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During this period of time, notwithstanding the warning of the Codification Commissioners against inconsiderate amend- ments and fragmentary legislation, the Code has twice every year, at the hands either of the Dominion parliament or of the Quebec legislature, been subjected, more or less, to piece-meal modifications, the aggregate of which, as will be seen hy the notes to this edition, is far from inconsiderable. This patchy legislation, brought about by persons, very few if any of whom had a sufficiently intimate knowledge of the Code to view it as a whole and to judge of the effects upon that whole of the particular changes they were making, is much to be regretted. Mr. de Bellefeuille, in the introduction to his 7ode Civil Annotd, recently published, points out, in earnest and forcible terms, the evil of this tampering with the Code by M. P.s or M. P. P.s, " curieux d^amiliorer le droit romain ou de per- fectionner les doctrines de Pothier." It is much to be feared however that as long as our legislatures practically ignore the fact that law-making is an art, and requires a previous ac- quaintance with the science of law and with the whole body of anterior legislation ; as long as " bills " may be originated or drafted by any body or every body, without competent and responsible supervision, and may be hurriedly altered, or pressed, unaltered, during the last days of a session, through a House more busy with party warfare than with earnest and steady legislation ; so long will it be impossible to protect the IV PRtCPACR TO THIHD RDITIUN. Code from hurtful obanges. or to improviB it in such a manner aa not to impair the harmony of its different parts and its strength and usefulness as a whole. Whatever may be the effect, however, of this fragmentary legislation, its provisions are the law, and it is important thot they should be known. To point them out and to show their bearing upon the different articles of the Code, the notes which accompany the present edition have been carefully prepared. Each statutory provision is shortly referred to and an indication ia given of its general purport. The enactments themselves are not reproduced because it was desirable that the book should retain its present handy size, and because it is always safer to read the text of a law in the statute-book itself. More- over the statute may not affect all the oases to which the article of the Code applies and the mere mention of its nature may suffice to show whether or not in any particular case it requires to be read. The numerous judicial decisions cited in the notes are all subsequent to the Code and have been selected in view of their suitableness to assist in the interpretation or the application of its different articles or in the building up of a jurisprudence in connection with it. As the text of the Code in this edition is printed from the stereotype plates used for the two former editions it was impos- sible to place the notes at the foot of the articles to which they refer ; but signs of reference have been inserted to connect the note with the article, and the inconvenience, if one it be, of not having both upon the same page, is more than compensated by the great advantage of the text being faithfully reproduced and kept free from typographical errors or omissions ; the experience of thirteen years having now fully tested the perfect trust- worthiness of the stereotype. The annotations of Mr. de Bellefeuille, whom I have to thank for having furnished me with an advance copy of his work, and a great number of notes kindly communicated to me by Mr. .Tustice Gasault, afforded me excellent means of verifying the correctness and completeness of my references to statutory PRRKAOB TO THIRD BOITION. amendments. With regard to the citations of judicial deoiiiona tuy thanks are also due to one of the able editors of the Quebec Law Reports, R. J. Bradley, Esq., to whose legal knowledge and intimate acquaintance with the judgments of our courts, I am indebted for much valuable assistance. Besides my own revisions, the work hojs undergone a separate and thorough revisal and verifloatiou at the hands of Mr. Nicolls, whose name appears upon the title page, and whose industry, zeal, and ability have contributed very much to make this little volume a trustworthy hand-book of the Civil Code, its amendments and its jurisprudence. Since the book went to press, another session of the Dominion parliament has been held, and, although it is too late to note all the bearings which the statutes of this session may have upon articles of the Code, it is well to call attention to the fact that the Insolvent law has been repealed and that many new provisions have been enacted with respect to Banks and Bank- ing, — Navigation of Canadian Waters, — Wrecks, — Interest, — and Building Societies. The Quebec Legislature also is now in session, and what fur- ther attempts it may make to improve the Code remains to be seen. T. MoC. Quebec, Cth July, 1880. ABBREVIATIONS USED IN THE NOTES. C. — Canada Statutes. 0. C — Circuit Court. C. S. C— 'Consolidated Statutes of Canada. C. S. L. C— Concolidated Sta- tutes for Lower Canada. L. C. J. — Lower Canada Jurist. L. C. L. J. — Lower Canada Law Journal. L. N. — Legal News. L. C. R.— Lower Canada Re- ports. P. C— Priyy Council. Q. — Quebec Statutes. Q. B. — Qu HTi's Bench. Q. L. R.— Quebec Law Reports. R. C. — Revue Critiq^ue. R. L. — Revue Legale. S. C. — Superior Court. S. C. R.— Superior Court in Review. "'^Hii oil' n^ljiiji NOTES TO THE THIRD EDITION. Under the Act respecting the Civil Code of Lower Canada (29 V.,0. 41), theCommisBioners were authorized to cause the Code to be printed from the original roll, incorporating the amend- ments contained in the schedule to that act ; they were also empowered to strike out parts of the Code inconsistent with amendments, and to correct errors, contradictions and ambigui- ties, without changing the effect of the original. Owing to the rather indefinite nature of these powers, and the difficulty, in many cases, of distinguishing whether a correction had changed the " effect " of a provision of law, queotions might frequently have arisen, before the courts, as to whether the Commissioners had not, in any particular instance, exceeded the powers en- trusted to them, and whether, as a consequence, portions of the- Code, as printed, were not destitute of legislative sanction. — In order to exclude these questions, a provision (sec. 10) was inserted in the Quebec statute, 31 V., o. 7, by which the Code, " as printed by the Queen's printer, of the former province of Canada," is declared to be law. The notes applicable to particular articles have been placed in the order and under the number of those articles as follows : — 2> The date of the com- mencement of the acts of the Dominion parliament is deter- mined by C. 31 v., c. 1, 8. 4, and the promulgation and date of the Quebec statutes are re- gulated by Q. 31 v., c. 6, ss. 2 and 3. — But, by the Quebec statute of 1871 (35 V., c. 4), it is enacted that, unless it is otherwise provided in the sta- tute itself, every Provincial statute shall come into force on the sixtieth day after its being assented to, or, in the evbnt of its being reserved, on the tenth day after its publi- cation in the Quebec Official Gazette together with the pro- clamation announcing that it has been assented to. — Provi- sions on this subject are also contained in sections 57 and 90 of the British North America Act, 1867. 3. The disallowance of the acts of the Dominion, and of those of this province, is pro- vided for by the British North America Act, 1867, sections 56 and 90. 4. As to the printing of the VIU NOTES TO THIRD EDITION. >-t Canada statutes, see C. 31 Y., 0. 1, g. 9, and as regards that of the Quebec statutes, see Q. 31 v., c. 6, s. 4. 5. The distribution of the Dominion statutes is now re- gulated by section 1 of the act 0. 38 v., c. 1. This section provides, amongst other things, for the printing of the public statutes and private statutes of each session in two separate volumes and for a dinerent distribution of each of these volumes.— The distribution of the Provincial statutes is prO" vided for by Q. 31 V., c. 6, ss. 8, 9, 10. 9« Similar provisions res- pecting the effect of statutes upon the rights of the Crown and upon those of individuals, are contained, as regards Can- ada, in C. 31 v., 0. 1, s. 7, thirty -thirdly, and, as regards Quebec, in Q. 31 V., c. 7, s. 5. 10. The converse of the nxle contained in this article has been adopted by C. 31 V., c. 1. 8. 7, thirty -eighthly, and by Q. 31 v., c. 7, s. 6 ; consequently all acts of the Dominion par- liament, or of the legislature of this province, are deemed to be public, unless they are ex- pressly declared to be private. 17. The rules of interpreta- tion of the statutes of Canada are contained in C. 31 V., c. 1, 88. 6, 7, 8, as amended by C. 42 v., c. 47 J and the Quebec Interpretation Act is Q. 31 V., c. 7, as amended by Q. 32 V., c. 13, 8. 1, and Q. 42, 43 V., c. 19 s. 5. — For the meaning of the word "insolvent," in the Insolvent Act of 1875, see sec. 2, subsec. / of that act. For its meaning as regards insur- ance companies, see C. 38 V., 0. 20, 8. 16, and, as regards banks, see C. 34 V., c. 5, s. 57. Section 10 of the Quebec Interpretation .^ct could not bind future legislation to any particular mode, and, there- fore, articles of either of the Codes may, notwithstanding the provisions of this section^ be affected or repealed by sub- sequent legislation without being expressly designated. Broaaoit & Tureotte, 20 L. C. J., 141, Q. B., 1875 J Ougyvs, Brown, 3 R. L., 82, fl. C, 1871. 22. This article is super- seded, and the naturalization of aliens is regulated by the Canada statute 31 V., c. 66, as amended by C. 34 V., o. 22. The Imperial act, 33 V., c. 14, 8. 16, contains provisions re- specting the power of colonies to legislate with respect to naturalization. 23. This article is super- seded by section 2 of the act C. 31 v., c. 66, and according to the terms of this section, not only does an alien woman become naturalized by the marriage she contracts with a British subject, but the alien wife of an alien becomes natu- ralized by the naturalization of her husband. 25, 26. The Imperial act 33 v., 0. 14, contains provi- sions defining and limiting tho capacity of aliens, and enact- ing that they shall no longer be entitled to a jury de me- dietate, 27* Foreign corporations, incorporated and recognized by the laws of the foreign country NOTES TO THIRD RDITION. in which they have their seat of business, may enter into con- tracts in this province and may bring suits before our courts to compel the fulfilment of obliga- tions contracted towards them. The Connecticut & Paaaumpsie Rivera Railway Co, & Corn- stock, 1 R. L., 589. But see note to art. 366. 29> But it appears that a non-resident (who is also an in- solvent — sec. 39, Ins. Act, 1875) who intervenes merely as the garant of the defendant and for the purpose of taking up the fait et cauae of the latter and defending the action, i^ not bound to give security for costs. Maraia va. Brodeur, 1 L. N., 554, S. C, Montreal, 1878. In Dupr4 va. Cantara and Cantara, oppt. (1 S. L., 40), it was held by Mr. Justice Lor- anger that an opposant for payment is not bound to give security for costs ; on the ground, it would seem, that he is more in the position of a defendant than m that of a plaintiff; and in the cases of Baltzar et al va. Grewing et al., ixnd Hutchinaon et vir, 13 L. C. J., 297, and Mc Adams v. Stuart & Frazer, 1 Q. L. R., 354, it was held that the plaintiff who is a foreigner, and contests an opposition, may be compel- led to give security for costs ; but in Wehater v. Philbrick and Wilkie, 15 L. C. J., 242, it was hold that the opposant is in the position of a plaintiff and can- not claim security from the plaintiff who contests his op- position. In the report of this decision several other cases are referred to. — As ^'egards the nature of the security to be given, see the note to article 1939. 39. As to acts of civil status in a certain portion of the dis- trict of Saguenay, see Q. 34 V., 0. 8 ; amended by Q. 35 V., o. 17. 42. Since the coming into force of the act Q. 36 V., c. 16, registers of civil status may be kept, not merely for parish churches, but also for particu- lar Roman Catholic churches, chapels or missions, according to the several provisions con- tained in that act. 4d- The Quebec statute 41 v., c.^ 8, in sees. 1, 4 and 6, contains provisions concerning the division of registers into two or three volumes, for regis- tering separately acts of birth, of marriage, and of burial, and for the making of an alphabeti- cal index for each volume. 44:. Section 4 of the act Q. 42, 43 v., 0. 12, provides for the keeping of a register of such deaths as happen in the provincial penitentiaries, jails or reformatories without being followed by a coroner's inquest. 45. Under this article regis- ters of civil status could be authenticated by a clerk of the circuit court in certain oases only ; in all other instances the ministry of the judge, or of the prothonotary, was requisite. The distance of the chef-lieu, particularly in large districts, was, therefore, a frequent cause of inconvenience; to remedy this, section 2 of the act Q. 32 v., c. 26, permits the au- thentication of registers by a NOTKS TO THIRD KDITIOX. fill clerk of the circuit court, in an cases, and amends this article by eubstiluting the words •' or to a clerk of the circuit court in the county," for the Vordr *' or to the clerk of the circuit court instead of the prothonotary in the case specified in the statute 25 Vic, chap. 16." 47. The depositing of the duplicate registers of civil status with clerks of the Cir- cuit Court, under the provisions of this article, was productive of no material benefit, inas- much as the other duplicates were always accessible at no great distance ; on the other hand, the depositing of all these duplicates at the chef- lieu not only ensures their more certain safe -keepings but secures convenient reference to them at the business centre of the district. This change is effected by Q. 32 V., c. 26, s. 3, which amends this article so that it shall now read as follows : ** Within the first six " weeks of each year, the " person who kept tbs said " registers, or who has charge " thereof, deposits, in the pro- " thonotary's oflBce of the *' Superior Court of his district, *' one of the said duplicates, " the delivery of which is *' acknowledged by a receipt " which the said prothonotary ** is bound to give, free of *' charge." The statute fur- ther provides that the dupli- cates now in the keeping of clerks of the circuit court shall be handed over to the protho- notary of the district. 48. The clerks of the cir- cuit court, in virtue of the amendment of the preceding article, being no longer de- positaries of duplicate regis- ters, the words " or clerk " are struck out of this article ; Q. 32 v., c. 26, s. 4. 59. The Quebec statute 35 v., c. 3, provides for the issuing of marriage licenses, and de- clares who shall be the com- petent authority under this article. 67. The Quebec statute 41 v., c. 8, ss. 2, 3 and 5, contains provisions respecting the regis- tration of an act of death instead of an act of burial, whenever a body shall have been handed over before burial to a school of medicine or a university. 69. Under sections 1 and 4 of the act Q. 42, 43 V., c. 12, the authorization to bury, when the death has happened in a provincial penitentiary, jail or reformatory is no longer ne- cessary except in cases where an inquest has been held in conformity with that statute. — Q. 39 v., c. 18, contains pro- visions respecting interments and disinterments ; and Q. 39 v., c. 20, provides for the obtaining of statistics of births, deaths and marriages. 93. Where the property of the absentee consists in a share of a succession, the petition to obtain provisional possession of it should be accompanied with a statement shewing not only the property composing the succession, but the snare of it which belongs to the absen- tee ; in order that the court may be able to determine the NOTBS TO THIRD EDITION. amount for which security should be given. Exparte De Oroaboia, 4 B. L., 389, S. 0;, 1872. 97* See note to articles 294, 295. 117. The nullity of a mar- riage by reason of impotency may be invoked long after the three years mentioned in this article if it be proved that the parties have lived separately *ever since the marriage, that the impotent party has during that time been absent and domiciled in a foreign country, and that without him the case could not be proved. Lange' vin V. Barette, 4 R. L., 160, S. C, 1872. 166, 167. The obligation of the children to support their parents who are in want is joint and several, and the parents may choose from which of their children they will demand maintenance. Lauzon v. Con- naiaaant et vir, 5 L. 0. J., 99. The children condemned to pay an alimentary allowance to their parents may recover from the others, equally bound to the maintenance, their share of the allowance and of the costs incurred. Labelle et vir V. Labelle, 15 L. C. J., 81.— Mr. Justice Johnson held in Leblanc v. Leblano et al. (23 L. C. J., 10), that the obligation of the children under these articles, as taken in connection with article 169, is not joint and several. 175. But a wife is justified in refusing to live with her husband if he keep a concubine in the house, and in such case she may sue for an alimentary BB allowance without demanding aeparation de corpa, Lacha- pelle V. Beandouiiif 1 L. N., 581, S. C, Montreal, 1878. 176. Notwithstanding this article, a wife may, in virtue of the provisions of Q. 41 V., o. 3, HH. tf7, 98, 106, institute an action for the recovery of dam- ages, resulting from the sale of spirituous liquors, in contra- vention of sec. 95 of that act, or for the recovery of moneys f»aid, or objects given, for iquon sold in contravention of the law. A married woman sued as a widow may, however, appear in the ease, without any au- thorization, in order to inform the court of the fact of her having a husband. Smith & vir V. Chretien, 23 L. C. J., 8* C. 0., 1878. 177. Saving also the pro- visions of C. 34 v., 0. 6, s. 7, as to deposits in government savings banks, and 0. 34 V., 0. 7, 8. 16, as to deposits in certain savings banks in Ontario and Quebec. 193. Nevertheless the court will consider the admissions made by the defendant to third Sarties, or resulting from his ei'ault to answer interrogato- ries upon articulated facts, where it is of opinion that they are not the result of collusion with the plaintiff. Starke v, Maaaey, 17 L. C. J., 242, S. 0., 1873. 202. Pending an appeal from a judgment dismissing a wife's action en aiparation de oorpa et de biena, the court will not accord her a provisional alimentary allowance. — Ville- xtl NOTES TO THIBO EDITION. ntuve (jh Bedard, 2 R. L.j 626, Q.B. SIO. This article is amend- ed by Q. 39 v., o. 24, so that it shall now read as if, instead of the last words *'of a judge," it contained the words ** of her husband, or upon his refusal, the authorization of a judge." 294, 295. The investment may be made in Dominion stock, Q. 33 v., 0. 19; and must be made in dominion or provincial stock, or in the securities, real estate, or hy- pothecs described in Q. 42, 43 v., c. 30. 297, 298, 299. Notwith- standing these articles, tutors may, under the Railway Acts, 0. 42 v., c. 9, s. 9, § 3, and Q. 32 v., 0. 51, 8. 