, damages and interest, present and to come, for want of { ^a^^nr } Of the «aid j ^^^ All which is by these presents attested by the signature of the said (tlie witness) and l3y my hand and seal. (Protested in duplicate.) (Signature of the witness.) (Signature and seal of the J. P.) Merchant Shipping^ 476 SECOND SCHEDULE. ENACTMENTS REPEALED. Provinoe and Chapter. Dominion of (Jai^ada: Chap. 123, Revised Statutes. Province of Quebec : Civil Code uf Lower Canada. Nova Scotia : Revised Statutes, third se- ries, chap. H'2 New Brunswick : Revised Statutes, chap. IIG, 30 Vic, 1867, chap 34. Title of Act and extent of repeal. An Act respecting Bills of Exchange and Pro- missory Notes.— The whole Act. Articles 2,279 to 2,364, both inclusive [^]. " Of Bills of Exchange and Promis' ory Notes." Section 2. The oUier sections of this chap- ter have been heretofore repealed. " Of Bills, Notes and Choses in Action." Sec- tion 2. The other sections of this chapter have been heretofore repealed. An Act to amend chap. 11(5 of the Revised Statutes, "<>f Bills, ^otes and Choses in Action : " also Act V2th Victoria, chapter 39, relating thereto. Section 1. . : i rl [ * Except in eo far as such articles, or any of them, relate to evidence in regard to bills of exchange, cheques and promissory notes.) TITLE SECOND. OF MERCHANT SHIPPING. 2355. Subject to the provisions of the following para- graph, the law of the Imperial parliament, respecting mer- chant shipping, contains provisions concerning British ships in the Province of Queibec. in all matters to which such provisions extend and are applicable therein. (1) The following Federal laws contain provisions concern- ing ships, in all matters regulated by such laws: 1. The law respecting the registration and classifica- tion of shipping; 2. The law respecting the shipping of seamen; 3. The law respecting the shipping of seamen on inland waters; 4. The law respecting wrecks, casualties and salvage: 5. The law respecting the safety of ships and the pre- vention of accidents on board thereof; » 476 Civil Code of Lower Canada. 6. The law respecting the navigation of Canadian waters; 7. The law respecting the lial)ility of carriers by water; 8. The law respecting the coasting trade of Canada. The Imperial "Merchant Shlpplnff Act, 25 Auk.. 1894," is re- produced by the Federal Statute 58-59 Vict.. 1895. ThiH article orlRlnally read em follaws:— " The Act of the Imperial Parliament Intituled The Merchant ShlnpiriK Act, 1854, contains the law concemlnK British ships, in Lower Canada, in all matters to which its provisions extend and are atipllcable therein." The article assumed Its present form by virtue of the Federal Acts amending the Civil Co VKSSKLS. 2369. The transfer of registered British ships can be made only by a bill of sale, executed in the presence ot one or more witnesses containing the recital ©pecifled In the Imperial law iieispecting merchant shipping, and entered in the book of registry of ownership in the manner in the Bald law prescribed. The rules respecting the persons qualified to make and receive such tranfera and respecting the registry and cer- tificate of ownership and priority of right, are contained in the said law. (1) (1) This article assumed its present form by virtue of R. 3. Q., art. 62B7. (R. S. C, c. 72; R. S. C, c. 120, s. 52.) 2360. The transfer of ships registered in Canada is effected in accordance with the provisions of the preceding article. (1) This article was repealed by the Federal Act respecting the registration and classlflctlon of ships, and made to read as at present by R. S. Q., art. 6258. (Imp. Act 17-18 Vict., c. 104; R. S. C, c. 72.) 2361. Transfers of ships or vessels, of the description specified in articles 2359 and 2360, not made and regis- tered in the manner therein prescribed, do not convey to the purchaser any title or Interest in tb© ship or vessel in- tended toi be sold. (1) S. (1) This article assumed its present form by virtue of R. Q., art. 6259. (R. S. C, c. 72.) Articles 2362, 2363, 236Jt, 2365, 2366, 2367, 2368, 2369, 2370, 2371 and 2372 arc repealed ft;/ the Federal act respectinfj the registration and elassification of shipping, 36 Y., C, c, 128. (R. S. Q., art 6260; 36 Vict. [C], c. 128.) 2373. Vessels built in this province may also be trans- ferred in security for loans in the manner declared in the next following chapter. 11! »■ 478 Civil Code of Lower Canada. CHAPTER THIRD. OF THE MORTGAGE AND HYPOTHECATION OF VESSELS. 2374. TTie rules concerning the hypothecation of vessels by contract of bottomry are contained in the title Of Bot- tomry and Rcsimndentia. The mortgage and hypothecation of registeired British ships are made according to the provisions contained in the Imperial law respecting mercfliantt shipping. (1) (1) R. S. Qm art. 6261. (Imp. Act 17-18 Vict., c. 104; R. S. C, c. 72.) 2375. Vessels being built in Canada may be mort- gaged, hypothecated or transferred under the authority of the Federal acts respecting the regiistration and classifica- tion of ships and respecting banks and banking, accord- ing to the rules laid down in the following articles of this chapter. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, c. 72; R. S. C, c. uo, s,52. 2376. The owner of a ship about being built or being built may, after having recorded Iher according to law, give her as security for a loan or other valuable considera- tion. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, o. 72, s. 31.) 2S7ea. The entry, in the record book of the port in which the ship is registered, of the instrument constituting the mortgage gives effect to such instrument and estab- lishes the rank of the mortgage and hypothec. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art 6262. (R. S. C, c. 72, s. 32.) 23766. The mortgage is extinguished by the production of the instrument creating it, with an endorsem^ent thereon showing the absolute payment of the debt for which the mortgage was given, and by an entry in the record book to the effect that such mortgage has been discharged. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, c, 72. s. 34.) • /. ■!._ Merchant Shipping. 479 2377. If two or more mortgages are recorded respect- ing the same ship, the hypothecary creditors, notwith- standing any express, implied or constructive notice, are entitled to priority one oveir the other, according to the date at which each instrument is recorded in the record book and not according to the da;te of each instrument. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, c. 72, s. 35.) 2377o'. A mortgage creditoir is not, by reason of his mortgage, deemed to be the owner of a ship, nor is the hypothecary debtor deemed to have ceased to be the owner or such ship, except in so far as is necessary for making such ship available as security for the mortgage debt. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art 6262. (R. S. C, c. 72, s. 36.) 2378. Every mortgagee may absolutely dispose of the ship in resipeot oif whicih he is recorded as soich mortgagee and give effectual receipts for the purchase price; but if there are several persons recorded as mortgagees of the same ship, no subsequent mortgagee thereof can, except under the order of a comipetent court, sell such ship without the concurrence of the prior mortgagees. The registration of bills or salaries is made according to the Federal act respecting the registration and classification of ships. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of shins, and replaced as above l:>y R. S. Q., art 6262. (R. S. C, c. 72, s. 37; R. S. C, c. 120, s. 52.) 2379. A recorded mortgage of any ship may be trans- ferred by the mortgagee to any other person, and the instrument effecting such transfer must be made and re- corded accQirding to the Fedeiral act respecting the registra- tion and classification of ships. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above bv R. S. Q., art. 6262. (R. Si C, c. 72, s. 38; R. S. C, c. 120, s. 52.) 2379ff If the interest of any mortgagee in a registered ship is transmitted in consequence of death or insolvency, or in consequence of the marriage of a female mortgagee. Pli y ■ if 480 Civil Code of Lower Canada, a \ \ or by any lawful means other than by a transfer made under the Federal act respecting the regisLiation and classification of ships, such transmission is authenticated by a declaration of the person to Whom such interest has been transmitted, made in accordance with the provisions of the act last above mentioned. (1) (1) This article was repealed by the Federal Act respecting the registration and classitication of ships, and replaced as above by R. S. Q., art. 62G2. (R. S. C, c. 72, ss. 39, 40 and 41.) 2380. Every contract made under article 2375 and the acts therein mentioned may be executed in the usual form of contracts executed in this Province. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, c. 72, s. 48.) 2381. Whenever the building of a ship, which has been recorded according to law, is duly completed, the first mort- gagee, whose claim is unsatisfieid, may, on furnishing the builder's certificate, secure from the proper officer a certifi- cate of registry according to law. 2. The undischarged mortgages recorded according to law are transferred and registered in the order and ac- cording to the priority in which they were recorded. 3. The registry of all such mortgages shall thus ap- pear according to their priority in the record books as if they had been made or granted under the laws providing for the giving of such certificates of registry. A fresh instrument of mortgage, according to any form prescribed by law, may be granted as a substitute for any mortgage given under article 2375. (1) (1) This article was repealed by the Federal Act respecting the registration and classification of ships, and replaced as above by R. S. Q., art. 6262. (R. S. C, c. 72, s. 42; R. S. C, c. 120, s. 52.) '!t 23ft2. The provisions contained in the foregoing articles of this chapter do not deprive the proprietor of any right nf action to account or any recourse by law allowed against the person or bank making the advances. (1) (1) This article was repealed by the Fodoral /ct rospocting the registration and ciap'^ifr'ation r-f slvp^ arid vpn'io'^d fs above by R. S. Q., art. C262. (R. S. C, c. 72, s. 47; R. S. C, c. 120, s. 52.) made a and ticated visions specting aced as and 41.) md the al form jspecting laced as las been •St mort- tiing the a oertifi- ■ding to and ac- •ded. hus ap- »ks as if iroviding ^ny form for any respecting Placed as R. S. Cm articles my right Id against IrospectinS R. S. C. Merctiant Shipping, CHAPTER FOURTH. 481. OF PKIVILEGE AND MAKITIME LIEN UPON VESSELS AKD UPON THEili CAitUO AND FitElGUT. 2383. There is a privilege upon vessels for the payment of the following deibts: — 1. The costs of seizure and sale, according to artiicle 1995; 2. Pilotage, wharfage, and hanbor dues, and penalties for the intraction of lawful harbor regulations; 3. The expense of keepdngi tih(© vessel and rigg'ing, and of repairing the latter since the last voyiage; 4. The wages of the master and c'r«w lor tlie last voyage; 5. The sums due for rlepairing and fusrnishing, the ship on her last voyage, and for merchandisie sold by the captain for the same purpose; 6. Hypothecations upon the ship, according to tihe rules declared in the third chapter of this title and in tihe title Of Bottomry and Respondentia; 7. Premiums of insurance ujpon tihe ship for the last voyage; 8. Damages due to f reig'htens for not delivering, the goods shipped by them, and in reimbursement for injury caused to such gooidis by the fault of the master or crew. If the ship sold have not yet niadi© a voyage, the seller, the workmen employed in building and completing her, and the petrsons by who'm' tihe materials have been fur- nished, are paid by preference to all cireditors, except those for debts enumerated in paragraphs 1 and 2. 2384. A sihips-husband, or other agent, holding the sihip's papers, has a lien upon them for advances anid! charges due for the management of thtei business of tihe ship. 2385. The following debts are paid by privilege upon the cargo : 1. Costs of seizure and sale; 2. Wharfage; 3. Freigtht upon the goods, according to tbe rules de- clared in the title Of Affreightment, and what is due for the passage of the owner; 4. Loans upon respondentia; 5. Premium® of insuranioe ujpon tihe things insured; 2386. The following debts are paid by privilege upon the freight: 1. Tbe cost of seizure and! distribution; 31 I liii n n N iJ:i i i 482 Civil Code of Lower Canada. 2. The wages of the master and oil the seamen and others employed in the vessel; 3. Loans on bottomiry aocoT'diiing 'to the rules contained in the title Of Bottomry and Hesponaentia. 2387. The order of privileges declared in the foiregoing articles is without prejudice to olaims for diamagie. by col- lision, or for average coniiibutions, oir for salvage, wliioh are paid by privilege after the debits enumerated as 1, 2, in articles 2383 and 2385, and before or after other pinivilegeld debts, according to tilie circttmsitances under whicih the claim has arisen, and the usage of trade. 2388. The provisions comtalned in tMs clhapter do not apply in cases before the Court of Vice-Admiralty. Cases in that court are determined accor'ding to the oivil and maritime laws of England. CHAPTER FIFTH. OF OWNERS, MASTERS AND SEAMEN. 2389. The owners, or a majoTity of them, appoint the master and may disciharge him without assigning any cause unless it is otherwise specially agreed. 2390. The owners are civilly responsitoie for the acts oif the master in all matters wihicih concem tihe sihip and voyage and for damages caused by his fault or the fault of the crew. T'hiey are resiponslble in like manner for the acts and faults of any person lawfully substituted to tihe miaster. The whole nevertheless subject to the provisions con- tained in this cihapteT and in the titles Of Affreightment, and Of Bottomry and Respondentia, and in the Imperial and Federal Acts neisipeotlng merchant shipping. (1) (1) This article assumed its present form by virtue of R. S. Q., art. 6263. (B. N. A. Act, 1867; R. S. C, cc. 82 and 83.) 2391. Any person who hires a vessel to have the ex- clusive controil and navigation of it, is helid to be the owner from the time of sudh hiring, with the rights and liabilities of an owner as resipects third pier&ons. 2392. In matters of commooi interest to the owners con- cerning the equipment and management of the vessel, the Merchant Shij^ping. 483 m thers Led in igoing y col- Wliiah. , 2, in ileg^ld ;ih the do not le oivil jiiit the ly cause lie acts hip and fault of i,cts ajnd waster. )ns con- [(jhttncnt, Irial and of R. S. the ex- le owner liahiiities lers con- 3ssel, the opinion of the majority in value governs, unkiss there is an agreement to tne contrary. It there be an equal division on the queistion whether tne ship shall be employed or not, the opinion in favor of em- ploy misnt prevails; savintg, in both cases, to the owners who ohject the Tighit to claim exemption from IdabiliLy, and indemnity according >U> the ciircumstjances and the Uiscre- iioii of a competent court. 2393. The sale of a ship by licitation cannot be ordered unless it is demanded by the owners of at least one half of the total interest in the ship, save in the case of an agreement to the contrary. 2394. The general powers of the master to bind the owner of the ship personally, and tiheir mutual obligations toward each other are governed by the rules coinitained in the title Of Lease and Hire, and in the title Of Munilate, respectively. 2395. The master is pciijoual'ly liable to third persons for all oibligations contractedi ^by him respecting the ship, unless by express terms the credit is given to the owners only. 2396. The master engages the orew for the ship. This he does nevertheless in concert with the owners or sihip's- husband when they are present at the place. 2397. The master is bound to see that the ship is pro- perly furnished and p'reipared for the voyage, but if tihe owners or ship's-husband be present at the place, the master cannot, without special auithonity, cause extraor- dinary repairs to be made upon the ship, or buy sails, cordage or provisions for the voyage, nor horrcw money for that purpose; subject to the exception contained in article 2604. 2398. He is bound to sail on the day appointed anid to pursue his voyage without deviation or delay, subject to the conditions contained in the title Of Affreightment. 2399. He miay, duiing the voyage, in cases of necessity borrow money or, if that be impossible, sell part of tihe cargo to repair the ship or to supply her with provisions or other necessary thiuigs. i 1 . Ml 111 H hull " , t r I v I i^' III 484 Civil Code of Lower Canada. 2400. He cannot sell the ship wiitihout special authority from the owners, except in case of inability to prosecute the voyage, and manifest and uirgent necessity for the sale. 2401. The master has aJll the authority over the seamen and other persons in tihe sihlp including the passengers, which is necessary for its safe navigation, management and preservation, and for the maintenanciei of good orldfer. 2402. He may thirow over board a part or the whole of the cargo in cases of imminent danger and when necessary for the preservation of tJie ship. 2403. The rights, powers and otoiigations of thlei owners and of the master with respect to the sihip and cargo are further declared in the titles Of Affreightment and Of' In- surance. The rules concerning the master's powers to hypothecate the ship or carj^o are declared ini the title Of Bottomry and Renimndentia, 2404. The special duties of masters, with respect to the keeping of official log-books and in other matters not herein provided foir, the engagement and treatment of sea- men, the payment and disposal of their wages and their discharge are regulated by the iprovisions contained re- spectively in the Imperial law respecting merchant ship- ping and in the Federal Acts respecting the shipping of seamen. (1) (1) This article was repealed by the Federal Act 36 Vict., c. 129, s. 5, and replaced as above by R. S. Q., art. 6264. (R. S. C, cc. 74 and 75.) 2406. Wages not exceeding two hundred dollars due to any seamar. f jr service in a vessel registered in Canada, may be recovered in a summary manner ibefore any judge of the Superior Court, any judge of the sessions of the peace, any stipendary magistrate, any police magistrate, or any two justices of the peace, in the manner and according to the rules prescribed in the Federal Acts respecting the engagement of seamen. (1) (1) This article was repealed by the Federal Act 36 Vict., c. 129, s. 5, and replaced as above by R. S. Q., art. 6264. (R. S. C, cc. 74 and 75.) 2406. Prescription does not ibegin, to run, aigiainst the claim of sieamen for their wages until after the expiration of the voyage. Affreightment. TITLE THIRD. OF AFFREIGHTMENT. 485 CHAPTER FIRST. GENERAL PROVISIONS. 2407. Contraxjts of affreigihtment aa^e either by charteir- party, or for the conveyance of goods in a general ship. 2408. The contract may be made iby the owner or the master of the ship or by tihe sihip's-husband as agent of the former. If made by the master, it binds himself, and also the owner of the ship; unless it is made at a place where the owner or ship's-huisband is present, and they disavow the contract, in which case it binds the master only. If the ship be hired by a party who sublets it, he is subject in contracts of affreightment to ithe same rules as if he were owner. 2409. The ship, witli her equipments, and the freight are bound to the perfonlmance of the obligations of the lessor, and the cargo to the performance ol the obligations of the lessee, or freigliteir. 2410. If before the departure of the vessel there be a declaration of war or interdiction of trade with the country to which sihe is destined, or by reason lof any other event of irresistible force, the voyage cannot ibe prosecuted, the contract is dissiolved, without either party being liable in damages. The expense of loading and unloading the cargo is borne by the freighter. 2411. If the port of destination be closed, or the ship detained by irresistible fo'rce, for a time only, tihe contract subsists and tlhle master and freigihter are mutually bound to await the opening of the iport land the liberation of the ship; without either of them being entitleld to damages. The rule applies equally if the obsitruction arise during the voyage; and no increase of freight can be demanded. 2412. The freighter may nevertheless unloiad the goods during the detention of the sihip for the causes stated in li^'i 1 1 1 fll i ( i H i r IH 486 Civil Code of Lower Canada. the last preceding article; subject to thiei oibudgation of re- loading after the obstruction 'has ceased, or of indemnify- ing the lessor for the full freight; unless the goods are of a perishable nature and cannot be neiplaced, in which case freight is due only to the place of the discharge. 2413. Contracts of affreightment and the obligations of the parties under them, are subject to the rules relating to carriers contained in the title Of Lcaac and Hire, when these are not Inconsistent with the articles of this title. j n CHAPTER SECOND. OF CHARTER-PARTY. 241 4-* Affreightmiemt by charty-party may be either of the whole ship or of s/ome principal part of it, and for a determined voyage oir a specified time. 2415. The charter-party, or l "jmoramdum of charter- party, usually specifies the name and burden of the ship, with a stipulation tihat sihlei is tight and staunch and well furnished and equipped foir the voyage. It also contains stipulations as to the time and place of loading, the day of sailing, the rate and payment of fredght, and the con- ditions of demurrage, with a declaration of the fortuitous events which exempt the lessor from liability, and such other covenants as the parties may see fit to add. 2416. If the time of loading and unloading the eihip, and the demurrage be not agreed upon, they are iregulatieid by usage. 2417. When goods are put on hoard of a ship in pursu- ance of a charter-party the master signs a bill of lading for them to the effect mentioned in article 2420. 2418. If the wihole of the ship be leased, ibut it be not wholly loaded by the Kessee, the master cannot receive othier cargo without his consent; in case of any other cargo being received the lessee is entitled to the freight of it. CHAPTER THIRD. OF THE CONVEYANCE OP GOODS IN A GENERAL SHIP. 2419. The contract for the conveyance of goods in a general ship is that by which the master or the owner of Affreightment. 487 a ship destined for a particular voyage engages separately with various persons, unoonneoted with each otlier, to convey their respective goods according to the bill of lading to the place of their destdnation, and there to deliver them. CHAPTER FOURTH. OF THE BILL OF LADING. 2 420. The bill of lading is siigned and delivered by the master or purser, in three or more parts, of whicih tlie master retains one; the freighter also kieieps one, and sends one to the consignee. Besides the names of the parties and of the ship, It states the nature and quantity of 'the goods sihippcld, with their marks and numbers in the margin, and the place of their delivery, the name of the oo'nslgnee, the place of sihipping and of the (ship's destination, with, the rate and manner of payment of the freight, and primage and average. 2421. When iby the Ijill of ladling the delivery of the goods is to be made to a person named or to his assigns, such person may transfer Ms right by endorsement and delivery of the bill of lading, and the owneirship of the goods and all rights and liabilities in respect thereof are held to pass thereby to the indorsee; subject nevertheless to the rights of third persons. See "An Act relating to Bills of Lading," 52 Vict. (C). o. 30 (2 May, 1889.) 2422. The freighter or lessee upon the signing and deliv- eiry to him of the bill of ladinig, is bound to return the re- ceipts given by the master for the goods shipped. The bill of lading, in the hands of a consignee or endorsee, is con- clusive evidence against the party signing it; unless there is fraud, of which the holder is co'gnizant. CHAPTER FIFTH. OF THE OBLIGATIONS OF THE OWNER OR LESSOR AND OP THE MASTER. 2423. The lessor is obliged to provide a vessel of the stipulated burthen, tight and istaunch, furnished with all tackle and apparel neqeissary for the voyage, and with a competent master and a sufficient numiber of persons of skill and aibility to navigate her, and so to keep her to the end of the voyage. The master is obliged to tafeei on board a pilot, when by the law of the country one is required. \ % \V\ . I 488 Civil Code of Lower Canada. 2424. The master is obliged to receive the goods, and carefully arrange and sitow thay th« whole freight, subject, In the latter case, to the (.eduction of such amount as the ship may have earned on the return voyage. SECTION II. OF FREIGHT, PRIMAGE, AVERAGE AND DEMURRAGE:. 2442. Freight Is the reooropenae payable for the lease of a ship, or for carrying goods upon a lawful voyage to the place of their idesitlnatlon. In the absence of express stipu- lation It Is not due until the carriage o(f the goods Is com- pletely performed, except In the oases specified in this section. 2443. The amount of freight Is regulated by the agree- ment in the charter-party, or bill of lading, at a gross sum for the whole ship, or a certailn part of it. oir at a fixed rate per ton, or package, or otherwise. If not regu- lated by agreement, the rate Is esitlmated upon the value of the service performed, aocordilnig to the usage of trade. 2444. The amount of freight is not affected by the longer or shiorter duTation of the voyage, unlesis the agree- ment be to pay a certain sum by the month, or week, or other division of time, in which case the frelgiht begins to run, if not otiier-wise sblpinlated, from the commencement of the voyage, lanldl so continues, as well during its course, as during all unavoidable d^lay not occasioned by the fault of the master or lessor; siibject nevertheless to the excep- tion contained in the next following article. 2445. If the ship be detained by the order of a sovereign power, freight payable by time does not continue to run during such, detention. Tihe wages of tihe seamen and the expense of their maintenance are in such case a subject of general average. 2446. The master may discharge, at tlhe place of loading, goods found in his sihip, if they have not been dieclared, or he may recover freight upon, thiem. at the usual rate paid, at the place of loading, for goods oif a like nature. 2447. If the ship fbe obliged to return with her cargo, by reason of a prohibition of trade occurring, during the I i(i fi. m 492 Civil Code of Lower Canada. voyage, with the couintry to which she is houind, freiglit is due upon the outward voyage only, although a iretum cargo has been stipulated. 2448. If, without any previous fault of the masiter or lessor, it becomes necessary to repair the sihlp in the course oif the voyage, the freighteir is obliged either to suffer the necessary delay or to pay the whotle freight. In case the ship cannot be repaired, tihe master is obliged to engage another; if he be unable to 'dlo so, freig'ht is due only in proportion to the part of the voyage which is accomplished. 2449. Freight is due upon the goods which tihe master has of necessity sold to repair the ship, or to supply it with provisions and other urgent necessaries, and he is obliged to pay for such goods the price which they would have brought at the place of destination. This rule applies equally although the ship be afterwards lost on the voyage; but in that case the price is that at which the goods were actually sold. 2450. Freight is payable upon the goods east overboard for the preservation of the sihip and of the remainlder of the cargo, and the value of sucih goods is to be paid to the owner of them by conitriibution om general average. 2451. Freight is not due upon goods lost by shipwreck, taken by pirates, or captured by a public enemy, or which without the fault of the freighter have w'holly perished by a fortuitous event, otherwise than as mentioned in the last preceding article. If the freight or any portion of it have been paid in advance, the master is bound to return it, unless there is an agreement to the contrary. 2452. If the goods be recaptured or saved from the shipwreck, freiglit is due to the place of capture or wreck, and if they be afiterwardis conveyed by the master to their place of destination, the whole freight is due, subject to salvage. 2453. The master cannot keep the goods in his ship in default of payment of the freight; but, at the time of un- loading, he may prevent them from being carried away, or cause them to be seized. He has a special privilege upon them while they remain in ihis possession, or the posses- sion of his agent, for the payment of his freight, with primage and accustomed average, as expressed in the bill of lading. Affreightment. 493 24i>4. Tlie ooasiignee, oir other authiorized peraon who receives the goods, is ibound to grant a receipt for them to the masiter; and the acceptanioe of goods, under a hill of lading by which delivery is to be made to the consignee or his assigns, he or they paying freigiht, irenders the person s>o receiving them liable for the freight due upon them, unless the person is the known agent of the sihipper. 2466. Goods which are diminished in value or damaged by reason of intrinsic defect in them, or by a fortuitous event, cannot ibe abandoned, for freight. But if without any fault of the fnelglhter, casks contain- ing wine, oil, honey, molasses, or other like things, have leaked so much that they are nearly or aJltogether emipty, the casks miay be abandoned in satisiflaction of the fireight. 