9, § 3, and their amendments, convey lands re- quired for railway purposes, and the act Q. 33 Y., c. 32, s. 42, allows them to sell and convey to companies incorporated un- der that act, any property be- longing to their pupils which may be necessary for the pur- pose of the roads owned by these companies. — According to arti- cle 299, judicial sales of the property of minors should be made in presence of the sub- rogate-tutor; many uf these sales having, however, taken place without such presence, the statute Q. 33 V., c. 23, provides that this omission may be remedied by the sub- sequent ratification and signa- ture of the sttbrogate-tutor. — The Quebec statute 35 V., o. 7, as amended by 36 V., o. 17 and c. 18, enacts that articles 298 and 299 shall not apply to the sale of immoveable proper- ty, immoveable rights, capital sums, or shares in joint-stock companies, belonging to minors or persons incapable of acting for themselves, when the real value of such property doe's not exceed four hundred dol- lars; the act also contains provisions as to the mode of bringing such property to sale. —The act Q. 42, 43 V., c. 26, provides a mode of selling se- curities, shares, &o., belonging to minors. — Under Q. 41, 42 V., 0. 13, s. 22, the tutor may ad- vance insurance money, or dis- pose of the investments thereof and advance the proceeds to the minor,forthe establishtaent,ad- vancement,prefermentorsettle* ment in marriage,of such minor. The sale of immoveables belonging to minors should not be allowed, even upon the ad- vice of a family council, except in oases of urgent necessity, and, in the absence of sufficient proof of such necessity, a judg- ment authorizing such a sale will be set aside. Beliveau & Ghevrefih, 2 Q. L. R., 191, Q. B., 1876. 308. A minor become of age cannot sue his tutor for a certain sum of money which appeared to be due him at a specified time when he was under age, according to an account rendered by the tutor pending his administration ; and, until the tutor has ren- dered his definitive account, the only action, arising^ out of his administration, which the minor become of age has against him'is the actio tutelse directee. Bureau va. Moore^ 17 L. C. J., 235, S. C, 1872. NOTES TO THIBD EDITION. xiU 314. The marriage of a minor has the effect of eman- cipating him, even though it be susceptible of being annul- led, and a curator and not a tutor should therefore be ap- pointed to him, even in order to demand the nullity of such marriage. Burn et al. va. Fontaine, 4 R. L., 163, 6. C, 1872. 325. The Quebec act 33 v., c. 26, makes habitual drunkenness a cause of inter- diction and contains provisions as to when and how such inter- diction may be obtained or removed; and this statute is amended by Q. 42, 43 V., o. 28, which gives the same ef- fects to interdiction for drunk- enness as to interdiction for prodigality. 328. This article does not apply to demands of interdic- tion for habitual drunkenness, under Q. 33 V., o. 26; and these demands must not be made before the prothonotary. T1i4rien va. Lauzon, 17 L. C. J., 174, S. C, 1873. 343. Under the Railway Acts, C. 42 v., c. 9, and Q. 32 v., 0. 51, and their amend- vments, curators may convey lands for railway purposes, and, under Q. 38 V., o. 32, they may also convey, without antiiorization, to certain road companies, any property under the ouratorship which such companies may require for the purposes of their road. 3o6. Civil corporations are 80 far governed by the laws affecting individuals that an action for libel may lie against a corporation. Brown ««. Corp. of Montreal, 4 R. L., 7, S. C, 1871, and 17 L. C. J., 46 ; or for assault, Corp. of Montreal va, Doolan, 1 R. C, 476, Q. B., 1871; and an action for libel may be brought by one cor- poration against another. L'lnatitut Canadien va. Le Nouveau Monde, 17 L. C. J., 296. 866. Foreign corporations, as well as our own, are under a disability to acquire lands without the permission of the Crown or tne authority of the Legislature. The Chan- diire Gold Mining Company & Deabarata, 15 L. C. J., 44, and 17 L. 0. J., 275, P. C, 1873— The bequest of property to trustees to be by them applied to the establishment of a pub- lic library and museum, which is to be afterwards conveyed over to a corporation to be created for that purpose, does not fall within the prohibitions of this article. Abbott et al & Fraaer et al, 20 L. C. J., 197, and 6 R. L., 365, P. C, 1874. 368,371,372,373. The statute Q. 42, 43 V., o. 31 pro- vides for the voluntary dis- solution and winding np of joint-stock companies which have been incorporated by let- ters-patent under Q. 31 V., o. 25, or to which Q. 31 V., o. 24, applies. 417. Mr. Justice Badgley, in Elliee & Courtemanche (11 L. C. J., p. 325), interprets this article as applying only to " constructed " improve- ments, and the words of the article, ''with his own mate* rials," seem to bear out this interpretation. Xi7 K0TE8 TO THIRD EDITION. I ; ii if! 419. A particular legatee sited by a creditor of the testator's estate, for the reduc- tion and return of the legacy, has nojight, under this article, to retain the property until he has been reimbursed his im- provements ; but he may claim to be paid out of the proceeds of the sale of the property, as in the case of a nolder sur- rendering hypothecated pro- perty under article 2072. Matte df Laroehe, 4 Q. L. B., 65, Q. B., 1878 ; and 8 R. L., 517. 443. Section 9, S 3 of C. 42 v., 0. 9, enacts that tenants in tail or for life (" ueufruitiera,** in the French version) may convey the land to railway companies, but also provides for the notification of the own- er and the securing of his in- terests. The Quebec statute 32 v., 0. 51, s. 9, § 3, likewise authorizes the conveyance of the land, but does not contain the proviso for securing the interests of the owner ; and the act Q. 33 v., 0. 32, s. 42, con- tains similar provisions as to the power to convey land to road companies. 460. In Dufreane vs. Bui- mer, 21 L. C. J., 98, S. C, 1877, it was held, by Mr. Justice Dorion, that the mention of mines and quarries, in this article, and of trees in article 455, is not restrictive, but is explanatory of the common law, and that sand-pits like- wise do not fall under the control of the usufructuary of the land upon which they are situated. 536. One neighbour may, however, have openings in his buildings, within a less dis- tance from the land of the other than that mentioned in this article, if the buildings of the lattelr are so situated and constructed as to prevent any view upon his land from such opening. Touchette va. Boy, 3 Q. L. R., 260, S. C. R., 1877. 549. In Parent va. Daigle, 4 Q. L. R., 154, the majority of the court seemed to doubt whether the maxim ** nulle servitude aane titre" should apply to the case of a pro- prietor of a fonda enclave who had enjoyed the right of pas- sage over an adjoiningproperty for upwards of 30 years. 590. Provisions respecting inquiries into shipwrecks are enacted by the statute of Can- ada, 32, 33 v., c. 38, and the act C. 36 v., 0. 55, repeals this article of the code, and contains ample provisions res- pecting wreck and salvage. — Bee note to article 2355. 592. See C. 36 V., o. 55, 8. 38, as to things found in the port of Quebec and the notice to be given in such case. 606. The statute Q. 41 V., c. 10, provides for the obcaining of letters of verification to be used in proof of heirship, out- side of the province. 776. The district of Gaspe is an excepted locality under c. 38, C. S. L. C. s. 10. 806. It follows from the provisions of this article that a donation of an immoveable is of no avail against a subse- quent mortgage of the same immoveable, if the registration of the mortgage was anterior to that of the donation. Boy NOTES TO THIBD EDITION. XV 088 dis- of the loned in dings of ited and ent any cm 8Uoh r. Boy, 3 , 1877. . Daigle, ftjority of bo doubt " nuWe ' should f a "^TO- )lavi who b of pas- ^property its. espeoting recks are ;e of Can- , and the >, repeals lode, and iions res- alvage. — 55. , 0. 55, nd in the [he notice ,80. ,. 41 v., lobcaining ^on to be ihip, out- [of Gaspe jity under from the Itiole that jvoablo is a Bubso- Ithe same {istration anterior ion. Boy V9. Vaeher et al, 16 L. C. J., 43, S. 0. R., 1871. 836. A bequest of property to trustees, to be by them ap- plied to the establishment of a public library and museum, which is to be afterwards con- veyed over to a corporation to be created for that purpose, is a bequest in favor of such cor- poration of property which it may legally possess and may consequently receive by will under this article. Abbott et al & Fraaer et al, 20 L. C. J., 197, and 6 R. L., 365, P. C, 1874. 84:3. The provincial stat- ute 38 v., c. 23, ss. 1 and 2, enacts that all authentic wills, executed since the code came into force, and before the com- ing into force of that statute, shall be held to be valid, not- withstanding that only one of the two witnesses present may have been able to sign his name ; and also, notwithstand- ing that they may not contain a mention of the formalities re- quired by this article, provided such formalities have really been observed. The act Q. 42, 43 v., 0. 36, contains similar provisions for wills anterior to its passing but subsequent to the above mentioned statute. 845. The provisions of this article, as regards the relation- ship of notaries, do not extend to notarial acts other than wills. Lynch et al va. McArdle ABrethour, 16 L. C. J., 108, S. C. R.,1871, and Guivremont va. Cardin, lb., 257, C. C, 1871. 869. The bequest of prop- erty to trustees to be by them applied to the establishment of a public library and museum under the administration of a corporation, to be formed for that purpose, is a disposition for a lawful purpose and is valid under this article. Ab" bott et al & Fraaer et al., 20 L. C. J., 197 and 6 R. L., 365, P. C, 1874. 911. In Tule & Braithwaite (12 L. C. J., p. 207), Mr. Justice Monk applied the new law of this article, although the executor had accepted the office long before the existence of the cede. See the note to article 2613. 913. The solidarity referred to only applies to the obliga- tion to render one and the same account. The executors are not liable jointly and severally for the payment of the balance of moneys collected by them, but are only liable each for the share of which he had posses- sion. Darling et al va. Brown et al, 21 L. C. J., 125. 928. No substitution is created by a will by which the testatrix bequeaths the enjoy- ment of all her property to her children during their lifetime only, and ordains that the ownership of the property, after the death of the usufruc- tuary legatees, shall revert and belong to the children of the said legatees, born and unborn, and shall be divided amongst them only after the death of the last surviving legatee. Boy et vir va. Oauvin et al, 3 R.L., 443, S. C, 1871. 945. This article as amen- ded by Q. 38 v., o. 13, now reads as follows : — '* All sub- stitutes, born and unborn, are XTi NOTES TO THIRD EDITION. represented in all inyentories and partitiona by a curator to the substitution, appointed in the manner established as re- gards tutors. The curator to the substitution attends to the interests of such substitutes in all such inyentories and par- titions, and represents them in all cases in which his inter- vention is requisite or proper. — The institute who neglects to demand this nomination may be declared to have for- feited in favor of the substitute the benefit of the disposition. — All persons who are com- petent 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." 94:7> Any moneys which the institute may have to in- vest may under Q. 33 Y ., o. 19, be invested in Dominion stock j and the investment muat be made either in such stock or in provincial stock or in the securities, real estate or hypo- thecs mentioned in Q. 42, 43 v., c. 30. 953« This article enumer- ates the cases in which the property of a substitution may be finally alienated while the substitution lasts. The act Q. 33 v., c. 32, 8. 42, moreover permits this alienation by the institute in the case of property being required for road pur- poses by a company incorpora- ted under the act; and the railway acts C. 42 V., c. 9, and Q. 32 v., c. 51, and their amendments, also authorize the institute to alienate land required for railway purposes. 968. The declaration in a will that the annual rent there- by bequeathed is of an ali- mentary nature and shall not be liable to attachment does not constitute a prohibition to alienate such rent. Armttrong V8. Dufreanay et al, 3 R. L., 366, and Berlinguet vs. Privoat et al, 3 R. L., 380 and 16 L. 0. J., 65, S. 0., 1871.— Notwith- standing that the prohibition to alienate substituted property includes a prohibition to hypo- thecate it, the institute may hypothecate it for the purpose of defending himself against proceedings adopted td deprive nim'of the property; WihonvB. Leblane is qual. & Doutre et al dk Leblano ia qual., 16 L.O. J., 197, 8.C.R., 1872 ; or for the purpose of obtaining security to appeal from a judgment the execution of which would deprive him of the property. Wilson vs. Le- blano is qual., and Larose et al vs. Leblane is qual., th., 207, S. 0. R., 1872. 986. But under C. 34 Y., o. 6, s. 7, and c. 7, s. 16, persons incapable of contracting may deposit moneys with, and re- ceive them from, government savings banks and certain savings banks in Ontario and Quebec. The acts of persons no- toriously suffering from insan- ity or imbecility, but not yet interdicted, are not null, but are only liable to be set aside for lesion. D'Eatimauville va. Tousignant is qual., 1 Q. L. R., 39, S. C, 1874. 1027' In the text of this ar- ticle as contained in the sche- dule of the act 29 Y., c. 41, NOTES TO THIRD EDITION. ZYii the word " subject " comes after the words ** immoveable prop- erty " and the changing of the position of this word by the Codification Commissioners was commented upon by the chief justice. Sir A. A. Dorion, in rendering judgment in the case of Dupuy and Cushing (22 L. C. J., p. 206). The intention of the article as sug- gested in amendment and contained in the statute, was to apply articles 1025 and 1026 to tnird parties. These two articles make no distinction between moveables and im- moveables and there was no reason for making such a dis- tinction in 1027. Moreover if the first paragraph of the article contained such a dis- tinction the second paragraph which says : '* But if a party oblige himself," &q., would be in contradiction to the first, and would also be useless, as mak- ing an exception in respect of moveables in a specified case, when the article did not ap- ply to moveables at all. The word " subject " had therefore evidently been wrongly placed and the Commissioners cor- rected the error as they had the power to do. The author- ity of the Commissioners, how- ever, is no longer of importance, as the Quebec Interpretation Act, s. 10, enacts that the Code "as printed by the queen's printer of the former province of Canada " is in force as law in this province. 1037. The Insolvent Act referred to is now superseded by the Insolvent Act of 1875, C. 38 v., c. 16, and its amend- ments, C. 39 v., 0. 30, and 0. 40 v., 0. 41. 1040. See note to arldole 2240. 1063, 1064. The respon- sibility of employers for dam- age caused by their servants and workmen is limitedf as regards owners of vessels, by the Canada statute 31 V., o. 58, s. 12, and by the Imperial act 25, 26 V., o. 63.— The Que- bec License Law of 1878, seo. 99, makes the master of an inn, or other house where intoxicat- ing liquors are sold, responsi- ble in damages towards the representatives of a person who, becoming intoxicated by means of liquor given him by such master or by any person in his employ, shall after- wards by reason of such in- toxication commit suicide or meet with accidental death. The right of action for these damages is limited by sec. 100 to three months from the time of the death. Common carriers incur the responsibility mentioned in these articles for damages caused by their fault, or by that of persons under their control, notwithstanding notice given by them of special con- ditions purporting to limit their liaoility. Campbell va. Grand Trunk Railway Co.^ 3 R. L., 451, C. C, 1871.— A City Passenger Railway Com- Sany is not responsible for amage caused by the fault of a labjrer in the employ of the contractor engaged by the year to keep its track in repair. Thihauaeau va. The City Paa- zviii KOTSS TO THIRD BDITIOK. ienger R. R. Co., 4 R. It., 654., 0. C, 1873. 1065. The owner of a horse, that is proved to be gentle and easy to drive, is not responsible for the damage it has caused while being driven by an unao- oompanied person to whom he hired it and who is not in his servioe or in his employ. Beli' reau & Martineau 4 R. L., 691, Q. B., 1872. 1056. This article gives a right of action, during one year after the death, to the consort and to the ascendant and descendant relations of the de- ceased, but in the case of death resulting from the giv- ing of intoxicating liquors, as mentioned in the note upon articles 1053, 1054, the Quebec License Law of 1878, sec. 99, gives a right of action to the representatives of the deceased, and sec. 100 limits that right of action to three months after the death. 1106. The statute Q. 39 V., 0. 33, s. 22, provides that par- ties to acts executed before a notary are jointly and severally liable for his disbursements and fees. 1152. The provisions of this article as to payment being made at the domicile of the debtor apply even when the debtor and the creditor live in the same town. Rodrigue d: Grondin, 6 R. L., 643, Q. B., 1874. 1162. Under section 8 of Q. 35 v., c. 6, any debtor who is prevented, by the refusal or absence of his creditor, from paying a sum of money, may deposit it with the treasurer of the province, and such deposit if sufficient will free him from future interest. 1163. Paragraph 4 of this article requires that a tender of money should be made in coin declared current by law ; but by the acts 29, SO V., o. 10, 8. 1, and C. 31 V., c. 46, s. 8, the notes of the late province of Canada, and those of the Dominion, are also made legal tender. 1188. The amount of a claim set up in compensation need not be elair et liquide if it be susceptible of easy liqui- dation, lioss et al vs. JBrunet, 5R. L., 229, S. C, 1873.' 1204* Testimony concern- ing a copy of a statement is not admissible unless sufficient cause is first shown for the non- production of the original. The Glen Brick Co. vs. Shackell, 14 L. C. J., 238, S. C, 1870. 1207. In addition to the writings declared authentic by this article, the statute Q. 31 v., c. 18, admits as evidence queen's printer's copies of the statutes or official publications of the other provinces of the Dominion, and the act Q. 32 v., c. 10, gives authenticity to certain official writings of the executive and legislative de- partments of the province of Quebec. — The by-laws and resolutions of bank directors making calls from sharehold- ers, make proof of their con- tents, without evidence to establish their authenticity, in all actions brought for recovery of money due on any such call. C. 34 V. 0. 5, s. 34 The cer- tificate of proprietorship of NOTES TO TBIBD EDITION. six railway shares is admissible as jtrima facie evidenoe under see. 20, S It of C. 42 V., o. 9 ; and by sec. 24 of the same act copies of minutes of proceed- ings of railway meetings are admissible as evidence. 1208. Under sections 9 and 10 of the Notarial Act, Q. 39 v., c. 33, the holding of any of the offices of prothonotary, de- puty prothonotary, sheriff, de- puty sheriff, registrar or deputy registrar, when the appoint- ment to such office has taken place after the first of January, 1874, is declared to be incon- sistent with the practice of the notarial profession, and it is enacted, by section 13, that the deeds passed before a notary holding any such office, as well as all deeds passed before any notary considered as not practising within the meaning of the said act, do not possess any authentic char- acter. Under section 53 of the same statute, it is no longer necessary for the authenticity of a notarial act that a second notary or a witness should be present and sign the deed, when any one of the parties to it is unable to sign — one notary alone may now, except in the case of wills, pass any deed to any amount, although not one of the parties mentioned in the deed has signed it, and the deeds need not show, apart from the notary's own statement, that a single person, other than he, had any knowledge of its execution. The act Q. 33 v., c. 23, had given validity to previous notarial acts, notwith- standing that they might not have been countersigned by the second notary or the witness ; but this provision of sec. 58 of the Notarial Act, casts away all idea of the necessity of any check whatever upon the power of a single notary. The sta- tute Q. 38 v., c. 22, contains exceptional provisions concern- ing the validity of certain deeds executed in either of the coun- ties of Gaspe or Bonaventnre. The relationship of the notary to one of the parties does not affect the validity of a notarial act. Lynch et al v», McArdle & Brethour, 16 L. C. J., 108, S. 0. R., 1871. Nor does the relationship of the second notary, Ouivremont vt, Cardin, lb., 267, C. C, 1871. 1209< See note to art. 2303. 1220. To the list of writ- ings executed out of this pro- vince, which are admitted as authentic, Q. 31 V., c. 18, add^ the laws and official publica- tions of the other provinces of the Dominion. 1231- Notwithstanding par. 5 of this article, the ninth section of Q. 35 V., c. 6, pro- vides that, with the permission of the court or judge, one consort who has administered property belonging to the other, there being separation as to property, may be examined as a witness in relation to any act connected with such adminis- tration ; and this examination shall be as unrestricted as would have been that of the other consort. Section 26 of the Insolvent Act of 1875, as amended by 0. 39 V., c. 30, s. 5, also provides for the ex- amination under oath of the irons TO THIRD KDITION. ooniort of the InioWent tonoh- ing his affairs and his oonduot in the management of his estate. This extension by the sta- tute of the artiole of the Oode is made in the interest of the adverse party only. Foity vt, Le/ebvre, 4 R. L., 564; Bruth V0. Stevent et otV., d: Stevena et vtr, 17 L. C. J., 140; Lareau vt. Beaudry et vir., 22 L. 0. 3., 336. The plaintiff's declara- tion,- in her testimony, that her husband administered her property is sufficient to justify the examination of her hus- band under this statute. John' 9on va. Martin^ 5 R. L., 336. 1232. But, under sec. 25, 9 7, of 0. 42 v., 0. 0, any pas- senger producing a railway oheok may himself be a wit- ness, in any suit brought by * him against the railway com- pany, to prove the contents and value of his baggage not delivered to him. 1234:. A person who is not a party to a deed may produce •videnoe beyond or in contra- diction of its contents. Oirard va. Bradatreet, 4 R. L., 376. — But the testimony either of the notary who received an award of arbitrators, or of one of the arbitrators, is not ad- missible to explain expressions used in the award. Golaon et al va. Aah, and Torrance et al, 18 L. C. J., 191, S. C, 1873.-- Proof of the payment of a debt does not tend to contradict or vary the terms of the written instru- ment which is the evidence of the debt, and in an action for $37, balance of a debt of $72 due under a notarial obligation. pavment may be proved by evidence. Maaae va. Cott, 5 Q. L. R., 145, S. 0., 1879 — In an action for the recovery of the amount of a policy of insurance, issued upon an application which contained erasures and was contradictory as to the sum to be insured, parol evi- dence will be admitted to prove the amount of the insurance. The ^tna Life Inaurance Com- pany & Brodie, 8 R. L., 91, Q. B., 1877. (An appeal from this decision is now before the Su- preme Court.) — The non-pay- ment of money, the receipt of which is stated in a deed of sale, may be proved without an im- probatlon. Doyon va. JDoyon, 3 R. L., 445. 1235> A contract for the sale of promissory notes is a " contract for the sale of goods"' and as such comes under the terms of § 4 of this artiole. Truteau & Lehlano, 4 R. L., 560, Q. B., 1870 —The waiting re- quired to be signed by the party may be signed by his agent, and the bought and sold notes, signed by the broker who negotiated the sale, coupled with such party's retention of the sold note, are a sufficient writing and signature to bring him under the article. Lu^ et al va. Hope et al, 17 L. C. J., 19, S. C, 1872.— The fourth paragraph applies only to con- tracts for the sale of goods which the party does not him- self manufacture, but which he causes to be manufactured, or buys from the maker or from a trader, in order that he may sell them again. Donegani df Molinelli, 14 L. C. J., 106, Q. r NOTift to THIRD RDITIOR. XZi ^^ B., and 4 L. 0. L. J., 16, ^. C, 1869. 12^2. Section 23 o; the Notarial Act Q. 39 V., c. 33, enaotg that the furnishing by a notary of copies, extracts or deeds of any kind shall not be considered a presumption of Jtayment of nis costs and ees. 1252. InO'Farrelvt.O'Neil (17 L. C. R., p. 80), Mr. Justice Stuart held tnat the reference of the deoisory oath, when ac- cepted, is not a " proceeding " which can be discontinued with costs, under 0. S. L. 0., o. 82, s. 25. Semble, that although the Code of Civil Procedure hns since come into force, a similar decision would equally apply, notwithstanding arti- cle 420 of that code. 1265. The act referred to in this article was extended and amended by Q. 32 V., o. 39, and Q. 33 V., o. 21, but all these acts are repealed by Q. 41, 42 v., 0. 13, which now regulates the manner in which husbands may insure their lives for the benefit of their wives. 1280, 1290. In Fortier ia qual. vs. Cantin et ux. (17 L. C. R., p. 337,) Chief-Justice Meredith seems to have taken the presence of the husband authorizing his wife as equiv- alent to the " consent " re- quired by these articles. His judgment in this case has since been reversed in appeal, but upon grounds which do not affect this interpretation. 1301. A wife separate as to property, cannot bind herself for the affairs of her husband, and he circumstances under which she contracted the obli- gation, together with the pre- sumptloni arising firom the facts proved in the case, will be considered in order to ascertain whether or not it wai contracted for her husband's own affairs. The St. Hi/aointhe Building Society v$. Brunelle et vir 1 R. L., 667, S. C, 1870.— But she may renounce the hy- pothec for her repriaea, which she has upon property that her husband has alienated. Lagorgendiire et vir A Thi' haudeau et at, 2 Q. L. R., 163, Q. B., 1871, and 3 Q. L. R.,71, 8. C, 1870, and Hamel et al & Panet, Ih., 173, P. C, 1876.— She may validly bind herself. Jointly and severally with her husband, for the repayment of a loan made to her ror her own use ; and, if the deed contains a declaration to that effect, she cannot be relieved, unless she proves that the loan was in reality made to the husband, and that the lender was aware of this fact. Malhiot & Bru- nelle et vir, 15 L. C. J., 197, Q. B., 1870. 1323. The continuation of the community is intended for the protection and benefit of the minor children. It is optional with them to demand it or not, and they may, al- though the survivor fails to have an inventory made, claim their half of an immoveable belonging to the first oom- munity, notwithstanding and free from any hypothec that may have been created by the survivor since the death of the deceased consort. Parent et al zxii NOTES TO THIRD EDITION. A curator to a sub- stitution cannot, by a party interposed, become buyer of immoveables belonging to the substitution which are sold by judicial authority. Benoit ^ Benoit, 8 R. L., 425. 1488. By Q. 42, 43 V., o. 18, this article is made to apply to the contract of pledge as well as to the contract of sale. 1489. The note to article 1488 applies also to this arti- cle. In Mallette and White (12 L. C. J., p. 229,) the Court of Queen's Bench' held, (Mr. Jus- tice Caron dissenting) that the purchaser, in good faith, of a horse, from an insolvent KOTES TO THIRD KDITION. zziii trader, when the insolvency has been made public, by advertisement, cannot, under this article, claim reimburse- ment from the owner who revendioates the horse. — A hotel yard where horses are sold by auction is not a fair or market, and the sale of a horse in such a yard will not oomt under the provisions of this ar- ticle, unless it is a public sale. Ouy & Booth, 4 R. L., 565. — In CaaaiU et al & Crawford etal. 21 L. C. J., 1, Q. B., 1876, it was held that, notwithstand- ing anything in articles 1488 or 2268, stolen goods cannot be validly sold or pledged, except in the cases mentioned in this article, so as to divest the real owner of his right to reclaim them without reim- bursing the price paid for or advances made on such goods, although the purchaser or pledgee may have bought or made the advances in good faith and in the ordinary course of his business. 1500< When a portion of a quantity of seed sold by sample is inferior to the sample, the purchaser is not obliged to accept the other portion but may repudiate the whole pur- chase. Deemarteau et al va. Harvey, 17 t. C. J., 244, S. G. B., 1873. 1502> The last portion of this article must be construed with caution. It was decided in Doutney vs. Bruyere et al, 21 L. C. J., 95, S. C, 1877, that the purchaser cannot claim damages unless he repudiates the sale. 1511. The right of the buyer to restitution of the price, in case of eviction, is independent of warranty, and he cannot enforce it against the vendor of his vendor. The Chaudiire Oold Mining Co. & Deaharata et a?, 4 R. L., 645, & 17 L. C, J., 275, P. C, 1873. 1522. Section 19 of C. 35 v., c. 32, provides that every person who sells or promises to sell any article bearing thereon, or having upon any thing con- nected therewith, a trade mark, is obliged to warrant the genuineness of the trade mark ; and under section 20 of the same act he is also obliged to warrant the truth of any description or statement found upon the article sold, or upon any thing which accompanies such article. 1530. In the case of the sale of a horse the redhibitory action must be brought within eight days after the sale. Darte va. Kennedy, 15 L. C. J., 280, C. C, 1871.— It is not brought "with reasonable diligence" when six weeks have previously elapsed since the sale, and aemble, that thirty days would be a reasonable delay. Begin va. Duhoia, 1 Q. L. R., 381, C. C, 1875. 1535. The buyer cannot, under this article, demand security to the value of the property, but, if he has paid part of the principal of the price, he may withhold the balance and an amount of in- terest equal to what he has already paid, unless the seller gives security for the whole of the price, without interest. ZXIV NOTES TO THIRD EDITION. Farrdl ve. Casain, 1 R. C, 246, S. C, 1871, & 3 R. L., 32.— He has no just cause to fear dis- turbance by any hypothecary action if the hypothecs are pres- cribed.* Adama va. McCready, 3 R. L., 448, S. C. R., 1871. 1536, 1537. Under the provisions of section 6 of Q. 36 v., 0. 8, these articles do not affect the right of revoking sales of crown lands, conferred by statute on the commissioner of crown lands. 1550. Suit is not brought, within the meaning of this article, unless the action has been not only served but re- turned into court before the expiration of the stipulated delay. Walker et vir vs. Shep- pard, 19 L. C. J., 103, S. C. R., 1874. 1565. This article is vir- tually amended by section 109 of the Quebec License Law of 1878. The principal difference between the section of the statute and the article of the code is that the section does not except the goods and effects of deceased persons, and that it does except the goods of minors sold by forced or voluntary licitation ', in other respects, moreover, as regards auction sales which may be made without a licensed auc- tioneer, the wording of the statute is different from that of the code. 1571. The act Q. 38 V., c. 26, contains provisions respect- ing the signification of sales and transfers of constituted rents representing seigniorial dues, and the Insolvent Act of 1875, section 69, provides that debts sold by the assignee of an insolvent estate shall vest in the purchaser without signi- fication to the debtor. — Sec- tions 3 and 4 of the provincial act 35 v., c. 6, provide a means of making the signification and delivery required by this article, in cases where the debtor has left, or has never had his domicile in this pro- vince ; and section 5 provides a mode of signification and delivery for cases in which a whole class of rents or debts collectively has been sold. In order to avail them- selves of the provision? of this article, third parties must plead the non-signiacation of the act of sale, otherwise the buyer's action against them will hold good. Gibeau va. Dupuia, 18 L. C. J., 102 S. C. R., 1874, and Stanley & Honlon, 21 L. C. J., 75, Q. B., 1876. 1621. See note to art. 1639. 1622* The enumeration of moveable effects contained in this article is merely illustra- tive, and effects, belonging to third persons, which are only transiently or accidentally on the premises, are not subject to the lessor's privilege, even though not mentioned in that enumeration. Ireland & Henry et al, 20 L. C. J., 327, Q. B., 1876. 1623. As against the lessee, the landlord may seize the things subject to his privi- leged right, even after the eight days mentioned in this article. Serrurier va. Lagarde et al., 13 L. C. J., 252, C. C, J 869. 1624. The lessor's right of a. .4 NOTIi:S TO THIRD EDITION. ZXT action to have the lease rescin- ded may result from other causes than those mentioned in this article. Cairns tt vir vs. Poulette, 6 R. L., 3, S. C, 1874. 1629. In order to rebut the presumption declared in this article, the lessee must prove that the loss by fire was not caused by his own fault or by that of the persons for whom he 18 responsible. The Seminary of Quebec vs. Poitras, 1 Q.LtB.., 185, S. C, 1870, and confirmed in Q. B.; Bapin vs. McKinnon, 17 L. C. J., 54, S. C. R. ; B^lan- ger vs. McCarthy, 19 L. C. J., 181, S. C. R., 1876.— But this presumption does not exist in favor of the lessor when he himself occupied a part of the premises destroyed by fire. Foster & Allis, 16 L. C. J., 113, Q. B., 1871. 1639. The liability of the undertenant towards the priu- <)ipal lessor is not limited by this article, or by article 1621, when the deed of lease pro- hibits the lessee from sublot- I ting. Arnoldi et al vs. Grim- ard & Bolay, 5 R. L., 748, C. C, 1874 ; and Lea Socurs de la Charit4 & Yuile et al., 20 L. C. J., 329, Q. B., 1875. 1656. The Insolvent Act re- ferred to in this article is repealed and superseded by C. 38 v., c. 16 and its amend- ments C. 39 v., c. 30 and C. 40 v., c. 41. The provisions connected with this article are ^ sections 70, 71, 72 and 73 of the Act of 1875, as amended by the Act of 1877. 1669. This articleis amend- ed by Q. 41, 42 V., c. 12, and now reads as follows : " In any action for wages by domes- tics or farm servants, in the absence of written proof, the master may offer his oath as to the conditions of the engage- ment and as to the face of the payment, accompanied by a detailed statement; but such oath may be refuted in the same manner as any other testimony." 1671' The reference to the Merchant Shipping Act, 1854, should embrace its amend- ments, 18, 19 v., c. 91; 25, 26 v., c. 63, and 30, 31 V., c. 124. — The Act respecting the shi]iping of Seamen mentioned in this article is superseded by C. 36 v., 0. 129, contained in the volume of the statutes of 1874. — See also the note to art. 2355. 1672. The Dominion act, 37 v., c. 25, contains provis- ions respecting the duties and responsibility of carriers by water. 1673. Railway companies are common carriers and, as such, come under the provis- ions of this article, and cannot, without sufficient reason, refuse to convey goods offered for transportation. Rutherford & The Grand Trunk Railwa y Co., 20 L. C. J., 11, Q. B., 1875. 1676. If the consignor of goods to be carried by railwny, signs, without reserve, a bill of lading on which is endorsed the condition that " the com- " pany will not be responsible " for any goods mis-sent, unless " they are consigned to a " station on their railway " he is bound by the condition. zzri KOTES TO THIBD EDITION. Chartter et al. v». The Grand Trunk Railway Company ^ 17 L. C. J., 26, S. C, 1872. Car- riers cannot limit their liability \yj conditions not made known to the passenger. Allan et al» & 'Woodwardf 22 L. C. J., 316, Q. B., 1878. 1677. See note to article 1672. 1681. The Act respecting Raihoays, referred to in this article, is now superseded by the statutes 0. 42 v., c. 9, and Q. 32 v., 0. 51, and their amendments, in so far as re- gards railroads constructed after the passing of these statutes. 1690. The want of the written authorization for extras which is required by this article, cannot be supplied by the oath of the defendant nor by parol evidence. Beckham v». Farmer, 7 R. L., 623, S. C, 1877. 1704. The agent at Quebec of an insurance company, the company itself having its prin- cipal office at Montreal, caused an advertisement to be pub- lished in the respondent's paper for a considerable period, in- curring a bill of $116.40. The agent on being asked for payment, referred the respon- dent to the company as his principal, and the latter denied all knowledge of the adver- tising, and all power on the part of the agent to order it. Jffeld, confirming court below, that the special power to publish advertisements was inherent in the office of an agent appointed to take risks and receive premiums, that such authority was to be pre- sumed, that the advertising was intended to promote the appellant's business and that the proof of custom, usage or sanction of the appellants was not necessary. — The Commer- cial Union Insurance Company & Foote, 3 B. C, 40 Q. B., 1872. 1713. The mandator may, without bringing an action to account, sue the mandatary for the recovery of a specific sum received by the latter for him and not paid over. Joseph, tk Phillips et al, 19 t. C. J., 162, Q. B., 1876. 1727. See note to art. 1704. 1732. The Act respecting tJie Bar of Lower Canada referred to in this article has been repealed, and is superseded by 29, 30 v., c. 27 J the latter statute is amended by Q. 32 V., c. 27, and by Q. 36 V., c. 28. The Act respecting thfi Notarial Profession, also referred to, is now replaced by Q. 39 V., c. 33, Q. 40 v., 0. 24, and c. 27, s. 7, and lastly by Q. 42, 43 v., 0. 36. 1735, 1736. The defini- tions of "broker" and "factor" in these articles are only gen- eral and subject to interpre- tation and extension according to the ordinary distinctions between these two classes of agents ; and the possession or control of the goods of the principal by the factor dis- tinguishes him from a broker. Crane et al & Nolan, 19 L. C. J., 309, Q. B., 1876.— A broker employed to sell cannot claim brokerage unless he has effeo- NOTES TO THIRD EDITION. xxvii to be pre- dvertising omote the and that , usage or llants was ! Comtner- i Company 40 Q. B.» ator may, action to idatary for leoific sum )r for him Joseph, d: > art. 1704. pecting the a referred has been Brseded by the latter yQ.32V., v., c. 28. ' Under section 12 of the act Q. 34 V., c. 7, the privilege for seigniorial dues IS extended to ten years, as against hypothecary creditors, when the land hypothecated has been recovered back by the seignior under the provisions of that statute. 2015* The registration re- quired by this article is not necessary as regards the privi- leges of the corporations of Quebec and Montreal for muni- cipal dues. See 29, 30 V., c. 67, 8. 11, 5 15 J Q. 37 v., c. 51, 8. 96.— Under art. 946 of the municipal code, the privilege for municipal taxes is likewise exempt from registration, and certain privileges given to road companies incorporated under Q. 33. v., c. 32, are also exempted by s. 33 of that act from the operation of this article. 