2466. Tfh© obligation to pay primaige and average, which are mentioned in the bill of lading, is suibject to the same rules as the liability for freig'ht; the pnimage is payable to the master in his own rig'ht, unless there is a ©tipulation to the coiit:;rj. 4 C freig agreed charging. ■^i^Wi, ( ai'riagie is the compensation to be paid hy the he detention of the sihtp ibeyond the time or allowed by usage, for loading and dis- See art. 5708 R. S. Q., as to time allowed for discharging cargoes. 2458. Any person who receives the gooldls under a bill of lading importing an obligation to pay diemurnage, is liable for such demurrage as may become due on the discharge of the goods; subject to the rule® declared in article 2454. 2469. Demurrage under express contract is due for all delays which are not caused by the shipowner or his agents. It doe© mot begin to be computed until the goods are ready to be disciharged, aftei* w(hich, if the stipulated time have expired, a further reasonable time must be al- lowed for their discharge. 2460. If the time, conditions, and rate of demurrage be not agreed upon, they are regulated hy the law and usage of the port where the claim arises. ■A \ !.i 1 494 Cti>ll Code of Lower Canada. u :lini f ; TITLE FOURTH. OF THE CARRIAGE OF PASSENGERS IN MERCHANT VESSELS. 24fll. Conitnaots for the carriaige of passengers in mer- chant vessels are subject to the provisions contained in the title Of Affreightment, in so flar as they can be made to apply, and also to the mles contained in the title Of Lease and Hire, relating to tihe carriage of passengers. 2462. The special rules concerning the conveyance of passenigeirs by sea in passenger ships on voyages from the United Kingdom to this province, or on Colonial voyages, or from this province to the Uniteidi Kingdom in any ship, are contained in the acts of the imperial parliament, in- tituled respectively : The Passengers Act, 1855, and T/ie Passengers Act Amendment Act, 1863, and in the lawful orders and regulations made by comipetemt authority under the same. 2463. Special rules concerning vesseils which arrive in the ports of the Province of Quebec from any port in the United Kingdom or o^f any other part of Europe cir irom any other port outside Her Majesty's possesisions, with passengers or emigran.ts thereifrom, and rule® relating to the rights and dutiesi of the masters of such vessels and for the protection of such passengers and emigrants are contained in the Federal acts respecting immigrants and emigrants and respecting quarantine. (1) (1) R. S. Q., art. 6270. (R. S. C, cc. 65, 67 and 68.) 2464. Pasisengers while in the vessel are entitled to fit- ting accommodation and food, according to agreement and to the special laws referred to in the foregoing articles, or, if there be no agreement and sucli laws do not apply, ac- cording to usage and the condition of the parties. 2465. The owner or miaster has a lien or privilege upon the baggage and other proiperty oif the passengers on board the vessel for the amount al the passage money. 2466. The passenger is subject to the authority of the master as declared in the title Of Merchant Shipping. 2467. Damages for personal injuries suffered by passen- gers are subject to the sipecial rules contained in articles 2434, 2435, and 2436. Insurance, TITLE FIFTH. OF INSUKANCE. 495 '1 II CHAPTER FIRST. GENERAL PROVISIONS. SECTION I. OF THE NATURE AND FORM OF THE CONTRACT. 2468. Insurance is a conitract wJiereby one party, called the Insurer or underwriter, undertakes, for a valuable con- sideration, to indemnify the otiheir, called the insured, or his representatives, againsit loss or liability froim certain risks or perils to whicih the object of the insurance may be exposed, oir from the happening of a certain event. 2469. The consideration or price which the insured O'bliges himself to pay for the insurance, is called the pre- mium. It does not belong to t,he insurer until the risk begins, whether he has received it or not, 2470. Marine insurance is always a commercial contract; other insurances are not by their nature commercial, but they are so when made for a premium by persons carrying on the business of insurers; subject to the exception contained in the next following article. 2471. Mutual insurance is not commercial. It is gov- erned by sipeoial statutes, and by the general rules con- tained in this title, in so far as they are applicaible and not inconsistent with such statutes. 2472. All persons capable of comtracting may insure objects in which they have an interest and whicth are sub- ject to risk. 2473. Incorporeal things as well as corporeal, and also human life and health, -may be the object of insurance. 2474. A person has an insurable interest in the object insured whenever he may suffer direct and immediate loss by the destruction or injury of it. tfl- ! Ill II ■ il_ 496 Civil Code of Lower Canada. 2476. Th€ interest insured must exist at the time of the loss unless the policy cointains the stipulation of lost or Lot lost. This rule is subject .to certain exceptions in life insur- ance. 2476. Insurance may be made against all losses by in- evitable accident, or irresistible force, oir by events over which the insured has no oomtro'l; siubjeet to the general rules relating to illegal and immoral contracts. 2477. The insurer may effect a re-insurance, and the insured may insure the solvency of the first insurer. 2478. In case of loss the insured must, with reason a ;)le diligence, give notice thereof to the insurer; and he must conform to such special requ/iirememts as may be contained in the policy with resipect to notice and preliminary proof of his claim, unless they are waived by the insurer. If it be imposisible for the insoiried to give notice or to make the preliminary proof within the delay specified in the policy, he is entitled to a reasonable extension of time. 2479. Insurance is divideid, with respect to its objects and the nature of the risks, into three principal kinda: 1. Marine inisurance; 2. Fire insurance; 3. Life insurance. 2480. The contract of insurance is usually witnessed by an instrument called a policy of insurance. The policy eitlher declares the value of tlie thing insured and is then called a value policy, or it contains no declara- tion of value, and is then called an open policy. Wager or gaming policies, in the object of which the in- sured has no insurable interest, are illegal. 2481. The acceptance of an application for insurance constitutes a valid agreement to insure, unless the insurer is required by law to contract in another form exclusively. 2482. Policies of insuirance may be transferreidJ by in- dorsement and delivery, or by delivery alone, subject to the conditions contained in them. But marine policies and fire policies can he transferred only to persons having an insuralble interest in the otoject of the policy. Insurance^ 497 le ol )st or nsiir- >y in- over aneral ,d the 5 must tained proof i or to fled in i time. bbjects ids: 5sed by tnsured ecilara- tlie in- (uraince Insurer isively. hy in- ject to isf erred object 2488. In the absence of any consent or privity on the part ol the insurer, the simple transfer of the thing insured does not transfer the policy. The insurance is thereby terminated, subject to the pro- visions contained in article 2576. 2484. The announcements and clauses which are essen- tial or usual in policdes of insurance, are declared in articles hereinafter contained relating respectively to the different kinds of insurance. SECTION IT. OF REPRESENTATION ..ND CONCEALMENT. 2485. The insured is obliged to represent to the imaurer fully and fairly every fact which shows the nature and extent of the risk, and which may prevent the undertaking of it, or affect the rate of premium. 2486. The insured is not obliged to represent facts known to the insurer, or which from their public character and notoriety he is presumed to know; nor is he obliged to de- clare facts covered by warranty express or Implied, except in answer to inquiries madie by the insurer. 2487. Misrepresentation or concealment either by error or design, of a fact of a nature to diminish the appreciation of the risk or chiange the object of it, is a cause of nullity. The contract may in such case be annulled althougih the loss has not in any degree arisen from the fact misrepre- sented or concealed. 2488. Fraudulent misrepresentation or concealment on the part either of the insuirer or of the insured is In all cases a cause of nullity of the contract in favor of the in- nocent party. 2489. The obligation of the insured with respect to re- presentation le satisfled when the fiact is subetantially as represented and there is noi material concealment. SECTION ITT. or WARRANTIES. 2400. Warranties and conditions are a part of the con- tract iand mu»t be true If aflBrmative, and If promissory 32 '{' iri ?'! I !l 498 Civil Code of Lower Canada. must be coimplied with; otherrwiee the contract may be annulled notwithstanding the good laith of the insured. They are edthecr expreea or imiplled'. 2491. An express warranty is a stiipulation or oondiition expressed in the policy, or so refenred to in It as to make part of the policy. Implied warranties will be desiignart:ed in the following chapters relating to different kinidsi of insurance. li ii CHAPTER SECOND. OF MARINE INSURANCE. SECTION I. GENERAL PROVISIONS. 2402. The policy of marine insurance contains. The name of the insiuired or of his agent; A 'description of the clbject Insiured, of the voyage, of the coiiiimenoement and termination oif the risk, and of the perils insureid against; The name of the ship and master, except when IJie in- surance is on a ship or ships gefnenally; The premium; The amount insured; The subscription of the insurer with its date. It also contains such other clauses and announoements as the parties may agree upon. 2493. Insurance may be made on sBilps, on goods, on freight, on bottomry and reeipondentia loans, on profits and coimmdssions, on piremiums of insurance, and on all other things lappreciable in money and exposed to the risks of navigation, with the exceiption of seamen's wages, upon which insurance oanniot be lagally made, and sulbject to the general rules relating to unlawful and immoral contracts. 2494. Insurance may be made for lany kind of voyage or transport by sea, river or canall navigation and either for the whole voyage or for a limited time. 2495. The risk of loss or damage of the thing insured by perils of tlhe sea is essential to the contract of marine insurance. )ay be ired. 1 action ( nuake lowing Insurance, 499 The risks usually apecifted ia the policy are tempie^t and shipwreck, stranding, oollisiom, umavoildable oha-nge of the ship's course, or ou; her voyage, or oif the ahip itaelf, tire, jettison, plunder, piracy, capture, repriaial and oithieir oaau- alties of war, detention by oirdeir of a siovereigin poweir, barratry of the miaster and mariners, andl generally all other perils and chances of navigation (by which loss or damage may arise. The parties may limit or extend the nisks by special agreement. ill 3, of the of the the in- boements oods, on profitB on clU to tjhe s !wag«s, suibject imimoral loyage or kther for leuired by marine 2496. If the time of the commenoement and termination of the risk be not specified in the policy, it Is regullated ac- cording to article 2598. 2497. Marine policies in cases of doubtful meaninig are construed by the established and known usage of the trade to which the poilicy relaitee; such usiage is held to be a part of the policy when it is not otherwise expressly provided. 2498. An insurance made after the loas or the arrival of the object of it, is nuill, if, at the time of insuring, the insured had a knowledge o»f the loss, or the Insurer of the arrival. Such knowledge is presumed where Information might have been received In the usual course and at the usual rate of transmission. SECTION II. OP THE OBLIGATIONS OF THE INSURED. 2499. The principal obligations of the insured relate: To the premium; To representation, and concealiment; To warranties and conditions; To abandonment, which Is treated in the fi;fth section. § 1. Of the premium. 2500. The insured is obliged to pay the amount or rate of premium agreed upon, according to the terms of the contract. If the time of payment be not specified, it is payable without delay. m ;! M ii mi : r ( Ii :i 500 Civil Code of Lower Canada. 2601. In the following cases the premium is not due, and if it have been pa)id it may be recovered back, tbe con- tract being void: 1. When the risk insured against does not occur, either by reason of the entire breaking up of the voyage before the departure of the ship, or for other causes, even those arising without fraiidi froim the act of the insured; 2. When there is a want of insurable interest, or any otheir cause of nullity, without fraud on the part of the insured. The insurer in these cases is entitled to one half per cent, on the sum insured, for bis indemnifioation, unless the policy is illegal, or rendered null by fraud, misrepresenta- tion or concealment on his part. If the policy be illegal there is no right of action for the premium, and none to recover it back if it have been paid. 2502. The preceding artidle applies when the risk occurs for p^art only of the value insured, for the non-payment or return of a proportional part of the premium, according to circumstances and the discretion of the court. § 2. Of representation and conecalment. 2503. The rules concerning representation, and the effect of misrepresentiation or concealment are "diecliared in clhap- ter one, section two. § 3. Of warranties. 2504. The general rules relating to warranties are con- tained in clhapter one, section three. 2505. It is an implied warranty in every contract of marine insurance that the ship sihall be sea-worthy at the time of sailing. She is sea-worthy when sihe is in a fit state, as to reipains, equipments, crew, anid in. all other resipects, to undertake the voyage. 2506. In insurance for a ehip-owner it is an Imiplied warranty that the sihip shall be properly documented and conducted according to the laws and treaties of the country to which she belongs, and to the laiw of nations. Insurance. 601 SECTION III. OF THE OBLIGATIONS OF THE INeURER. 2607. The principal obligiation of the insurer is to p n . 508 C'icil Code of Lower Canada. 2553. Jettison gives rise to contri'biition only wdien it is made In imminent peril and is n^ecessary for the preserva- tion of the ship and cargo. It maybe of tlie cairgo, or of tlie provisions, tackle or furniture of the ship. 2554. Jettison must be first made of thinigs the least necessary, the miost weighty, and of the least value. 2555. The ship's warlike sitores and provisionc, and the clothes of the crew, do not contrihute, but the value of those lost by jettision is paid by oontrllbution upon other effects generally. The baggage of passengers does not contribute. If lost it is paid by contribution in which it shares. 2556. Goods for Which there is no bill of lading or acknowledgment by the master, or which are put on board contrary to the charter-party, are not paid for by contri- bution if lost by jettison. They contribute if saved. 2557. Goods carried on deck, which are lost or damaged by jettison, are not paid for by contribution, umileas they were so carried in confoirmity .with an esta.bliehed usage and course of trade. They contribute if saved. aoQti. In cases of average contribution the ship and freight are estimated at their value at the poirt of dischiarge. Ihe good® lost as well a& those saved are estimated in like manner, dec iwting freight, duties and other changes. 2558. Notwithstandimg the rule of valuation contained in the last preceding article, the amount which the insuirer is liable to reimburse to the insured for his contribution is reguilated by the value which the ship or goods bear accord- ing to articles 2533 and 2534, or by the sum specified in the valued policy and not by their contribution value. 2560. No contribution is made for particailar aveirage losses. They are borne by the owner of the thing which has suffered the damage or occasioned the expense; saving his recourse against the insurer as declared in article 2527. 2561. If the ship be not saved by the jettison, no con- tribution takes place, and the goods saved are not held to contribute for those lost or damaged thereby. Insurance. 6C9 2562. If the ship be saved by the jettison and continue her voyage, but be afterwards lost, the goods saved are subject to contribution at their actual value, deducting the costs of salvage. 2563. The goods jettisoned do not in any case oontribute to the payment of losses happening afterwards to the goods saved. The cargo does not comtribute to the payment of the ship when loet or rendered unfit for navigation. 2664. In case of the loss of goods put into Ug'hters to enaible the ship to enter into a port or river, the ship and her whole cargo are subject to contribution; but if the ship be lost with the goods remaining on boaird, the goods in the lighters are not subject to contribution, although they arrive safely in port. 2665. ' ' ' '■ he duty of the master on his arrival at the first pGi .^ oiake his declaration and protesits in the customary i.orm, and also together with some of his crew to make oath that the loss or expense saistained was for the safety of the ship and crew. The neglect to do so does not however affect the rigihts oif the parties interested. 3K66. The owners and master have a privilege and right of retention upon the goods on board the ship or their price for the amount of contributloin for whioh these are liable. 2R67. If after the oontrlhution the 'goods jettisoned be recovered by the owner, he is bound to repay to the master and other interested parties, the amount of the contribution received by him, deducting' therefrom the amount of damage suffered by the goods and the costs of salvage. CHAPTER THIRD. OF FIRE INSURANCE. 2668. Insurance against loss by fire is regulated toy the provisdons contained in the first clhapter of this title, and is subject also to the rules contained in Uhe second chapter, when these can be maide to apply and are not inconsistent with the articles contained in this chapter. 2569. A fire policy contains tlhe name of tbe party in wliose favoT it is made; 11 m 1 : >■ ! ;ir li I 510 Civil Code of Lower Canada. A description otr isuffloient designation of the objeot of the iusuranoe and of the naiDiue of tne interetat oif the insured ; A declaration of the amount covered toy itihe Insunance, of the amount or rate of the premium, and of tihe nature, commencement and. duration of the rialt; The subscription of the insurer with its date; Such other lannouncements and conditions as the parties may lawfully agree upon. 2570. Repiresentations not contained in the policy or made a part of it, are not admitted to control its construc- tion or effect. 2671. The interest of lan insurer against loeis 'by fire may be that of lan owner, or of a or editor, or any other interest appreciable in money tin the thing insiiredi; but the nature of the interest must be specified. 2572. It is an implied warranty on the part oif the in- sured that his description of the object of the insurance shall be i&uoh as to shew truly under what clasa of risks it falls according to the proposals and coinditions of the policy. 2673. An insurance upon effects Indeterimlnately as toe- ing in a certain place is not limited tO' the particular effects which are there at the time of insuriinig, tout attaches to all those falling within the descrlptioai contained in the policy which are in the iplace at the time of the loiss; unless a diiierent Intention Is indicated in the policy. 2574. Any alteration in the use or condition of the thing insured from those to which it is limited toy the policy, made without the conseint of the insurer, by means within the control of the Insuired and which increases the risk, is a cause of nullity of the policy. If the alteration do not increase the risk, the policy is not affected by It. 2575. The sum insured does not constitute any proof oif the value of the object of the insurance; such value must be established in the manner required toy the conditions of the policy and the general rules of proof, unless there is a special valuation in the policy. 2576. The insurance is rendered void toy the transfer of Interest in the otoject of it from the Insured to a third Insurance, 611 person, unless such transfer is with the oonaeint or privity of the insurer. The foreigoing rule -does not apply in the case of rights acquired by succession or in that eipecifled in the next following article. (1) The insured has in. all cases a riglit to assign the policy with the thing insured, subject to the oomditions therein contained. (1) The words "It is subject to the special provisions contained In the Insolvent Act of 1864," were struck out from the second paragraph of this article by R. S. Q., art. 6271. (43 Vict. (C.) c. 1.) 2677. A transfer of interest (by one to another of several partners or owners of undivided property who are jointly insured, does not avoid the ipalicy. 2578. The insurer is liable foir losses caused by the in- sured otherwise than by fraud or gross neigligenoe. 2579. The insurer is also liable for losses caused by the fault of the servants of the insured committed without his knowledge or consent. 2580. The insurer is liaJble for all losses which are the immediate consequence of iflre or iburninig from whatever cause it may arise, including damage to the things insured suffered in their removal or toy the means used for extin- guishing the fire; suhject to^ the special exceptions contained in the policy. 2581. The iuisurer is not liaJble for losses caused merely by excessive heat in a furnace, stove or other usual means of communicating warmth wihen there is no actual burn- ing or ignition oif the thing insured. 2582. In case of loss % flre the insurer is liable for the wliole amount of the loss not exceeding the sum Insured, without deduction or average. 2683. When by the terms of the policy a delay is given for the payment of the reneiwedi premium, the insurance continues, and if a loss occur within the delay, the insurer is liable, deducting the amount of lihe piremium due. 2684. The insurer on payinig the loss is entitled to a transfer of the rights of the insured against the i)ersons by whose fault the fire or loss was caused. 512 Civil Code of Lower Canada. » CHAPTER FOURTH. OP LIFE INSURANCE. 2585. Life insurance is r&gulated by the provisions con- tained in the first chapter of this title, and is subject also to the rules contained in the second chapter when these can be made to lapply and are not inconsisitent with the articles contained in this chapter. Articles 2570 and 2583 apply to contracts of life insurance. 2588. Life insurance is subject also to the rules contained in articles 1902, 1903, 1904, 1905, 1906,, relating to the per- sons upon whose life it may be effected. 2587. A life poilicy contains: The name or sufficient designation of the party in whose f avoir it is made, and of the person whose life is insured; A declaration of the amount of the insunance, of the amount or rate of premiumi, and of the oomimenoement and duration of the risk; The subscription of the insurer with its date; Such other annoumcements and coiiuitionsi as the pairties may lawfully agree upon. 2588. The declaration in the policy oif the age and con- dition of health of the person, upon whose life the insurance is made, oonstitutes a warrantj"- upon the correctness of which the contract dependG. Nevertheless in the a(b»ence of fraud the warranty thiat the person is in good health is to be construed liberally and not as meaninig that he is free from all infirmity or disorder. 2589. In life insurance the sum insuired may ibe made payable upon the death of the person upon whose life it is effected, or upon his surviving a specified period, or peri- odically so long as he shall live, or otherwise contingent upon the continuance or determination of life. 2590. The insured must have an insuiraJble interest in the life upon which the insurance is effected. He has an insurable interest in the life: 1. Of himself; 2. Of any person uipoa wliom he depends wholly or in part for support or education; 3. Of any person under legal olbligation to him for the Bottomry and Respondentia* 513 paymeat of moaiey, or refiipeotlng propeaty or services which death or lllneBa might defeat or prevent the performance of; ' 4. Of any peirson mpon whose life any estate or initerest vested in the Ineured decpends. 2591. A policy of insoiiranoe on life or health may pass by transfer, will, or succession, to any person, vv^hether he has an Inaurable interest or not in the life of the person insured. . 2592. The measure of the intere&t insured is the sum fixed in the policy, except in cases of insurance by creditors or in other lilie cases in which the interest is soisceptlble of exact pecuniary measurement. In these cases the sum fixed is reduced to the actual interest. 2593. Insurance effected by a person on his own life is void if he die by the hand of justice, by duelling, or by suicide. ^1 TITLE SIXTH. OF BOTTOMRY AND RESPONDENTIA. 2594. Bottomry is a contract whereby the owner of a ship or his agent, in consideration of a sum of money loaned for the use of the ship, undertakes conditionally to repay the same with interest, and hypothecates the ship for the performance of his contract. The essential condi- tion of the loan is that if the ship be lost by a fortuitous event or irresistible force, the lender shall lose his money; otherwise it is to be repaid with a certain profit for In- terest and risk. 2595. If the loan be madfe not upon the ship but upon the goods laden In her the contract Is called respondentia. 2596. The loan may be made upon the ship, frelgiht and cargo together, or upon such portion of either as may be agreed upon by the parties. 2597. The contract must specify: 1. The amount of money loaned with the rate of Interest to be paid; 2. The objects upon which the loan is made. It specifies also the nature of the risk.