2017. The latter portion of this article declares hypothec to be merely an accessory of a principal debt, without which it does not exist. But the act Q. 32 v., c. 9, s. 4, makes the hypothecary security given by public officers a principal obli- gation, notwithstanding that the contingent liability against which security is given is not yet in existence. This mode of security is abolished for the future by Q. 42, 43 V., c. 6, s. 1. As a consequence of the principle enunciated in this article, ths^t a hypothec is only the accessory of an obligation, it was held by the Court of Beview in Quebec, confirming NOTES TO THIRD EDITION. xsxl a judgment rendered by Mr. Justice McCord, that a hypo- thec for advances not yet made, and which the creditor is not bound to make, nor the debtor to receive, but which are in fact subsequently made, is null, as against a sale duly registered before the making of such advances. DesiletavH. Martel, 6 Q. L. R., 126, S. 0. R., 1879. 2026. Seenote toart. 2147, as to how the notices required by this article may be drawn up. 2030. The legal hypothec of minors affects the immovea- bles of the tutor for such an amount only as may sub- sequently be found to be due them by the tutor upon the rendering of the tutorship ao- oount, and if such immoveables are brought to sale judicially, pending the tutorship, the tutor ad hoc cannot be col- located for a specific sum, belonging to the minors, which is comprised in the adminis- tration of the tutor, but can only demand that the colloca- tion of subsequent creditors be made subject to their giving security to refund, in the event of its being after- wards established by the tutor- ship account that the tutor is [indebted to the minors. Jonea \v8. Piedalu & Piedalu, 5 R. L., [354, S. C, 1874. 2034. The rule of this particle, that judicial hypothec results from judgments, does lot apply to public lands tranted to settlers, as tuese lands are specially exempted "by Q. 31 v., c. 20, . (amended by Q. 32 v., o. 13, and also by Q. 36 v., 0. 19), except it be for the price of the land, or for debts contracted subse- quently to the grant or con- cession thereof. 2037' The exemption men- tioned in the preceding note extends also to conventional hypothec. 2042. By section 1 of Q. 40 v., c. 17, this article is amended so as to read as fol- lows, the amendment consist- ing in the addition of the words in italics : '* Conventional hy- pothecs are not valid unless the deed specially describes the immoveable hypothecated, with a designation of the con- terminous lands, or of the number or name under which it is known, or of the lot and range or part of lot and range, or of its number upon the plan and book of reference of the registry office, if such plan and book of reference exist." By section 2 of the same act this amendment is made retroac- tive, but section 3 saves pen- ding cases. 2044. In virtue of Q. 32 v., c. 9, s. 4, the hypothecary security given by public officers is valid, although the sum for which the land may eventually be hypothecated is not deter- mined by the deed. See, how- ever, note to article 2017 as to this mode of security being abolished. 2082, 2083. The title of the purchaser, so long as it remains unregistered, produces no effect; so much so that judgments obtained against the vendor and registered against xzzii KOTKI TO THIRD KDITION. ■ i tbeproperty will prevail against the unregisterea title of the purchaser. Le/ebvreva.Bran- ehaud. 22 L. 0. J., 73; S. 0. R., 1878. 2084. Besides the exemp- tions from the formality of registration mentioned in this article, the hypothecs resulting from the debentures issued by companies or corporations are in many cases exempt from registration. See, for instance, Q. 34 v., c, 21, 8. 18, as to the Quebec and New Brunswick Railway Company; Q. 34 V., 0. 23, 8. 4, as to the Montreal Northern Colonization Railway Company j Q. 34 V., c. 26, s. 13, as to the Missisquoi and Black Rivers Valley Railway Company ; Q. 34 V., c. 39, s. 131, as to the city of St. Hya- ointhe, and Q. 41 V., c. 7, a. 13, as to boards of school com- missioners of the city of Sher- brooke. — See also the notes to article 2015. 2091. This article is to be construed strictly, and where an immoveable has been seized in execution in one suit, and is brought to sale under a venditioni exponas issued in that suit, at the instance of a plaintiff in another suit, whose seizure had been noted as an opposition, the judgment in the first suit having been satisfied, it was held that the first seizure is not the seizure which "is followed by judicial expropriation " in the terms of the article, and that a registration efieoted after such seizure, but before the vendi- tioni exponas, will hold good against the chirographary cre- ditors of the defendant. Laroae & Brouillard, 19 L. C. J., 126, Q. B., 1876. 2098. The Quebec statute, S8 v., c. 14, provides that the declarations mentioned in this article may be given to regis- trars, for the persons interested, by any person whomsoever, whether a relative or not, and that they may also be given by married women, interdicted persons, and minors them- selves ; and Q. 42, 43 V., o. 16, s. 1, amends this article by adding to the fourth paragraph the words " and tho aescription of the immoveable." — The statute Q. 42, 48 V., c. 17 further amends this article by striking out the word '* pur- chaser " in the last paragraph, and substituting the word " acquirer." See note to arts. 2082, 2083 as to 'h? necessity of registra- tion tc give efiTect to the right of the purchaser as against third parties. 2100. In Pacaud va. Con- atant, the Court of Review, Que- bec, held that even where the deed of sale was registered af- ter the 30 days, the vendor's claim was privileged as against a creditor of the purchaser who had registered within the 30 days on the ground that under article 2098, any mortgage granted by the purchaser was without effect until his title was registered. 4 Q. L. R., 94. 2106. See note to art. 2147 as to how the notice re- Suired by this article may be rawn up. 210v. See note to art. 2147 as to how the memorial re- NOTES TO THIBD EDITION. xxziii »^e." — The v., 0. 17 8 article by rord "pur- paragraph, the word 2082, 2083 of registra- the right as against ud vs. CoU' jview, Que- where the ;istered af- le vendor's as against chaser who hin the 30 that under mortgage chaser was lis title was B., 94. e to art. notice re- le may be .'■■i-3 2uired by this article may be rawn up. If the claims mentioned in this article have been register- ed as required, they will retain their privilege upon the im- moveaolea of the deceased even though such immoveables were under seizure at the time of his death and were subse- quently sold under that seizure. Beaudry va. Desjardina and Desjardin* et vir <0 Thomas et al., 4 R. L., 655, S. C. R., 1871. 2111. See note to art. 2147 as to how the statement re- Suired by this article may be rawn up. 2113. The Insolvent Act of 1875, section 126, contains further provisions respecting the registration of the contracts of marriage of traders and the consequences to their wives of their failure to enregister these contracts. 2115, 2116. See note to art. 2147 as to how the notice and declaration required by these articles may be drawn up. 2120. See note to article 2147 as to how the notices required by this article may be drawn up. 2121. The note to article 2034 applies equally to this article. Public lands granted to settlers are exempt, by the statutes cited, from hypothec under the operation of either of these articles. — See note to article 2147 as to how the notice required by this article may be drawn up. 2125. See note to art. 2147 as to how the memorial re- quired by this article may be drawn up. 2130. See note to article 2084 as to the necessity of registration. 2131. Under Q. 38 V., c. 14, the notices mentioned in this article may be given to registrars, for the persons in- terested, by any person whom- soever, whether a relative or not; and they may also be given by married women, in- terdicted persons, and by minors themselves. 2135. Under Q. 31 V., o. 2, s. 6, the proper stamp must be affixed to every certificate of registration. 2145. The note to artiok 2135 applies lilcewise to the certificate of registration by memorial to which this article refers. 2146. See note to art. 2147 as to how the memorial re- auired by this article may be rawn up. 2147. The statute Q. 42, 43 v., 0. 16, s. 2, adds after this article the following : ** 2147 a. The notices, de- " clarations and memorials "mentioned in articles 2026, " 2098, 2106, 2107, 2111, 2115, " 2116, 2120, 2121, 2125, 2131, " 2146 may be given either by " private writing or by notarial " deed drawn up en minute or ** en brevet.** 214k8' See note to art. 2152. 2151. Section 5 of Q. 32 v., c. 9, provides that the hy- pothec of any hypothecary security given by public officers, may be cancelled by means of a certificate of either of the law officers of the crown and in accordance with this article. zzxir KOTKS TO THIRD KDITIOIT. m il! 2162. The statute Q. 33 v., 0. 16, provides a summary mode of annulling deeds of •ale, or of promise of sale, of land, when the land has beeni abandoned ; and, for the purpose of oancellhig the regis- tration of such deeds, it ap- plies this article and articles 2148, 2153, and 2154 to the judgments rendered in such oases; except, however, that the service of judgment re- quired by article 2154 is dis- pensed with whenever the de- fendant has been summoned as an absentee. — The statute Q. 42, 43, v., 0. 27 enacts that oancellation may be effected by simply presenting and de- positing documents, or authen- tic copies or extracts from documents, authorizing such oancellation and by mention of the document thus pre- sented in the margin of the registration of the document oreating the right to be oan- oelled. 2163, 2164. See note to art. 2152. 2161. The provincial act 32 v., c. 25, provides for the making of a fresh authentic transcription of any book kept in a registry office that may have become deteriorated, by age or use, to a prejudicial degree. — Sections 1 & 2 of the act Q. 41 v., 0. 15, provide for the keeping by the registrar of a register for the addresses of hypothecary creditors. 2166 to 2176. The pro- visions contained in these ar- ticles have been considerably extended by subsequent legis- lation. Thus : Q. 32 V., c. 25, s. 5, provides for the filing of f>lans and books of reference or parts only of a registration division, and makes these ar- ticles and the code generally, as fully applicable to such Elans and books as they would e to those of a whole division ; and section 6 of the same act provides that books of refer- ence may be published in the Quebec Official Gazette and that in such case the copies of the Gazette may be received as evidence of the books ; — Q. 35 v., 0. 16, amends chapter 37, C. S. L. C, as regards the basis of the cadastral plans of town- ships, provides for thiB cadas- tration of roads becoming pri- vate property after the deposit of the plan, and extends to two years the delay of eighteen months fixed by article 2172 ; — Q. 37 v., c. 10, declares from what day these two years shall count j—Q. 38 V., c. 14, enacts that the notices men- tioned in 2172 may be given by any person whatever for the person interested ; — Q. 38 v., c. 15, provides for the oadastration and designation of lots subdivided between the closing of the cadastre and the coming into operation of arti- cle 2168 in the division, or part of division, containing such lots ; it permits on certain conditions the oadastration of certain property sold and sub- divided before the passing of the act; and, it provides, subject to the fulfilment of certain conditions, for the un- limited subdivision and re- subdivision of cadastrated property ;— Q. 39 V., c. 26 re- MOTES TO TRIKD EDITION. zzxr te filing of : referenoe egistration ) these ar- generally, e to fluoh they would le division ; same act 3 of refer- bed in the azette and le copies of received as ks ;— Q. 35 chapter 37, ds the basis ins of town- the oadas- soming pri- the deposit extends to of eighteen rticle 2172 ; Glares from two years 8 v., 0. 14, ces men- be given latever for 3d;— Q. 38 for the esignation etween the tre and the on of arti- ivision, or containing on certain istration of 1 and sub- passing of provides, filment of ar the un- and re- adastrated „ c. 26 re- W enaoti more explicitly and with retroactive effect the provisions of 37 V., c. 10 as to the day from which the delay of two yeA s shall count ; — and Q. 40 V., c. 16 provides for the oadastration of changes occasioned by the taking of land for railways or by the subdivision or re-division of lots already entered on the plan. 2177. Section 6 of the act Q. 31 v., c. 2, enacts that the re- gistrar's certificates of searches shall be ineffectual unless they are stamped, and provides for an entry being kept of all searches. 217 9 The registrar is also bound, under Q. 39 V., c. 25, upon payment of the fee lawfully exigible, to communi- cate the index to immoveables to all persons who desire to examine the same without re- moval. The word renetcal in the English text is evidently a misprint ; the French version says d4placement. 2219. Section 4 of the act Q. 42, 43 v., 0. 16, amends the English version of this article by replacing the word "thirty" by the word "forty." 2240. The Quebec statute 37 v., c. 15 enacts that as regards prescriptioni:! and limi- tations of actions, in connec- tion with proceedings and matters before the Court of Queen's Bench, Superior Court, or Circuit Court, which relate to records destroyed by the burning of the Quebec Court House, articles 1040, 1550, 1998, 1999, 2242, 2243, 2260, 2251, 2252, 2258, 2259, 2260, 2261, 2262, 2263, 2267 and 2268, of the Civil Code shall apply only ai if the first day of September 1874 were the day immediately following the flrit of February 1878. This statute may, by proclamation, b« ex- tended, mutatit mutandit, to any other district in which the court house may be destroyed by fire. 2258. In Dorion va. Dorion, 7 R. L., 402, S. C, 1875, it was held by Mr. Justice Maokay that this article does not apply to an action to set aside a will for fraud, and that the thirty years' prescription, under arti- cle 2242, is the only one that applies. 2260. Sub-section 7 of thii article is amended by Q. 32 V., c. 32, so that the oath of the physician may now make proof as regards whatever is sued for within five years. 2261. Between the pre- scriptions of this and of the preceding article comes the prescription of three years en- acted by art. 950 of the muni- cipal code as regards arrears of m .nicipal taxes. — The Code itself, in article 679, estab- lishes a three years' limitation in favor of beneficiary heirs. 2263. Under section 21 of Q. 32 v., 0. 51, and section 27 of C. 42 v., 0. 9, actions for indemnity for damage or injury sustained by reason of any railway must be instituted within six months after the damage or, if the damage be continuous, within six months after the doing of the damage ceases. See also latter part of note to articles 1053, 1054» |; zxxvi NOTES TO THIRD EDITION. as to the limitation of actions for damages resulting from the unlawful giving of spirituous liquors. 2267* According to art. 950 of the municipal code this article' applies also to the pres- cription of arrears of muni- cipal taxes. The prescription of claims of a commercial nature is so absolute that an action brought and a judgment obtained, within the prescribing period, and a reserre of plaintiff's recourse, contained in thejudg- ment in appeal, rendered after the lapse of that period and dismissing the action, will not avail against such prescription. Janea etal.t vs. The Sun Mutual Insurance Company of New York, 20 L. C. J., 194, S. C, 1876. In Walker & Sweet, 21 L. C. J., 29, Q. B., 1876, it was held, overruling the decision in Fenn & Bowker, that the short prescriptions mentioned in articles 2250, 2260, 2261 k 2262, may be interrupted in the manner designated in article 2227, for prescription gene- rally. — In commercial matters in which the sum of money or value in question exceeds $50, the oath of the party pleading prescription cannot be de- manded as to the existence of a verbal promise or acknow- ledgment whereby prescription would be interrupted. If the matter does not exceed $50, the oath may be put as to such pi-omise or acknowledgment, or as to any other interruption or renunciation of prescription. Fucha va. Legar4, 3 Q. L. It., 11 C. C, 1876.-- The limitation of five years, as regards actions upon promissory notes, oper- ates as a statute of repose; nothing less than a new promise in writing can suffice to found an action upon ; and any in- dorsement of interest or part payment of principal should be written by the debtor and signed by both parties. Caron et al, va. Cloutier, 3 Q. L. R., 230, S. C, 1877. 2268. Under Q. 42, 43 V., c. 18, this article is made to apply to the contract of pledge as well as to the contract of sale. The words " nor in commer- cial matters generally," in this article, do not protect a trader acquiring stolen goods in any commercial transaction, whe- ther from a trader dealing in similar articles or not, but ap>* ply, apparently, to cases where the possession of the goods is obtained in a commercial transaction, whether \)y sale or otherwise, but under the aatne circumatancea by which a aale would be protected under article 1489. Gaaaila et al, & Crawford et al., 21 L. C. J., 1, Q. B., 1876. 2280. Another essential of a bill of exchange is that the proper stamp should be affixed to it. The present statute res- pecting this requisite formality is 0. 42 v., 0. 17. But see also C. 34 v., c. 12, as to pro- missory notes given for pre- miums to Mutual Fire In- surance Companies. 2286. The payee of a note drawn to order, for a sum under $50, may validly trans- fer it, for value received, with- out indorsement* Dupuia va. KOTES TO THIRD EDITION. xzzvii Maraan, 17 L. C. J., 42 C. C, 1872. If a note is not drawn to order the payee cannot transfer it by indorsement in blank. La Banque du Peuple vs. Ethier, 1 B. L., 47, S. C. 2287. A person receiving by indorsement a bill of ex- change after it is due holds it, under this article, subject to all the objections to which it was liable in the hands of the indorser; and this article differs from the law of England, which makes the indorsee liable to the equities attaching to the note itself — that is, to the equities arising out of the transactions in the course of which the note was made — but not to a set-off arising out of a collateral matter. The Am- azon Insurance Co. va. The Quebec & Gulf Porta Steavi- ship Co., 2 Q. L. B., 310, S. C, 1876. 2291. A bill of exchange drawn, at three days, on the 27th of August, endorsed over on the 29th, and presented for acceptance on the 1st Septem- ber following, was held (Mr. Justice Badgley dissenting,) not to have been presented and protested within legal and proper time. Harria & Schwoh et at, 3 B. L., 453, Q. B., 1871. 2303. The Dominion stat- ute 37 v., 0. 47, 8. 1, provides for the giving of notice of protest by addressing it to the party entitled to it, at the place mentioned for that pur- pose on the bill or note, or at the place at which it was dated, as the case may be, although such place may not be that of the residence of the party. 2306. The Dominion act 35 v., e. 10, enacts that bills or notes made payable at a month, or months, from date, shall become due on the cor- responding day of the month in which they are made pay- able,'' or if there be no such corresponding day, on the last day of that month, with the addition, in all cases, of the three days grace. 2310* The endorser of a promissory note who is sued for the amount due under it may upon a dilatory exception obtain leave to call in the maker of the note to warrant him. Beaulieu va, Dem^ra et al., 5 B. L., 244, C. C, 1874. 