vision is heretn made upon the particular matter to which such laws relate; Except always that as iregards transactions, matters and things anterior to the coming Into force of this code, and to which its provisions could not apply without having a re- troactive effect, the provisdons of law whiah without this code would apply to such transactions, matters and things remain in force and apply to them, and this code applies to them only so far as it coincides with such provisions. 2614. The declaration that certain matters are regulated by the Code of Civil Procedure shall not have the effect of repealing any existing, rule or of abolishing any mode of proceeding mow In use until the said Code of Civil Pro- cedure shall have become law. 2615. If in any article of this code founded on the laiws existing at the time of its promulgation, there be a differ- ence between the English and French texts, that version shall prevail which is most consistent with the provisions of the existing laws on which the article is founded; and If there be any such diffeirence in an article changing the ex- isting laws, that version shall prevail which is most con- sistent with the intention of the article, and the ordinary rules of legal interpretation shall apply in determining such intention. tlie APPBNDIX. 61 VICTORIA, CHAPTER 41. An Act to amend the law respecting life insurance by hus- bands and parents. (Assented to l^th January, 1898.) Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows : 1. Article 5604 of the Revised Statutes is amended: 1. By repealing the words "and shall also be unassignable by either of such parties," In the third and fourth lines; 2. By adding -the following clause: "The insured and the parties benefited may join in as- signing any such policy." 61 VICTORIA, CHAPTER 44. An Act to amend the Civil Code with respect to substitutions. I i M Ijli M w^ ' I : t M ■ ■ Hi' (Assented to 15t1i January, 1898.) Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows: 1. The following article Is inserted in the Civil Code, after article 953: "95 3a. The substituted property may likewise be defi- nitively alienated during the substitution on the tollowing conditions: 1. Such alienation must be to the advantage of the insti- tute and of the substitute. , I; . II 618 Civil Code of Lower Canada. 2. The institute and curator must be authorized by the wurt, by observing the formalities prescribed in articles 1341 to 1361, inclusively, of the Code of Civil Procedure. 3. The purchase price must be employed in accordance with the judges order, either in paying the debts of the substitution or upon immoveable property in this Province or on first privilege or first hypothec upon immoveable pro- perty in this Province, valued at not more than three fifths of the municipal valuation, which valuation must be con- firmed by an expert. 4. If the purchase price be employed at the same time as the sale cf the substituted immoveable, the purchaser of the property is bound to see to its employment, and he shall pay the purchase price, as the case may be, into the hands of the vendor of the immoveable purchased to acquit the purchase price of the latter or into the hands of the borrower, and this employment and the judge's order must be mentioned in the acquittance of the purchase price of the substituted immoveable, in order to render the said acquittance valid. 5. If the employment of the purchase price is not made at the time, the said purchase price shall be deposited by the purchaser, as a judicial deposit, in the hands of the prothonotary of the Superior Court of the district where the immoveable sold is situated, and the prothonotary shall hold the deposit subject to the employment thereof under the provisions of this article. 6. The immoveables acquired by the institute or the pur- chase price invested in mortgage, as the case may be, are subject to the subst itutioii in the same manner as the im- moveable sold. 7. The reimbursement of any capital loaned according to the provisions hereof shall be made to the prothonotary of the Superior Court of the district where the substituted property is situated, who shall receive such capital as a judicial deposit and cannot pay it out except on a judge's order authorizing a new investment, unless such new in- vestment has been authorized by a judge before the reim- bursement took place. 8. In the case of a judicial deposit, the acquittance given by the prothonotary shall be final and shall authorize the registrar to effect any necessary radiation." Appendix, ol<) 61 VICTORIA, CHAPTER 45. An Act to amend the Civil Code. (Assented to IBth January, 1898.) Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows: 1. Article 1622 of the Civil Code is replaced by the fol- lowing: "1622. It includes also moveable effects belonging ^^ third persons, and being on the premises by their conspnt, expressed or implied, for sums which have become due by the lessee prior to the notification given to the lessor of the property rights of third persons or before the know- ledge acquired by the lessor of such rights of third per- ''s, but not if such effects be only transiently or accideitallv on the premises, as the baggage of a traveller in pn inn, or articles sent . to a workman to be repaired or to an auctioneer to be sold. The notification in due time to the lessor shall avail against subsequent acquirer of the leased premises." 61 VICTORIA, CHAPTER 46. An Act to amend article 2005 of the C'""'il Code. {Assented to 15th January, 1898.) Her Majesty, by and with the advice prd consent of the Legislature of Quebec, enacts as follow,,: 1. Article 2005 of the Civil Code, as contained in article 5828 of the Revised Statutes, is replaced by the following: "2005. The privilege of the lessor extends to all rent that is due or to become due under a lease in authentic form. But in the case of the liquidation of property abandoned by an insolvent trader who has made an abandonment in favor. of his creditors, the lessor's privilege is restricted i\ , Ai f I i-' 520 Civil Code of Lower Canada. to twelve months rent due and the rent to become due during the cutrent year If there remain more than four months to complete the year; if there remain less than four months to complete the year, to the twelve months' rent due and to the rent of the current year and the whole of the following year. If the lease be not in authentic form, the privilege can only be claimed for three over due instalments and for the remainder of the current year." fl ALPHABETICAL INDEX TO CIVIL CODE. ABANDONMENT, of immoTeables by ascendants 127'^ of present property equivalent to gift 781 in emphyteusis 680 obligation of purcliaser to pay, iu alienation for rent, not dis- chargedby 1695 Vide SURRBNDER, STRAY PROPERTY, IKSURANCE. ABSENCE, eifects of, as regards marriage 108 to 112 elf eots of, as regards contingent rights 104 to 107 ABSENTEE, definition of 86 when curator may be appointed 87 procedure to appoint curator 88 powers and duties of curator 89 to 91 curatorship brought to an end 92" proTisional possession of heirs of absentee 93 to 97 when provisional possession becomes absolute 98 opening of the succession of an absentee 99* effect of re-appearance of absentee 100-101 contingent rights which may accrue to 104 to 107 carw of minor children of absentee 113-114 authorization of wife of absentee 180, 1297 when property of absentee may be hypothecated 2039 ABUSE, of enjoyment by usufructuary 480' of enjoyment -by dowager 1464 ACCEPTANCE, 0/ Community : Vide Community. OfUifta 787 to 794 " when presumed 788 " by tutors, curators, &o 789 •* time for accepting, vide Gifts. Of Sttccessions : Vide Successions. '« by tutor to minors 301 " under benefit of inventory 649 to 660 cy Lfgracies either express or implied 866 Of Transfer y in sales of debts is equivalent to notice 1571 ACCESSION, general law of : Vide Ownership 408 to 413 in relation to immoveable property , 88)8, 414 to 427 •' " pigeons, rabbits and fish 428 '• " moveable property 429 to 442 as between co-heirs 653 In successions devolving to ascendants 627 in regard to legacies 868, 888 " gifts inter rii70S 868 ACCESSORIES, in legacies include necessary dependencies 891 sale of a thing includes its accessories 1499 sale of a debt includes its securities 1574 ACCIDENTS 1053 ACCOUNT, Of Community : Vide Community, Pariition of. 1354 to 1378 By Beneficiary heir 677 § 2 By Tutor is obligatory when his oifice has terminated 308 " and sometimes during tutorship 309 *< definitive account at minority or emancipation of theminor 310 " must be accompanied by vouchers 311 '• contestation of 812 " interest due on balance of 313 ACCRETION : Vide Accession. ' till t ii-l! 622 Civil Code of Lower Canada. ACKNOWLEDGMENT, of debt to take it out of the statute of limit- ations 1235 bv fatlieror mother of illegitimate child 240 ACQUESTS, Of Community : Ftrfe Community. ACQ U ISITION, of rights of property 583 et seq. ACQUITTANCE : Vide Payment. ACT OP MAN, Servitudes established by : Vide SEftviTUDES. ACTION, of a child to establish his status is imprescriptible 235 for aliments ; by whom and to whom due 165 et seq. all not otherwise regulated are prescribed by 30 years 22*J f» flfaran^ie of buyer against seller 1515 et seq. " " " re immoveables 2062 Hypothecary, when it lies and against whom 2058 when in possession of usufructuary 2059 when in possession of institute 2060 object of 2061 holder can call in his vendor ; 2062 and stay proceedings by dilatory exception. 2063 what defences holder may set up 2064-2065 exception of discussion 2066-2067 of warranty 2068-2069 of subrogation 2070-2071 arising from expenditures 2072 " resulting from a privileged claim or a prior hypothec 2073 effect of subsequent alienation of the immove- able 2074 holder may surrender immoveable 2075, 207? holder pays profits since service 2076 how surrender effected 2077 joined to personal, when prescribed 2247 TO INTERRUPT PRESCRIPTION 2067 OF MINORS are brought in name of tutor 304 '* real actions require a curator 320 " of 14 can sue for wages up to $50 304 OF PARTITION 694-696 POSSESSORY, emphyteutic lessee may bring 572 REDHIBITORY, resulting from latent defects, when it must be brought 1530 " does not lie in sales under execution 1531 Resolutory, in cases of sale 2102 Revocatory, of gifts on ground of ingratitude 814 815 Separation from bed and board, causes of 186 to 191 " " wife must be authorized 194 •* " wife may be allowed to leave her husband during the suit 195 '• " etf'ct of reconciliation — 196 •' " new causes give rise to new action 197 " • ' effect of dismissal of action 198 " " ju 'graent may be suspended 199 ♦' " provisional care of children 200 '• •' wife may live apart from her hus- band 201 " " wife may demand alimentary pen- sion 202 " " wife may forfeit this pension 203 " " wife in community may attach the moveable effects of com- munity : 204 " " husband's alienation of immove- ables after wife lives apart, is null 205 (t •( (( (( «i (( « It <( « t( « « 4< Index to Civil Code. 523 AUT. Separation as to pnoPEBTY : Vide Sepaka? ion op Property. Salary of domestics and farm servants : 7 ide Wages 1669 against partners, how served 1838 ACTS to be done by more than two, may be va'idly done by majority. 17 § 19 ACTS OF PARLIAMENT : Vide Laws. when public and when private 10 public are deemed known, but private must be pleaded 10 ACTS, wo/ttnai, requisites of 1208-1209 " make complete proof of certain things 1210 *' but may be contradicted and how 1211 passed out of Lower Canada, wlien valid 7 of ratification of an obligation, when voidable 1214 of recognition do not always make proof of primordial title 1213 sous-seing privi, defective authentic acts may be good as 1221 " " what they make proof of 1222 *' " when signature to is held to be valid. 1223 " ' ' effect of denial of signature ... 1224 " " when their date is proof against third parties ...1226 " " commercial make proof of their own date 1226 V '• *' make proof against the maker, but not in his favor 1227-1228 " " on notes is proof of payment, but not proof of interruption of prescription 1229 Authentic, what are an<< how tiiey make proof 1207 are valid if made in form of county where passed 7 how construed 8 Of Civil Status, d^&VLixe^ 17 § 22 " what they should contain 39 *' attorneys may sometimes represent parties to 40 *' public oflicpr must read to the parties . 41 '* must be inscribed in Registers, Firfe Registers.42 to 50 •' proof of when registers are lost 51 " duties and responsibilities of depositaries of Registers 52,53,53a " rectification of acts and of registers : Vide Regis- ters..... 75-76 " ditto in case of omissions 77 " against whom rectifications are etfective 78 " replacing Registers of Civil Status which have been lost or destroyed 78a et seq " extracts therefrom are authentic 50 Of Birth, when registration before clerk of the municipality takes the place of 53a ♦* coi'tpntsof 54 *• whom they are signed by 55 •• when parents unkuowu 56 ** filiation of legitimate children is proved by 228 Of Marriage, bans must be published and certificate furnished . 57-68 " " except on production of a license 50,59a " marriage must take place within one year of last publication of bans , 60 oppositions to 61-62 who must sign the act ... 64 Avhat the act must set forth 65 Of Burial, no burial allowed until 24 h'uirs after decease 66 *' where burial shall take place in cemeteries, to be »• determined by Roman Catholic ecclesiastical au- thorities 66a •* what acts of should contain 67 " as regards religious communities and hos;Mtal8 68 it <( 524 Civil Code of Lower Canada. f ^■' Aet. 0/ Burial, as regards violent deaths and in prisons, &c 69 " disenterment of bodies 69a Of BtUgioua Profession, two registers are to be kept 70 " " how they are to be kept 71 " " what they must contain 72 " '* how disposed of after Ave years. . 73 *' *' extracts from are authentic 74 Tutorship,'' registration of necessary, before tutor can bring actions 304 ADMINISTRATION, Of Covimunity : Vide Community. Of Executors : Vide Wills. 0/ Tutors .' Vide Tutoks and Tutorship. Of Curators: Vide Ouratou. Voluntary : Vide Negotiokum gestio. ADMINISTRATOKS, testa i entary executors may be constituted 921 provisions for replacing 923-924 cannot purchase property in their charge 1484 investment of money by 981o et seq. ADMISSIONS, either extra-judicial or judicial, cannot be divided 1243 how proof of extrarjudicial is made , . 1244 judicial is proof against maker, excepting error 1245 ADULTERY, by a wife is ground for separation 187 by a huuband, condiiionally so 188 ADVANCE, what is deemed as to brokers, &c 1750 ADVISER: Firfe Judicial adviser. ADVOCATES. Rules governing 1732 AFFINITY, not a cause of iueompetency in a witness in Court 1232 nor of a witness to a will 845 but is as to a notary drawing will , 845 in marriage : Vide Marriage. AFFIRMATION, when included in word ' ' oath " 17 § 15 AFFREIGHTMENT, General Provisions, contracts of what are 2407 General Provisions, by whom made and whom they bind 2408 '• ship, equipments and freight liable for lessor's and cargo for lessee's obligations 2409 " dissolution of for certain extraneous causes. 2410 " effect when such causes are temporary 2411 " freighter may unloiid during detention 2412 '• is subject to rules of lessor and hire 2413 Charter party, what it may comprise 2414 " stipulations usually contained in 2415 " loading, unloading and demurrage 2416 " master signs a bill of lading. 2417 " when whole ship is hired, effect of master taking other person's goods 2418 Conveyance of goods in a general ship 2419 £ill of lading, 'is signed and delivered by master 2420,2424 " is transferred by endorsement and delivery. 2421 " on receipt of, freighter must return receipts. . 2422 Obligatio^is of owner or lessor and master. lessor must provide a vessel properly equipped and manned, and master must have a pilot when required by the law of the country 2423 master must receive goods and sign bill of lading 2420, 2424 goods must not be stowed on deck 2425 must sail on the day fixed 2426 must take all needful care of cargo 2427 and deliver the goods 2428 .< ., how goods are delivered 2429 must advertise arrival of vessel 2430 time allowed for discharging cargo •... 2431 ii, Index to Civil Code. 525 t •• 69a 70 71 72 73 74 A.RT hiring of pilot does not exempt master or owner from liability 2432 when owners are not liable for loss or damage to cargo 2433 restriction as to amount of liability for losses incurred without fault of owner 2434-2435 effect of owner being master also 2436 Obligations of the lessee, principal 2437 cannot ship prohibited or uncustomed goods 2438 effect of his not fully loading the ship 2439 liability for delay caused by his fault 2440 and for failing to furnish a return cargo 2441 /reigA^, what is and when due 2442 amount of, how regulated 2443 when affected by length of voyage 2444 or detention by a sovereign power ..... 2445 on goods not declared 2446 liability for when ship cannot laud her cargo by reason of a prohibition of trade 2447 when repairs jbecome necessary to ship, freight is due proportionately 2448 also on goods sold to pay for costs of repair 2449 " '• jettisoned 2450 but not on goods lost by shipwreclc or pirates, &c 2451 unless recaptured or saveil . 2452 privilege on goods for freight and primage 2453 consignee must grant receipt for goods 2454 when goods may and may not be abandoned for freight. . . . 2455 primage and average, rules regarding 2456 demurrage detined 2457 who is liable for 2458 when it is due . . ; 2459 wlien regulated by usage 2459 AGE, of majority, 21 years for either sex 246, 324 at whicli marriage may be contracted. 115 AGENTS: Vide Commercial Agents. ALIENATION, for rent : Vide Rent, alienation for. contract for alienation of a thing makes purchaser the owner.. . . 1025 prohibition to alienate. See prohibition to alienate. ALIENS, conditions for naturalization of 21-22-23 effect of naturalization 24 right of to acquire property 25 cannot serve as jurors 26 even non-resident, may be sued in Lower Canada. 27 may be witnesses to wills 844 when laws of Lower Canada apply to them 6 may inherit in Lower Canada ..... 609 ALIEN WOMEN, are naturalized by marriage with British subject. . . . 23 ALIENATION FOR RENT : Ftrf'; RENT 1593 ALIMENTARY ALLOWANCE : Vide Maintenance. ALIMENTARY PROVISION, is not liable to seizure 1190 ALLUVION, belongs conditioaally to riparian proprietor 420 does not take place on borders of private lakes and ponds 422 effect of a large portion of land being carried away 423 usufructuary enjoys the benefit of 458 ALTERATIONS, depositaries of registers responsible for 52 ALTERNATIVE OBLIGATIONS: Vide Obligations, alternative 1093 et seq. AMBIGUITY, of laws not a pretext for refusing judgment...* 11 AMBIGUOUS, law— how interpreted 12 AMELIORATIONS : Vide Improvements. AMEUBLISSEMENT : Vide Mobilization 1390 et seq. \i f \ i^ ^ ; !? i Mill ■ i it 1 Wl 626 Oivil Code of Lower Canada. Art. ANIMALS, owner's and user's responsibility for 1055 found straying 694 §5 ANNUITY, value of a life rent estimated as 1915 ANSWERS, inserted in notarial protests not proof 1209 APPEAL, regarding tutorships 281,288 '* emancipation 321 " interdiction 332, 336A '• oppositions to marriage 146 APPLICATION, of laws of Lower Canada and foreign laws 6 APPOINTMENT, of heir in contracts of marriage ... 830 APPRENTICES, responsibility of masters for acts of 1054 prescription of wages of 2262 privilege for wages of 2006 APPRENTICESHIP, expenses of not subject to be returned to succes- sion 720 APPROPRIATION, of property for public purposes: Vide Owneuship, of payments: Vide Imputation. ARCHITECTS, are discharged from warranty after ten years 2259 liable for loss of building within ten years . . 1688 Vide Work, Lease and Hire of. ARCHIVES, certain records, registers, &c., are evidence 1207 ARREARS, of rents and interest prescribed by Ave years 2250 registrations of arrears of 2122 to 2125 ARTISANS, rules they are subject to 1696 have no direct action against owner of buildings they erect 1697 payment of— how secured 1697 a,b,c & d Vide Workmen. ASCENDANTS, liabiiitv to maintain 166, 167 whom they are bound to maintain 165 to 168 inheritance by : Vide Successions. ASSESSMENTS, liat ility of usufructuary for 471 for building churches, privilege for, on immoveables . . 2009 to 201 1 ASSIGNEE, of right in succession may be excluded from partition 710 of litigious right : Vide Rights Litigious 1582 ASSIGNMENT, of debt : Vide Transfer. of litigious rights : Vide Sale of and Rights Litigious. of lease by the lessee 1638 " in cases of cultivation of land on shares 1646 ASSURANCE : Vide Insurance, ATTACHMENT, right of lessor for rent 1623-1624 right of unpaid vendor to 1998-1999 ATTORNEYS : Vide Advocates. ATTORNEY, poimr of: Vide Mandate. AUCTION, either forced or voluntary 1564 when need not be by licensed auctioneer 1565 etfects of not employing such auctioneer 1566 how f-ale is completed 1367 things when not paid for may be resold 1568 AUTHENTIC WRITINGS : Vide Acts authentic and Writings au- thentic 1207 et seq, AUTHENTICITY, of registers of acts of civil status 43 and of extracts therefrom 50 of certain notarial instruments 1208-1209 of sundry public records, etc 1207 of copies of authentic writings 1215 to 1210 of certain writings executed out of Lower Canada 1220, 7 AUTHORITY, of Parents: Vide Parental Authority. Marital: Vide Marital Authority. AUTHORIZATION, OF Coroner, sometimes required for burials 60 OF wiFB to appear injudicial proceedings, 176 to ffive or accept property . 177 Index to Civil Code. 527 !;il Abt. .... 1055 .. 694 §5 .... 1915 ... 1209 281, 288 . . . . 821 332, 336/1 ... 146 .... 6 830 1054 2262 2006 cces- 720 miP. 2259 1688 1207 2250 ;122to2125 1696 1697 a,h,c&d ... 166,167 . 165 to 168 471 J009 to 2011 n 710 ... 1582 , . . . i63H .... 1646 1623-1624 1998-1999 ... 1564 .... 156& .... 1566 ... 1367 .... 1568 GS au- 1207 et seq. .... 42 .... 50 1208-1209 .... 1207 1215 to 1219 .. 1220,7 Hb .... 6» .... 176 ... . 17T generally 176 to 184 as mandatory. 1708 general only valid afffects her property .... 181 of age by her minor husband 182 want of isanallity..... 183 as curatrlx to her husband 336o where these is separation from bed and board 210, 1318 where there is community 1296 judicially to release her husband from prison or establish her children 1297 where there is non-community, or separation of property .1318, 1420 et seq. OF TCTOKS to minors requisite certain things 297, 301, 306, 307 OF Parties to bills of exchange, etc., sec. 22 Bills of Exchange Act. AVERAGE GENP:raL : Vide Insuuance Marine. AVOIDANCE, of contracts, &c., in fraud of creditors 1032 to 1040 BAD FAITH, regarding improvements 417 must be proved by he who alleges it 2202 BAILIFFS, cannot buy litigious rights 1486 BALANCK, interest due to and by tutor on account 313 BANKING, express authority required for corporations to carry on 367 partnerships for, how regulated 1888 BANK NOTES, prescription of 22C0 § 4 making, circulation and payment of 2348 BANK, cheques drawn on, sec. 72 et seq. Bills of Exchange Act. BANKRUPl'CY, what is meant by 17 § 23 effect of in regard to contracts 1035-1036 " regit- tration of sale of property within 30 days of 2090 BANK STOCK, is a moveable 383 BANS o/mama6'e,'publication of and certificate of 57, 58, 130 " how dispensed with 59, 134 '« when and where published 130, 131, 133 " insutiicient after one year 60 BARRATRY, what is ." 2511 Insurer not liable for loss by 2510 BASTARD : Vide Illegitimate. BATirs FLOATING, are moveables 385 BEACHES, property in grasses upon 591 regulations regarding things obstructing 594 BEAMS, restoration of 469 in common walls, how placed 514 BEES, ownership of 428 BENEFICIARY HEIR : Fide Heir Beneficiary 660et8eq. BENEFIT OF DISCUSSION : Vide Discussion. BENEFIT OF DIVISION : Firfe Division. BENEF lT of inventory : Vide Inventory. BETS, when right of action lies with regard to 1927, 1928 BETTERMENTS : Vide Improvements. BIIiL'i OF EXCHANGE, form and interpretation p. 432 capacity and authority of parties p. 439 negotiation of bills p. 443 liability of parties p. 455 discharge of bill p. 456 acceptance and payment for honor p. 458 lost instruments p. 460 bill in a set P. 460 conflict of laws p. 461 cheques on a bank P- 462 crossed cheques p. 462 promissory notes p. 464 supplementary provisions p. 466 m H 628 Civil Code of Lower Canada. abt BILL OP LADING : Vide Affreightment 2420 et seq . transfer of , 2421 BIRTH: Firfe Acts OF Birth 54 et seq. F«/e Filiation 228etseq, BLANKS, not allowed in registerg 46, 2180 BOARDING HOUSE, prescription of charges for 2262 keepers, are liable as depositaries for goods of travellers 1814-1815 keepers have a lien and can sell goods of guests 1816a BOARDING SCHOOL, prescription of charges for 2261 BOATS, are moveables 385 BOILERS, when they may become immoveables by destination 379 § 1 BONDS, bottomry are negotiable 2612 BOOKS, not comprised in the word "moveables" 396 BORROWER, the obligations of 1766 to 1772 BOTTOMRY : Vide Loan upon bottomry and respondentia. 2594 et seq BOUNDARIES, neighbours reciprocally bound to settle the boundaries of their adjacent properties 504 how determined 604a construction of fence etc 605 BRiVNCHES, overhanging must be cut 529 BRITISH SUBJECT, enjoys full civil rights here 18 how quality acquired and who is 19 et seq. BROKERS, who are 1735 rights and obligations of 1737 et seq. BROTHERS : Vide Sisters. BROTHER IN LAW, and sister in law, marriage between is prohibited. 125 but is permitted between a man and his deceased wife's sister. . . . 125 BUILDER, privilege of 2009 § 7 f»rivilege of on what and how established 2013 lability for loss of building before delivery 1684-1685 " if building perish within 10 years 1688 discharged from warranty after 10 years 2259 registration of privilege of .....2103 rif/e Work, /ease anrf Aire 0/ and Workmen. BUILDINGS,proprietorof soil may erect 414 proprietor of soil presumed owner of 415 if made with materials of another 416 " in bad faitli on property of another 417 " in good faith on property of another 417 distance requii'ed between certain , 532 views on the property of a neighbour 633 BURIAL : Vide Acts of Bu*.:al 66 et seq. BUYER, Obligations of 1532 et seq. principal obligation is to pay price 1532 where payment must be made 1533 when liable for interest 1534 may delay payment when disturbed in possession, &c 1535 rights and obligation of when sale dissolved 1539 rights of when moveable is sold to two persons 1027 when and where he must take away things sold 1544 rights and obligations of in cases of redemption .... 1546 et seq. Vide Sale, Redfmptton, Payment, Interest, Dissolution AND Purchaser. CADASTRAL PL %NS 2166 et seq. CANADA GAZETTE, makes proof of official announcements contained therein 1207 CANCELLATION, of contract for building— when and how owner can secure 1691 of registrations of real rights. Vide Registration 2148 et seq. Index to Civil Code. 629 Art, CAPACITY, to contract by what law regulated— persons who have and have not 985-986 to contract in whose favor incapacity exists and by whom it may be set up 987 " in cases or sale. 1482 " in cases of voluntary deposit 1800-1801 '• requisite to effect novation 1170 *' requisite to enter into transactions 1919 " ot a ^vite "when marckandeptiblUjue 179 " of minor engaged in trade 323 '• requisite to validly effect a tender 1163 in gifts inter vivos and in wills 759, 761 requisite to make wills 831 ditto in case of a wife 184, 832 to receive by wills 838 of witnesses to wills in authentic form 844 " *• in English form 851 " to authentic writings 1208 to contract maiTiage 115 CAPITAL, sums belonging to minor — how transferred 297 CAPITATjIZATION, of life rents-how calculated 1915 CAPTAIN, of ship : Vide Master, Affreightment, Insurance and Bottomry. CAKE, provisional, of children given to husband usually in cases of separation 200 of minor children of a father who has disappeared. 113-114 CAKRIAGE, of passengers in merchant vessels 2461 et seq. CARRIERS, by land and «'a: -m acts. 77;^ .... 838 '•■•■;. 1241 2218 ••'::: so f... 31 ' .. 35 .. 36 . 37 1295) 1350 ... 1403 '..,.. 18 6 .... 2006 ■ . . 2262 *"... 844 ". ... 1485 202 '."."" 840 amnil . . 149, 151 .. 2105 '■■'... 2105 .125 ;.V. G31, 634 1984 et seq. 1914 jary as " . 232 233 ■".■.' 1233 § 7 • 233 .*.'l735etBeq. Akt. COMMERCIAL LAW : Vide Bills of Exchange, Notes and Chfqueh. Merchant Skivpino 2355 et seq. Affueiohtment 2407 ot seq, IN81TBAN0E 2468 et seq, BoTToMKV AND Respondentia ... 2594 et seq. COMMERCIAL MATTERS, oral evidence admissible In 1233 S I joint and several obligation presumed in 1105 marine insurance always is and other insurances may be 2470 COMMERCIAL WRITINGS, presumed to have been made on the day of their date 1226 COMMISSION MERCHANTS, who are : rWe Faotous 1736 COMMODATU.M : Vide Loan for vhe 176,0 et seq. COMMON PROPERTY (as between neighbours), when walls are pre- sumed to be 510 when they are not so 511 to whom repairs are chargeable 512 how coproijrietor may avoid same 513 right to buihl against 614 right to raise common wall . , 515-516 how neighbour may acquire property In such superstruction 517 how a wall may be made common 518 right to make a recess in 519 expense of building and repairs to 520 when neighbour may make window or opening In 593 mode of building and repairing ditt'orent stories of same house. . . 521 servitudes continue after rebuilding of common wall. 522 when ditches presumed to be 523 and when not so 524-525 common ditches kept at common expense 526 hedges when presumed to be and when not 527 trees and shrubs, rules regarding .... 528 COMMUNITY OF PROPERTY, between consorts exists in absence of covenants to the contrary .... 12G0 is either legal or conventional 1268 commences from the day marriage is solemnized 1269 parties cannot stipulate that it shall commence at any other period 12G9 lef/al, exists by mere fact of marriage, in absence of stipula- tions to contrary 1270 also by declaration to that effect in contract of marriage 1271 of what the assets consist 1272-1273 as to mines and quarries 1274 what immoveables do not form part of 1275 to 1279 gifts and legacies made by other than ascendants form part of. 1276 of what the liabilities of community consist 1280 how far debts of wife before marriage enter into 1281 debts of successions of moveable enter into . . 1282 as to debts of successions of immoveables 1283-1284 as to debts of mixed succession 1285-1287,1288 in default of inventory wife has recourse for compensation : Vide Compensation 1280 as to debts contracted by wife as husband's attorney 1291 Administration of, husband alone administers 1292 one consort cannot bequeath more than his share in 1293 pecuniary condemnations incurred by husband may be recovered out of 1294 tho.«e incurred by wife only after dissolution 1294 civil death of one .consort atfects only share of such consort 1295 effect of unauthorised acts by wife on 1296 m 632 Civil Code of Lower Canada. n Art. exception la cases of publl81 § 3 temporary confusion in case of institute 966 CONQUETS, ol community -what are deemed to be 1272 to 1278 Vide Community OP Propbrty. CONSENT, legally given, a requisite of contracts 984 either express or implied 988 CONSIDERATION, a lawful, a requisite of contracts 984 effect of incorrectly expressing 989 when unlawful 990 CONSORTS, mutual rights and oblisations 173 to 175 when the wife or husband of absentee may re-marry 108 second marriage allowed only in ditisolution of first 118 may oppose marriage of each other i36 agahist whom separation granted loses advantages 211 obtaining same retains advantages 212 but are reciprocally bound for aliments 213 effect of reconciliation after judgment 217 mutual donation of usufruct between, abolished 1265 indemnity to for amount used to benefit child 1308 liability for debts due by community .. 1372 to 1377 CONSTITUTED RENTS : Vitte Rents constituted. CONSUMABLE THINGS : Firfe Perishable things. form the subject of loan for consumption (mutuum) 1777 CONTEMPT OF COURT, persons guilty of are liable to imprisonment 2273 CONTENTS, of immoveable, liability of vendor for when specified 1501 to 1503 CONTINGENT RIGHTS, accruing to absentees 104 to 107 CONTINUATION, of Commuuity : abolished 1323 of Lease : l^UJe .Tacit renewal 1609 CONTRACTORS : Vide Work Lease and Hire of 1683 payment of wages by : Vide Workmen 1197a et seq. CONTRACTS, requisites to validity of 984 who can enter into , 985 who cannot enter into 986 when incapacity is in favor of one of the parties only, consent is necessary to. 987 988 cause or consideration essential to 989 rendered null by illegal or immoral cause .... 990 causes of nullity in contracts. " " error: Rr/eEBROR 992 •* " fraud: rWet'RAUD 993 " " violence and fear : Fir/e Violence AND Fear 994 et seq. *« •' lesion: Firfe Lkpion 1001 et eeq. interpretation of : Vide Interpretation of Contracts. 1013 et seq. €;/fl'C< o/, produce obligations, etc 1022 usually only affect contracting parties and not third parties 1023 extend to incidents to same 1024 for alienation of a thing certain makes purchaser owner 1025 otherwise if thing uncertain or indeterminate 1026 eifect of with regard to third persons: Vide Third Parties 1028 avoidance of, made in fraud of creditors 1032 et seq. " F«/e Creditors. Quasi: J^//e Quasi Contracts 1041 et seq " Vide Negotiorum Gestio. Undue payment. Vide Obligations. CONTRAINTE par corps : Vide Imprisonment. CONTRIBUTION, in maritime losses : Vide Insurance 2553 et seq. to debts of community : Vide Community 13G9 by usufructuary for debt's on thing subject to usufruct 474 by joint and several debtors and wlien one of them is in8olventlll7-1119 ii'y partners : Vide Partnership 1839, 1840, 1893 «t^ WW 536 Civil Code of Lower Canada. ART. CONVENTIONAL, Community: Fw7e Community Conventional 1262 etseq Dower: Firfe Dower Conventional 1428et8eq. CONVEYANCE, of passengers in merchant vessels 2461 et seq. COPARTITIONERS, are warrantors towards each other 748 in cases of dissolution of partnership 1898 privilege of on immoveables divided 2014 their claim must be registered 2104 COPIES, of authentiic writings 1215 et seq of lost notarial instruments makes proof of original 1217 of original documents, when they make proof 1219 CORONER, must authorize burial in certain cases. 69 CORPORATIONS, what are 352 hoAv constituted 353 are either aggregate or sole 354 ecclesiastical or religious, lay or secular • 355 secular corporations are either political or civil 356 have a corporate name under which they act , 357 rights which they may exercise , 368 select officers from their members 359 powers of these officers 3G0 can make by-laws and regulations 361 privileges or, in general 362 principal privilege that of limited liability of its members 363 disabilities of in general 364 voluntary liquidation 373a cannot execute wills 908 : cannot be tutors, executors, witnesses, etc 365 restriction as to acquisition of property (mort-main) 3GG, 836 disposal of proceeds of sale of real estate 366a donations and wills in favor of 766, 836 making and acceptance of donations 763, 789 special authorization required for business of banking 367 of the dissolution of 368 to 370 of the liquidation of affairs of dissolved 371 to 373a property of 404 prescription of property belonging to , : ';^21 Vide Partnership, Joint Stock. CORRECTION, of unemancipated minors, right of 245 CORROSIVE SUBSTANCES, store for near a common wall 532 § 4 COSTS, liability of an unsuccessful opposant to a marriage for 147 lav), are privileged on moveable property ... .1994 § 1 definition of such law costs 1995 are privileged on immoveable property 2009 hypothecs secure all costs incurred , 2017 Vide Expenses. CO-SURETIES, Vide Suretyship 1929 et seq. CO-TUTORS, when appointed and powers of 264 COUNCIL, family : Vide Family Council. COUNSEL, judicial : Vide Judicial Adviser. COUNTER LETTERS, effect of bet^i een writers and third parties. .... 1212 COUNTER WALLS, between neighbours, rules as to 532 COVENANTS, marriage : Vide Marriage Covenants. COVE RECEIPTS, Transfer of 1979 COVERTURE, women under, restrictions PS to power to contract 986 CREDITORS, may intervene to preven. asuiruct of their debtor being cancelled oV renounced 480, 484 rights of, in case of gifts by their insolvent debtor , 803 may impeach fraudulent acts of their debtor , 1032 but only when they will injure them 1033 a gratuitous contract by Insolvent is deemed fraudulent 1034 so may an onerous contract be 1035 Index to Civil Code. 537 ART. SO are pajnuents made by an insolvent debtor to a creditor know- ing his insolvency 1036 when onerous contracts are not voidable 1038 when subsequent creditors may impeach such acts 1039 one year's prescription applicable to such suits 1040 joint and several interest among: Vide Joint and Sev- EBAL 1100 et seq. CROPS , tithes carry a privilege upon 1997 when uncut, are immoveables 378 CROWN, definition of 17 § 1 things having no owner belong to 584 when things found at sea, or on shore belong to 589 legal hypothec of 2032 want of registration can be Invoked against 2086 exception 2084 § 3 prescription in favor of and against : Vi(fe Pkescription. 2211 et seq. privilege of 1989 legal hypothec of 2032 CURATOR, to habitual drunkards 336a is either to person or property 337 to what persons given 338 how appointed and sworn 339 cannot be named by a testator 922 to emancipated minors, power of 317 et seq., 340 to interdicted person, how appointed 341 husband and wife, when appointed to each other 342 to insane or imbecile persons, power of 343 responsibility for damage done by those in charge of 1054 how long must retain office 344 to child conceived, powers of 345 ad hoc, when necessary 346 to absentees : Vids Absentees. 87 et seq. to property, when appointed 347 to property of extinct corporations 372, 373 to substitutions 347 § 2, 945 to vacant estates 347 § 3, 685 et seq. to property abandoned by arrested debtors and hypothecarily . 347 § 5 to property accepted unaer benefit of inventory o47 § 6 investment of money by 981o et seq. CUSTOMARY DOWER : Vide Dower, Customary. CUSTOMS DUTIES, privilege of Crown for 1989 DAMAGES : Fide Accidents. general rule 1053 responsibility for damages done by children, pupils, insane per- sons 1054 arising from breach of obligation 1065 not due until also for those arising from his want of care, etc 1710 each partner is liable to paitnerehip for those caused by his fault 1845,1850 hypothecary creditor may sue tiers detenteur for deterioration to immoveable hypothecated . . 2055 measure of 1053 and 1073 et seq. fide Accidents. Libel. DATE, of private writings, how proved against third parties 1225 of commercial writings, presumption in favor of 122(5 DAY, on which prescription commences is not counted . • 2240 DEAF MUTES, provisions as to wills of 847, 850, 852 DEA III, by violence or in prisons, asylums, etc 09 effect of complicity of legatee in death of testator 893 Vide Civil Death and Acts of Bxtrial. DEBENTURES, for payment of money how transferred 1573 DEBTORS, joint and several : Vide .Joint and Several Liability. property of, is the common pledge of his creditors 1981 DEBTS, not comprised in the word *' moveables ". 395 of succession, how paid 735 et seq. liability of legatees for debts of testator 875 et seq. of community, how borne 1369 et seq. sale of : Vide Sale 1570 DECISORY OATH : Vide Oath 1247 et seq. DECLARATION OF HYPOTHEC : Vide Hypothecs. DEDUCTIONS: Vide Inferences: Pretakings. * DEEDS : Vide Acts Notarial. DEFAULT, how debtor is put in 1067 bj expiry of a certain time in which alone his obligation could be performed 1068 ill commercial matters 1069 debtor must be put in, before damapes become due 1070 DEFECTS, in contracts : Vide Contracts, causes of nullity in. 991 et seq. warranty against latent, in sale : Vide Warranty 1522 et seq. in things lent, i-esponsibility for 1776 in the possession requisite for prescription 2198 intrinsic in goods carried, responsibility for 2455 intrinsic in goods carried, insurer not liable for damages arising from 2509 DEGREES, of relationship in successions, how determined 615 relations beyond the twelfth do not inherit 635 DELAY : Vide Term. DELEGATION, does not effect novation, unless so intended 1173 creditor who has discharged his debtor by whom delegation has been made, has no remedy against his debtor in case of insol- vency 1175 debtor consenting to be delegated cannot oppose to his new cre- ditors exceptions peculiar to the party making the delegation.. 1180 DELIVERY, of a thing sold, what is 1492 when obligation of, in satisfied 1493 of incorporeal things, bow effected , . 1494 expenses of, by Avhom borne 1495 prepayment a condition precedent, unless term granted 1496 and even then not obligatory if buyer has become insolvent 1497 takes place in state thing was at ti me of sale 1498 of a thing comprises its accessories 1499 of moveables— quantity 1500 of immoveables— quantity 1501 Index to Civil Code. 539 Art. DOIAXD, a judicial, properly served, interrupts prescription 222* " wife and children are seized of their rights of dower without the necessity of a 1441 DEMUKRAGE, dtflnitionof 2457 how regulated when not agreed upon 2416 what is 2457 liabilityfor 2458 DEPt)SIT, of holograph wills and wills made in English form 857 is either simple deposit or tequestration : Vide SKQUESTBATioy. 1794 simple, is gratuitous 1795 and must be of moveable property 1796 delivery is essential to 1797 simple, is either voluntary or necessary 1798 Fo^Mw/ar?/, what constitutes 17i)C " who can enter into, and respective effects of either of the parties being incapable 1800,1801 " obligations of depositary 1802 to 1805, 1807 to 1811 " obligations of heirs of depositary 1806 ^c'cessrt)'^/, when it takes place 1813 " deposit of things brought by travellers to inns, etc, is deemed so 1*^14 " obligation of depositary 1677 1815,1816 Tender and : Vide Tender Il62 et seq. DEroSITARIES, of registers of acts of civil status are responsible for alterations . 52 and are punishable for infractions of duty 53 obligations of : Vide Deposit. executors are seized as legal depositaries 918 DEPOSITS OF EARTH : Vide Alluvion. DEI ri'Y, powers of principal usually pertain to 17 § 18 DESCENDANTS : Vi,U' SuccESSior^s '025 DES'l'lNATJON, moveables may become immoveables by destina- tion 379,380 bv pioprietor as regards serTitude iy equivalent to a title 551 DESTRUCTION, of thing leased, dissolves the lease 1660 Vide Loss. DETERIORATION, em' hyteutic lessee has not the right to deteriorate the immoveable leased 578 in successions of immoveable returned in kind 730 of things sold 1498 of things due.. 1063, 1064 of hypothecated property by t'ers d&fcnteur 2054 DIFFERENCE, in shares in kind in partitions compensated by pay- ment of difference 704 between English and French text of Code 2616 DIMINUTION, of price, buyer entitled to in certain cases 1501 DISABILITIES, resulting from minority, insanity, marriage, &c. . . . 248, 986 by whom majr be urged .... 987 as to tutorship 282 of corporations .. 304 DISAPPEARANCE, of a person, right of presumptive heirs to take provisional possession of pros-erty of 93 et seq. DISAVOWAL, of a child, right to make 219 et seq. DISCHARGE: Vide Release. DISCONTINUANCE, of a suit by plaintiff prevents interruption of prescription 2226 DISCUSSION, benefit of, onuros (as against creditors of the seller) to a buyer of a thing sold with rigli of redemption 1554 surety entitled to benefit of upoii default of debtor 1941 et seq. tiers lletenteur of hypothecated iHtid is entitled to benefit of. 2066, 2067 DISINHERITANCE, cnn only be ellected by an act clothed with formalities of a will 899 540 Civil Code of Lower Canada. i .ji ■ ■! ■;.-, DISINTERMENT, of bodies 69a DISOWNING : Vide Disavowal. DISPENSATION, or license authorizing omission of publication of bans of marriage 59 right to grant from impediments to marriage . 127 DISPOSITIONS, impossible or immoral condition attached to effect of as to gifts and wills 760 DISQUALIFICATIONS : Vide Disabilities. DISSOLUTION, of marriage only arises from natural death of parties 185 of community, when it arises 1310 *' does not give rise to the rights of survivorship. 1322 of partnership when it talces place 1892-1893 '* when no time for its duration Is specified may take place at will 1895 •' Avhen time is fixed for its duration, may talse place upon just cause shewn 1896 " effects of as between partners 1897-1898 ** " as regards creditors 1899-1900 of sale, latent defects in one of several things may be a cause for 1525 " non-payment of price in case of immoveables, not a ground for 1536 " in case of stipulation of rights of redemption 1537 " buyer may always pay price before the judgment of dis- solution is rendered 1538 " obligation of seller in cases of 1539 " " buyer in cases of 1540 " an action for dissolution is a waiver of riglit to recover purchase money 1541 ♦' but a demand of price is not a waiver of right of disso- lution 1542 " in case of moveables right of dissolution can only be exercised whilst goods are in possession of buyer. 1543 " and in case of insolvency, within 30 days after the delivery 1543 of (/iff s : Vide Gifts, revocation of 811 et seq. DISTANCE", and intermediate worlis required for certain structures . 532 DISTINCTION, of things 374 et seq. DISTRIBUTION, of statutes 4,5 property of debtor is common pledge of creditors 1981 DISTURBANCE, or just cause to fear it, authorizes buyer to delay pay- ment 1535 by trespass of third party, lessor not responsible for 1616 DITCHES, when common or presumed so 523 et seq. common, are kept at common expense 526 DIVISIBILITY, when obligations are divisible 1121 effects of as between creditors and debtors and their heirs 1122 when certain heirs must perform the obligation as if it were indi- visible 1123 damages arising from breach of an indivisible obligation are divisible 1128 Vide Indivisibility. DIVISION, benefit of cannot be claimed as against creditor by any joint ana several debtor 1107 effect of creditor consenting to division of a debt 1114 or r'iceiving share of one of his co-debtors so specified in the receipt 1115 and of receiving arrears or interest separately and without reserve from one of his co-debtors 1116 takes place of right among co-debtors of their joint and several obligation 1117 1 I »! r 1 Index to Civil Code. 541 Art. ett'ect of a co-debtor paying in full being subrogated in rights of original creditor 1118 effect of insolvency of one of the co-debtors iiio when joint and several obligation is for the benefit of one only of co-debtors, he is liable for the whole towards his co-debtors . . . 1120 DOCUMENTS : Vide Acts, Writii^gs. DOMAIN, public : Vide Crown. DOMESTICS: Vide Servants. DOMICILE, law of,— as to its effect on civils rights of persons 6 is established b)' six montlis residence for purposes of marriage,. . 63 of a person, is for civil purposes, where he has his principal estab- lishment — 79 how change of is effected 80 how proof of intention to effect change is established 81 person holding temporary office retains his former domicile 82 of married women, unemancipat^'d minors and interdicted per- sons 83 of majors working continuously lor others 81 effect of election of, in deeds 85 publication of bans, domicile of the parties 130 et seq. DONATIONS : Vide Gifts. DON MUTUEL, between consorts, abolished 12G5 DONEE, becoming an heir must return gilts into the mass 712 effect of registration, as between two donees of the same immove- able 2098 DONOR : Vide Gifts. DOVE-COT, ownership of pigeons going into another person's 428 DOWAGER : Vide Dower 1453 et seq. DOWER, of wife and of children, is either legal or conventional 1426 legal results from mere act of marriage in the absence of stipula- tion 1427, 1431 conventional is that specially agreed on 1428 and must be registered ....1448,2116 lawful to stipulate, wife and children may take either one or the other 1429 such option exercised by mfe binds the children 1430 " lawful to stipulate for no dower 1431 is not subject to formalities of gifts 1432 conventional accrues from date of contract of marriage and cus- tomary from date of its celebration 1433 of what customary dower consists 1434 mobilized immoveables and certain moveables immobilized are not subject to 1435 customary dower resulting from a second marriage and any subse- quent marriage 1436 of what conventional dower may consist 1437 conventional dower is taken from the private property of hus- band 1440 is a right of survivor.ship, but may open otherwiSv. 1438 wife obtains enjoyment immediately on its opening and children only after her death 1439 wife and children are seized of their rights without necessity of judicial demand 1441 is a real right and is governed by the law of the place where im- moveables are situated 1442 effect of alienation or charges on property subject to 1443 may be renounced by wife who is of age 1444 effects of such renunciation 1445 of children, how renounceable ,. 1146 effect of sales under execution of immoveables, subject to 1447 is subject to registration 1448, 2116 i.'l ■'..' '1' 6^2 Civil Code of Lower Canada. AUT. but not to prescription by purchaser of the Immoveable, so long as dower is not oppn 1449 conventional of wife is not incompatible with a gift of usufruct by husband 1450 when it consists of money, wife has all rights of other creditors of the succession 1451 and wiien of a certain portion of property a partition must be made , , 1452 dowager's rights are like other usufructuaries 1453 she enjoys them on taking oath to restore the dower, but if she re- marries must give security 1454 effect of failing to do so 1455 she must maintain lea?es lawfully made H56 but leases made by her, expire with her tenure 1457 she is liable for all charges, ordinary and extraordinary 1458 and for the lesser repairs 1459 she takes things in condition they are at opening 1460 her obligations when additions have been made to the thing sub- ject to dower I4fii how terminated 1462 wife is deprived of by reason of adultery or of desertion— when action must be brought 1463 also by the abuse of her enjoyment 1464 forfeiture or renunciation of by wife results In children taking the property 1465 children entitled to, are those born of marriage for which It was constituted 1466 child assuming quality of heir is not entitle d to 1467 must return benefits received or take less dower 1468 liability for debts of father 1469 consisting of money is " moveable" 1470 how divided amongst children 1471 DOWRY, separation from bed and board gives wife right to obtain restitution of , 208 wife of institute has no subsidiary recourse against the property of substitutions for securing her 954 DRUNKARDS, habitual may bo interdicted S36a by whom and how demand for Interdiction Is made 3366 who are deemed , 336c proceedings on petition for interdiction 336rf to 336/« when drunkard may be confined 336t to 3301 how interdiction may be removed 336?4 wife or son may be curator to 33Go DRUNKENNESS, persons suffering from a temporary derangement of intellect arising from, are unable to give a valid consent in contracts 986 DUEL, civil responsibility for damages caused by 1056 EARNEST, giving of. In cases of sale. 1477 EAVES, ot roofs, how constructed 539 EDICTS, and ordinances, copies of, when authentic 1207 EJECTMENT, when lessor has right of 1624 S 2 ELECTED DOMICILE, by parties to a deed, effect of 85 EMANCIPATION, only modifies condition of a minor 247 every minor Is emancipated by marriage 314 how an unmarried minor may obtain. ... 315, 316 necessitates appointment of a curator 317 etfectsof 819 to 322 presumed for purposes of trading 323 EMPHYTEUSIS, what is 567 duration of 568 effects of and who may constitute it 569 Index to Cicil Code. 543 Art. rights of lessee as to alienation, &c 870 immoveables held under, may be seized 671 lessee may brin^; possessory action 572 obligations of lessor 573 obligations of lessee. ... ,,674 to 578 . not subject to tacit renewal 679 how terminated 579 when lessee may abandon 580 lessee must restore in good condition 581 as to improvements made by lessee 582 debtor must furnish new title after 29 years from date of old title. 2249 prescription of rents in 2250 rents arising from, are immoveable 388 ENCLOSED PROPERTV, owner of may claim a way on that cf his neighbour ... 540 ENDORS 15MENT, of Hills of Lading : Vide AffkeightMENT 2421 ENGLAND, laws of, apply as to evidence in commercial matters when code is silent 1206 and in matters relating to Bills of Exchange 2340 and in the invost igalion of facts relating to the same 2341 and in matters before V ce Admiralty Courts 2388 ENJOYMENT, of civil rights 18 et seq. in ownersliip. 406 et seq. in usufruct 447 et seq. in use and habitation , 487 et seq. ERASUKES, in acts of civil status, how acknowledged 46 ERROR, is a cause of nullity in contracts. 991 in what cases 992 may be a cause for annulling marriage .. . 148 of law not a cause for annulling transactions 1921 of calculation in transaction may be reformed 1926 he who receives what is not due to him, by error, is bound to re- store it 1047 he who pays a debt no longer due, by error, may recover it 1048 of fact, is a ground of revocation in a judicial admission 1245 ERRORS, rectifications of in acts and registers of civil status. ... 75 et seq. ESCHEATS, to the Crown, prescription of : Vide Cbown 2216 ESTIMATE AND CONTRACT, Work by : Vide WOBK 1683 et seq. EVENT, fortuitous : Vide Fortuitous Event, EVICTION, in cases of successions 748 warranty against in sale 1508 et seq. fear of, a cause for delay of payment 1535 of party acquiring property in cases of sales and expropriations does not he 1590 in contract of exchange 1598 in partnership properiv 1839 EVIDEl^CE: Vide Proof.". 1203 et seq. EXCEPTIONS, which may be pleaded by a joint and several debtor when sued 1112 (in hypothecary action) of discussion 2066 of warranty 2068 of subrogation 2070 resulting from expenditure 2072 " '< a privileged claim or prior hypothec 2073 EXCHANGE, what is the contract of 1596 effect of one of the parties thereto not being the owner of the thing exchanged 1597, 1598 rules of sale applicable to contract of 1699 'i:m i ,1 t /. Ml. 644 Civil Code of Lower Canada. 1 ' Art. EXCLUSION, from tutorship 282 et seq. from successions, can only be effecte.l by an act clothed with the formalities of a will 899 EXCLUSION OF COMMUNITY", does not give wife the right to ad- minister her property 1410 but husband retains administration 1417 other particulars regarding ..1416 to 1421 EXKCUrOKS, a testator may name one or m re and provide for their replacement 905 who may and who may not be 905 to 9()9 nobody can be compelled to accept ottlce of ; duties of are gratu- itous, and they are not bound to be sworn 910 who have accepted otftce cannot renounce It without judicial authorization 911 when several are appointed and some only accept or survive tes- tator 912 powers and liabilities of joint executors 913 expenses of are borne by the succession 914 may perform conservatory acts before probate of will 915, 919 testator may limit obligations of 916 may Ise removed by the Court for cause , ... 917 are seized as legal depositaries, and seizin lasts for a year and a day, and mu-t render one account 913 must cause an inventory to be made 919 powers of do not pass to their heirs 920 testator may extend the powers and seizin of 92I tef.tator may provide f ov rei)lacement of 923 when judge or Court may replace them 924 investinent of moneys by. „ 981o et seq. I'ide ADMINISTUA.TOB, Testator, Wills. EXEMPTJON. from tuforship, cau'ses resulting in 272 et seq. EXPENDITURES : Vide mpROA-^EMENrs. EXPENSES, funeral, privilege for 1994, 2002, 2009 funeral, a memorial of must be registered. ..... 2107 of last illness, privilege for 2003, 2009 " " a memorial of must be registered 2107 of tilling and sowing on immoveables sold before harvest, are privileged...... 2)10 fruits only belong to proprietor of soil, subject to payments of ex- penses of tilling and sowing done by a third party.. . . , 410 lying in, are prescribed by two years 2261 § 1 in the quasi-contract negotiorum gestio 1046 " <' condictio indebiti 1052 .u cases of loan 1770 «• deposit 1812 of delivery in eale are at the charge of seller 1495 EXPERTS, make valuation of immoveables in cases of partition in successions ,, 696 and m cases of provisional posseession of property of absentees. . 97 EXPROPRIATION, of immoveable property for public purposes 1589 no one can be compelled to give up his property except in cases of 407 partv acquiring property for such purposes cannot be evicted. ... 1590 EXTINCIION, of obligations 1138 of suretyship 1956 et seq. of privileges and hypothecs 2O8I of mandate 1765 EXTRACTS, from civil registers, when authentic 50 from originals of certain authentic instruments , 12I6 FACTORS, who are 1736 liability of factors whose principal reside abroad 1733 Index to Civil Code, • 545 Art. power to sell goods 1739 when deemed owners of goods for certain purposes 1740 general proviblons regarding 1736 et seq. FAITH , good, is always presumed 2202 ' '• of a possessor when it ceases 412 " Improvements made l)y a poHsessor in , 417 had, must be proved by be wlio alleges it 2202 " improvements mailo by a possessor in 417,418 FAT.SE, authentic writings may be attacked and Het aside as 1211 FAMILY, meaning of the term 979 FAMll^Y COUNCIL, who may demand. 260 ■who should be sunimoned to attend 281 et seq. FAMILY PArKKS, and registers, of what they make proof, when and against whom . 1227 and registers constitute a commencement of proof in writing in matters of lecltimation 233 and registers, and in actions to estabiisli paternity 241 FARM : r«/e Leasf: of farms and rural estate 1G4C et seq. FARMER, on shares cannot sublet or assign 1646 FATHER, authority of : Vide Paternal authority. is responsible for damage caused by minor children 1054 FEAR, is a cause of nullity in contracts. .-. 991 whether produced by otiier party to contract or by any other person 994 must be a reasonable and present fear of serious injury 995 may be fear for himself or his wife, children or others 996 mere reverential fear of ascendants will not invalidate 997 nor will fear of a legal restraint, usually 998 a contract to rescue a kinsman from peril is valid 999 not absolute cause of nullity, but gives rise to right to annul lOOO FEAR OF EVICTION : Fide Eviction 1535 FENCES, and fence walls separating properties 520 FIDEI COMMISSUM : Vide Substitutions 925 et seq. FIDUCIARY, testator may name legatees who shall be merely 869 FILIATION, of children who are legitimate or conceived during marriage when a child is deemed legitimate 218 when a father and heirs may and may not disown sucli a child 219 et seq. when a child is deemed illegitimate : 221, 227 is proved by acts of birth 228 or by uninterrupted possession of status 229 how such possession is established 230 no one can claim a status contrary to 231 proof of may be made by evidence when there Is a commencement of proof in writing 232 what gives rise to this commencement 233 how proof to the contrary may be made 234 action of child to establish his status as imprescriptible ... 235 when heirs of such child may bring action 236 of illegitimate children 237 et seq. FINAL, judgment (chose jugie, rea adjudicata) what is effect of 1241 FINES : Vide Penalties. FIRE, presumed to be caused by fault of lessee as against lessor 1629 but not in favor of neighbouring proprietor 1630 liability for damages when there are several lessees 1631 FIRE INSURANCE : Vide Insurance against Fire. MSH, become property of those into whose pond they go 428 FISHING, right of , how governed 587 FLOCKS, liability of usufruct for losses in 478 FOOT-ROADS, along bank» of navigable rivers are; servitudes estab- lishedbylaw 807 35 %<**'** ^>. •nS^ ^..^ IMAGE EVALUATION TEST TARGET (MT-3) y ^ ^ A 1.0 I.I Wuu ill 1.8 1.25 1.4 1.6 ■• 6" ► V] <^ /} % / Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 a Civil Code of Lower Canada, w ^ Art, FORCE MAJEURE, produces a " fortuitous event " 17 § 24 > FOREIGNEK. : Vide Alien. FORFEITURE, of property to Crown of persons civilly dead ... 35 of right of redemption in sale 1649etseq« FORTIFICATIONS, belong to the Crown 403 FORTRESSES, gates, walls, ditches, «6C., of, belong to Crown 402 FORTUITOUS EVENT, definition of 17 § 24 receiver of a thing not due who is in bad faith, is liable for loss - . by 1050 obligation to deliver ceases when tbing is destroyed by 1200 « debtor is not liable for damages for inexecution of obligation aris- . . ingfrom 1072 A cause of extinguishing obligHtious 1202 - a yearly lessee discharged from rent when harvest is destroyed by 16B0 when borrower is responsible for loss by 1767 FOUND: Fide Things FOUND.... 593 FRAUD, is a cause of nullity in contracts ? 991, 993 is never presumed 993 nullity is not absolute, but only gives rise to action to annul 1000 of the avoidance of contracts made in fraud of creditors. .. .1032 et seq. , . effect of with regard to subsequent creditors 1039 suit must be brought within one year 1040 Vide Third Parties. FREE AND CLEAR, (clause of) in marriage covenants 1397, 1399 right of wife to take back free and clear what she brought into thecommunity IIOO FREIGHT: Tide Afkbeiohtment. FRUITS, unplucked, are immoveables 878 belong to proprietor by right of accession 409 subject to pavment of ploughing, tilling, &c 410 are acquired by possessor in good faith ,. ... 411 usufructuary has a right to enjoy 447, 450 natural and iudustrial, definition of 448 civil, definition of 449 they are acquired from day today 451 right of use of land entitles the possessor to use of fruits for him- self and family 493 of immoveable given in pledge are imputed first in payment of in- terest 1967 an heir excluded for unworthiness, must return 612 FUNERAL EXPENSES : Vide Expenses Fdnbbax. F URNITURE, what the word comprises J 396 GAMING CONTRACTS, no right of action for recovery of money claimed under 1927 exception in favor of races and games , 1928 GAMING POLICIES, are illegal 2480 GAOL, burial of persons dying in must be authorized by coroner or other officer 69 ■GENDER, masculine, includes both sexes 17 § 9 GENERAL AVERAGE : Vide Insubancb Marine. GENERAL PARTNERS, in .limited partnerships or partnership en commandite 1872 are jointly and severally respousit^ e 1873 can alone sign for or transact business of partnership , , 1874 names must appear in certificate of partnership 1875 change of, dissolves the partnership 1879 name of one or more must be used in the partnership name 1880 suits in relation to partnership may be brought by and against them. 1881 anust account to each other and to the special partners 1885 Index to Civil Code. II 878 409 410 411 47,450 448 449 451 493 1967 612 396 . 1927 . 1928 . 2480 ■or . 69 .17 §9 en .. 