2324. The endorser of a note, due on the 11th of the month, gave the holder a memorandum as follows : " My note falling due the 10th in- stant, good for ten days after date."— There was no other note, and it was protested on the 24th. He was held liable. Burnett va, Monaghan et al.f 3 B. L., 448, S. C. B., 1871. 2328. The act C. 37 V., c. 47, s. 1, provides that notice of protest may be addressed to the party at the place where the bill is dated, or at the place designated for that purpose under his signature. 2334> The Act reapecting Interest, referred to in this article, is superseded by C. 34 v., c. 5, s. 54, as regards the commission chargeable by banks, on bills and notes dis- counted by them. 2336, 2337. By the Do- minion act 38 v., c. 19, the damages are limited, in the XXXVIU NOTES TO THIRD EDITION. i,^ III''- ti case of bills payable in Ca- nada or Newfoundland, to the amount for which the bill is drawn ; in the case of bills payable elsewhere, to the amount for which the bill is drawn and two and a half per cent thereon; with the addition, in both cases, of such further amounts as arise from the noting and protest of the bill, and interest thereon, and exchange and re -exchange thereon. 2344. Section 30 of G. 36 v., c. 129, provides that ad- vance notes for the part pay- ment of seamen's wages cannot be given until the articles have been signed by the seaman and the master or owner, that they can only be given to the sea- man himself, and that they cannot be made payable at any time sooner than five days after the final sailing of the ship with the seaman on board; but such notes may be payable to the order of the seaman. A notarial obligation, en brevet, by which a certain party promises to pay to a certain person, or order to the lawful holder thereof, a specific sum of money, at all events and without any condition, is a promissory note subject to duty and requiring to be stamped. Marc AurUe v». Burocher, 6 R. L., 165, S. 0. B., 1873. — Semble, that a bank receipt of the deposit of a sum of money payable to order after fifteen days notice, and with interest, in the event of its remaining at least three months in the bank, is a promissory note. Richer & Voyer et al, 5 11. L., 591, P. C, 1874. 2346. The necessity of affixing stamps, mentioned in the note upon article 2280, extends also, according to the statute, to promissory notes. 2348' The statute men- tioned in this article is super- seded by C, 34 v., c. 5 ; and its amendments, C. 35 V., o. 8 ; C. 36 v., c. 43 ; C. 38 V., c. 17 J C. 40 v., c. 44; C. 42 V., 0. 45. 2355* For the Imperial law in relation to merchant shipping, see the Merchant Shipping Act, 1876, and es- pecially the schedule of that act, which shows what previous' acts or portions of acts stili remain in force. This act is published with the Canada Statutes of 1877 (40 Vict.) 2356 to 2382. By section 3 of C. 36 v., c. 128, " chap- " ters first, second and third, *• of title second, of book fourth, " of the Civil Code of Lower " Canada, except so much of "articles 2356, 2359, 2361, " 2362, 2373 and 2374, as are "not inconsistent with this " act," are repealed, and other provisions are fully enacted respecting the registration of ships, the transfer of registered vessels, and the mortgage and hypothecation of vessels. With the exception just mentioned, therefore, three whole chapters of this title of the code are re- placed by statutory provisions. 2383> The privilege men- tioned in par. ,4 does not apply to a balance of wages due for a season's continuous naviga- tion on the St. Lawrence and NOTES TO THIRD EDITION. XXZIZ Lakes in trips of a few days' duration, even when the master and crew sign articles for the season, and are paid by the month and not by the trip. Baouat V8. McDonald, 22 L. C. J., 79, S. C. R., 1878.— The captain of a vessel navigating inland waters has no lien or privilege on the vessel for his wages. Deliale vh. Lecuyer et al., 15 L. C. J., 262, S. C. R., 1871 ; Dagenaia va. Douglas et al., 16 L. C. J., 109, S. C. R., 1871.— In The Colehrook Rol- ling Milla va. Oliver & Graham et al intervening (5 Q. L. R., 72, S. C, 1879), it was held by Chief Justice Meredith, that a merchant who has furnished materials for the building of a ghip, which has not yet made a voyage, cannot under this article of the code seize such ship in the hands of a third person being a purchaser in good faith, in actual posession, with the right of a registered owner. 2390' See note to article 2355. 24:01. See sections 90 and following of C. 36 V., c. 129, as to discipline on board ships. C. 36 v., c. 57, contains provi- sions as to how the masters of steamers may deal with disor- derly persons. 2404, 2405. These ar- ticles are repealed and super- seded by C. 36 v., c. 129, amended by C. 42 V., c. 27. 2425. The law as to deck loads is further regulated by C. 36 v., c. 56, as amended by C, 41 v., 0. 12. 2432' The same provision was enacted by C. 31 V., o. 58, s. 14, but this section is repealed by section 92 of C. 36 v., c. 54, and other pro- visions are enacted in section 69 of this latter act. 2433. See other similar provisions as to the responsi- bility of carriers by water in C. 37 v., c. 25; and as to the carriage of dangerous goods, see 0. 36 V., c. 8, and the proclamation putting that act in force, at p. clxxxviii, in the volume of statutes of 1875. 2434, 2435. But see the Imperial act 25, 26 V., c. 63, s. 54, and C. 31 V., c. 58. By sections 1 and 12 of the latter act these articles are virtually repealed and super- seded. 2463. The Act respecting Emigranta and Quarantine, referred to in this article, has been repealed and superseded ; sections 22, 23 and 24, by 0. 31 v., C.63, and the remainder by C. 32, 33 V., o. 10, as amended by 35 V., o. 28 j 38 V , o. 15 J 39 v., c. 19. 2467. This article being one of reference to articles 2434 and 2435, the note made to these articles also applies here. 2482. This article was modified, as regards life insur- ance, by Q. 32 v., c. 39, s. 2 ; but that section was repealed by Q. 33 v., c. 21, s. 10, and both statutes are repealed by Q. 41, 42 v., c. 13. 2487< When a party ap- plies to an agent of a fire insur- ance company and secures in- surance through him, in the ordinary mode and after the usual enquiries, the fact that not.es to third editiodt. such party does not mention that he had previously applied to another agent of the same company, and been refused, is not the concealment of a material fact to render the insurance void. Goodwin & The Lancashire Fire and Life Insurance Company, 18 L. 0. J., 1, Q. B., 1873. 2505. In a contract of marine insurance, the fact that the insurers examined the vessel before taking the risk constitutes no waiver of the implied warranty of sea-worth- iness. Lemelin vs. The Montreal Assurance Company, 1 Q. L. R., 337, S. C, 1873. 2524, 2525, 2526. These articles relate to loss or damage caused by the collision of ships occurring through the fault of the master or mariners of either ship, or without any such fault. As to what con- stitutes '* fault " for the pur- potie of these articles, see 0. 31 v., c. 58, and the Imperial act 25, 26 v., c. 63. s. 54. These acts also limit the liability of the owner under article 2525. 2528. The reference to the Merchant Shipping Act should inclilde the amendment acts of 1855, 1862 and 1867.— See also the note to art. 2355. — Ample provisions in respect to salvage are also to be found in the Dominion Act 36 V., c. 55. 2534. The word ''landing" in the English version of this article should be "lading." This printer's error is not to be found in the reports of the Commissioners nor in the prin- ted roll attested and deposited as being the original of the Code, but it occurred subse- quently in the printing of the official edition. The context of the article, however, and the word ** chargement " in the French version, clearly show what was intended. 2549. After acceptance by the insurers of the abandon- ment of a ship they become liable as for a total loss, and cannot, when called on to pay the amount insured, resile and rely on a breach of warranty. By their acceptance an agree- ment is entered into which closes the whole matter. The Provincial Insurance Company & Leduc, 19 L. C. J., 281, P. C, 1874. 2576. The Insolvent Act now in force is the Canada Statute of 1876 (38 V., o. 16) as amended by 39 V., c. 30, and C. 40 V., c. 41. 2591. This article was mo- dified by Q. 32 v., c. 39, s. 2 ; but that section waS' repealed by Q. 33 v., c. 21, s. 10, and both these statutes are repeal- ed by Q. 41, 42 V., c. 13. 2613. The decision in Yule and Braithwaite, mentioned in connection with article 911 bears even more closely upon the present article. According to the old law, in force at the time that he accepted his office, the executor could not, under the circumstances, have been relieved from the obligations which he had assumed. The judgment would therefore ap- pear to hold that the accept- ance of the executor, and his consequent obligations and duties, were not, in terms of this article, ** transactions, KOTBS TO THIRD EDITION. Xli " matters and things anterior ** to the coming into force of ** the code and to which its Quebec, March, 1880. "provisions could not apply '' without haying a retroactive " effect." T. MoC. PREFACE TO FIRST EDITION This* Edition of The Civil Code of Lower Canada has been mdertaken with the view of supplying a want felt by the 'rofession, and of rendering a general knowledge of our Laws lore easily accessible to the public at large. A few remarks are needed to complete the usefulness of the lififerent parts of this publication, and, after these, it will not )e out of place to give a short statistical account of the forma- tion and labours of the Codification Commission. The Authoqities. It is important that the members of the legal profession should know in what manner, and to what extent, the luthorities given at the foot of each article may be of service to them. First, it must be remarked that they are merely lotes of the passages consulted in preparing each article. [hey were furnished, in compliance with the law, to enable the Fudges, and the law officers of the Government, to see upon what authority the articles were based, and were never intended for Permanent publication as part of the Code. It was therefore lot deemed advisable to incur the labor and delay which would lave been involved in verifying and correcting them. In leir present condensed form, they have been reprinted with beat care from the First Edition of the Reports, which, in lis particular, is far more correct than the Second. In the itter edition the text alone had been revised, while the 1 B IV FBEFACB TO FISST EDITION. authorities, had undergone no revision. The type, according to the contract with the printers, had been kept standing, some portions of it for years, and had, therefore, been subject to the dangers, of meddling and of accident, \7hlch occur in course of time, even in the most regularly conducted printing houses, including, in this instance, a removal of the matter from Quebec to Ottawa. For this reason, the present edition will be found free from many errors contained in the French pocket edition, in which the authorities are taken from the Second Edition of the Reports. It must not be supposed that all these authorities are in support of the text ; some are directly opposed to the articles above them. As already stated, they are the authorities con- suited by the Commissioners, and nothing more. In this edition; moreover, authorities given in the Reports under articles of old law, have been in many instances transferred to the correspond- ing articles of new law, (contained between brackets), whenever it was considered that they might be of use, by saving the trouble of a reference to the reports themselves. It will be well also to notice that many authorities, from statutes for instance, although law at the date of the reports containing them, were no longer so when the Code came into force ; and that others are no longer applicable bj)r reason of the articles having been modified orchanged by the Legislature. Their application may however be traced by referring to the article as it is drafted in the Reports. The Synopsis is a revised edition of the one already published by the writer, and which constitutes the main portion of the Pricit published in the French edition already alluded to. The References to the Reports at the foot of each article, apply to the Second Edition of these Reports, which was published in three numbers or volumes. The Roman numerals indicate the volume, and the figures are those of the page in which the article will be found. FREFAOE TO FIRST EDITIOK. The Conoobdaxoe was prepared with much precaution in the first instance, and has since been carefully revised. It is intended to complete the connection between our Code on the one hand, and the Code Napoleon with its numerous commentators on the other, by enabling readers of the latter to refer with facility to the former. The converse references from our Code to the Code Napoleon, will be found at the foot of the different articles. The Special Refebenoes. These are by no means intended to restrict the reading of the Code to the articles enumerated, or to enable any class of persons to dispense with a knowledge of the other portions of the work. It is assumed that, even outside of Lower Canada, every literate man in the Dominion ought to avail himself of the means afforded him by our Quebec Code, to obtain a general knowledge of the laws of the oldest of the Confederate Pro- vinces. These references should therefore be understood to be merely for the practical convenience of persons who may have to refer more frequently to the articles enumerated, than to the other parts of the Code. The Index is based upon the Official Index just published by the Com- mission, and has had the further benefit of a few corrections and additions, after a very careful revision. The Codification Commission. The first step towards the Codification of our Laws was the introduction, by the Honorable George Etienne Cartier, Attorney-General for Lower Canada, of a measure for that purpose, which became law on the 10th June, 1857. (See p. xxxm.) This statute, however, for upwards of eighteen months, was not acted upon. On the 4th February 1859, the Honorable R^n6 Edouard Caron, one of the Judges of the Court of Queen's Bench, at Quebec, the Honorabla Charles Dewey Day, one of the Judges of the VI PSEPAOE TO FIRST EDITION. Superior Court, at Montreal, and tho Honorable Augustin Norbort Morin, one of the Judges of tho same Court, at Quelvn;, were appointed Commissioners. On the 10th of tho same month, Joseph Ubaldo Baudry, Esq., an advocate of twenty-one years' standing, then Clerk of tho Court of Appeals, and Thomas Kennedy Ramsay, Esq., an ad- vocate of over six years' standing at the Montreal Bar, were appointed Secretaries to the Commission. On tho 19th November, 1832, the present writer, who was then an advocate of over twelve years' standing, and practising in Montreal, was appointed to replace Mr. Ramsay, whose connection with tho Commission had ceased a short time previously, in consequence of a quarrel between him and the Ministry of the day, which had origin. tted in political causes. On the 7th August, 1865, Mr. Baudry was appointed to the Commissionership rendered vacant by the lamented death of the Honorable A N. Morin ; and Mr. Baudry 's place as Secretary was filled by the appointment of the Honorable Louis Simeon Morin, formerly Solicitor-Qeneral for Lower Canada, and then an advocate of over twelve years' standing at Montreal. Some time elapsed before tho Commission was fairly organized, and a few months wore taken up in making pre- liminary preparations for the work ; such as the elimination of whatever customary or statutory provisions of law had ceased to be in foroe, — the analysis of the jurisprudence of our courts as established by reported decisions, — and the procuring, in addition to the library at the disposal of the Commissioners, of many works noeded for their labors. The Commisioners presented in all eight Reports on the Civil Code. The 1st Report, dated 12th October, 1801, contained the draft of the title Of Obligations, which, because of its importance, as being the basis of the greater portion of the whole Code, it had been decided to commence with. For the same reason, this title was, even more than any of the others, the subject of long and careful examination and discussion. PREFACE TO FIBST BDIXIOX. Tit on the Civil The 2nd Report, 28th May, 1862, contained the whole of the Firet Book, The 3rd Report, 24th December, 1862, contained the whole of the Second Book, and the title 0/ Prescription, The 4th Report, 25th February, 1863, presented the titles Of Sale, Of Exchange, and Of Lease and Hire. The 5th Report, 19th January, 1864, was composed of the lengthy and comprehensive titles Of Succeaaione, Of Gifta inter vivos and by Will, and Of Marriage Covenants, The 6th Report, 8th July 1864, comprised the titles Of Man- date, Of Loan, Of Deposit, Of Partnership, Of Life-Rents, Of Transaction, Of Gaming Contracts and Bets, Of Suretyship, Of I Pledge, Of Privileges and Hypothecs, Of Registration, and Of {Imprisonment, The 7th Report, 25th November, 1804, presented the remain- llng titles of the Code, namely, the whole of the Fourth Book. [It was accompanied by a Supplementary Report, mentioning Imany corrections and changes, which, after a general revision [of all the previous reports, were deemed necessary to be made. On the 31st January, 1865, the Bill respecting the Civil Code itf Lower Canada (see p. xxxvm.) was introduced, and the ■Aeports of the Commissioners, reprinted in a second edition, Iwere laid before Parliament. On the 3rd February following, jbhis Bill, together with the Reports, was referred to a Select Committee, composed of the following members : Hon. Mr. Ltty. Gen. Cartier, Hon. Mr. Alloyn, Hon. Mr. Rose, Hon. Mr. )orion, Hon. Mr. Cauchon, Hon. Mr. Huntington, Hon. Mr. Sol. ^en. Langevin, Hon. Mr. Abbott, Hon. Mr. Laframboise, Hon. [r. Evanturel, and Messrs. Dunkin, Archambault, Webb, (eoffrion, Dufresne (Montcalm), Denis, Irvine, Joly, Taschereau, tarwood, and De Niverville. All these gentlemen were advocates, with the exception of [essrs. Geoffrion, Dufresne, and Archambault, who belonged to le notarial profession. With the exception of a very few changes and additions lade in that part of the text which represented our actual fcw, the Committee considered and discussed that portion only vm PREFACB TO yiBBT EDITION. of the Reporti which contained th* Amendments inggested by the Commissioners. On the 13th of March, 1865, the Committee reported. On the 1st September following, the Bill passed the Lower House ; on the 6th, it passed the Legislatiye Council; and on the 8th, it became law. On the 23rd May, 1866, the Commissioners, after having em- bodied in the text the amendments adopted by the legislature, and made such changes as were necessary to render the other portions of the Code consistent with these changes, and after haying revised and corrected the work throughout, made their final Report, and presented the Civil Code of Lower Canada in the form in which it now is. On the 26th of the same month, the Governor's proclamation issued, fixing the 1st of August, 1866, as the day on which the Civil Code should come into force. According to the manner adopted by the Commissioners for performing their work, different portions of the Code were drafted by each of them. Copies of the draft thus prepared by one were furnished to the others, and, after being examined by them individually, it was brought before formal meetings of the Commissioners, at which the Secretaries were also present. • At these meetings, each article was separately considered and dis- cussed, and was either adopted, rejected, or modified, according