1872 1873 .. 1874 •• 1^ .. 1879 .. 1880 m. 1881 ..1885 OENEKATIONS, proximity of relationship is determined by the num- ber of 615 how computed in the direct line 617 and in the collateral line 618 OI VING IN PAYMENT, is equivalent to sale 1692 GIFT, what is comprised in " gift of a house with all that it contains.".. 898 GIFTS, to be valid must be in^er vivos or by will 764 in contracts of marriage partake of gifts inter vivos and of wills. . . • 767, 781, 830 made to take eif ect only after death, when null 758 inter vivos, what are and acceptance of 766 " general rule regarding capacity to make and acquire by. 759 . . " may be conditional 760 " general rule as to capacity to make 761 •* when made during mortal illness 762 " by minors, tutors, wives, corporations, etc 763 " in case of serord marria^ge 764 " general rule aa to persons capable of acquiring by 766 " corporation'i may acquire by 766 " to tntors, oarators and ascendants 767 " to concubines and adulterine children 768 " to priests, doctors and advocates 769 " between consorts prohibited 770,1265 " as to what time capacity to give or receive is to be con- sidered 771 " to children to be born of an intended marriage 772 of property of another 773 in onerous form, in favor of persons incapable of receiv- inu, are void 774 legitim cannot be claimed by children in consequence of 775 Formof 776 " donor must divest, himself of ownership of thing given 777 present property only can be given, save in contracts of marriage 778 resolutory condition in. 779 are universal, by general title or particular title 780 abandonment of partition of present property is con- sidered as 781 stipulations and conditions in 782 revocable at mere will of donor, are void 783 subject to payment of debts 784 causes of nullity in 786 proof of nature and quantity of 786 ^ccepfance o/, requisite 787 " howeffected 788 «« by minors, interdicts, etc 789 " for children to be bom 790 «* when must be effected.... 791 •« relief from acceptance or rejection. 792 «« may take place without donee's presence. 793 •• cannot be made by heirs of donee ......... 794 Effect of, divest thejdonor and vest the donee with the ownership without delivery 795 •' as to obligation of warranty 796 " liability of universal or general donee for debts of donor 797 to 801 ** right of creditors of donor to separation of his property from that of donee g02 '• insolvency of donor gives creditors right to demand revocation 803 t( n it t* *i «< u i'i!.; :i:l^ f; 548 Civil Code of Lower Canada. Abt. inter vivos, Itegintration of, takes the p\ace of inscrlptiou ; where *( •( 04, 809 " ettectof 805 , •• compulsory, but neither donor not donee can plead want of 806 " usually not requisite in gifts made in direct line "by contract of marriage 80T ** nor of moveables when followed by delivery and public possession 808 '• who is responsible for want of 810 Revocation of, causes of 811 " birth of children to donor not a cause of . . . . 812 '* where ingrati ude is 813 "When demand of must be made 814 effect of as to hypothecs 815, 816 By contract of marriage, partake of character of gifts and wills 757,781, f'30 " general rule regarding 817 " who may make and oi what tlie^ may consist 818 to 820 *' are subject to acceptance . 821 " and to the marriage taking place, 822 " cannot be revoked, unless so stipulated 823 may be made revocable at mere '« will of donor 824 " to what debts may be made sub- ject 825 " how donee may free himself from liability to pay these debts. 826 to 828 " as to representation taking place. 829 " in contemplation of death, how expressed 830 GOOD FAITH, is always presumed 2202 when a possessor is presumed to be in and when he ceases so to be 412 its effect as regards improvements on another person's property. 417 of subsequent purchasers, in prescription 2253 GOOD MORALS, conditions inconsistent with, render obligations void 1080 GOVERNOR, definition of the word 17 § 3 GOVERNOR GENERAL, definition of the word 17§ 3 GOVERNOR IN COUNCIL, definition of the term 17 § 4 GRANDCHILDREN, meaning of the word 980 GRANTS, original are exempt from formality of registration 2084 § 2 GRASS, upon the beaches of the St. Lawrence 591 GRATES, repairs to, are deemed tenant's repairs 16S& GREATER REPAIRS, what constitute 469 liability for in cases of usufruct 4f8 GROUND : Firf« Land. GROUND RENTS, cannot be created for more than ninety-nine years.. 389 redemption of 389,390,391 GUARDIAN : Vide CuBATOB, SEQUESTRAtoR, Tutor. HABITATION, rights of use and, are immoveable 381 '• defined 48T " is established only by will of man and ceases in same manner as usu- fruct 488 •• necessitates giving of security and making of inventory 48& »♦ must be exercised \«^ith the ctire of a prudent administrator Indeo! to Civil Code. 649 806 807 808 .. 810 .. 811 .. 812 .. 813 . 814 815, 816 fts 781, H30 ... 817 ey 8 to 820 ,.. 821 26, 822 BO ... 823 sre . . . 824 ib- ... 825 Dm 6 to 828 ce. 829 ow .. 830 .. 2202 to ,.. 412 ty. 417 2253 ms ,.. 108O ..17 §3 ..17 §3 ..17 I 4 ... 980 2084 §2 ... 591 ... 1685 ... 469 ... 4e8 381 48T 488 48» Art. rights of use and, are governed by title creating it 491 " how governed when title is silent. .41812 to 494, 496 ♦• extend to family, even if the rights were given to a person only subsequently married 495 •* cannot be assigned nor leased 497 " how costs of cultivation and repairs are u borne . • 498 HABITUAL DRUNKARDS : FWe "dbunkards Habitual. HARBOURS, are depisndencies of Crown domain 466 HARVEST, loss of, may give rise to reduction of rent 1650 to 16K tithes c.irry a privilege upon , 1636 privilege upon lor expenses of tilling, etc 2010 HEARTHS, regulations concerning construction of 532 | 4 repairs to, are deemed to be tenant's repairs 1835 HEDGES, rules regarding 629, 530 HEIR, definition of the term 597 is seized by law of snccessions 607 not bound to accept successions 641 may accept purely and simply or under benefit of inventory 642 who renounces a succession deemed never to have been heir . . 6S2 but may accept so long as it has not been accepted by another. .... 667 effect of abstraction or concealment of property by 669 payment of debts by 735 et seq. appointment of allowed in contracts of marriage 830 Sayments made to ostensible heir, are valid 870 eneficiary, how quality of is acquired 660 et seq. «» three months delay allowed to make inventory. 664 , •« but may sell perishable articles 665 «' position during this delay 666 '• may demand a still longer delay 667 ♦• • and even after these delays may make an inventory and become beneficiary 669 <• is forfeited by concealment 670 ** ett'ect of benefit of inventory 671 «• obligations and administration of 672 to 676 " renunciation of quality of 677,678 *• obligations towards creditors 679,680 " account to be rendered by 681, 682 •• is not excluded by one who offers to accept imcon- ditionally 683 *' prescription does not run against beneficiary heir witli respect to claims he has against succession 2237 HEIRS, of depositary, liability of 1806 of widow in community, delays accorded to 1349, 1363 effect of some accepting and some renouncing community 1362 HERD, usufruct's liability for loss of 478 lease of cattle on shares 1698 HIGHWAYS, roads and public ways form part of Crown domain 400 disposal of things found on public 593 HIRE : Vide Lease and Hiee. HOLDER, of real estate may be sued hypothecarily 2056, 2058 and condemned to surrender it or pay the hypothec upon it 2061 may call in his vendor or warrantor 2062 : by dilatory exception 2063 ; andset up all grounds of defence.... 2064 and when not personally liable may plead the exception of discussion 2066 the exception of warranty 2068 the exception of subrogation 2070 ' the exception resulting from expenditures 2072 f I f I w m (■: r.(i 660 Civil Code of Lower Canada, aet. and the exception resulting from a privileged claim or a prior hypothec 2073 cannot deteriorate property 2064, 2272 §& effect of alienation by, after liypothecary action is brought 2074 may surrender the iiumoveable before judgment 2075 may be condemned personally to pay rents, issues and profits since service of process 2076 effect of surrender by, on ser • • 2017 • f 2018 1 • • 2019 , , 2020 e. 2021 1 • • 2022 jrs 2023 202O • 2025 • • • 2026 31 27, 2028 Is. 2029 ra- 30, 2031 lip • • • 2129 2032 t • • 2121 2033 1 • • 2020 1 • • 2034 >re nd 35 2036 Art. Conventional, definition of 2020 •' by whom can be granted '-037 in cases of qualified ownership 2038 how created on property of minors and inter: diets 20.30 mnst be in authentic form » 2040 " pave on lands held in free and common soccage and in certain specified counties . 2041 " must specially describe the immoveable 2042 upon property to which debtor has an insufficient title ..".... 2043 •• must be for a sum certain 2044 »' may be granted for any obligation 2046 " created by will are governed by same rules as.. . 2045 Ranking of^ according to date or order of registration 20 .Z " when preference is ceded -048 '* " upon more than one immoveable 2049 *• creditors of the vendor. 2050 •* " whose claims are suspended 2061 •* persons subrogated in right of creditor 2052 Effects of, debtor still CDJoys the property 2053 " but cannot deteriorate it 2054 " effect of so doing 2055, 2272 § 5 " creditors can follow it into whatever hands it passes and cause it to be judicially sold .• 2056 " creditors can take hypothecary action 2057 «' and action to interrupt prescription 2057, 2224, 2230 Extinctionof 2081 HYPOTHECS, attaching to ancient debt do not continue when theup has been novation thereof 1176 nor, when novation has been effected, can they be transferred to property of the new debtor 1177 HYPOTHECARY ACTION : Vide Action Hypothecary. HYPOTHECATION, of rcsseZs; firfe Merchant Shipping 2374 ILLEGITIMATE, children : Vide Child. IMBECILITY, habitual, is a cause of interdiction 325 IMMOVEABLES, laws governing ^ 6 what things are by their nature 376 when windmills and watermills are 377 crops and trees uncut and fruits unplucked are 378 moveables placed for a permanency on real property by the proprietor are 379 when such things are deemed permanently placed 380 rights of emphyteusis, use and habitation and servitudes and actions pertaining to same are 381 certain moveables of which the laws ordain or authorize the realization are 382 things temporarily separated from a building, wall or fence do not cease to be 386 rents resulting from emphyteusis or under seizure 388 not elTected by registration made after seizure 2091 belonging to a minor, alienation or hypothecation of 297 and as to those belonging to emancipated mimrs 322 belonging to a wife, husband cannot dispose of 1298 Vide COMMDNITY 1272 IMPEDIMENTS TO MARRIAGE, in the direct line 124 in the collateral line 125 between uncle and niece, etc 126 miscellaneous 127 IMPLEMENTS, lessee bound to furnish farm with 1647 m i^ 552 Civil Code of Lower Canada. Abt. IMPOSSIBILITY, of condition in gifts inter vivos 760 of doing a thing imposed as a condition in obligations 1080 of performing an obligation, extinguishes it 1200 but debior must assign such rights of indemnity as he may possess to his creditor 1201 effect of partial performance of VM2 IMPOTENC Y, when a nause of nullity in marriage 117 IMPRESCRIPTIBLE THINGS : Vide Pbksckiption. IMPRISONMENT, executors are not liable to coercive 910 trustees are liable to 981n when wife may bind herself to release her husband flrom 1297 liability to of surety does net pass to his heirs 1037 IMPROBATION, of authentic writings 1211 IMPROVEMENTS, on property of another 417 et seq. right to compensation for in hypothecary actions 2072 hypothec extends over all subsequent 2017 claims of usufructuary for 462 claims of lessee for 1640 as between consorts 1304 in emphyteusis 582 IMPRUDENCE, liability for damages resulting from 1053 IMPUTATION, 0/ payments, a debtor has right to malce 1158 ^■ <' but cannot insist that it be made on interest in preference to capital 1159 " when receipt made by creditor has been accepted by debtor, imputations therein indicated are flnal 1160 " how made when no special imputation has been elected 1160 " in partnership -.. .1843,1844 *' of fruits of immoveable given in pledge. . . 1967 INCAPACITY, as regards tutorship 282 et seq. Vide Capacity and Disabilitieb. INCESTUOUS CHILDREN, gifts to are limited to maintenance 768 INCOMPETENCY, of witnesses 1231 INCOMPETENT COURT, demand brought before, does not inter- rupt prescription 2225 INCORPORATION, of joint stocli companies 1889 et seq. INCORPOREAL RIGHTS : Vide Rkjhts Incorporeal. INCREASE, of animals are natural fruits 448 INDEMNITY, a condition precedent to surrender of property for pur- pones of public utility 407 Vide Compensation. INDETERMINATE, object, effect of obligation concerning 1060 INDEX, to immoveables, kept by registrars 2161 Governor may alter form of 2164 regulations concerning 2171 INDICATION, of payment, simple, does not effect novation 1174 INDIGENT, relatives, obligation to support certain : Vide Mainten- ance 166 et seq. INDIVISIBILITY, of obligations : Vide Obligations 1124 et seq. of judicial, or extra judicial admissions 1243 pledge is indivisible, although the debt be divisible 1976 Vide Divisibility. INDORSEMENT, Bottomry bonds are negotiable by 2612 INEBRIETY : Vide Drunkenness. INEXECUTION, of obligations, when a cause for damages 1065, 1066 INFANTS, who are not viable when born, do not inherit 608 INFERENCES : Vide Presumptions. INFLUENCE, tindtte, in giits 769 undue, in Wills 839 448 407 769 839 Index to CMl Code, 663 Art. INGRATITUDE, of donee, a cause for revocation of gifts 8U when donee is deemed guilty of 813 IKHABITANT, of Lower Canada, definition of term 17 § 21 even when absent is governed by its laws 6 may be sued in its courts for obligations contracted abroad 27 Inheritance, what,i8 comprised in term 599 JN.TURIES, bo(Wy, prescription of : Vide Pbfbckiption 2262 § 2 INJ UUY, to property : Vufe Deterioration. INN KEEPERS, are responsible as depositaries 1814 proof of deposit made by traveller. ,, 1238 § 4 when responsible for thefts lol5 lien of for board and lodging 1816a ranking of privilege 1994 § 4, 2001 as to right to recover price of liquors sold by 1481 INSANE PEliSONS, right to oppose marriage of 141 opposant bound to apply lor interdiction of 142 interdiction of 326 et seq. f lowers of curator over 343 iabillly of curator for acts of lOM ■ cannot contract, alienate or acquire 759 but may receive by will 837 Inscription EN faux, against authentic a ts 1211 INSCRIPTION of gifts in prothonotary's office, abolished 809 INSOLVENCY (bankruptcy), meaning of term 17 § 23 (bankruptcy), effect of in case of joint and several obliga- tions 1118,1119 " of debtor prevents his claiming benefit of delay 1092 INSOLVENT TRADERS, unpaid vendors privilege on things sold 1998 hypothecs granted by 2023 INSTITUTES : See Substitutions. Investments by 981o et gpq. INSURANCE, definition of 2468 consideration for, is called premium, etc . 2469 when a commercial contract and wlien not 2470 mutual, is not commercial 2471 who may effect 2472 what may be the object of 2473 when a person U deemed to have an insurable interest.. V474 when this inte ' s": must exist • 2475 may be made » ^.o rrst all losses 2476 right to eifect re nsurance 2477 , insured must give notice of loss 3478 ; three principal kinds of 247S is usually witnessed by a policy 2480 wager or gaming policies are illegal 2480 acceptance of application constitutes 2481 when policies of, are transferred 2482 transfer of thing insured does not transfer the policy.... 2483 representation and concealment, eifect of 2485 to 2439 warranties, express and implied, effect of 2490 to 2491 Marine, contents of policy of 2492 '• on what may be made 2493 , "on what voyages 2494 " risks usually covered by 2495 " commencement of ri;,k 2496, 2497 . •♦ policies of , how construed 2498 •* when made after loss or arrival 2498 ', " obligation of insured • 2499 ^' premium, when payable 2B6(i f " when premium is not due 2501 , 4i when proportional par L of may be recovered... 2502 ^' representation and concealment 2503 / / V. t. 1, I' »• .^iM 654 Civil Code of Lower Canada, 4« << Art, Marine, warranties, general rules ,. 2P04 •• of Heawortliiuf lis requisite 2505 " and that ship is properly documented 2000 " obllgationH of tnaurerf to pay loBses 2507 " effect of deviatl ID 2608 " not liable for losses caused by intrinsic defects in thing, etc . 2501> " nor for barratry 2610 deflnition of the word barratry 2511 nor for petty averages, etc 2612 but is sometimes for particular average 2513 may annul policy for fraud or over valua- tion 2514, 2515 rules concerning several insurances against the same risk 2516 to 2510 when insurance is made separately on ditfereut shl ps, effect of 2520 Losses, are either total or partial 2521 " total are either absolute or constructive. . . . 1^522 " what are partial lo^<8es 2523 •* in cases of collision . , 2524 to 2526 " what are particular average losses 2527 '* by salvage 2528 " in cases of forced transhipment .... 2530 to 2532 " under open policies, value of ship 2533 " valueofaoods 2534 " how partial losses are estimated 2535 «' claim for, how made 2536 " insured must try to save insured effects 2537 Abandonment, condition precedent to claim for total loss and when it may be made 2533 carnttt be partial or conditional 2530 in case of things insured separately 2540 when must be made , 2541 waiver of right to make 2542 how made 2543 notice must be explicit 2544 of ship stranded, when not permissible 2545 of ship wlien presumed to be lost 2646 effect of and acceptance of 2547 to whom freight earned belongs 2548 when completed cannot be revoked 2549- ett'ect of Insurer refusing to accept 2550' Average contributions, rules governing, 2551 general or gross average losses.. 2553 -when lenders on bottomry loans contribute to... 2610 jettison, when a cause for 2553 what first should be jettisoned 2554 what goods do not cont ribute to 2555 what goods are not paid for if jettisoned 2556 deck loads jettisoned not paid for 2557 rules for estimating proportion of contribu- tion 2558, 2559' contribution not made for particular average losses .. . 2660 when ship not saved by jettison 2561 and if af terwarris lost 2662 further regulations 2503 to 2567 INSURANCE, Fire, general rules concerning 2568 contents of policy of 2569 representations not contained in 2570 <( « « Indea) to Civil Code. 555 RTr 25U5 2500 2507 2608 2r.oi)' 2510 2511 2512 2513 2515 2610 2620 2521 ', 2551 2553 2610 2563 2554 2555 2566 2557 2550' 2660 2661 2562 2567 2668 266a ■. 2570 Art. interest roquinlte to effect 2671 iroplieIy ' 2673 effect of alteration in iiHe of premiseB .... 2674 Buni insured, no proof of value of goods 2576 effect of tranufcr of Interest in the obj* ot of 2576 in case of undivided property 2577 liability of insurer 2678, k679 Extends to Immediate consequenO' 8 of the Are 2680- but not to damages caused by excessive heat of stove, etc 2581 Is not entitl«;d to deduction or average 2682 effect of granting delay for renewal of premium, on loss occur- ring In Interval 25S8- insurer has right to be subrogated, on payment of loss, in rights of the assured 2684 INSUBANCE, LiFK, general rules governing 2685, 2586 contents of jiolicy , 2687 declarations regarding health and habits, effect of, 2688 when amount insured may l)e made payable. 2589 what constitutes an insurable interest 2690 policy of may pass by will or succeHsion 2591 measure of interest, when policy effected by creditors 2592 death by suicitle, ower8 of and Iiow removed 351 JIAL DEMAND, interrupts prescription 2224 wife and children are seized of their dower without the necessity of. 1441 JUDICIAL SALE, privileges and hypothecs become extinct by.. .. 2081 § 6 JURISDICTION, demand brought before a Court of incompetent, does not interriipt prescription 2225 JUROR, an alien cannot serve as , 26 KEEPING : Vide Preservation. KIND, in alienation for rent, the rent may be paid in. 1594 stipulation regarding registration of 2044 LABOUR DAY, is a holiday 17 § 14, No. 6 LATENT DEFECTS, in sale : Vide Warranty 1522 et sea. LAKES, alluvion on border of lakes which are private property 422 LANDLORD AND TENANT: Vide Lease, Lessor, Lessee, L 4iNDS, reclaimed from the sea are (tependencies of the Crown do- main 400, 421 military, belong to Crown 403 ownership of, carries with it ownership of what is above and be- low it 414 ^ regulations concerning ownership of buildings and plantations on land 415 et aeg, left dry by running water withdrawing 421 carried away by a sudden force 423 LANGUAGES, differences between English and French texts of code.. 2615 LAWFUL CONSIDEit ATION, necessary in contracts 984,.989 when not lawful 990 LAWS, imperial, when deemed promulgated 1 provincial when deemed promulgated. 2 " effect of disallowance and within what time may be made 3 • " printing and distribution of 4 " persons entitled to such distribution 5 of Lower Canada govern immoveable property therein and per- sons being therein 6 of the domicile of owner govern moveables 6 regulating forms of acts and deeds passed out of Lower Canada.. 7 such deeds are construed according to law of the country where they were passed 8 when they affect rights and prerogatives of Crown 9 of public order and good moral cannot be validly contravened by private agreement 13 prohibitive impute nullity 14 "shall " is imperative and" may" permissive 15 penalties for contravention of, how recovered 16 of England : Vide Exglaxd, laws of. LEASE AND HIRE, is either of things or work or both combined 1600 of things defined 1601 of work, defined 1602 (ymtttflfs, what corporeal things may be hired 1605 •' " incorporeal things may be hired 1606 " termination of. 1656 et seq. " Vide Lease, Lessor, Lessee, Repairs and Privi- liEOE. Of Work : Vide Work, Lease and Hire of and Carriers. servants, etc 1667 et seq. LE AS E, emancipated minor can only grant for nine years 319 husband alone cannot grant lease of wife's property for more than nine years 1299 Index to Civil Code. 6 6 7 8 9 1 13 114 15 16 659 Akt. «(. (( (t M «l t( heq. 1319 I299 right of usuftuctuarv to grant 457 of bouses, farms and rural estates, rules governing 1607 persons holding by sufferance of owner, deemed tenants 1608 tacit renewal of, when arises 1609 when notice given to lesisee, tacit renewal does not arise 1610 surety given for, does not extend to tacit renewal 1611 registration of required when for more than one year 2128 2129 Of Houses, termination of, where no time specified 1642 moveables for furnishing a house 1643 cleansing of wells, etc * 1644 0/ farms and rural estates, on snares, lessee cannot sublet or assign 1646 must stock the farm 1647 eifect of excess or deficiency in • quantity of land 1648 lessee must notify lessor of en« croachments 1649 effect of harvest being destroy- ed 1650 to 1652 duration of lease 1653 " " lessee must leave manure, straw, &c. , on farm 1664 Vide Lessob, Lessee. Q/'nu>vea&/6S, for furnishing a house, duration of 1643 Of cattle on shares, what is the contract of 1698 what may be the subject of this contract 1699 regulations concerning 1700 Termination of 1666 et seq. LEGACIES, are either universal, by general title or particular title. . . . 863 made subject to other legacies 865 right to repudiate .... 866 tutors and curators may accept 867 accretion in regard to 868 universal and legacies by general title, rules concerning 873 et seq. by particular title, rules concerning 880 of things which do not belong to testator 881 or only in part to him 882 or which only become his p operty after the making of the will 883 of universality of --ssets and liabilities 884 reduction of, when and how takes place 885, 886 rights of creditors of succession in respect to and recourse of le- gatee 887 right of accession to immoveables 888 elieot of hypothecs on immoveables, the subject of 889 made in favor of a creditor are not deemed in compensation of his claim ; 890 Revocation of : Vide Wills, Revocation of 892 et seq. lapse by legatee predeceasing testator 90b and by the death of the legatee before the fulfilment of the condi- tion to which the legacies were subject 901 eifect of suspensory condition in 902 eifect of loss of the subject of 903 lapric by repudiation by or incapacity of legatee 904 XiEQATEES, when corporations and persons in mortmain may be 886 minors and in terdicted or insane persons may be 837 may be mere fiduciary or simple trustees 869 from what time entitled to fruits and interest of thing bequeathed 871 of theseizin of 891 guilty of complicity in the death of testator, &c . , effect of 893 transmit rights to heirs, when the legacy was made on a suspen- sory condition... , 902 !i m i 560 Civil Code of Lower Canada. ! Art in possession, payments to are valid 870 Universal 873et8eq. ; By general title , 873, et seq. By particular title , . 880 et seq, LEGITIM, cnildren cannot claim 775' LEGITIMATION, of illegitimate children, howr effected 237 et seq. consequences of 239 LESION, a cause of nullity in contracts 991 but only in certain cases 1001 simple is as regards uneniancipated minora 1C92 effect of declaration by minor that he is a major 1003 . minor not relievable when lesion arises from a casual or unfore- seen event 1001 nor when he is a banker, trader or mechanic 1005 nor from stipulations in his marriage contract.... 1006 nor in regard to his otf ences or quasi-off'ences 1007 nor when he has ratified after majority 1008 without proof of lesion, contracts irregularly made by minors for alienation of real estate may ba avoided 1009- but when regularly made they are valid 1010' when reimbursement for what minors have received may be ex- acted. ^ 1011 majors not relievable for 1012 in regard to sales 1561 LESSEE, principal obligations of 1626 responsible for injuries and loss to thing leased 1627 even those arising from acts of his family and subtenants 1628 and those arising from fire, which is presumed to have been caused byhisfault 1629 this presumption does not extend in favor of neighbouring pro- prietor 1630 respective liabilities for fire when there are more than one lessee. 1631 condition in which he must restore premises 1632 etfect of statement and absence of statement as to condition of premises when taken possession of by lessee 1G32, 1633 obliged to sulfer certain repairs 1634 and to make certain lesser repairs 1635- but not when caused by age or irresistible force 1636 liability for rent when ejected 1637 when he has a right to sublet 1638 liability of under tenant 1639' has a right to remove certain fixtures 1640 right of action against lessor 1641 Vide Lease, Lessor. LESSOR, obligations of in general 1612^ for repairs 1613 must clean wells and vaults of privies 1614 warranty for defects in thine leased 1614 cannot cnange form of thing leased 1615 not liable for acts of trespassers 1616 to 1618 has privilege on moveable effects on leased property 1619 what this pmvilege includes 1620 and as to effects of sub-tenants 1621 and as to effects of third parties 1622" how exercised, and right to follow for 8 days 1623 right of action against lessee 1624^ cannot put an end to lease for the purpose of occupying premises himself 1662 nor by selltne the property ,..1663 privilege of, Tor rent 2005 LETTERS PATENT, make proof of themselves 1207 Index to Cliil Code. 561 .1633 1634 1635- 1636 1637 1638 1639' 1640 1641 1612 1613 1614 1614 1615 1618 1619 1620 1621 1622- 1623 162* 1662 1663 2005 1207 LETTERS OF VE RIFICATION, how obtained 630a LIABllilTIKS, of asucces ion 7;i5 et seq. of the community — I'JSO et se(i. LIABILITY, johit and several : Vide Joint and Several LiAniLiTV. LIBEL 1((53 prescription of action for, l)y na« year .... 22G2 § 1 IjIBKKATION, from punlBliinent resulting in civil tljatli, elfect of ... 38 LIOENSK, marriage 50a, 1.14 HCITATIOX, of immoveables in .successions 608,709 in substitutions ... 048 in cases of minori i y oOO sale by, bow elf'cted . 1.503 between co-proprietors . 1502 effect of when one of copartitiouprs becomes the proprietor at a sale by 746 in partnerfihij) ... 1808 in merchant shipping 2;J0^ LIEN : F<(/(' Plkdok, TvFTKNTiox. LIFEINSUKANX'E : Fiv/r Ixsuu.\NCi:, L:fi: 25S5etseq. LIFE IlKNTS, how constituted lOill on whose life may be constituted l!)02 duration of ". 1003 f n- whose benetil 1004 effect of one constituted on life of a dt'a wlien may retain tiling lent for a debt due by lender or expenses incurred 1770 expenses in connection with 1771 joint and several liability of joint borrowers 1772 oblif/ations of the fenrfer, muet let borrower have enjoy- ment of the thing lent 1773 " unless he has a pressing and unforeseen need of it, Avhen C(mrt may oblige borrower to restore it 1774 " musiit reimburse certain extraordinary expenses incurred by borrower 1775 " responsibility for injury caused by thing lent 1776 what contract must specify '2597 when risk commences and ends '2598 privilege resulting from ,. 2599 "wages of sailors cannot be the object of 2600 exceeding value of objects affected may be annulled 2601 borrower not discharged by loss of vessel in certain cases. ... 2602 when master may make ...... 2603 responsibility of minors for '2604 preference as between several loans on different voyages . . 2605 responsibility for losses '2606 to 2609 lenders contribute to general average 2610 preferences as between insurer and lender 2611 bonds of, are negotiable 2612 J^OANS, what may and may not be effected by emancipated minors 321 J^ODGING, of widow during delays for making inventory 1352 J.ODGING HOUSE KEEPER, lien of 1816rt XiOSS, of civil rights, how caused 30 of thing the object of an obligation, effect of 1200 liability of owner and master for in affreightment 2432 liability of usufruct for 478 liability of borrower for in loan for use 1764, 1767 and in loan for consumption 1778 Viils Preservation IXJSSES, in Insurance : Vide Insurance 2521 et seq. XOST wills, proof of 860 property 588 et seq. X.OTS, shares of co-heirs are drawn by. 705 XOWER CANADA, meaning of term 17 § 6 inhabitant of, meaning of term 17 § 21 «iijoyment of civil rights in 1$ Index to Civil Code. 561? 30 20U 4;i2 478 767 778 eq. 860 leq. 705 §6 21 U eifect of naturalization in 24 right of aliens to acquire and transmit property in 25 people not residents of, nutst give security in actions 29 LYING IN EXPENSKS, are prescribed by I wo years 2261 § I JVFADNKSSj liabitual, a cause for interdiction : Vide Insane Pbhsons. »25 MAGISTIiATE. means two justices of the peace 17 § 16 MAINTENANCE, to whom and by wliom duo ... 165 to 168," 175 granted in proportion to wan^s of receiver and capacity of giver . 169 effect of change in tlieir positions . . ". 170 Court may order that party claiming shall live with the person from whom it is claimed 171,172 illegitimate children may claim ., 240 persons civilly dead may receive 35 § 2 consorts separated may claim from each other 21S gifts to incestuous or adulterine chiUlren ar^ limited to . 768 as also tho.se to person with whom donor has lived in concubinage. 768 refusal to grant to donor, may be a cause for revocation of gifts.. Sl.'J M.A.JO HIT Y", attained at the full age of twenty-one 246,324 INIANDATARY, can do nothing beyond the authority given or implied by the mandate 17C4 cannot buy or sell things himself which are the object of the mandate 170G is obliged to execute th»> mandate he has accepted 17i)9 is bound to exercise skill of prudent administrator 1710 is answerable for person whom he substitutes 171 1 liability of joint mandataries 1712 is bound to account 1713 liability for interest of money he uses for his own ends 1714 obligations towards third i>erson8 1715 to 1717 when deemed not to have exceeded his powers. 1718 if he acts alone, when he is charged to act jointly with another, he exceeds his powers ! 1719 has a privilege on things placed in his hand 1723 when he may renounce mandate 175J legal representatives of, must give notice of his death to the mandator 1761 Vide Mandate, Mandatok. MAN DATE, what is the contract of , 1701 is gratuitous in absence of agreement or usage to contrary 1702 is either special or general 1703 powers of mandatory are limited 1704 powers granted to professional persons need not be specified 1705 right of mandatary to buy and sell on his own account 1706 emancipated minors may be mandataries 1707 as regards mirried women 1 703 termination of . . . •. 1755 et .seq. when revocation affects third persons 1758^ when mandatary may ren juuce 1 (59 Vide Mandatakv, Mandator. MANDATOR, is bound to indemnify the mandatary 1720, 1725 is bound by acts of mandatary — 1721 is bound to reimburse expenses and charges of mandatary 1722 and obliged to pay him interest on money advanced 1724 joint and several liability of 1726 liability towards third parties for acts of mandatary 1727 even after mandate extinguished 1728, 1729 and sometimes even of a person not his mandatary 1730 and for damages caused by fault of his mandatary 1752 Vide Mandatary, Mandate. Factors, Brokers. MANUFACTOllIES, utensils necessary for working, are immov- ables 379§2 i h: 664 Civil Code of Lower Canada. AUT. MANURE, is an immoveable 379 § 2 when lessee of a farm must leave lt>.'4 MANUSCUIPT, what the word ineludes .... 17 § 12 MAKCHANDE I'UIilJQUE, when wife may become and ett'ects of.. 176, 179 MARINE INSURANCE : tide iNSUiiANCK Makjnk. MARINERS : lli/e Skamkn. MARITAL AUTHOR ITY, a wife owes obedience to hef husband 174 and muet live AVith her husband. . 175 and must liave his authuri/ation in judicial proceedings 176, 178 as also to enter into certain contracts 177, 178 or to accept successions 643 or to make or receive gifts 7(;;> exception when she is a public trader 170 elt'ect of general autharization in marriage contracts. 181 when judge may authorize wile in the place of the husband.. 178, 180 even minor husband may authorize wife 182 ett'ecb of want of authorization ],s:{ authorization not necessary to make wills 184 marriage contracts cannot dt rogate from 1250 husband has administration of wife's property iJiiS and power to lease her property for nine years IL'IM), 1300 MARRIAGE {See rommuni'y of j/roixrfi/ ; JJonadons ; Separation of pro/nrfif ; Separation from bed a lift board) : Acts of . . . r)3b, r>l et seq. ett'ect of absence in relation to n)arriage 108 et seq. age for contracting l\r> consent requisite for 11(5 when impotency is a cause of nullity in 117 second marriage cannot be contracted before dissolution of the m>t • 118 consent of parents requisite for that of minors 119 or of one of them in certain cases 120 natural minor children n)ust have tutor's consent. 121 other cases when a tutor or curator's consent is necessary 122 respectful requisitions are no longer necessary 123 prohibitions arising from relationship 124, 12G dispensations may be granted from certain impediments 127 by whom solemnized 128, 129 bans requisite and where they must be published ... 130 what constitutes suthcient domicile 131 to 133 license, dispenses with bans I34 who can issue licenses and immunity resulting therefrom 59a solemnized out of Lower Canada I.35 who may oppose : Vide Oppositioks to Marktagk 13G et seq. actions for annul liiiff marriaf/e 148 et seq. obligations arising from marriage 1(35 et seq. respective rights and duties of husband and wife 173 et seq. dissolution of marriage. 185 effect of civil death upon marriage 3G MARRIAGE CONTRACTS, all kinds of agreements may be made in. . . 1257 save covenants contrary to public order, etc 1258 and those derogating from marital authority . 1259 Vide Gifts hy Contuact ok Maubiage 817 et seq. MARRIAGE COVENANTS, are irrevocable after celebration of marriage 1260, 1265 legal community arises in absence of 1260, 1261 or it may be excluded, altered or modified 1262,1263 must be in notarial form and precede marriage 1264 alterations in, before celebration of marriage, must also be in notarial form 1266 how minors may enter into 1267 Firfe Community OF Property 1268 et seq Index to Civil Code. 565 Art. conventional coiniiumity, principal Itinds of 1384 clause of realization : Fide Ukalt/AT[on 1385 et seq. <}lauHo of mobilization : Vitlc Mom mz aiiox 1890 et Hcq. clause of separation of debts ; Vide Skp.vratiox ok Dkbts 1390 of the right given U) tlie wife of talking buck free and clear what she brought into the community : Vide VuKK AND (jLKAli 1400 of conventional preciput : Vide Pi{K< ifut 1401 et seq, of the clause by wliich unequal shares in community are assigned to the consorts 1406 et seq, of community by general title 1412 excluding community 1415 of the clause simply excluding community : Vide KxcLUSlON OF COMMUNiTV 1410 et seq. of the clause of separation of property : Vide Setauation of pRoi'Kurv 1422et8eq. ]\TASClJLINK(iENDEll, includes both sexes 17 § 9 MASONS : Vide Workmen. MASTER OF SHIP : Vide ArpuEiGiiTMENT, Bottomry, Insurance. MASTERS ANO SKRVANTS 1607 et seq. MATERIALS, proprietor of soil, who has constructed buildings with materials of another, must pay the value thereof . ... 416 improvements made by a possessor with his own materials, right to ' ...417 et seq. effect of persons making a thing of a new description with mate- rials belonging to another 434 et seq. MATERNITV, of illegitimate child, how established 241 MAY, the word, is construed as permissive.... 15 lease and hire of house, when no time Is specified for its duration, terminates on the first day of 1642 MENTION, must be made of tlio observance of formalities in wills .... 843 MEliCHANT SHIPPTN(4, the hnperial act respecting Merchant Shiiv ping and certain Federal acts contain provisions respecting. ... 23.'')5 rules concerning registration and measurement of 2356 to '2358 transfer of registered iiritish ships 2^59 transfer of ships registered in Canada 2360 transfers must be registered 2361 (balance of this title is repmled) 2362 to 2373 niortgag3 and hypothecation of British vessels 2374 and of vessels built in Canada 2375 Avhen they may be mort aged 2.'i76 how mortgage is extinguislied 23766 p'. iority of mortgages infer se 2.377 ' ights ol mortga,<*ee 2378 etl'ect of transfer of ownership of mortgage 2379 form of mortgage 2380 when mortgagee may obtain a certiflcato of registry 2381 b\it this does not deprive him of his right of action at law 2382 privilege upon vessels 2383 privilege upon ship's papers 2384 privilcjje upon cargo 2.385 privilege upon freight 2386 order of privileges 2387 provision>< concerning cases before the Court of Vice-Admiralty. . 2388 Owners, majority of may appoint and discharge master 2389 and are responsible fo"r acts or master .... , 2.390 hirers of vessels, with exclusive control, are deemed owners 2391 opinion by nuijority in value governs. ... 2392 of one half of the total value may demand sale by licitation 239.3 Master, general powers of 2394 liability of for contracts 2.395 engages ship's crew 2.396 «:! ill wm £66 Civil Code of Lower Canada. J:! Art. must see that ship is properly equippetl ......*..••• 2.'W7 nitiBt Bail oil day appointed 2398 when ho may borrow monoy or sell cargo 2309 when he may i>ell ^hip 2400 authority over seamen and passengers 2401 may throw cargo over-board — 2402 may obtain loans on bottomry and respondentia 2003 Vitle Affbi'Kuitment and Insurancp'. Special duties respecting keeping of official day-book, sea- men, etc 2404 wages of seamen : Hf/e Wages, Skamen 1671, 2f)t)0, 240S carriage of passengers in merchant vessels 2401 et seq. MILITARY PLACES, gates, walls, ditches and ramparts of, belong to the Crown 402 as also lands, fortifications and ramparts of disused 40't MILLS, certain wind and wai er mi lis are immoveables . , , . 377 certain floflting mills are moveables 385 MINES AND Q UA RK I ES, right of usufruct with regard to 4G0 right of community to 1274 MINING RKtHT, sales, leases and transfers of, registration requisite. . 209!) MINISTERS, certain civil registers are kept by 44 duplicate registers remain in custody of 49 not liable for damages arising from a legal impediment to a mar- riage celebrated by them on production C a marriage license. . . fi!»a gifts in favor of are valid 7(i9 MINORS, persons cease to be at the full age of 21 24(5, 324 paternal authority over 242 et seq. power of tutor to borrow for, or alienate property of 297 when authorization to do so can be granted 208 formalities necessary for sale of property of 1000, 3(K> sale of certain property belonuing to .'julo, 3516 formalities requisite for sale of shares belonging to 351a acceptance or renunciation of successions falling to 702, 301, 302 acceptance of gifts made to 303 can sue for their own wages 304 interest on sum duo to tutors by 313 cannot act as testamentary executors 907 are incapable of contracting 98y will sneli property as they may legally possess 8.'!ft- prescription rnns against [>roperty held in 'Jiil MOTHKH, children are bound to maintain their U'Ai effect of forced or voluntary acknowledgment by the mother of illegitimate child 210- power of over children 245 a child owes honor and respect to 24"^ MOIIKNING of wife is chargeable to heirs l.JCH MOVEABLK. property becomes immoveable by law 3^'i property is moveable by nature or by determination of law 'dtJ- things which are moveable by nature .'584 to ;J}-(» things which are moveable by determination ot law ;W7, 3S8 conventional dower is deemed 147<> meaning of expressions *• moveable property " antl '• moveable things" :m right of accession in relation to : llde Acckssion 4ii!) ot se^. MOVEABLKS, what the word does not comprise IJOS- what moveables are comprised in the word " furniture " 'Ml* privilege upon 1!)!»4 et seq» MUNICIPALITIES : Tu/f Oouporatioxs. MUTUAL DONATION, of usufruct after marriage abolished 121)5, 770- MUTUAL INSURANCE, is not commercial and is governed by !>pecial statutes '2471 legal hypothec arising from 'iOIKJ- claims arising from are exempt from formality of registration. . . . '-'084 MUTU UM : Fu/e Loan for Consum i'Tiox 17G'2 NATURAL CHILDREN : Vide CniLl>RKX. NATURALIZATION, conditions requisite for 21 to '2$ confers rights of British subject 24 NEGOTIORUM UESTIO, what gives rise to the contract of and ette(!t of 1043, 1044 care of prudent administrator required in 1045 indemnitication for 104& NEIGHBOURS : Vitfe Skrvitude.s. NOMINATION, right of carries with il that of removal H § IT NON-rKRFORVlANCE, of obligations, effect of lOiW, lOGtt. NON-RESIDENTS, of Lower Canada must give security for costs in actions instituted by them 2J> NOTARI ES, powers to make acts , , 1208 notifications and protests 120J> powers respecting maidng of wills 843 et beq- can alone make deed of hypothec .... '2040 rules governing 173'2 are bound to register discharges ol h3polhecs which tluy execute. '2148 prescription of tees of. ,. '2'2G(^ NOTICE TO TERMINATE LEASE, tenant remaining eight dajs with- out receiving 10Ol> tacit renewal cannot bo claimed when til re has been lOlO what is requisite 1(!57 when not requisite 105* NOTIFICATIONS, may be made by one notary and of what they make proof 120» ij. m 11 i9 "Vi .'.It 6r.3 Cliil Code of Lowrr Canada. NOVATION, whon effocte.l 1I(«J can only bo ln't\v domnnded l^ctore txpiration of term, but wbon voluntarily anto-paid can- not li« n'covered 1000 alwavH pr«'8uraetl to be in favor of debtor 1091 wlitMi debtor cainot claim bencHt of term 1002 w4//«r/(a/uv;, wlu'u debtor of Ifl dlsoluirKed .... 109.'< option b^dongs to debtor HK)4 bow they become pure an() slmpl»> 1095, 109«3 when option belongs to creditor, effect of 11 If «i *i Joint and JHvisih/c perishinff of the tilings lOl'T, 1098 Several: rule JOINT AM> SKVKltAf- LlAHlL- ITV 1100 et seq. when they arc deemed . 1121 how they must be performed 1122, llL'.'l y«(/«rJ.>»ti'/«', when they are deemed 1124 " Btipulation of joint and several liability does not make 1128 " how tliey must be performed and effects of 1126 to 1130 IVit/i a pcnnl rlaiiNc, what are 1131 " are null If primary obligation be null, but not rice versa 1132 *• creditor may enforce primary obligation instead of penalty, but not both 1133 •' when the penalty la'incurred 1134 " amount of cannot be reduced by Court. . 1135 " Us eflect as regards heirs 1130, 1137 extinction of 1 138 OBSCURITY, of law. Judge cannot refuse to adjudicate because of.... U OCCUPANCY, grass of St. Lawrence belongs to him who cuts It by rijjbtof 591 OCCUPATION : Vh/e QirAi.iTV. OB'FENCKS, and quasi-olfences produce obligations 1053 et seq. are prescribed by two years us\ially 2201 and certain others by one year 22G2 OFFICE, person appointed to fill a temporary public otHce retains his former domicile 82 OFFICERS, of civil .rescrlbed by five years 2260 § 2 0:\l ISSIONS, in registers of civil status, how rectified 77 OPENING, of successions 000 et seq. of suostitutious 061 et seq. (if dower 1438 et seq. OPPOSITIONS TO MARRIAGE, may be made by any one married to either of the parties 136 of a minor, may be made by father or, in default, by the mother.. 137 and, in default of both, by tutor 138 and by certain relations 139 when a tutor must be appointed 14(^ of insane persons, by whom made 141 opposant must apply for interdiction of the person about to be married 142 and follow ud the case 143 where brought 145 i^ i 670 Civil Code of Lower Canada. r: 414 415 410 ' A RT. )r(>coti«llngH on nre HUininary 146 riiibility for coHtH wlion o^tpoBltion In rejeflted 147 OTTION, In «ltern'«tivo ol>li({atiou8 : /'»/ subject to conta of plou^^hiuK and tilling 410 poHsessor may flc(iuire fruits 411, 412 yhia AvcKSHWS 4l.'i of the soil, carries with it ownership of what Is above and what is below it buildings iind plantations on land as regards irnprovemonts made by thinl parties 417 to as rogardu alluvion 4'iO to 425 effect of rivers forming now brai.ches or abandoning old course. . 420, 4'i7 of pigeons, rabbits, fish and swarms of bees 428 of two or more dilferent things, bebniglng to different owners, whicli have become united so as to form one whole A20 to 442 uilterent means of acquiring 583 of a treasui e found 586 of things found 592 ot seq. an effect of contracts 10 5 et seq. of brokers, factors and commercial agt^nts 1740 et seq. PAPERS, family, form a commencement of proof in fili:^tion eases... . 233 and in suits by illegitimate children to establish paternity 241 of what and against whom they make proof 1227 PARDON, restores civil liberty of persons civilly dead, but without any ret roacti ve elt'ect 38 PARENTAGE: Vide VXTKHHirv, Filiation. PARENTAL AUTHORITV, a child of atiy age owes honor and respect to his father and mother 242 exists until majority or emancipation, but father alone exercises it during marriage 243 minors cannot leave father's house without permission 244 right of correction 245 PARLIAMENT, provincial and imperial, definition of 17 § 2 PARIITION, how effected in cases where representation is admitted. . 623 may always be do jianded 689 even though one of the co-heirs enjoys separately a part of the properly of the succession 690 when tutor or curator may demand partition of moveables and immoveables 691 when a husband may demand ao'l how effected as between heirs 693 before what court C94 procedure regulating 695 valuation of immoveables by experts 696 right of co-heirs to demand shaves in kind 697 when immoveables must be sold by licitation 698 how shares and accounts are made 690 rules regarding shares, returns, pretakings 700 to 708 index to Civil Code. \i 571 38 242 •243 244 245 2 623 689 690 691 692 693 694 695 69ft 697 698 699- 708 Art. when can only be effected jndioiHlly ,,, 709 bow (ifHlgnt'eH of tin* oo-helrH nmy bo exoluiled 710 how titb'H to sbiin'M nn^ r«>t(nlHtti«).(iHrtltiont>r Ih (l«>uiiie Hbnre uili^inK from a , 746 wliat aotfl coiiHtitut<* a , , 747 WHnaiitioB ariHinfz from ;,,, 718 to 750 may bo r»>-cliided for canu* catisew hh otber <'ontraotB, but omission of an objei't only k1v«'« rlfS1 in caspH of dower 1452 of conininnlty : Vidf CiniMvyivY 1354 et sieq. of partnerHbip propt-rty 1893 privilege of CO partitioiier.^ ., 2014 rcKistratio',1 of tbis privileco 2104 PARTNKKSHIP, wbat irt opsintial to contrnctof 1830 participation in proHts of carrieH witb it an obligation to contrl- bnte to losses 1831 when it commences .... 1832 duration of. ,., 1833 declarations to be niado by poisons entering into 1A34 et seq. dBclarations to be nia«lo l)y persons makiuK n,se of a firm name.. 1831a obligations and riglits ot partners among tbeiuselves 1839 et aeq. contributions of partners to tbe 1839- actions affainst partnership 18;16-18.3S elfect of lallure to make contributions to 1810,1841 partner cannot carry on private business to tlie detriment of the partnership 1842 imputation of payments, when debts are due to partnersliip and indivldu.ii partner 1843, 1844 liability of partners for damagos cause*! by bis fault to the 1815 on whom falls tbe loss of a thing, the enjoyment only of whicli is contributed to the 1846 right of partnei's to be indemnltled for losses 1817 how profits are sliared and losses borne 1848 effect of charging one partner with the management of the busl- m'ss 1849 and of several of the partners jointly being so charged 1830 general rules for management of business of 1S5I, 1852 eaoli partner may associate another with him in share of profits, but not in the 18.33 obligations of partncs towards third persons 1854 to 1856 ditt'ereut kinds of 1857 - Uniiwrsnl, what is and elfects of 1838 to 1861 /'rt/V/CH/rw, what is 1862 Coinmcrvial and cii'il, wlnit are 1863 Commcrclnl , different kinds of 1864 GcH<'r(f/,dettnition of 1865 ' ' respective powers of partners ... 1866 " liability of part ners in 1867 " and of dormant and unknown partners 1863 •• and of nominal partners 1869 Jiioni/mous, what istiud liability of partners in 1870 Limited or ch roi:iiiiandit<; how formed 1871 ♦ ceriitteate of formation of 1871 note •« consist of general and special partners 1872 '• respective liability of general and special partners. . . 1873 *' general partners alone transact business of 1874 m ■ !' ii ii \\ lii H 572 Civil Code of Lower Canada. (( K II l( -11 l( <1 (I II Art Limited, certificate to be signed by 1875 " only deemed formed when certificate recorded 1876 effect of false statement in certificate 1877 renewal of 1878 alterations in names of general partners 187!) name it must be conducted under 1880 how suits are brought . 1881 special partners cannot withdraw their capital from, but may withdraw urotits 1882 but if original capital l)e reduced by payment of pro- fits, tliey must be restored ". 1883 special partners cannot manage business but may advise '. 188i general partners must account ... . 1885 effect of insolvency of, on rights of special partners. . 1880 dL-iSolu' ion of 1887 Joint Stock Companies, how formed 188!) name of and l.ow business carried on 1890 for purposes of banking 1888 for purposes of trading 1891 voluntary liquidation of 373a liow dissolved" .. 1892 elfectof lossof partnershippropertyasregiu-ds dissolution of 1893 effect of death of one of the partners 1894 ■when may be dissolved at wil 1 189.5 wlien may be demanded by one of partners 189{! appointment of liquidators 1896^ effects of dissolution of 1897 each partner may demand an account 1898 how property of, is applied as to the payment ol debts of partnership* and those of the individual partners 1899 Avhen dissolution of affects rights of tiiird persons 1900 PASSAGE, right of : Vittc WAY. PASSENGEliS, carriage of in merchant vessels 21G1 et seq. cariiers are bound to recei ve and convey 1673 authority of uiaster of a shiv) over . 2401 PASTURE, right of, constitutes a discontinuous servitude 547 PATERNAL ALT IHOIUIY 242 et seq. P ATEliNIT Y : J Ide F i M A T lox . PATH, tow, constitutes a servitude established by law for public utility 507 PAWN : llffe Phv.odK of Movkamlks. PA WNBROKERS, special rules relating to trade of 1979 PAY-LIST, form of p. 310 PA YMENT, what is meant by 1139 pre-snpposes a debt 1140 may be made by anv person, but must be for the advantage of the debtor " 1141 «ousisting of obligation to do, when may be made by a strangrr. . . 1142 must be made by one having a legal right in the thing paid 1143 to wl)om must bo made and effect of pajing to ostensible creditor or to a creditor incapable by ]aw of receiving 1144toll4G ■made to tlie prejudice of a seizure or attachment, effect of 1147 must be of the thing due ll4S and of the whole thing ilue, not parts thereof 1149 condition of the thinyf, responsibility for 1150, 1200 of a tiling deterndued in kind only" 1151 where must be made 1152 expenses of are at charge of debtor 1153 irilh snhrogafion : Vide SriiKooATioN 1154 et seq. imputntionof: ri(/(^ iMinrxATlox of iiayments 1158et8eq. Index to Cicil Code. bT3 it seq. 1673 2401 547 it seq. 507 197!) 1131) 1140 , 1141 1142 . 1143 ItolllC 1147 114.S 114i) feO, 1200 1151 1152 1153 let seq. let seq. Art. in case of sale : Vide IU'YEK. . tender o/and deposit : Vide Tender 11C2 et seq. by a person believing hi inself by error to be the debtor 1148 of worltmen : Vide Workmen lC97rt ot scq.^ TENAL CLAUSK, in an obligation, what is : Vide Ouligations nuth a penal clause 1131 et seq . PENALTIES, for contraventions of the laws, how recoverable ... 16 for infraction of laws relating to acts of civil status 63 for illegal solemnization of nif "'agcM 157, ids rKKEMPTlU^^j.if Huit, prevonts intt-L-iiption of prescription 2226 rEKlSHABliK, tilings, may be sold by uirufructuary 465^ and by hoir after notice G60 PERMANKNGY, when things are considered as being attached for a. . 38U PERSON, what the word includes 17 § 11 stipulating for himself, is deemed to include his heirs io30 PERSONS, laws api)lioable to 6 PETITION OF lUGllT, subject may interrupt presc.iption of Crown by 2211 PHYSICIAN, claim for services of piescribed by five years 22(i0 oath of, makes proof of nature and duration of services 2:i(j0 privilege for charges of during last illness 2003 power to receive gifts ... , — 7(i9 PIGEONS, ownei ship of thuse passing into another dove-cot 42S PILOTS : Vide AFKKElGirridEXX 2423, 2432 PLEDGE, definition of 1966 immoveables may be the subject of iyG7 of moveable property is called pawning 1<)68 and it giyes creditor right of preference . 1<)69 •which only exists while thing pawned remains in the hands of creditor or of some one appointed to liold it 1970 he may dispose of thing, iu default of payment ... 1971 . but until then the debtor is the owner ot the thing 1972 responsibility of creditor for loss or deterioration of thing and of debtor for expenses of its preservation I&73 the interest of a debt given in pledge is imputed in payment of interest due to creditor 1974 when debtor can claim restitution of thing — — 1975 is indivisible although debt be divisible 1976 effect of, on heirs of creditor and debtor 1976 rights of third party. 1977 above regulations are subject to usages of commerce 1978 special rules relating to pawnbioking I979 property of a debtor is the conunon pledge of li'S creditors ,. 1981 PLOUGHING AND TILLING, fruits produced by a ihinff, only bt;long to the proprietor subject to restoration of costs of! 410 privilege for expenses of 2010 POLICE REGUI-ATIONS, as to mines and mining 414 POLICY : J'ide Insuuanck. PONDS, ownersliip of fish going into anotlier 428 PORTS, are dependencies of the Crown 400 P0SSP:SS10N, wliat is 2192 requisite for prescription, definition of 2193 always presumed to be as proprietor, in absence of proof to the contrary 2194 begun for another, presumed to continue so ^ii.5 requisite for prescription cannot be founded on facultative acts or by sufferance ... 2196 nor on acts of violence 2197 but in cases of violence or clandestinity, it begins M'hen the defect ceases, though a thief's heir cannot prescribe 2198 actual, coupled with proof of former, raises a presumption of inter- mediate 2199 'i 574 Civil Code of Lower Canada, Art. actual, of a corporeal moveable, creates a presumption of owner- ship 2268 of property of absentees : Tir/e Absentkks 93etseq. person in actual, preferred as between two vendees of same tiling.. 1027 POSSESSION OF STATUS, does not dispense parties from producing marriage certiflciate 100 parties in possession of status, cannot demand nullity of act 161 of legitimate cliildren 229 et seq. POSSESSOR, when in good faith, acquires fruits 411 when he is deemed in good faitli 412 POSSESSORY ACTION, emphyteutic lessee may bring 572 POUND STERLING, value of : Tu/e S'>Vebkign 17 § 20 POWER OP ATTORNEY : rt208 E20U »'66 1235 Us ;215 fc216 6217 fc21« S219 u « « Art. public property cannot be acquired by 2220 but property belonging to municipalities and that held in mortmain can 2221 right to redeem rents is imprescriptible 2248 Interruption of, is either natural or civil 2222 " detinition of natural 2223 iudicial admission effects 2265 judicial demand effects 2224 but not if brought before incompetent court . 2225 nor if service is null, or the suit is abandoned, perempted or dismissed 2.'26 effect of 2228, 2255, 22(>4 how effected civilly 2227 endorsements of payments on notes or other writings do not make proof of 122S) effect of as regards joint and several creditors 2230 effect of as regards joint and several debtors and heirs, etc 22;{1 " registration does not effect . 2095 Suspension of, as against those not born, minors, idiots, mad- menandothers 2269,2232 " as between husband and wife 2233 *» as against married women 2234, 2235 «• with regard to certain personal actions 223G «* as regards beneticiary heir and vacant succes- sions 2237, 2238 " and joint and soveral creditors and heirs 223i) Time required for, is reckoned by days, not hours ... 2210 '• from when calculated 2258, 2260, 2262 £y thirty years, affects all things not otherwise regulated .... 2242 " hat! same effect as immemorial possession .... 2245 •• effect of on right to plead in actions 2246 " of action to ac-ount against tutors 2243 " title may establish defects in possession 2244 " arrears of rent due to Crown 2215 " of emphyteutic rents 2249 J}y ten years, of corporeal immoveables under translatory title 220ti, 2251 " of capital of dues and rents, by subsequent pur- chaser 2252 •« what constitutes good faith of subsequent pur- cliasers 2253 " a title which is null, cannot form a ground for 2254 *• effect of renunciation of 225?, 2264 " when may be invoked together with that of thii vy years 225G ♦• obligation to renew hypothecs, etc., in cases where this prescription lies 2257 " of contracts for error, fraud, violence or fear, lesion and rectification of tutors' accounts and when this time runs 2258 *' of claims against architects and contractors. , . . 2259 " as regards escheats to the Crown 2216 By five years, ot professional services and disbursements of advocates and attorneys 2260 •' of professional services and disbursements of notaries and fees of officers of justice. 2260 of depositaries, for recovery of papers and titles 2260 of bills of exchange, promissory notes and notes for the delivery of grain 221X) •< of sales of moveable elf acts 2260 ii « 676 Civil Code of Lower Canada. Aht. By five years, of labor and work in general L'260 '• of physicians and surgeons and how proof of tlieir servines is made 2260 JJy tiro years, of seduction and lying-in expenses 2261 " of offences and quasi-offencfs 2201 " of wages of Avorknien hired for more than one year and not reputed donieslics 2261 '• of school napters and teachers 2261 By one year, of t-landcr and libel 2262 '* of bodily injuries in general 2262 '* of wages o! domestics and farm servants 2262 " and of mercliantis' clerks, hired for Itss than a year 22.;2 " of hotel and boarding-house charges 226:2f of certain short, established r.y Act of Parliament 226.