to the conclusions arrived at. This mode of dividing the work, although perhaps unavoidable, has caused a want of uniformity in the style of the Code ; an imperfection which it shares, however, in coiamon with the Code Napoleon. Thus, a portion of the work was originally prepared in English, and, of the portion prepared in French, the titles 0/ Oi/ta inter vivos and hy Will, and Of Prescription, were drafted by one hand, the titles Of Privileges and Hypothecs, and Of Registration, by a second, while another hand, again, drafted the remainder. Although both texts are equally law, it may be inter- esting, and in some instances, perhaps, useful to know, for purposes of interpretation, which was at first the original and which the translation. It may, therefore, be mentioned that the PBEFAOR TO FIBST EDITION. iX Third Book, with the exception of the titles 0/ Succetaiont, Of Qiftt inter vivot and by Will, Of Marriage Covenantt, Of Suretyahip, Of Privileget and Ilypotheca, Of Regiatration, and Of Prescription, and the whole of the Fourth Book, wore drafted in English. The translations were made by one or other of the Secretaries, according to the language into which tho draft had to be con- verted. They wero carefully examined by tho Commissioner who had prepared the original, and wore afterwards read article by article at the meetings of the Commissioners, and subjected to such alterations as wore deemed noocssary; The conversion into English, of those titles, especially, which are derived from the old French law, was not unattended with difficulties, and to overcome these tho terms of the Scotch law were in many instances made use of. The law of 1867 provided that tho Reports of the Com- missioners, as they appeared from time to timo, should be sub- mitted to each of the Judges of Lower Canada for his remarks and suggestions. Mr. Justice Winter, of Gaspe, with the con- currence of Mr. Justice Thompson, of New Carlisle, furnished observations upon the first two Reports. With this exception, this provision of the statute was not complied with. Mr. Justice Meredith, however, now ^hiof-Justice of the Superior Court, by means of notes occasionally handed in, and of frequent personal interviews with the Commissioners, manifested an interest in the work throughout. Beyond what has just been mentioned, tho only observations, of any consequence, on the work the Commissioners, (so far as the writer knows), were, — a carefully written pamphlet by Thomas Ritchie, Esq., containing observations upon the title Of Obligations, — a newspaper article written by Mr. Horvieux, Registrar for the County of Terrebonne, containing remarks on some of the provisions of the title Of Regiatration, — four articles in the Revue Canadienne over the signature of E. L. De Bellefeuille, Esq., discussing the provisions of the Draft respecting Marriage and Civil Death, from a religious point of view, and, — a series of articles written in the Journal de Quebec, X PBEFAGE TO FIfiST EOITION. by C. F. S. Langelier, L. L. D., professor of Roman Law at Laval University, forming a commentary upon the First Book of the Draft, as published by the Commissioners. The same Commissioners have since prepared the Code of Civil Procedure of Lower Canada. This Code, too, has been enacted by Parliament, and the proclamation bringing it into force is daily expected to issue. The Commission is virtually at an end, and the Country has reason to congratulate itself that, notwithstanding the difficulties and uncertainties attending so long and arduous a task, the undertaking has at length been crowned with success. The English speaking residents of Lower Canada may now enjoy the satisfaction of at last possessing in their own language the lav/s by which they are governed, and the Province of Quebec will bring with her into the Confederation a system of laws of which she may be justly proud ; a system mainly founded on the steadfast, time- honored and equitable principles of the Civil Law, and ^hicb not only merits admiration and respect, but presents a worthy model for legislation elsewhere. Montreal, 20th June, 1867. T. McC, TABLE OF CONTENTS. Page. Synopsis i Con. STAT. L. c. ch. 2 xxxin Stat. 29 vict., ch. 31 xxxviii Proclamation xl Abbreviations xliii CIVIL CODE OF LOWER CANADA. Arts. Preliminary title i BOOK FIRST of persons. Title i. — Of the enjoyment and loss of civil rights 18 " II. — Of ACTS OF civil status 39 " III.— Of domicile 79 *• IV. — Of absentees 86 " V. — Of MARRIAGE 11$ " VI. — Of separation from BED AND BOARD l86 *• VII.— Of FILIATION 218 " VIII. — Of PATERNAL AUTHORITY 242 " IX. — Of MINORITY, TUTORSHIP, ETC 246 " X.— Of MAJORITY, INTERDICTION, CURATORS, ETC 324 •' XI.— Of CORPORATIONS 352 BOOK SECOND of property, of ownership and of its different modifications. Title i. — Of the distinction of things 374 " II.— Of ownership 406 " III. — Of usufruct use and habitation 443 " IV. — Of REAL servitudes 499 " v.— Of emphyteusis 567 BOOK THIRD. of the acquisition and exercise of rights of property. General provisions 58^ Xii TABLE OP CONTENTS. Title i. — Of successions 590 " II.— Of GIFTS INTER VIVOS AND BY WILL 754 " III. — Of obligations 982 " IV. — Of marriage covenants, etc 1257 " V. — Of sale 1472 " VI.— Of exchange 1596 " VII. — Of lease and hire 1600 " VIII.— Of mandate 1701 " IX.— Ofloan 1762 " X. — Of deposit 1794 " XI, — Of PARTNERSHIP 183O " XII. — Of LIFE-RENTS igoi " XIII.— Of TRANSACTION 1918 " XIV. — Of GAMING CONTRACTS AND BETS 1927 " XV.— Of SURETYSHIP 1929 ** XVL— Of PLEDGE 1966 " XVII.— Of PRIVILEGES AND HYPOTHECS . 1980 *' XVIII.— Of registration of real rights 2082 *' XIX.— Of PRESCRIPTION 2183 " XX.— Of imprisonment in civil cases 2271 BOOK FOURTH, commercial law. General provision 2278 I'lTLB I.— Of bills of exchange, etc 2279 " iL— Of merchant shipping 2355 ** III.— Of affreightment .'. . 2407 •' IV.— Of carriage of passengers in merchant vessels. 2461 " v.— Of insurance 2468 *• VI.— Of BOTTOMRY and respondentia 2594 Final provisions 2613 Page. Index 413 Special references 463 Concordance 466 SYNOPSIS OP THE CHANGES IN THE LAW EFFECTED BY THE CIVIL CODE OP LOWER CANADA. I. '' c mpletion of the Civil Cc I Lower Canada is an evt.^1 *, inch forms an epoch in our history, and is suggestive of many considerations. In the retrospect, it brings to mind the long and arduous labor, the study, research and learning bestowed upon the work, by the eminent legists entrusted with its elaboration j it announces the successful attainment of a result, aimed at by the enlightened patriotism, and achieved by the ability and persevering energy of a states- man whoso name must ever re- main connected with the Code ; and it presents to us our civil laws rescued from antiquity and chaos, and embodied in a form which renders them ac- cessible and intelligible to all clap' 8 of the people whcse rights and property they con- trol. Prospectively, the Civil Code promises uniformity of juris- prudence, which contributes to diminish litigation and add to the stability and security of our civil rights. It offers great additional means of legal edu- cation, from which may bo expected a higher standard of professional excellence. It will ensure among the individual members of society a more in- timate acquaintance with their reciprocal rights and obliga- tions, tending to increase and facilitate business relations,and to promote the material wel- fare of the community. More- over, as a conservatory barrier against the continualinroads of fragmentary legislation, it is an earnest of stability in the law itself. In view of a union of the British American provinces, th«» codification of our laws is per- haps better calculated than any other available means to secure to Lower Canada an advantage which the proposed plan of confederation appears to have already contemplated. II SYNOPSIS. il ! i* ill 1 i ■ thut of being the standard of assimilation and unity, and of entering into new political relations without undergoing disturbing alterations in her laws or institutions. Such are the main features presented by the Civil Code, regarded as an embodiment of existing laws j but it has yet other advantages as a work of legislation, inasmuch as it in- troduces numerous and import- ant amendments, intended for the most part to improve our law as a system, and to adapt it more perfectly to our present state of society. It is evidently of great im- portance, that when the Code comes into force, these changes in the law should be known beforehand, at least to the pro- fession, if not to the community at large. They are distinguish- ed in the Code by their inser- tion between brackets. But, as the former law corresponding with them, as exhibited in the Draft, has disappeared, a pre- vious knowledge of it is neces- eary in order to understand clearly the difference between the old and new rules ; and, as the observations made by the Commissioners, in reporting upon these amendmrnts, no longer accompany the text, a like difficulty exists in ascer- taining the reasons which sug- gested each particular amend- ment. To obviate these difficulties, and to furnish a prompt and an easy method of becoming ac- quainted with the new legisla- tion of the Code, the following synopsis has been writteo. Great care has been taken to present as succinctly and clearly as possible all the changes in- troduced by the Code, classify- ing them according to their character and motives, and referring in every case to the number of the article contain- ing the amendment. Of these changes generally, it may be remarked at the out- set that they are not of a sub- versive character, or likely to disturb existing relations, or to clash with prevailing notions. They are on the contrary of a nature to harmonize with the ideas of the present day, and to adapt our ancient laws to the changes which since their date society itself has undergone. It is one of the characteris- tics of the olden legislation that it appears to have had in view Things before Persons. The conservative spirit of the law seems to have clung to immove- ables as the safest basis of social stability, and its policy tended to restrict rather than to encourage the conveyance of real estate. Hence the numer- ous distinctions of property and the different rules of law to which Persons were subject in respect of each kind of Thing. Hence too, the old rule " Tradi- tionibua non nudia pactia domi- nia rerum tranaferuntur," and similar maxims. Hence also tho facilities afforded for getting back alienated property by means of retraita, r4mir4a, and reatitutiona. On the other hand, in modem society the frequency and mul- tiplicity of transactions have become so ^raat th»t leal pro- STNOPSIS. Ill perty now changes hands as rapidly as moveables did for- merly. Agreements and pro- mises are practically dealt with as representing the objects to which they relate. The ten- dency of the age is to make Things subservient to Persons, and to bring immoveables as well as all other things under complete subjection to the will of man, without any other restriction than a due regard for the rights and interests of others. In order to adapt the old law to the new state of society the Code has introduced a number of new provisions. Some of these are intended to facilitate the free exercise of man's dominion over property. Some, by rendering contracts and other expressions of man's will definitive and reliable, are cal- culated to furnish elements of stability, for which formerly the nature of immoveable pro- perty was relied upon. Otners tend to protect the rights of third parties ; while some again are merely intended to remedy deficiencies or defects in pre- vious laws. II. Taking these different cate- gories in the order in which they have just been mentioned, the changes to bo first noticed are those which relate to the Free disposal op property. These may be enumerated as follows : Under the Edit dea aecondea nocca, in force here, a widower, baving children and intending to remarry, could not settle by gift, upon the wife ho was about to take, any more than a very limited portion of his pro- perty. He might, however, subject to a comparatively slight restriction, give away his property to a strangei', or will it away entirely, without any restriction whatever, even to his second wife. This ano- maly is removed for the future by article 164, which abolishes the provisions of the Edict, and has the further advantage of favoring marriage. Hitherto gifts made in favor of an ascendant, who had been tutor or curator to the donor, were null if the ascendant had remarried, or they became so if he afterwards married before the death of the donor. This double restriction, upon the disposal of property and upon second marriages, is removed by article 761. Gifts could not legally be made in favor of persons with whom the donor had lived in concubinage, nor in favor of the donor's incestuous or adulterine children j and illegitimate chil- dren, not incestuous or adulter- ine, could only receive from their parents to a very limited extent. These restrictions are in a great measure removed by article 768, which places ille- gitimate children, not incestu- ous or adulterine, upon the same footing, as regards gif*s, as other persons, and allows concubinaries to make gifts in favor of each other when they are contracting marriage j a provision which certainly ap- pears to bo more consistent tv STNCfSIS. i^ with morality than the former rule. Gifts made in favor of the spiritual, medical, or legal advisers of the donor, were liable to be reduced or set aside, upon the presumption of their having been obtained by undue influence. This pre- sumption has no longer any foundation, and as, even in the matter of wills, where there might sometimes be cause for it, it is no longer recognized, it is properly abolished by article 169. Under this article, undue influence, in these as in all other oases, must be proved. According to the ancient law, children were entitled, not- withstanding any previous dis- Eosals by will or by gift, to one alf of the share they would have had in the succession of their parents, had no will or gift been made. All gifts and legacies were liable to contri- bute to this legitim, and were therefore in so far subject to be annulled. The statute of 1801 removed this reservation with regard to legacies, and some were of opinion that its provi- sions extended by implication to gifts likewise. All uncer- tainty upon this point is removed by article US, which abolishes legitim. Gifts of moveables, not imme- diately delivered, were not valid under the old law unless the deed contained or was accompanied by an enumera- tion of tho property given. Article 786 dispenses with this formality, and article 788 adds further facility for the convey- ance of property by gift, by providing that the acceptance of a gift needs no longer to be in express terms, but may be inferred from the deed or from circumstances. The intention of a testator, or of a donor, to prevent tho property bequeathed or given from being alienated by the legatee or the donee, had no effect under our former law unless the deed mentioned some sufficient motive for such inten- tion, or imposed some penalty in case of non-fulftlment. Article 97$3 frees prohibitions to alien- ate from these obstrjictive for- malities. Article 1367 allows minors, provided they are duly assisted, to make in their contracts of marriage all such agreements or gifts, in favor of their future consorts or children, as con- tracts of this nature admit of. Our former law restricted their right in this respect to certain portions of their property. Although the article has cjiief- ly in view the favoring of con- tracts of marriage, its effect is also to assist the free disposal of oroperty, and it h;.«" ♦'o^ convenience been included in tho present category. But the most important change introduced by the Code in connection with the free dis- posal of property, is the adop- tion of the prindiple that consent alone suffices, without delivery, to convey ownership. Xhis new rule of law, in direct opposition to the old familiar maxim ** traditionibuanonnudia pactia, &e.," and especially its application in positive terms STKOFSIS. even to third parties, created at first some alarm in the minds of persons who had not brought to bear upon the sub- ject as much study, knowledge, and reflection as the Codifica- tion Commissioners had done. Among these was the Quebec Board of Trade, which, in a petition to the Legislature, objected to the then proposed amendment " as tending inju- riously to affect the interests of third parties, by offering in- ducements and facilities for secret and fraudulent transfers of property." That these fears were groundless is sufficiently shown by the experience of over fifty years in franco, where the courts have persistently maintained the new doctrine in its full extent, notwithstanding the doubtful wording of the Code Napoleon as regards third parties. That the rule is not a dangerous one may also be inferred from the fact of its being adopted in the Code of Louisiana and in the Codes of several of the States of Europe, and from its more recent enact- ment in England by the impe- rial statutes of 1856, chapters 60 and 97. Practically, the only difference between the two systems is, that under the Code the want of delivery cannot be invoked against a purchaser in good faith; that against a purchaser in bad faith, the well established rule that fraud must be proved obtains in this as in other cases ; and that the absence of delivery, although it may afford strong evidence of fraud, can- not constitute a presumption juria et dejure. Article 1035 lays down the principle. Its application to immoveables is, however, in the interest of third parties, subjected by article 10$87 to the provisions of the Code concerning registration. The same article also declares, as regards moveables, that of two purchasers of the same thing, from the same owner, the one who is in bona fide possession of it shall be deemed owner. The reasons of this exception are the almost impos- sibility of following a moveable when it passes through many hands, the inconvenience and expense of annulling the seve- ral transactions by which it was transferred, and the con- sequent embarrassment of com- mercial dealings. The sufficiency of consent without delivery is applied ta Gifts by article 777, and by article 795. The former de- clares delivery unnecessary, and gives donees, whose deeds ere registered before the donor's death, a right to claim from his heirs things given but not yet delivered. The latter declares acceptance, without delivery, sufficient to complete gifts inter vivos. Article 1479 applies the same rule to Sale, which it con- sequently defines as a contract by which a man gives a thing for a price, &o., instead of, as formerly, a contract by which a man obliges himself to give the enjoyment of a thing, &c. As a corollary of this definition it follows that a person cannot sell what does not belong to I him, and that, if he does, he is tl SYNOPSIS. liable in damages towards any Surohaser ignorant of the fact, his is declared in article 1487. But, in order to avoid practical inconvenience, article 1488 admits the validity of the sale when ihe matter is com- mercial, or when the vendor afterwards becomes owner of the thing. It also retains the rules of the old law with respect to things lost or stolen. These, when bought at a jadioial sale, cannot be reclaimed, and when bought in a fair or market, at a public sale, or from a trader dealing in similar articles, can only be reclaimed upon reim- bursing the price paid for them. Following out the same prin- ciple, article 1493 declares that the vendor's consent to the buyer's removal of the thing sold, when there is nothing to hinder such removal, is sufS- oient to satisfy the obligation to deliver. Article 1570 renders the sale of debts and rights of action perfect, between