{ when il reooinmences after renunciation 226i when debt is absolutely extinguished by 2267 bcgtn), before promulgation of code, how governed... 2270 riiESEKVATlON, (;/ //i«?((/, before delivery ](t25 " obligation to deliver, involves the lOcS " and person cliarged therewith must use . care of a prudent administrator 1064 * '• in contract, of s'ale 1498 " in contract of lease and hire 1626 et se(i. " in contract of lease and hire of work. 1C84, lGf-5 " in contract of loan 1766 ** in contract of deposit 1K)2 •' in contract of pledge 1973 " privilege for expenses incurred in: I'ide Loss 1996 riiESUMPTION, of survivorship : Vide SuuvivoKsnip 603 et seq. furnishing of deeds by notaries is not a presumption of a payment of their fees ' 1242 acquittal of the principal of a loan, creates a presumption of pay- ment of interest 1786 of receipt of work by payment of wages of workmen 1687 PRESUMPTIONS, are established by law or arice from facts 1238 legal presumptions and those jh/v.s et dejuvf 1239 when proof can contradict a legal presumption 1240 res judicata is a presumption juris et dejure 1241 when left to discretion of Court 1242 PRETAKlNGS.irt succesions, by heirs 701, 702 in community, by each consort or his heirs 1357 but those ot wife take precedence over husband's 13C8 PlvICE, obligation of buyer to pay, in sales 1532 when buyer must pay ". ].j.'?3 when buyer must pay interest on 1534 when buyer may delay payment of 1535 effects of his not paying Iu30 to 1510 buyer cannot recover, when he has brought an action for dissolu- tion of salCj because of non-payment of 1541 but converse 18 not the case 1542 in cases of moveable things 1543, 1544 PRIESTS : Vide MlNlSTEKS, TITHES. PRIMORDIAL TITLE, acts of recognition do not make proof of 1213 PRI NTINO, and distribution of laws 4, 5 PRISONS, persons dying in, how burial of must be authorized G9 PRIVATE WRITINGS : Vide WmxiNGS Private. PRIVILEGE, meaning of the term 1983 how preference amongst privileged creditors is regulated 1984 privileged claims of equal rank are paid rateably 1985 / Index to C'uil Coilc. 577 1786 16S7 1-238 l'2;jl) 1240 1241 1242 702 1357 lacs 1532 1533 1534 1535 1510 1541 1 1542 1544 1213 5 69 1 1D83 1984 1985 (< <( (t II It It It (I 11 CI It ti ii II It AlJT. effects of subrogation in rights of 1157, 198C to 1988 of the Crown ll'g<> of creditors and legatees of a person entitled to separation of pro- perty 1900 of creditors of !i partnership ii)9l jnay be on moveables or imnioveablefi 1992 Upon moreablen, on what it may be 1993 what claims carry and order of 1994 of tisheinieii. etc... . 1094« I f AIutual'Kire lus. Companies. 1994t of lumbermen, eti' .. . 1994c' what law costs carry 1995 include costs of preservation 1996 for tithes 1997 of unpaid vendor . . 1998, 2000 of creditors having a right of pledge or reten- tion iOOl for funeral expenses 2002 for expei.ses of last illness. .. 20O3 for municipal taxes 2004 of lessor 2005 of domestic servants, clerks, apprentices and journeymen and for provisions supplied. 2006 of lender or pledgor, etc 2005?* Upon immoveables, Avhat claims carry and order of 2009 for expenses of tilling and sowing, . . 201O for assessments and rates 2011 for seigniorial dues 2012 of builders, workmen and architects 2013 ranking of privilege. . .. 2013rt. how right exi ts 20136 preservation of privilege 2013^ of vendor 201 4 how retained 2015 extinction of 2081 elTect of, with regard to debtor or other holder 205;5 " Jlde Hypothecs. PIUVILEGE M AlUTIME, upon vessels, for certain debts 23S J of ship's husband , , 2384 upon cargo, for certain debts 2385 upon freight, for certain debts 23!'(> order of, when there are claims for collision, averages or salv ge. 23(^7 special regulations as to Vice Admiralty Court 2388 PRIVY, erection of near common walls \ 552 PROBATE OP WILLS, bow and where made 857 heir need not be called to 8E8 wherr heir may not contest 859 when lost or withheld .800 to 8G2 PRODIGALITY, a ground for interdiction : Vide Interdiction 326 PROFESSION , reliy ious, disabi"ities arising from 31 " acts of 70 to 74 of advocate and attorney, how regulated 1732 PROHIBITION TO ALIENATE, how it may arise and its etfects 968 in Avhose interest it may be ,' 969 things sold, is void , 970 may loe conflrmatorj] of asubstitution 971 effect of not expressing nootive of . ,. 972 Avhen a substitution is created by 973, 97( extending to several degrees 97i. ;^7 ti t( It II Ii II II II II " ij 1 1 678 Civil Code of Lower Canada. Art. may be confined to acts inter vivos or acts In contemplation of death, etc ,,, 9-5 out of family, eflfectB of . ...'.' 97V'to97!) meaning of terms " children " or " grandchildren" in 980 must be registered " ' ' ogi FkOMiIe of shT^Vil SaIe^"""""^ '"' "PP^^"^°" toa marriage: 62 PROMISSORY NOTES .' p 464 1'1{0MULGATI0N, of Acts of imperial and provincial parliaments ... 1, 2 of code, prescription commenced before, how governed . 2270 of code, eflfocts of 9fii''i 9fiir. ritOOF, on whom burthen of lies .' .'.*." *..*.'".*. 1203 when secondary cannot be received . .' .' . .* .' * '..'..'.', '. '. '. ..'.*.'.'!.'*.' 1204 how it may be made , ....'...i 1205 Tirfe Ekgland, laws of. ' Jiy writings, of authentic writings 1207 to 1214 " of copies of authentic writings 1215 to 1219 " executed out of Lower Canada 1220 " of private writings 1221 to 1229 iby testimony : Fide Testimony ; .,, 1233 by presumptions : Fide Presumptions. by admissions : Fide Admissions. by oatli'of parties : Fide Oath. of interruption of prescription is not made by endorsement of payments, on promissory notes , 1229 of primordial title by acts of recognition '.'.'.',. 1213 rilOPEKTY, in its relations with those to whom it belongs or who pos- sess it 399 etseq. without an owner belongs to Crown 401, 584 in matters of successions '. ,. 599 how it can be disposed of. 754 of debtor is common pledge of his creditors 1981 is either moveable or immoveable 374 investment of property be'onging to others 981o et seq. sale of certain property belonging to minors, etc , 351a et seq. Fide Moveable Property, Immoveablhs. PROPRIETOR, buildings on land are presumed to have been made at cost of 475 of soil who constructs buildings with materials of others 416 may be bound to pay a possessor in good faith for improvements made on his property or may have tliem removed 417, 413 such possessor may have right of detention until proprietor pays the cost of improveiupnts . . , 419 of land enjoys alluvion <]20 of ground adjacent to that uncovered by rushing water enjoys the increase ... 421 of land carried away by a sudden force may reclaim in 423 his rights with regard to moveables improved by accession of worlcmanship 429 et seq. rilOTESTS : Fide Bills and Notes. PROA'ISIONS, doubtful or ambiguous of law, Low interpreted 12 privilege of those who supply 2006 PROV ISION AL POSSESSION, r> tiie lieirs of absentees : Fide Absen- tee .93 etseq. PROXIMITY, of relationship, how determined 616 PRUDENT ADMINISTRATOR, right of use and habitation must be used as by a , 490 obligation to keep a thing involvos the care of a . . . 1064 lessee must use things as a . . 1626 borrower must bestOAV care of a. . . 1766 depositary muBt keep thing as a 1802 lat • • • 415 • • • 416 nts .417 418 lys 1 • 1 419 •120 ;he • • • 421 • • • 423 of ) et seq. 12 • • • 2006 EN- 3 et seq. .... 616 be * • J 490 1064 • • • 1626 1766 1 • « 1802 Index to Civil Code. 679 Art. mandatary must act as a 1710 sequestrator Is responsible as a 1825 trustee must act ''.s a 981k PUBLICATION, of bans of marriage : Vide Bans of Mabriaoe . . 57 et seq. 180 et seq. PUBLICITY, of registers of civil status 50 of registers of real rights 2177 et seq. PURCHASER, at auction is bound by the entry of his name in the sale book 1567 effect of his not paying the price 1568 at judicial sales who is evicted— his remedy 1586, 1587 in sales for purposes of public utility cannot be evicted 1590 when he has a right to evict a lessee 1663 to 1665 effect of unregistered rights upon subsequent purchasers 2085 effect of registration of real rights as against a 2088 prescription by subsequent purchasers 2251 et seq. Vidf Buyer. QUAKERS, affirmation by 17, § 15 note. proof of being a 17, § 15 note. QUALITY, of father and mother is stated in actsof birth 54 of parties to be married and that of their parents in acts of mar- riage 58 and of the deceased in acts of burial 67 merchantable, requisite when thing contracted for is determined in kind only 1151 to contract. : r«/e CAPACITY. QUANTITY , seller must deliver full )500 effect of excess or deficiency of 1501 et seq. of a thing in obligations may be uncertain provided it can be ascertained 1060 QUARRIKS, when usufructuary may work 460 rights of community regaruing 1274 QU ASI-CONTR ACTS, obligations arise from , . 983 persons capable of contracting may be bound or bind others by. . 1041 and also persons incapable of contracting 1042 Vide Neyotiorum gestio 1043 et seq. i*esulting from the reception of a thing not due : Vide Um>ue Payment 1047etseq. QUASIOFFENCES, obligations arise from ... 983 every person is responsible for his 1053 also for those under his control 1054 and damages arising from fault of his animals 1055 how prescribed 2261, 2262 R ABB ITS. passing into another warren, ownership of 428 RAILWAY COMPANIES: Sec Carriers .. IG81 RATES, school and municipal, privilege for on inmioveables. . . 200^ § 5, 2011 usufructuary liable for 471 RATIFICATION, of title : Vide Confirmation of Title 2081 § 7 READING, of acts of civil status to parties and witnesses 41 of wills authentic form 843 REALIZ \TION, clause of, in marriage covenants, effect of. 1385 renders consort debtor for amount he promised to contribute, ... 1386 how the contribution is substantiated ... 1387 effect of as to pretakings of consorts 1388, 1389 RECEPTION of thing not J quasi-contract arising from : Vide Undue Payment 1047 et seq. RECOGNITION, acts of, when proof of primordial title 1213 RECONCILIATION, effect of, between parties to an action for separ- tion from bed and board 190, 217 RECORDS, of the executive departments of government, of parliament and of courts of justice are authentic 1207 580 Cii;j7 Code of Loner Canada. Art. RECTinCATiON, of errors in flClB and registers of civil status, by whom may be demanded and before wLat Court 75 effect of judgment of 76 of total omissions in, how effected 77 against whom jiidgmei.t may be set up. .....'. 78 REDEMPTION, of share assigiiou to a s-tranger by one of co-heirs. .... 710 right of may be stipulated in contract of sale and effects of 1546 seller takes back properly free of incumbrances 1547 cannot be stipulated for mrre than ten years 1548 and stipulated term must be strictly observed 1549 failing which buyer remains absolute owner 1550 the term runs against minors and others 1551 seller of immoveables may exercise right of against second buyer 1552 but second buyer may prescribe against seller 1553 and may set up benefit of discussion as against creditors of the seller ir54 effect of sale by licitation 1555 and of several selling jointly 1566 how exercised by co-heirs 1557 buyer may compel coheir or co-vendor to take lack whole pro- perty 1558 unless sale was made by (ach of them of his part only li>-9 effect of as regards heirs of buyer 15G0 right of , must be registered 2100 right of is absolute without prcvScrlplion being required 2248 BEDHIBITORY, action, when must be brought If 30 REDUCTION, of gifis to concubines, incestuous or adulterine children 768 REOISTEKS, of civil status, acts of civil status are inscribed in 42 " duplicate are divided into three volumes.. 42a regulations concerning 42& alphabetical index is made 42c to whom furnished 43 by whom kept 44 must be initialed by proper officer 45 acts of civil status are inscribed in 40 one duplicate is deposited yearly with pro- thonotary 47 Avho must verify them and report thereon. 48 the other is kept by register 49 extracts from are authentic 50 when lost or none kept 51 responsibility for alterations therein 52 penalties to which keepers of are subject.. 53 for acts of birth 53rt, 54 et seq. for acts of marriage 53/>, 57 et seq. for acts of burial 536, 66 et e eq. " for acts of religious profession 70 et seq, " r( ctiflcation of acts and registers of civil status 75 et seq. " replacing registers of civil status which have been lost or destroyed 78a 1 1 seq. Family, against Avhom they do and do not make proof 1227 of departments of government, parliament and courts of justice are authentic 1207 REGISTRARS: FiV/e Registration Owh^kh— Organization oj . REGISTRATION, of partnership 1834 gives effect to real rights 2082 from what time 2083 certain rights are exempt from 2084 effect of notice received or knowledge acquired of an unregistered right 2085 (( <( AnT. ' 75 . 76 . 77 78 . 710 . 1516 . 1547 . 1548 . 1C49 . 1550 . 1551 d . 1552 ,. 1553 le ,. ir54 ,. 1555 .. 156G , 1557 0- .. 1558 ,. liVO ., 15G0 . 2100 . 2248 . If 30 n 768 .. 42 . 42a ,. 42& ,. 42c ,. 43 . 44 .. 45 .. 4G 0- .. 47 n. 48 .. 49 .. 50 .. 51 . . 52 i.. 53 et seq, et seq. et feq. et seq. ivil et seq. ich 1 1 1 seq. .. 1227 of .. 1207 .. 1834 . . 2082 , . . 2083 2084 Index to Civil Code. 68^ red Art. BgaiiiPt whom want of muy be invoked 2086 by whom it may bo demanded 2087 effect of possession before t\w code in regard to 2088 pri'furence arising from obtains only between purchasers from same person 2089 within 30 days of insolvency of title derived from irsolvent is null 2090 as is also that effected after seizure of the property 2091 when it must be made; 2092 whom it avails .' 2093 how unregistered privileged claims take elfect 2094 does not interrupt prescription 2095, 2131 what acts require, and etfects thereof 2098 autlientic titles to mining rights may be registered witliin CO days from date 2099 salos, gifts or exchanges and riglits of redemption must be regis- tered witliin proper delay 2100 also certain judgmpnts 2101 a right of dissolution of sale has no effect against third parties without 2102 privilege of builder is preserved only by the registration of a state- ment within 30 days 2103 those of co-partltioners by registration of deed of partition within 30days .. 2104 and those of co-heirs and co-legatees for privileges accruing under licitation f 2105 creditors and legatees of deceased debtor claiming separation of property, must register notice within G months of death of debtor 2106 as also claims for funeral expanses and expenses of last illness, . 2107 fiduciary substitutions must be registered 2108, 2109 and also all rights of ownership resulting from wills within 6 montha 2110 requisite" in case of concealment, suppression or contestation of the will 2111,2112 husbands must effect, of their wives' rights 2113 or their parents or tutor if husband be minor 2114 what i)roperty is effected by 2115 of customary dower 2116 of servitudes 2116a of rights of minors and interdicted persons 2117 to 2120, 21476 of judgments and judicial acts of civil courts 2034, 2121 of liypothecs of the Crown 2121 of deed of sale, secures live years' interest 2122 of life rent, secures arrears for five years 2123 of other claims, secures two years interest only 2124 other arrears are secured by registering a memorial the'eof .... 2125 renunciations of dower, successions, legacies, and community of property require 2126 leases for mor? than one vear require 2127, 2128 and also payment of rent for more than one year in anticipation. . 2129 order of preference of real rights 2130 is effected at length or by memorial and may be renewed 2131 at length, how effected 2132 to 2135 by memorial, how effected 2136 form of memorial, and at whose request it may be made 2137 memorial may embody several titles 2138 when one memori-il sufficient 2138a contents of memorial 2189 memorial is delivered to register and proved 2140 how proved and executed in Lower Canada 2141 and if in Upper Canada 2142 11, i\ 2085 082 Civil Code of Lower Canada. Art. niul if In ail V other British poseesBioii '2143 and if in a foreign country 2144 if executed in duplicate before a notary 2144a duty of registrar on rf ceipt of 2145 memorial of arrears of interest mupt state aniount then of and be sworn to 2140 jiiovisioiis of tills section apply to title* not niTecting in. move- ables but requiring registration by special laws 2147 form of certain notices, declarations and n emorials 2147a right of married women, minors and interdicts to effect 21476 Canccllivg of, who nioy and who must effect 2148 '* who may demand 2149 '• when it may be ordered 2150 '' how effected 2151, 2162a " consent to must be mentioned 2152 •• judgment ordering 2103, 21&4 •♦ sheriff" and \ \ othonotary are bound to effect, in certain ca>i»«« 2165,2156 ♦• registration ol coiiflrmatioi;s of titles, forced licitatioiis, sheriff's sale, &c., is equivalent to 2157 lie^ieval of, in certain caseiK 2172, 2173 CerliUcati' of. 2177 REGISTRY Offices, < bject of and where e-tabHshed 2158 are kept by registrars, their duties and liabilities 2159 when must be kept open 2160 what books registrars must keep 21G1 addresses of hypothecary creditors kept by 21Cla who must give their addresses to 21(51& how they are pnt»'r«d 2161© how seizures are i-iiteied by 21(n<7 to 2161^ how sales for taxes are entered by 21Clt to 216U the registers may be divif'ed and kept in several parts 2162 for cities of Quebec and Montreal 2163 Governor in Council may alter fcrm of books 2164 of ofticial plans and books of reference 2168, 2167 lands may be described according to 2168 OrganUat'wnof. 215° et seq. IIELATIONSHIP, proximity of, how determined 615 et seq. RELEASE, of obligations, either express or tacit 1181 not presumed from surrender of pledge 1182 surrender of original title of an obligatic n to one of joint and several debtors avails co-debtors 1183 express release in favor of one of joint and several debtors does not discharge others 1184 effect of, as between debtors and suret ies 1185 consideration given by surety for his release is not imputed in discharge of principal debtor 1186 REL1I:F, of minors for ksion : Vide Lesion 1001 et seq. RELIGIOUS PROFESSION : Vide Pkokkssi on 70 et seq. REMOVAL, right of nomination to an oitice carries that of 17 § 17 Of Tnfors, causes for 284, 285 " advice of family council requisite for 286 " requisites in judgment ordering 287 Of Interdiction, when ard how effpcte«i 336 " for drunkenness, after one year's sobriety. . . .336n or Testamentary Executorit, when and how effected 917 RENEWAL, of lease by tacit reconduction : Vide Tacit Rf.ni.wal.. . . . 1C08 et seq. of registration 2131, 2172, 2173 RENEWAL DEED, when holder in hypothecary action may f urnith for rents 2061 IndcJD to CiiU Cod(\ h 683 II II II II •I II II II A RT debtor of eninhytflutic dues iiuist f iindsh '2'2i{) new holder or Immoveables, in cases where ton yoara' prosorip'.lon applies, must furnish '."JO? RKNT. and arrears of. are Included in the class of rlvil fruits 44l> dlflcharKos for more than one year's rent in antlclputlon must bo registered' 'jl'iJ) is prescribed by Ave years...... ...!.!..."............'.!....*.... 'iifiO I»r[vilego of lessor for .' uoori rirf<' LK880R, LKflSKR, Alienation for, In perpetuity, Is equivalent to sale ir>!)3 " how rent may be payable 15!>4 " obliKalion to pay is a personal liability 1596 ConstittUi'd, oai>ital of unrodeenic9 dowager's liability for 1459 in lease and hire, liability of lessor for 1013 when lessee must suffer them to be made 1G34 when lessee must make them IC'W REPLACEMENT, as between coiiPortsln community ... 1,305, I.30<; REPRESENTATroN, /ft .sjtcre/»flioHs, definition of C19 takes place without linili in the direct line descending 620 does not take place in favor of ascendants 621 when admitted In collateral line 022 is effected according to roots 623 only takes place of those who are natm-ally or civilly dead. A rer- son may represent him whose succession be has renounced.. .. 024 REPRESENTATIONS, and concealments in Insurance : Vide Inhuu- ANCK 248ri et seq, 2503. 2570 REPRESENTATIVES, the word " person " extends to heirs and 17 § 1 1 REPRISALS, between consorts on dissolution of community 1357 et seq. REQUISITES, In contracts : Vide Conditions. RESCISSION, Of Gifts : Vide Gii-rs. revocation of 811 et seq. Of Contracts, made In fraud of creditors : Vide CniCDiTOKS. 10.'32 et seq. Of Sale, for latent defects : Vi■/■« ff ^A'.yHrfi 1211 transaction has the authority of 1920 6Sl Civil Code of Lower Canoda. HI 1(1 HI Kl iri IM-; UK UK Kl UK 111 Art* CSOLUTION, of Hal;eH ciiuHitd hv H pursoii'M act or ju'gloct... 1053 for those cauHed by pertioiis untltir Ins control lOM for those uaiises as rt'irard-* the injured portion's heira. 10S6 ;STITIJT10\. when biiy(!r has a rlyht to clnlni from the seller 1511 of materials used, without proprietor's consent, to make a thing of a dirteront description 440 3TOU10, he who recoivi'S wliat Is not duo to him is liound to 1047 TKNTION, right of upon moveables on which possessor has made Improvements.... 441 upon innnoveables under similar circumstances .... 419 co-heir's right of for improvements on immoveables returned in kind ... 732 right of institute to 966 right of in idedge 1960 creditors having a right of.. 2001 TUOACriVK KFFKCr, code does not apply to past tram>action8 when it would have a -TdS judgment of separation as to properly between consorts has 1314 ITUKN'S, by consorts or their heirs into the mass of the com- inunity 1:355,1356 111 .succcsnions, what heirs must retur ri into mass 712 obligation ceases on renounciig succession ... ....... 713 donee, not an heir at time of gift, is still bi)und to return. . , . 714 effect of gitts to son of a person entitled to succeed 7ir> what a grtuulson is bound to reiurn 710 gifts made during marriage to donee or his wife, when they must be returned 717 are made only to the succossion of the donor or testator — 718 disbursements for establishment of heir or payment of his deb's must be returned '. 719 what expenses are not subject to 720, 722 only due from co-heir to coheir 723 how effected 724 of moveable property 7'2.") of money 7'2G of immoveables 7^7 to 729 responsibility of donee for deteriorations 730 and for hypothecs and incumbrances 731 right of retention for ameliorations .... 732 at what lime value is estiinatiMl . 733, 734 la (lower, what benefits child is bound to return 1468 MJNION. of consorts : V'kU- Kkcoxciliation. VENDICATION. uupild vendin- has a right of 1998 is subject to four coniitions 1999 VOCATION, o/- <;*/•/ .f, when creditors may obtain 803 OI'(l\fts,yA\(i\\ liable to be revoked after accei)tance 811 'slibsequent birth of children to donor, not aground of 812 when express stipulation is requisite 81(> C>/"»'i/^>{, iiow testator must effect 892 wlien it may be demaniled 893 effect of subse 716 717 718 719 722 723 724 725 720 720 730 731 732 734 1468 1998 1991) 803 811 812 81(5 892 893 89G 897 89^ .755 756 ART. uppoliitMiHiit of nuw iimiiiliitary oiTecti 1767 notice of Irt rt<|uiHih* 1758 lUOHT OF ACCKSSION : llilr A< ckshion and Ownkrhhii-. RKniTOFPKTITlOX : rjfA Pkti i loN <'K itionT 2211 ItKMIT OF l{i:i)KMI*TiON : fiiie IlKUKMl'TloN, liiaHT OV. lUCJUTOF WAY : yideWAx MO et seq. lUOHTS, of the down and of tblrd partleH, when affected by Acts of tlie h'gisliiluro. . . . 9 civil are enjoyed by all British Hubjects 18 civil, how they are lost and restored : f'iilc CiViL Dk.VtH . 30 et so([. r;(/f' Civil Dkath, IMiofk.shionh Ukmoioi'S. of ownfrsliip, donor nuiHt diveat hinisoif of 777 of succession, what seller of is bound to warrant, etc.; Vhh- 8alk 1579 et seq. litigious: Vhh lAvioioVHliuuivti 1582 et seq. of retention: Vitfr Kktrntion. seigniorial : J'iih' SicKiMOUiAL Uighth. of Ripiriau proprietors : Vitl^' ALLi'viox, SicuvrrrDES. of action, sale of : fltle Salk. R;SK, in insurance : Vid,- Insiranck. of a thing before delivery, rules regarding 102.5,1003,1064 of tire, in lease and hire 1629, l(>3i la contract of loan, of thing lent 1708 in partnership, of tiling the enjoyment only of which belongs to ttie partnership 1846 Vidi: I'llKSKUVATiON. lUV'KKS. navigatdo and tloalable are Crown dependencies 400 alluvion prod iced belong to owner of adjacent land 420 fi'/e AM.rvioN. OwMutsmi'. ROADS, niaintaineit by the state are Orown depend-^ncies 400 things lound (in, rules regulating ownership of 593 KOLL: PideLiHT HOOTS, of trees, extenling up(ni neighbour's property . 520 where represcMtittion is adiidtted, partition is ett'ected according to 023 KUINS.of a biiiiding, responsibiliiy of owners for damages caused by. .. 1055 KUllAL P^STATKS, rules applicable to lea!=e auvl hire of 1657 rules particular to lease and hire of farms and— Fa/e Leask and HiRic 1646 et seq. SAFE KKEl'ING : Vide Prkskrvation, Risk. SAILOKS: I'/Wc Sicamkn. SALARY : Vid,- Wagks. SALE, dettni tion of contract of 1472 general rules governing , 1473 of moveable things, by weight, number or measure 1474 on trial, presumed made under a suspensive condition 1475 simple promise of, not e2()0, how recovered 2405 prescription of runs only after expiration of voyage 2406 wills of, sppcial provisions concerning 849 SECOND MAKltlAGP], cannot be contracted before dissolution of the first lis prohibition respecting gifts by future consorts in case of, no longer exists 764 SEDUCTION, or lying-in expenses prescribed by two years 2261 SEIZIN, of heirs, takes effect by operation of law 607 of legatees, how it takes placd ?91 of trustees 98lb SEIZURE, payments made to the prejudice of a seizure, are not valid as against seizing creditor 1147 alimentary debts not liable to seizure are not subject lo compensa- tion 1190 immoveables under, how effected by registration 2091 _1 157 le e . 1572 . 1573 I, 1574 . 157i> . 1576 . 1577 . 157» lie 1580 1581 et seq» 1585 , 1587 et seq. et seq, 532 §4 589 ,. 2528 Is 1054 . 2261 . 588 . 589 . 2401 . 2404 . 2405 2406 849 t ' 118 764 2261 , 607 , 591 98lb 1147 Index to Civil Code. 58r Abt. SELLER, principal obligations of are delivery and warranty.... 1491 tvhat constitutes delivery 1492 when obligation to deliver is satisfied 1493 delivery of incorporeal things, how ettectod 1494 expenses of delivery are at charge of 1495- is not obliged to deliver if buyer do not pay price unless a term has been grtinled 1496 nor even then if, siiice the sale, buyer has become ii solvent..... . 1497 in what condition thing must be delivered 149S must deliver accessories of thing sold 1499 is bound to deliver full quantity sold 1500 effects ot del vering more or less 1500 et seq. is obliged in favor of the buyer to legal or conventional warranty ; Vide Warranty 1506 et seq. privilege of, upon moveables sold 1998 et se(i. privilege of, upon immoveables sold 2009 § 9, 2014 SEPARATION OF DEBTS, consorts may modify legal community" by stipulating that they shall be separately liable for their debts contracted before marriage 1384 § 3 effect of clause by which consorts stipulate that thty will separ- ately pay their personal debts l.'J96 when consort brings a determinate obi« ot into the community, there is a tacit agr cement that it is unencumbered 1397 does not prevent interest and arrears accrued since the marriage being chargeable to coniniunily i;)9S effect of community being sued for debts of one of the consorts. . 1399 SEPARATION OF PROPERTY, /?i successions, when creditors can oblain 743, 744 preference of creditors 1990,2106 ]n leaacies, when creditors can obtain S79 preference of creditors — 1990, 2106 In substitutions, when institute or his heirs can obtain 906 preference of creditcrr" 19C0, 21(;0 Between consorts, community is dissolved by 1310 can only be obtained judicially, where and when 1311 has no <'tr'ect until executed 1312 judgment of, must be inscribed 1313 it has a retroa(tiv(! effect 1314 by whom it can be demanded 1315 creditors of husband nu'y oppose it 1316 wife who has obtained, must conti'ibute to household ex- penses 1317 effect of on wife's control of her property 1318 liability of husband for failure to replace price of im- moveables alienated 1319 effected by separation from bed and board, may be re- established by consent of parties 208, 1320 when it resumes effect from day of niarriwgo 1321 dissolution of comiiuinity effected by does not give rise to rights of survivorship 1322 stipulated in marriage contracts— cff'eots of as to adminis- tration of property by wife 1422 expenses of nuirriage, how borne 1423 wife cannot alienate her in moveables without husband's consent or judicial authorization 1424 liusband's respons bility for Iruits of wife's property 14i.'5 Vide Wife separate as to Property. SEPARATION FROM BED AND BOARD, cannot be based on mutual consent of parties 1S6 husband may demand, on ground of wife's adultery 187 and wife, if husband keep nis concubine in their common habita- tion 18S 583 Civil Code of Lower Canada. ffKH AUT. consorts may respectively dfimaiid it for outrage, ill-usage or grievous insult 189 surticiency of these causes is left to Court 190 wife may also ilemaud it, if husband refuses to receive and main- tain her 191 Avife must petitiim for leave to sue 194 judge may allow wife to residd apart from her husband during suit 195, 201 is extinguished by reconciliation 191 but fresh causes give rise to new action 197 if action dismissed, parties must again live together 198 Court mav suspend judgment in certain cases 190 provisional care of children 200 wife may demand alimentary pension 202 eil'ect of wife having p ace of residence assigned to her. 203 right of wife to attach moveable effects of community 204 obligations contracted by husband affecting the community and alienations of immoveiibles are null after wife has been granted leave to sue for 205 effects of 206 et seq. 1318, 1320 et seq. does not dissolve marriage tie 206 wife can choose her own domicile 207 carries With it separation as to property 208, 1320 husband must make inventory 209 wife can administer her property, but husband or judge must authorize aliairs. etc 1826<« discharge of SI ques-trator 1827a thing sequestrated may not be leased to either of thepartits 182C " how the peciuestrator can be discharged 1828 SKIiA'^ANTS, domicile of . is at ihe re idtnce of those for whom they serve or work if they resi e in the same house 84 of notaries cannot wiUHss authentic wills 844 services of, may be leased or hired 1G06 can only be hired for a limited period or for a determinate under- taking •. 1667 <• Judicial, It « u (( 189 190 191 194 197 198 190 200 202 203 204 . 205 t seq. . 206 . 207 S, 1320 . 209 it . 210 y ,. 211 le 212 213 14, 215 216 217 I, 1438 1817 1818 |o 1819 t 1820 1821 1822 1823 1824 I, 1827 11825a ,18256 |1826« 1 1827a 1826 1828 84 844 1G06 1C67 Index to Cicil Code. 589 Art. how engflgement terminates l(JG8 iu action for wages by, master may tender his oath in certain matters 1((;9 general rules governing the hire of 1670 prescription of wages 2261 § 3, 22G2 § 3 privilege for wagtsnpon moveable property 1994 § 9. 2i)0(> '♦ I. .. immovcabks "2009 § 9 wages of arp exempt from registration 2(W4 SERVITUDES, dpttnition of real 4!)!) arise from natural position of proptn-ty, from law or act of man. 500 Jrishif/ from aifuafiov of properly.— f[o\\ of wttter HOI sprii gs 5(2 running sti'eams .WJ boundaries between contiguous lands 5()4 fences and separai ions 0(5 Established by /«?(',— tbeii object 506 public utility, such as tow-paths C07 obligations of proprietors regardirg. . . 608, ; < !> division- walls anddi.ches ai.d clearances. 510 to 5; 1 distance aud intermediate works required for certain structures 5o2 of view on the pioporty of a neighbour. 533 to 53S of the eaves of roofs , . 53!> 01 the right of way .540, 5:14 Estahlislmd hy actofmaii, how constituted .,,. 515 are either urban or rural 516 continuous c»r discontinuous 547 apparent or unapparent 54S title requisite for 5-!0 must be registered 211('a want of, c>in only be supplied by an act of recognition from pro- prietor destination made by proprietor is equivalent to a title granting a servitude, involves the grant of what is requisite for its exercise ".2 rights of the pioprietor of the land to which the servitude is due aiul obligations of the proprietor of the servient land 553 to 558 when they cease 551). 561 Avhen they revive . • • • •" <'0 non-user for 30 years extinguishes 562 when the 30 years con)mence to run 56;'« manner of exercising, may be prescribed . 564 effect of ownership by undivided shares on prescrii^tion ^65 and of minority of one of the co-proprietors 566 Avarranty of vendor against 1519 SET OFF : Ti'/e Comtensation. SHALL, the word is to be construed as imperative 15 SHAKES, in successions, how foi med (99, 703 t j 705 " co-partitioners may object to 706 unequal, may be assigned to consorts iu marriage contracts 1406 of joint etock companies, tiansfer of... 1573 in ioint stock companies, belonging to minors, bow sold 351rt SHEIUFF, cannot buy litigious rights falling within jurisdiction of Court in which lie exercises liis functions 1485 11 K It :.-o 51 It 590 Civil Code of Lower Canada. Art. SHIPS, are moveable ; 385 transfer of : F/r/e Mekciiam Shippinq 2359 ct seq. SHRUBS : Vide Tkees 528 et seq^ SIGNATUKE, how party or his heirs must deny his 1223 how proof is then made of it , . 1224 SIGNIFICATION, of transfer of debts 1571a to 1571c SINGULAR NUMBKll, may extend to more than one person or thing 17 § 10 SISTERS AND BROTHERS, marriage is prohibited between, whether^ legitimate or na ural, and between those connected in same de- grees by alliance 125 Vufc Brotiieus in Law. SLANDER : Vide Libel. SOIL : Vide Land. SOLDIERS, how wills of maybe made 849 SOLE CORPORATIONS : Vide Corporations Sole SOLEMNIZATION, Of marriage, must be open and by a competent offi- cer 128 " who are competent officers 129 SOVEREIGN, the, means the King or Queen, etc 17 § 1 (pound sterling) is equivalent to $4,802/3 or £1.4.4 currency 17 § 20 SPIRITUAL ADVISER, gifts made in favor of, are valid 769 SPRING, of water, he who has one on his land may use and dispose of it as he pleases 502 STABLES, near common wall or wall belonging to a neighbour. .... 532 § 4 STAIRS, how made when diiterent stories of a house belong to different proprietors 521 STATE.MENT, a deed of gift need not be accompanied by 7S6 when an appreciatory is required of wife's i>roperty in marriage contract.. : 1418 establishing increased value of property for privilege of builders. . 2013 STATUS, of children : Vide Acts of Civil Status Filiation. STATUTES, imperial and provincial, definition of : yide Laws 17 § 2 STORES, for salt or other corrosive substanceSj near a common wall or wall belonging to a neighbour, how built 532 § 4 STRAY PROPERTY, ownership of 584, 594 STREAMS, OAvners of land bordering on running streams, not forming part of public domains, may make use of 503 SUBJECT : Vide British Subject. SUB-LEASE, lessee has a right to in the absence of a stipulation to the contrary 1G38 but he who cultivates land on shares cann t 164'5 SUB-LKSSEK, liability towa-.ds principal lessor 1639 privilege of i)rincipal lessor on effects of 1621 SUBROGATE TUTOR, in every tutorship there must be a 267 principal duties of. 267, 268 causes" of exemption, exclusion and removal of 271 SUBROGATION, is either legal or conventional 1154 definition of conventional and when it takes place 1155 legal takes place by the sole operation of law and when 1156 takes effect against sureties as well as principal debtors 1157 persons obtaining subrogation in the rights of a principal credi- tor may exercise his rights of preference 1986 in favor of heir or universal legatee who pays hypothecary debts. 740 and of pai ticular legatee * 741 i n favor of a co-debtor who pays in full 1118 in favor of surety who pays the debt 1950, 1951 in favor of insurer who pays a loss 2584 SUBSEQUENT PURCHASERS, prescription in favor of.. 2206, 2251 et seq. SUBSTANCES, corrosive stores for, near common wall, how built. . 532 § 4 SUBSTITUTIONS, are either vulgar or fiduciary 925 fiduciary includes vulgar— meaning of the term compendious and of the iQna. mbstitution used alone , 926 .... 849 offl- .... 128 .... 129 .. 17 § 1 . 17 § 20 .... 769 ieof .... 502 . 532 § 4 rent .... 521 .... 7S6 iage .... 1418 rs.. 2013 to « > t 1638 , . . 1645 • • . 1639 • • • 1621 . . • 267 267 , 268 < ■ • 271 • • t 1154 • • . 1155 • • > 1156 • • * 1157 di- 1986 ts. 740 741 1118 )0, 1951 2584 et sea. 532 § 4 t • 925 id • • 926 Index to Civil Code. 591 Art. meaning of terms Ivsfitiite and snhstUute 927 may exist althougli the term usnfritct be used to express tbe right of the institute '. -8 how they may be created 929 when revocable and when irrevocable and how accepted 930 what may be the subject of 931 can only extend to two degrees, exclusive of the institute 389, 932 rules concerning legacies in general govern 933 on whom a testator may impose 934 donor cannot subsequently create, but he may reserve the tight to determine the proportion in which the substitutes shall receive 935 who are not deemed included in 936 representation does not take place in 937 registration of 938, 2108 against whom want of may be invoked 939, 942 who cannot avail themselves of wan t of . . 940 registiation takes 1 he place of inscription, and when it must be effected and where 941 who are bound to eflt'ect registration of 942 declarations of in vestnjent of moneys belonging to 943 institute holds as proprietor 944 when he must obtain a curator to 945 must make an inventory within three mouths 946 powers Mud duties of the institute 947 shares in joint stock companies belongin J to, how sold 351a in case of sale of property subject to, he must invest proceeds. . . 948 he may hypothecate the property 949 effect of forced sales in 950 institute cannot compound as to ownership of property so as to bind the substitute 951 grantor may allow alienation of property 952 AVhen final alienation of property may take place. . . 953 wife of institute has no recourse against property for her dower.. 954 institute maybe compelled to give security 955 substitute may dispose of his eventual right 956 if he dies before opening of substitution, he does not transmit right to his heirs 957 institute is bound for certain repairs 958 effect of judgments against institute 950 institute may deliver over property before opening of substitution 960 when substitutions open.. . , 961 how substitute lakes property 962 effect of a pending condition preventing the substitution opening on death of the institute 963 • legatee charged as trustee to deliver over does not retain pro- perty ill the event of the lapse of the ulterior disposition..., 964 how institute delivers over the property. 965 effect of confusion and right of institute to separation of pro- perty 906 prescription in relation to Kubstitutions 949, 22(X"), 2207 y'iile Prohibition to Alienate 908 e^ seq. SUCCESSIONS, definition of 596 are either abintestate or testamentary 597 abintestate are either legitimate or irregular 598 in law a succession forms but one inheritance 599 Of the openiny of, where a succetiW i ! (t Art. Diferent orders of, degrees of relationship in collaternl and difect lines (il4 to 618 of representation, what it is and when adniitt; d 619 to 624 devolving to descendants • 625 devolving to ascendants 6L'6 to 63<) of collate/al successions 631 to (»35 of irregulj.'' successions . 636 to 640 Aci'cplnnce of, no one is bound to accept 641 " may be accei)ted jjurely and simply or under benelit of inventory (!42, 660 vt seq. by legatees, under benefit of inventory ST8 how effected by married women, minors, &c 643 effect of reaches back to day succession devolved 644 may be either express or tacit 645 what are, and what are not acts of accep- tance 6 J 5 to 647 rights of heirs of the person to whom a succes- sion has devolved to acoppt or reject 618 effect of their not accepting or rejecting 6 !9 when an acceptance may be imp'ngn( d 650 how letters of verification are obtained 650a UtWDii-'lation of, a person cannot reprrsfnt him whose succes- sion he has renounced 624 *♦ is never presumed and is effected by notarial act or judicial declaration 651 •« effects of 6r.2, 653 " no one can take as representative of an heir who has renounced 654 " creditors may procure rescission of 655 " heir majr always effect 656 " when heir may resume after 657 '' of living persons only valid vhen liy mar- riage contract 653 " heir who has abstracted or concealed pro- perty cannot effect 659 Bditfit of Inventory, how obtained G6t> judgment granting must be registered. . . . 661 entails making of inventory 662 and giving of security, if demanded 663 delays for making inventory and deliber- ation .' 664 perishable goods may be sold 665 privilege of heir during delays 666 heir may demand further delay, if sxied. . 667 costs of suit, by whom borne. ,' (568 after expiry of all these delays, heir may still become beneficiary heir 669 fraud or concealment involves forleituoe of 670 et ects of obtainii g 671 administration of beneficiary heir. . . (172 to 676 beneficiary heir may always renounce. . . . 677 and, by consent, render an amicable ac- count 678 how beneficiary heir is discharged and effect of 679, 680 expenses of seals and inventory are charged to the succession 681 form of account he must render 682 VkJt Heir BENp:riciARy 660 et seq. « II (( i( 11 ti (I (I II •I It II 654 t t • • 655 * • • 656 . • ■ • 657 lar- * • * ■ 65S )ro- • • • 659 • • t • 66rt > • • ■ 661 « • t ■ 662 • • • • C63 )er- . 1 (iG4 665 066 d.. 067 • • • 668 liay 669 u '.e t • t 670 • • ♦ 671 r2 to G7G * . ■ 677 ac- 678 ind G79, 680 ire • • • 681 • • • 682 )et seq. Index to Civil Code. 593 41 it AUT. Vaciint, when tlioy are deemed so 6H4 curator is imiiied to 6H5 duties of curator 686 lielr and legatee appearing later, may cause the cura- torship to be set aside 687 curators administer and account in the same way as henettciary heirs 688 Partition and returns : Vide Pauti riox, KETi'itxs 689 et seq . Payment of debts of, by whom and how paid 735 to 7.'>9 " payment of hypoth»?eary debts 740 to 742 '• rights of creditors to separtition of pro- perty 7-13 to 745 effect of partition and of the warranty of shares 746 et seq. rescission in matters ()f partition '. 751 et seq. sale of rights ot : Vide Salk 1579 et seq. SUFFERANCE, acts of, cannot be foundation of either possession or prescription 2196 SUITS AT liAW, may be brought at elected domicile 85 how corporations are described in 357 cannot be brought against corporations for assault, battery or other violence 365 interrupt prescription 2224 to 2226 SUNDAY, 18 a holiday 17 § 14 SUPEUSTRUCTURES, in common walls, regulations concerning 515 SUPPLEMENT, delivery of to the plaintiff in action of rescirt^ion of partition arrests its progress 753 of price, action for '. 1501 et seq . SUPPLIERS, of provisions, have a privilege 2006 SURETY, express release granted to principal debtor discharges his surety — effect of granting discharge to surety 1 185 consideration given by surety tor his release is not imputed in dis- charge of principal debtor liSO eft'ect of confusion 1199 is only bound to pay on fa'lure of debtor to do so 1931, 1941 for public officeis 1954 Vide Suretyship. SURETYSHIP, delinitlon c 192!) is either conventional, legal or judicial 1930 can only be for the f ultllment of a valid obligation 1931 cannot be more onerous than principal obligation, and ett'ect of it being so 1932 may take place without consent or knowledge of principal debtor 1934 is not presumed but must be expressed ... 1935 extends to accessories 19;i6 given for lease, does not extend to tiicit reconduction 1611 obligation of, passes to heirs of surety 1937 debtor bound to furnish sureties, must offer one with certain qualifications 19.'?8 how solvency of surety is estimated 1931) effect of surety becoming insolvent 1940 EJfect of between creditor and siircft/. surety m\\y liable on default of debtor Avho must previous- ly be discussed 1931, 1941 but suiety must demand discussion 1942 and must indicate property and advance money for 1943 effect of his so doing 1944 when several persons become sureties for sanuMlebt each is bound for the whole debt 1945 but may require creditor to divide bis action 194 i effe Effect of, between co-sureties 1955 Extinction of, arises from same causes as other obligations.. . '95G when contusion does not effect 1957 what exceptions surety may set up against creditor 1958 arises when surety by the act of the creditor, can no longer. be subrogated in his riglits and privileges 1959 also when creditor accepts any object whatever in paymt nt of the principal debt 19<)() delay given by creditor to the debtor does not effect ir(il legal and judicial, qualifications for 1962 pledge may be substituted for 190)3 judicial surety cannot claim benefit of discussion 19(i4 nor can the surety of a jiulicial surety 19G5 SUKRKNDEIl, by holder of liyi)othecated property 2075 of original title to one of joint and several debtors is available in favor of bis co-debtors 118.3 SUHVlVOKSHir, rigiits of, ell'ect of separation from bed and board on 208 dower is a right of 143S presumption of amongst several persons perishing by same acci- dent 603 to (505 SUSPENSIVE, i'ondition. a sale on trial is deemed to be made under a 147.5 conditions in obligations 1079, 10S7, 1089 TACIT RENE WA L, emphyteusis is not subject to .')79 of lease, Avlien it takes place 1609 persons holding veal estate bv sufferance are liable to rules relat- ing to " 1608 when notice hi's been given to the lessee, he cannot claim 1610 surety is not bound for 1611 TAXES, usufructuary is liable for 471 privilege upon iiiinioveabks for 2009 § 5, 201 1 sales for, how registered 2161t"to 2161< TEACHERS: ri,s,'TK<;';i»:Es. index to Civil Code, 695 Art. 1948 1049 11)50 m>2 l!t3:5 1955 1!)5G 1957 1958 1959 im) iriil 1962 19()3 19()4 19«5 2075 1183 208 1438 1G09 1G08 1611) 1611 471 201 1 1162 1163 11C4 1165 1166 1167 A TIT TESTIMONY, wlijitprool may be made by 1233 cannot be received to contrailict or vary the terms of a valid written instrument 1234 in commercial matters over $50 1235 in cases under f50 wlien admissible 1236 in cases over $50 when admissible 1237 TEXTS, ditt'erence between English and French in articles of the Code, now interpreted 2615 THIEF, or his heirs and successors cannot prescribe 2198 but acquirers in good faith, from thief, can prescribe 2266 THINGS FOUf^D, ownership of 584, 586, 589 et seq, THINGS, distinction of : Vide Immoveables, Moveables, PKorEBXY 374 et seq. THIRD PARTIES, efflct of contracts with regard to. a party can contract that anotlier shall perform an obligation. . . . 1028 when he may stipulate for the benefit of 1029 creditors may impeach acts of their debtors in fraud of their rights ; Vide CREDiTons 1082 et seq. compensation does not talte place to prejudice of rights of 1196 nor can the omission to set up compensation be reotitled at the expense of 1197 lessor is not bound, to warrant lessee against acts of 1616 usufructuary must notify owner of encroachments by 476 trustees are not res^jonsible towards 981t THIRD PERSONS, obligations of mandatary towards 1715 et seq. dissolution of partnership affects rights of li*7 right to is imprescriptible, but arrears of can only be demanded for one year '-219 must be paid at rector's residence 2219 TITIiES, to who;n delivered in cases of partitions of successions 711 help to establish defects of possession 2244 pres-oripiion under translatory ; F{ a tutor cannot, unless authorized «Jt)7 has the authority of rca adjudicata 1920 error of law is not a ground for annulling 1921 when the nullity of a title is a ground for annulling 1922 upon a false writing is null 1923 iipon a suit terminated by an unappealable judgment is null. ..... 1924 Avuen subsequent discovery of documents is a cause for annulling. 1925 errors of calculation in may be reformed 1926 TRANSFER, Of debts : SALE OF Dehts 1570 et seq. Of ships : rH/eMEiiCHA>'TSniPPiNf' policies of [nsurnnce : Vide iNRirHANCK '2-482 ot seq. Of itottomrji finiKh : Vide Lo anh fi*oN Bottomiiv anu KKHl'ONDKNTIA 2(!1'2 TREASUKK FOUND, ownership of m\ UBufriictuary has no right over 4GI TREKS, regnlationH regarding tiiose growing near to lines of separation of neighhorlng proportics r>'28 to 531 riglits of usufructuary witli regard to trees growing on land 8ul»iect to tlie usufruct 455, 456 TllESPASSEItS. lessor is not obliged to warrant lessee against disturb- ance by mere IClfi TRIAL, sale of a thing upon trial is presumed to be made untler a sus- pensive <^o)idition 1475 TRUSTEES, testator may nan»e fiduciary trustees 8(59 cannot become buyers of property in their charge 1484 may be named l>y donor or testator Jt81a how they are seized of the property 081b lioM' they may be replaced : . . 081o when tliey may be removed !)81d powers of do not pass to heirs 981e majority may act 981f act gratuitously !l81g are obliged to execute trust they accept 981h are not personally liable towards third parties 9811 how they administer tlu! properly... .81j, 981k must render an account 981^ are jointly and severally bound 981m are liable to coercive imprisonment 981n investment of moneys by 981o et seq. TRUSTS ... 981a et seq. TUTORS, are appointed to children of absentee 114 when more than one may be appointed to a minor 2()4 when their administration begins 2C5 Vide SUURO<}ATK TUTOK, no one is bound to become, unle-^s called to family council 272 nor if any relative of minor be eligible 2711 nor if he be 70 years of age 274 nor if he suiter from serious and habitual infirmity 275 nor if beholds two tutorships already 270 nor if he have five legitimate children 277 but birth of children during tutorship does not justify abandon- ment 278 when he n\ust state his grounds of exemption 279, 280 decision of Court thereon is appealable .- ,.. 281 who cannot be tutors 36, 282 mothers or grandmothers who re-marry, are deprived of olfice. . . . 283 condemnation to infamous punishment effect of 284 who are excluded from being 285 how actions are brouglit for the removal of 286 removal requires advice of family council 287 what judgment of removal must contain 288 retains management during litigation unless Court otherwise orders 281, 289 ^h/ministtation o/, general rules 290 " must make oath 291 " must make inventory 292 '« must sell moveables by public auction. ... 293 " must invest moneys, proneeds of sale 294 " also excess of revenues over expenses 295 " in default of which he owes interest 296 «» as also upon interest, when he fails to invest it 1078 § 3 4 -J*»yy - - ■r ,?* r-^-^ ' ■ ■ r gw iaMM ' . ' . ^u '-' ^■. yA '- 3- ' ™T-"g;^ tndciv to Cli'il Code. 697 ... una ... i47r> ,... ««5n ... 1484 ... Jt«la .. OSlb , . . . OSlc ... !)81d ... 9«le ... J)«lf ,... Il81g ... n81h . . 9811 81 j, 981k ... 981/ . . . 981m 981 n > et seq. I et seq. . 114 . 2(^t . 205 . 272 . 273 . 274 . 275 . 27(5 . 277 278 279, 280 .. 281 36, 282 . . 283 .. 284 .. 286 .. 28(5 .. 287 .. 288 29] 292 293 294 295 296 ti •I II II II 8 how Bale nmst be elfe«rte(l ■^'9 excei)tloii in cases of licitatioii ''}^^ liow can accept or renounce successions. 3')l,3Ci2 ami loeacies *^*''7 and Klfts 303, 7S9 can bring actions bolon^^inK to the minor. 304 cannot (len)an/", due wlien administration terminated 308 •' may also be required to account summarily 301> detiniiive account, how rendered 310 must be accompanie'^ are responsible for damages caused by fault of their i»upil8 1054 Investment of money by 981o et sc(j- (1(1 hoc, when appointed 209 TUTORSHIPS, all are dative and are conferred on advice of family council 249 who may convoke a family council -•'50 wh(> should be called to attend 251, 253 persons related or allied, may attend thoiiffh not called '^'>^ judge or prothonotary calls before him proper persons -55 or he may authorize other competent person to hold such family council.... 250 or a notary may call it himself 2.'j7 but only when requested to do so by competent person 258 in default of relatives, friends may be admitted 2!i9 iiotaiy draws up an act 2'i<> proceedings of family councils are reported to Court -'01 Court, judge or prothonotary homologates or rejects them 262 commencement of 2»>5 is a personal office and does not pass to heirs 23 UPPER CANADA, meaning of the wordH 17 « « USAGK, contract of pawning 1b wubject to usages of commerce l07H olieques are I'ubject to usage of trade . . 'i.'<54 USE AND HAIUTATION, definition of right of use and of right of habitation.. .... 487 how establlHhed and how they cease 488 require the giving of security and making of statements and in- ventories 489 rifrht must be exercised as by a prudent administrator 490 rights of are governed by title creating them 491 1 492 tlie use of land entitles user to so much of the fVuits as his family require i... . 493 user eaii neither sub-let or assign 494 how costs of cultivation are borne 498 privileges of the possesHor of a right of habitation 493, 49.5 USUFUlJC'l', what is the rlglit of 443 how established 444 may be pure or conditional and may commence at once or from a certain 5, 400 effect of delaying to do so 467 what repairs he is liable for 4(18, 469 not obliged to rebuild 470 is liable for ordinary charges 471 liability for legacies, pensions and life rents 47'J for hereditary «lebts 473 how he contributes to payment of debts 474 liability for costs of Hu'.ts 475 duty in case of encroachments by third parties... 470 not obliged to replace an animal dying 477 " liability in case of a herd or flock dying 478 Jiights of, enjoys natural and civil fruits 447 "" what are natural fruits 448 what are civil fruits 449 what natural and industrial fruits belong to usu- fructuary and proprietor . 450 civil fruits are acquired day by day. . 461 in regard to goods which are consumed by use 452 »• « <« 4< U u tl «« 3cx: Index lo Civil Code. 699 A ItT. (il() • • • Ul'J 813 8113 17 1978 '2364 of 487 • • • 488 in- 489 400 491 ,492 bis . 403 • • • 404 498 403 , 495 • • ■ 443 f • • 444 u a • • • 445 • •• 44G et seq. • • ■ 479 iry • • • 480 , 481 itil , ^ 482 su- • • • 483 485 48G 4G3 404 4(«, 4GG 4G7 4()8, 469 470 471 47'J 473 474 475 470 477 478 447 448 443 450 451 452 Art. Ittffhtu of, in regard to life rent* 45.1 " ill regard to j/oods which deteriorate by u^e 454 " ill reganl to trees growing on land uubjeot to umu. fruct 456, 456 " he nmy Fell or lease hifl riglitfl 457 '* enjoys alluvion to land — 45H *< Hiid ri){htH of servitude and passnge 450 " in regard to minors and <|uari'ieH , 4(io ** in reKiinl to treasure found 4(il " cannot claim indemnity for linprovomentH, but may remove ornament h lie luis ithiced 4. St'paralv. as to pro/icrfi/, must contribute to household expenses 1317 may administer her property alone. 177, 1318 but cannot alienate l>er inunovcables, without husbanera- . 1352 . 1368 . 174 ... 175 on:.. 176 con- 177, 763 ... 183 )and ,. 1297 1296, 1297 her 179, 1296 tra- 1422, 1424 ... 182 .... 184 3360, 312 177, 763 tary .. 906 1301, 1374 . 2087 13 et seq. isea 1317 177, 1318 s or 1318, 1424 idings. Aur, . 176 \\ cannot appear in judicial Viij, general rules. 75!i, 8-31 married women may make 184, 8.>2 but minors cannot .... 8.'5H iior can tutors, either aloue or jointly with them 834; nor can interdicted persons or their curators 834 of prodijials, and persons to whom judicial advisers have bern given , . 8.'H at Avhat time the capacity of testator is considered 833 power of coi'porations and persons In mortmain to receive by will , 830 fiduciary trustees may be named in ,...,, , 861» minors and mtenhcts may receive by 837 at what time the capacity to receive is conshlered S3a presumptions of undue Influence in regard to priests, phy- sician.sand advocates no longer exist , ^3'.) I'cnn of, genr rfU principle governing SlO two or more persons cannot make a will by the sau\o act. . . . 8-U may be notarial, holograph or in English t'orui 842 Jioic atifhentic ivUfs are made , S4;i orisiual rcniains with notary— who may he wituesses to 844 relationship of notary may be a bar to 843 legacies in favor of notary or witness are nuU 8-16 by deaf nmtcs , 847 special provi.'ilons for district of Gasp*! 848 by military men and mariners 849 lioliujraph, wliat are—deaf mutes may make ,. . , 850 in J- n(//isfi r'orm, how nmde and who inay witness. .,.,.. 851 deaf mates may niake... ..,,...,.., 8r»2 effect of gifts to witiiesses or executors, tiwJl how codicil.s to must he made ,..,..,. 834 formalities regarding wills are under pain of nniUty .... 855 probate (»f : V'a/c FntXsAT.E. SSGetsoq. hiteri>reiationof , 872 revocation of ; Vafe Keyocaticx 8^2 et seq. executors to : Tide EXECUToua P()5 et SOq. Vid<- Ll'G.VCIKrt, TkSTATOU, iUWlSTUATIOX, LETTKUS Of VKIU- FICATIO.V. WlXD.MlLhs, when deemed immoveable S77 Ml^ DOWS : Vide Vjkw P33 ot soq. \\ i'i'^JKSSES, cli lUs and servants of notavies cannot be, to authentio wills S44 hut may be related or allied to testator ov to notary .,,,,. 848 legacies 1m favor of witncsw^es to a will are null 840 " ■ S~)0 851 holngiapti wills rc(julrc no two competent, arc rcquii-ed for wills in En}2,lish foru legacies tosiioli witncs.'^cs are null Avhn are Incoujietcnt to give tesiiu:ony 1231, liiua WOiilv, lease and hire of, by ostinifUo aiur^outraet, ot wlittt It may consist , when I03.S (if thing before delivery fails on worKuian, and when it does not when workmnn niayolaitu wages, alttumj^h thing be lost hefore I 1083 1084 1085 1088 delivery resumption of receipt of, ariseji frian puynuMit of wages 1087 iahility of aichiiect and builder for lei's of buildlrg within two years , ,,, ..,.,.,...,1688,1689 Ml G02 Civil Code of Lower Canada. m • ' -V f Ali'v wlien architect or builder may charge for extras iiiix* rij^ht of owner to cancel contract for conBtruction of a buildin!?. .. 109I death of workman does not necessarily terminate contract of 1692,lfl9;{ uor does the death of the party hiring the work i(j<.)4 fjrivileges of architects, builders and workmen 1695, 200t) § 7 low preserved 2013 Vide Servants, Masters, Voyageuus, Fisiiicrmen. WOltKMANSHir, on proi)erty not belonging to workman 43*, 435, 436 WOKKMEN, masons, carpenters and other, working by contract are regarded as contractors IGOO employed by contractors in construction of a building have no direct action against owner (but see note to this article)- . . IGO" Krivilege of upon immoveables 2013 et seq. uilders and contractors must keep list of workmen and wages to be paid to them 1697^' how workmen may seize in the hands of the proprietor the con- tract money to pay their wages 16d7h to 1G97of i'_>07 when a notarial instrument is . 12()S what notifications and protests are 12OH between whom and of Avhat they make proof , . 1210 how they may be contradicted 1211 copies of, make proof, when and of what 1215 et seq. executed out of Lower Canada i22i> Private, -when a writing is not authentic, by reason of some defect, it avails as a 1221 •' between whom they make proof. 1222 " how signatures to must be denied 122.} ' ' and how proof is made when denied 1224 " have no date as against third parties. 1225 " save as regards conmiercial matters 1226 " counter- letters affect parties thereto only 1212 " of what family registers and papers make pi'oof r227 " effect of writings by creditor on back of a title which he has in his possession 1228 ** endorsements of payments on back of notes do not in- terrupt prescription I22f> testimony cannot be received to contradict 1235 when action cannot be maintained without, in commercial matters 1236 transactions upon a writing, found to be false, are null •. . . . li)2;J Vide Commencement of proof in writing.