the buyer and the seller, by the completion of the title, if au- thentic, or the delivery of it, if it is under private signature. And article 1570 obliges a person who sells a right of succession, without specifying the property of which it con- sists, to warrant his right as heir. Under the old law he only warranted the existence of the succession. Under article 1596, Ex- change, like Sale, is completed by consent alone. Anotlier branch of the law in which important changes have been made with the view of facilitating the disposal of propeny, is that relating to wills. The formalities attend- ing these acts have been sim- plified, and the English and the French forms have been more nearly assimilated. Thus, article 843 simplifies the French form by dispensing with the formality of dictation, (dict^ et nommd!), and the read- ing over of the will a second time ; and article 844, as re- gards the same form of wills, allow? aliens to be witnesses, and requires that the witnesses shall be of full age. In the latter particular there is a slight restriction, not found in the old law which allotted persons over twenty years of age to be witnesses. When the age of majority was twenty - five years, there was some reason for admitting witnesses under that age and above twenty, but since the full age has been fixed at twenty-one the reason has no longec the same force. It is almost use- less to make a special category of persons between the ages of twenty and twenty-one, and this rule, requiring the wit- nesses to be of full age, has, moreover, the advantage of being the same as that which applies to wills in the English form. Under our former law a will could not be executed before notaries who were related or allied to the testator to the degree of cousins-german in- clusively, nor before notaries and witnesses rery nearly re- lated or allied to dne another. Article 845 gives a more simple SYNOPSIS. ▼n and (lefinito rule, by removing altogether the incompetency of -witnesses by reason of relation- ship or alliantoe, and restricting the prohibition, as regards notaries, to those who are relat- ed or allied to the testator, or to each other, in the direot linQ, or in the degree of un'ble, brother, or nephew. Hitherto legacies made in favor of the notaries or wit- nesses before whom a will was executed, or of their relaticr>s or connections to the degree of cousins-german inclusively, were not only null, but had the effect of annulling the whole will. Under article 846, this nullity is limited, as regards the legacies, to those made in favor of the notaries or wit- nesses, of the wife of any such notary or witness, or of any relation of his in the first degree, and, as regards the remainder of the will, is done away withj the nullity of the legacy no longer entailing that of the whole will. Article 853 contains similar provisions respecting wills in the English form, except that, as females may be witnesses to these wills, husbands of wit- nesses are added to the cate- gory of those to whom legacies <;annot validly be made. Article 847 provides a mode by which deaf mutes, and others who cannot speak, may make wills in tho authentic or French form. The amendment was only needed for wills in this form, as the existing law already afforded these persons the means of making wills in the holograph form, (art. 850), 2 or according to the form derived from the laws of England (art. 852.) Article 851 enacts that,fin wills in the English form, Ihe two witnesses must attest the signature at the same time, and the testator must produce the will, and acknowledge his signature to it, in their pre- sence. Under the old law the witnesses did not require to attest the will at the same time, nor was the same acknowledg- ment necessary. This article moreover subjects moveable property to the same formali- ties as immoveable property, though formerly it might, ac- cording to the English form, be willed by means of any writing of a nature to indicate the in- tentions of the testator. These provisions, viewed in relation to wills in the English form only, are certainly restrictive, but considered in relation to the subject of wills generally, and as an ipproximation to the authentic form, they con- tribute to simplify our double system, and by this means in- directly facilitate the disposal of property. Fov these reasons they have been mentioned under their present head. Other provisions adapted to facilitate the disposal of pro- perty, (rights ana claims being considered as such,) are to be found in article 1155, which allows conventional subroga- tions to be made by private writings, and provides that such subrogations shall become effectual against third parties by means of registration. Tho old law required that subro- C vni 8TKOP8IS gations should be made by authontio deeds. III. The next class of changes to be noticed consists ox' those which have in view the Stabi- lity OP Rights. Under this head are com- prised such provisions as are tntended to maintain contracts in their integrity, and such as tend to preserve established relations, either by limiting the actions which might disturb them, or by shortening pre- scriptions and simplifying the rules which apply to them. With a view to the integrity of contracts, minors and inter- dicted persons are no longer relievable from their acts, when they have been legally assisted. It was no doubt considered that duch persons are sufficiently protected by the formalities without which their interests cannot be affected, by the presumed knowledge and inte- grity of the tutors or curators appointed to represent them, and by the recourse which they have against these repre- sentatives. Thus, article 301 declares that minors are not relievable from the acceptance or renunciation of successions ; but in order to protect them, on the other hand, it provides that tutors shall no longer ac- cept or renounce successions for their pupils, without judicial authorization and the advice of a family council. Similar provisions are contained in article 1341, with regard to the acoeptauoo of community by a nfinor wife surviving her husband; in article SOT, as regards transaction; in article 799» with regard to the ac- ceptance or renunciation of gifts; and in article 1010, with respect to contracts for the alienation of real nroperty» or the partition of sr .essions. Minors duly assisted, though not generally relievable from stipulations contained in their contracts of marriage, were so when the gifts or advantages were excessive ; but article 1006 no longer recognizes any exception, and these stipula- tions are now as effectual as those made by persons of full age. Under article 310 eman- cipated minors are no loiager relievable from any acts which the law allows them to perform^ except in so far as persons of full nge would be ; and under article 1551, minority does not suspend the lapse of the period within which a right of redemption must be exercised. Although in some o^ the foregoing articles interdicted persons are not mentioned with minors, the same rule should apply to both, and article 34:3 declares this by necessary implication, if not in express terms. As to persons of full age^ they can no longer avoid their contracts on the ground of lesion. Such is the enactment of article 1013; and article 161 prevents them from doing 80 even in the case of partitions of succession. As further tending to estab- lish the system of integrity of contracts, by making them as SYNOPSIS. binding as possible upon the parties* article 1070 provides that the sum stipulated in a contract, as damages for its non-performance, is no longer liable to bo modified by the court, although, if the contrary has not been specially agreed upon, it permits a reduction in oases where the contract has been beneficially performed in part, and where the time for the performance is not material. Similar provisions are contain- ed in article 1135, with respect to the penalty stipulated for the incxecution of the contract; and article 1149 deprives the Circuit Court and Commis- sioners' Courts of their power of ordering sums actually payable to be paid by instalments, without the consent of the creditor. Under article 1663 the alienation of property leased no longer annnls the lease, unless the lease contains a special stipulation to that effect and is registered. But article 1664; provides that if under such stipulation the lessee is expelled,' he cannot recover damages, Vinless he has ex- pressly reserved the right to do so. Article 1186 conforms to the same principle of binding Earties to perform what they avo undertaken, by enacting that the amount paid by a surety for his release shall no longer go in reduction of the amount due by the principal debtor. It may, however, be imputed in discharge of the cosureties, in cases where they have a recourse against the one released, and to the extent of that recourse. In sales of immoveables, the right of dissolution for non- payment of price, and in gifts of immoveables, the right of revocation for non-fulfilment of conditions, were rights which, under the former law, though not stipulated in the contract, might at any time put an end to It. In order that the in- tegrity of contracts should not be affected by rights which are not stipulated by them, and that third parties should be protected in all dealings based upon such contracts, articles 816, for Gift, and 1536, for Sale, provide that these rights shall no longer be exercised unless they are expressly re- served in the deed. When so reserved, they are similar in many respects to the stipulated right of redemption of immove- ables sold. All three are limit- ed as to their duration; their exercise is kept within the terms of tho contract ; and they are governed by simiitu: rules. Some of these rules are in amendment of the former law. Thus, article 816 subjects the revocation of gifts for non-ful- filment of conditions to the same rules as the dissolution of sale for non-payment of the price, and does away with the necessity of obtaining a preli- minary judgment condemning the donee to fulfil the con- ditions imposed by the gift. Article 1538 dociares that the judgment dissolving a sale for non-payment of price must be absolute, instead of, as for- merly, granting delay for the BTMOPSIt. II' III payment, and only beoominff absolute when such delay had expired. So long, however, as the Judgment has not been given, tho buyer may prevent its being rendered by paying the price with interest and costs of suit. Article 1549, con- trary to the old rule, provides that a suit brought for the price is not a waiver of the right to dissolvo the sale for non-payment ; and article 1537 subjects this right of dissolu- tion to the rules relating to the right of redemption, wnioh are contained in subsequent articles ; among these, articles 1548, 1549, 1550 and 1551, contain new law. Article 1548 forbids any stipulation of a right of redemption for a period exceeding ten years, and re- duces to ten years any longer term stipulated. Article 1540 enacts that tho term stipulated must be strictly observed and cannot be extended by the court; formerly the right was not lost by the expiration of the period agreed upon, and it had to be declared extinct by a formal judgment. Article 1550 makes the buyer absolute owner of the thing if the seller fails to exercise his right of redemption within the stipu- lated time. Article 1551, which has already been noticed, enacts that the period agreed upon runs even against minors and other incapable persons. For- merly these rights were pre- scribed by thirty years, but by article $8948 no prescription is required, as they are abso- lutely limited, either by the legal term of ten years, or by any shorter term stipulated. Another cause of defeasance was the subsequent birth of children to a donor, by n^eans of which the gift became null. Under article 819 a gift can no longer be annulled by Uiif means, unless the deed con- tains a stipulation to that effect. The opimons and habits ot former times may perhaps have justified a presumption that gifts were tacitly understood etween the parties to be sub- ject to this resolutive condition, but at the present day no such agreement would enter tacitly into the minds of the contract- ing parties. Tho right ot an- nulling the contract for such a cause being therefore contrary to the real intention of the parties, and, moreover, inju- rious to the interests of third parties in their relations with the donee, it has very pro- perly been abrogated. Under the old law the pro- perty belonging to a substi- tution was liable to a sub- sidiary recourse which the wife of the institute could exercise against it, for securing her dower or her dowry. This rule was fdunded upon a presump- tion that the grantor of the substitution had in view the advantage of the institute rather than that of the substi- tute, and was therefore willing to promote the marriage inter- ests of the former in preference to the direct interests of the latter. The correctness of this presumption even under the ancient system ipight well be questioned, but it is certainly no longer applicable to our STKOPBIS. psesent usage, aoooording to which the eubititute is gen- erally the party whose benefit is chiefly in view. Article 954 accordingly does away with this liability, and so far main- tains the integrity of the sub- stitution. Another presumption tend- ing to annul, if not a contract, at least the written expression of a man's intentions respect- ing his property, was that in virtue of which legacies were deemed to be revoked when, subsequently to the will, enmity, to certain degrees, had sprung up between the testa- tor and the legatee. This is another of those presumptions which have ceased to be well founded. The correct infer- ence at the present day would be, that if the enmity had the effect of changing the testator's intentions it would also cause him to revoke the legacy in an express manner. Article 893 accordingly declares that enmity does not establish a presumption of revocation. The provisions which have in view the maintenance of established relations embrace the whole subject of pre- scriptions, whether acquirendi cauad, or liberandi causd, or, according to the language of the Code, adopting that of the Scotch Law, whether positive or negative. These provisions tend to attain their object, some by creating limitations where none before existed, some by shortening prescrip- tions already existing under the previous law, and others by extending or by simplifying the rules of prescription, so as to secure greater uniformity and the more easy acquirement of prescriptive rights. New limitations are intro- duced by the following six articles. Article 149, in tho case of marriages contracted in error or without firee consent, ftrovidos that no action to annul he contract shall be brought, if cohabitation h^s continued for six months aft r tho party has acquired ful' liberty, or has become aware of the error. Article 151, in the cuso vf minors contracting marri.,^e without tho necessary consent and formalities, provides that the persons whose consent was necessary cannot demanc' il: ) nullity of the marriage if, aftc * becoming aware of its hu\'ing taken place, they have allowed six months to elapse without making any complaint. The.^e marriages, now as formerly, become valid when even tantly approved, but as the lapse of time from which a tacit appro- val might be inferred was not fixed, a specific limitation was evidently desirable. Article $333 limits *o the term of two months i ]•• sband's right to disown a child born to him during his marriage ; and article a5?4 extends this pro- vision to the husband's heirs. Article 493 limits to one year the right of a proprietor to reclaim any distinguishable portion of his land which by the sudden force of a river or stream has been carried on to the property of another. Under the old law he could not sn SYNOPSIS. reclaim it when by length of time it had become apparently incorporated with the adjoin- ing property. This rule was indefinite, and is advantage- ously replaced by that of the Code. Lastly, article 1040 declares that contracts entered into by debtors in fraud of their creditors cannot be set aside at the suit of the latter, unless the action is brought within a year from the dis- covery of the fraud. The shortening of prescrip- tions was not only desirable generally for the better pre- servation of established rela- tions, but it had become expe- dient in some instances from the improved means of modern travelling and correspondence. All parts of the world are now brought into closer connection, and the obstacles of distance and delay have been compara- tively removed. Absences are now so usual and so frequent that they no longer call for exceptional legislation, and they so slightly interrupt home relations that absentees have ceased to require years of dolay for their protection. The ten extra years formerly al- lowed to absentees in the mat- ter of prescription have there- fore been dispensed with, and the old prescription of ten years entre prisenta, or twenty years entre absenta, is now simply one of ten years without dis- tinction. The articles which have been framed in confor- mity with this change are saoe, aasi, ass^s, »»54, fM55, 9356, 2957. The privilege which the church and religions honseB formerly enjoyed, of not being prescribed against by any time less than forty years, is abo- lished, for the same reasons as those above given, and, under article 2$818, prescrip- tion may now be acquired against them by thirty years, as against other persons. Im- memorial or centenary pre- scription has also, by article 994:5, been abolished, and the efifects resulting from it are attributed to that of thirty years ; and article 9970 extends this provision even to prescrip- tions begun before tne Code comes into force. Article 1116 provides that a joint and several debtor from whom the creditor has con- tinued, during ten years, and without reservation, to receive a separate share of arrears or interest, is relieved from his joint and several liability, even for future arrears or interest, or for the capital itself. ' The period was formerly thirty years, but with us the ten years is quite sufficient to estab- lish a presumption of the ci?- ditor':; acquiescence, and the shortening of the term is in conformity with the general policy of the Code in matters of prescription. Article 9950 es|;ablishes a uniform negative prescription of five years for all arrears of rents, rent, interest, and natural and civil fruits generally. Con- stituted rents were already subject to this limitation, but all the other i(,rrears were only proscribed by thirty years. Uniformity and the mainten- SYNOPSIS. xm ance of existing relations are not the only motives of this amendment; another reason is founded upon the fact that the eonventional. rate of interest is no longer restricted, and that the evU of allowing arrears to accumulate is in consequence the more to he apprehended. The time of nearly all the shorter negative prescriptions has been reduced, and they have been conveniently class- ified Iby articles »»60, 2iiQl and fi^Gfd. Thus, article 9360 enumer- ates the actions which will be now prescribed by five years. It includes some which were formerly subject to a different limitation and with respect to which consequently the law is changed. These are : 1. The action of notaries for profes- sional remuneration. Formerly there was no other limitation than the general prescription by thirty years. 2. The action against attorneys, notaries and judicial depositaries, for the recovery of papers and titles. Under the old law this action was prescribed by five years from the end of the proceed- ings, when the documents had served, but only by ten years from their reception, when they had not been produced, or the proceedings were not ended. The change consists in fixing the period at five years in either case. 3. Actions upon claims of a commercial nature. This abolishes the former .six years prescription, and sub- stitutes the period already allowed for actions upon bills and notes. 4. All actions upon sales of moveable effects. Claims of this kind between traders, or between traders and non-traders, would fall under tiie preceding category as com- mercial matters, but the article goes further, and, by specially including sales between non- traders, extends this prescrip- tion to all sales whatever of moveable effects. 5. Actions for hire of labor, or for the price of manual, professional or intellectual work and mate- rials furnished, except such as are hereinafter mentioned a^ being subject to a still shorter prescription. These actions under the former law, would have been prescribed by six years or by thirty. Article SS61 enumerates the actions to which the Code applies a prescription of two years. 1. Actions for seduc- tion or lying-in expenses. The former period was five years. 2. Actions for damages result- ing from offences or quasi- offences, whenever other pro- visions do not apply; these formerly lasted nix years. 3. Actions for wages of workmen, not reputed domestics, and who are hired for a year or more. Under the old law these actions were prescribed by six or by thirty years, according as the matter was of a commercial nature or not. 4. Actions for sums due schoolmasters and teachers, for tuition and board and lodging furnished by them. The old law required only one year. Article 9963 enumerates the actions which are subjected to a prescription of one year. •:>M m XJY STKOPSIS. Those in which that period changes the previous law are : 1. Actions for bodily injury, not provided for by special laws. These actions formerly oame under the general pre- scription iJy thirty years. 2. Actions for wages of domestic or farm servants, merchants' clerks, and other employees hired for less than a year. Merchants' clerks were formerly subject to the six years pre scription, and the servants or employees had a right to re cover for one year besides the current year or month, accord ing to whether they were hired by the year or by the month. The articles to be next ex- plained are those which tend to produce greater simplicicy, uniformity, or facility, in the matter of prescriptions. As regards the prescription of moveables and personal actions under our former law, different rules obtained. In commercial matters the English rule governed, by which they were subjected to the lex fori/ in all other matters the French rule prevailed, which subjected them to the law of the domicile of the debtor or the possessor. Then as to the admissibility of foreign or partly foreign pre- scription, the law was also different, according to whether the matter was commercial or not. Articles 3190 and 3191, partaking of both systems, have adopted a uniform rule, appli- cable to moveables and to per- sonal actions generally, whether ia commercial matters or not, and subjecting them to the lex fori. Under the former article prescription entirely acquired under foreign law,, before the possessor or debtor was domiciled here, may be invoked, if the cause of action did not arise, or the debt was not stipulated payable, in Lower Canada; and prescrip- tions partly acquired under a foreign law may, under the same restrictions, be invoked, provided they have begun abroad and are completed under our own law. Pre- scriptions entirely acquired in Lower Canada may be Invoked, dating from the maturity of the obligation, when the cause of action arises, or the debt is stipulated to be ^aid, or the debtor, at the time of the maturity, had his domicile, in Lower Canada; and in other cases, from the time when he becomes domiciled in that por-- ticn of the Province. Under the latter of these articles,' pre- scriptions begun under the law of Lower Canada must be com- pleted under the same law, without prejudice to those acquired wholly or in part under foreign law in confor- mity with the preceding article. Under our former law pos- session obtained by violent or clandestine means could never avail for prescription, but ar- ticle ai98 adopts the more equitable and logical rule, that when these defects have ceased prescription may commence. Neither the thief, however, nor his heirs or successors by uni- versal title, can by any length of time prescribe the thing stolen. BTNOFSIS. XT Article asOSS dec! -rcvj that good faith is always pro'vumed ; under the old law it was pre- sumed when possession accom- panied title. The amendment seeks to remove all doubt or restriction from the simple and just rule, which prevails throughout the Code, that fraud or bad faith must always be proved. Other provisions intended to extend or simplify the rules in matters of prescription, are con- contained m following articles : Article ^307, in cases of sub- titution, enables the substitute, even before the opening of his right, to bring an action to interrupt prescription ; and, having thus destroyea the only reason why, under the old law, Erescription did not run against im, it declares him to be, like other persons, liable to be pre- scribed against, unless pro- tected by minority or other dis- ability. Article $3939, which should be taken in connection with article 2269, is intended to explain and to limit the application of the old maxim : contra non volentem agere non eurrit preacriptio. This rule is restricted generally to such f>ersons as are under an abso- ute impossibility, in law or in fact, of acting by themselves, or of being represented by others. Minors, however, as well as insane persons, are not subject to the prescription by thirty years, nor to that in favor of subsequent purchasers of immoveables with title and in good faith, nor to the ten years prescription of actions in res- cission of contracts for error^ fraud, violence or fear. Article $8^40 applies to all prescrip- tions the uniform rule which formerly applied only to the short prescriptions, namely that they are reckoned by days and not by hours, that they are acquired when the last day of the term has expired, and that the day on which they commenced is not counted. Article 9946 declares that commercial debts, although proscribed, may be pleaded in compensation. Un- der the former law this was not allowed ; the object being, no doubt, to prevent a debtor in bad faith from paying his debt by setting off against it prescribed claims or notes which he had bought up. The article, however, attains this object by providing that, in all cases, prescribed debts can only be pleaded in com- pensation when the compensa- tion took place before the pre- scription. Commercial debts as well as others are therefore brought under one uniform rule. Article ^$867 no longer admits of the controversies which frequently arose, as to whether a particular negative prescription was intended by law to establish a presumption of payment, or whether it was an absolute bar to the action. Negative prescriptions are not only declared absolute, but the article even dispenses with tho necessity of pleading them. Article 2^68 declares that in the matter of prescription of moveables, the three years shall be comnuted from ther vn STI70PSIS. is H' loss of possession. This pre- scription may consequently be eet up by any person in actual possession of the thing three years after the dispossesion of the party claiming it. Under the old Ibw requiring three years possession, it was diffi- oult and often impossible for the possessor, owing to the nature of moveables and the frequency with which they change hands, to prove the possession of the persons from whom his own was derived. The article removes this diffi- culty, and also extends the prescription to cases in which the moveable has been stolen ; it being considered that in these cases, as in those in which immoveables are coLcerned, the good faith of the posses- sor, rather than the bad laith of the person from whom he ■derives nis title, should be the guide in determining the legal- ity of the possession. IV. The next head to be noticed is that of the Protection op THIRD PARTIES. The principal means of pro- tecting third parties, is the pub- licity given to all contracts or claims by which their interests may be affected. Nearly all the articles under this head will therefore be found in the title Of Begiatration, A few, however, which do not fall nnder that title, may be men- tioned first. Article 731 preserves the fcypothecary claims of credi- tors upon immoveables re- turned by an heir to the mass of a succession. For- merly third parties having such claims upon property subject to be returned were liable to lose their right of hypothec when the return took place. Article 813 provides that gifts will no longer be subject to be dissolved by reason of the subsequent birth of children to the donor. Ar- ticle 1313 requires, for the information of third parties interested, that all judgments ordering separation between husband and wife, shall be inscribed upon a posted list kept for that purpose. Article 1536 declares that the non- payment of price, in Sale, shall not be a ground for dissolving the contract, unless the deed contains a stipulation to that effect. This stipulation, follow- ed by the registration of the deed, being a sufficient notice to third parties that the price remains unpaid. Article' 93S limits substitutions to two de- grees, exclusive of the institute. This restriction enables third parties, acquiring rights upon property, to guard against Bub- stitutions without being obliged to trace back the title deeds beyond a limited time. It is also based on other, and per- haps more important, motives, but its benefit to third parties has been selected, for conveni- ence, in order to place the article under the present head. The articles which now con- tain new provisions in the matter of registration may be enumerated as follows : 661 requires the registration of SYNOPSIS. zvn judgments authorizing the ac- ceptance of successions under benefit of inventory ; 981 de- clares that prohibitions to alienate must be registered, even as regards moveable pro- perty ; 3047 and 3130 render hypothecs ineffectual, oven be- tween the contracting parties, unless they are registered ; the only exception being the hypo- thecary claim of mutual insur- ance companies for the pay- ments due by parties insured j 3088 does away, for the future, with the provision of the statute under which open and public possession was equivalent to registration ; 3098 requires that in registering wills the date of the testator's death should also be registered; it also provides for the registra- tion of title by descent, and deprives of any effect all con- veyances, hypothecs, or real rights granted upon immove- ables by owners who have not registered their title thereto j 3100 obliges vendors to register their stipulated right of taking back an immoveable sold, in the case of non-payment of the price, but allows them a delay of thirty days to do so ; 3101 enacts that all judgments an- nulling deeds by which im- moveables are conveyed or transmitted, or permitting re- demption or revocation, must be registered; 3103 declares that no action founded upon the right of a vendor to dissolve a sale for non-payment, or upon a vendor's right of redemption, can be brought against third parties, unless the stipulation of such right has been register- ed; 3107 requires that mem* orials of claims for funeral expenses, and expenses of last illness should be registered within six months of the death, in order to preserve the privilege attached to such claims ; 311G provides for the registration of the right to customary dower ; 3119 obliges notaries, on pain of all damages, to see to the previous registration of the tutorships of such minors, or the curatorships of such inter- dicted persons as are interested in any inventories they are called upon to make; 3130 declares renunciations of dower, of successions, of legacies, or of community of property, in- effectual against third parties, unless they have been register- ed; 3137 requires and pro- vides for the registration of transfers or subrogations of hypothecary claims, and 3178 provides for their being mem- tioned in any copy of the docu- ments creating such claims delivered by the registrar ; 3138 renders leases of im- moveables for more than a year inoperative against third parties unless they are register- ed ; 3139 declares that no dis- charge from the rent of im- moveables, for more than one year in anticipation, shall avail against a subsequent pur- chaser, unless it has been registered together with a de- scription of the immoveables ; 3146 requires that memorials for the preservation of interest or arrears of rent, besides the formalities already prescribed by law, shall be accompanied I xvm SYNOPSIS. i • , i I 1" V ,^ i . ; i I ? 1 ;i j i ■'; by an affidavit of the creditor that the amount thereof is due ; ill6JS enacts that the provi- sions under which registrations may be effected in Quebec and Montreal, in separate books according to a certain clas- sification, may be applied, by proclamation of the governor, to any registration division the Sopulation of which exceeds fty thousand souls ; 9175, with respect to the obligation of owners of immoveables de- signated upon the official plan to deposit a separate plan and book of reference for such immoveables whenever they subdivide them into town or village lots, limits that obliga- tion to cases where the pro- perty is subdivided into more than six lots; and 2183 re- quires the entry-book and the index to immoveables to be authenticated in the same manner as the register. V. The next and most numerous class of amendments introduced by the Code comprises those which tend to the Geneeal Im- provement OP THE Laws, either by rendering them more simple, convenient, or uniform, or by supplying deficiencies, or re- moving useless provisions. These will be best classified in the order of the titles in which they occur. In the title Of Acta of Civil Status, article 71, for the sake of uniformity, prescribes that the registers in which acts of religious profession are in- scribed shall be authenticated, in the same manner as other registers of civil status; and article 77, supplies an omis- sion in the law, oy providing a remedy in oases where an act of civil status has been entirely omitted from ^^ e register. Pro- vision alrep.ay existed for rec- tifying such entries, but none to meet the case of their total omission. In the title Of AbaenteeSf article 93, in view of the mo- dern facilities of communica- tion with distant parts of the world, reduces, from ten years to five, the period after which the presumptive heirs of an absentee may obtain authority to take provisional possession of his property j article 97, for the protection of the absentee, ob- liges the persons obtaining the provisional possession to cause the immoveable property to bo examined by skilled persons in order to establish its condition, and provides for the homologa- tion of their report, and' the payment of the expenses out of tho absentee's property. In the title Of Marriage, article 13S, supplying a de- ficiency in the former law, renders it incumbent upon the officier about to solemnize a marriage to asertain that there is no legal impediment to it, whenever the last domicile of the parties was out of Lower Canada, and the bans have not been published there. Article 141 provides a means of oppos- ing the marriage of an insane Eerson, even if ho is of age and as not been interdicted. The right of making such opposi- tions is given to the nearest SYNOPSIS. XIX relations or connections, to the exclusion of others, and in the order mentioned in the artfole. This insanity must however be established without delay, by interdiction ; and article 143 declares that any such opposi- tion falls to the ground, with- out any demand for its dis- missal, if it is not followed up with the necessary formalities and within th« delays pre- scribed by the Code of Civil Procedure. Articles 157 and 158 subject officers solemniz- ing marriage to a penalty not exceeding five hundred dollars, for any infringement of the rales by which the law requires fbem to be governed. In the title Of Separation from Bed and Board, article 903 supplies a remedy in the event of a wife leaving the residence assigned to her dur- ing the pendency of a suit in separation. The husband, in such case may be released from his obligation to pay her an alimentary pension, or, in case she persists in not returning, when ordered by the court, her action may be dismissed ; sav- ing her right to bring another. Article JSIO, for the sake of convenience as well as pro* priety, provides that a wife who is separated from bed and board, and requires to be authorized for any act tending to alienate her real property, may apply to a judge directly for such authorization, without being obliged, as formerly, to seek that of her husband in the first instance. In the title Of Filiation, article 995 prescribes the mode by which a husband may dis- own a child, and article 990 renders that mode indispens- able, by declaring that in default of its being followed within the proper time, tho child will be hold to be leg- itimate. In the title Of Minority, Tutorship and Emancipation, article 970 reduces from three to two tfhe number of tutor- ships which justifies a person in refusing to accept another ; that of his own children ex- cepted. Article 301 remedies a defect in tho former law by providing that tutors shall no longer accept or renounce suc- cessions for their pupils with- out the advice of a family council, and that, even then, the acceptance can only bo under benefit of inventory. Article 309, conferring a bene- fit upon minors without pre- judicing the interests of any other parties, provides that when a succession has been renounced in behalf of a minor, it may afterwards, if no one else has accepted it, be accepted either for him, under the pro- per authorization, or by him, when he has attained his majo- rity. But he must then take it as he finds it, and subject to all sales or other acts legally done during its vacancy. Ar- ticle 304, for expediency and uniformity, extends to fifty dollars the amount for which ipinors may bring an action to recover wages. In tho title Of Majority, Interdiction, Curatorahip and Judicial Advisers, article 344 supplies a deficiency in the VTNOPSIS. HI 'I li I i ! ' ; former law by allowing onra- tors, dthor than tho husband or wife, or a8oen()ants or des- oehdants of the interdioted per« son, to be relieved from tnelr charge whenever they have held it for ten years. In tho tiflo Of the DUtinc- tion of Things, article 388, adapting the law to tho man- ner in which rents are actually dealt with in the present state of society, declares constituted rents, and all other perpetual or life -rents to be moveables by determination of law; saving those resulting from emphy- teusis. Articles 393 and 304 provide for tho redemption of rents, whether perpetual or temporary. The latter, when no reimbursment of tho capital is to take place at their ter- mination, are assimilated in this respect to life-rents, the redemption of which is pro- vided for in article 1915. In the title Of Real Servi- tudes, a few changes have been introduced, in order the better to adapt to the habits and wants of the present day the rules which govern the relations between neighbouring proprie- tors. Thus, article 514 allows beams to be inserted in common walls to within four inches of their thickness, instead of one half of the thickness as former- ly ; this distance is however subject to be reduced to the one half, in the event of the neighbour wishing to insert beams on his own side, at the same place, or to build a chim- ney against that portion of the wall. Article 6S1 regulates tho respecti'TO rights of different proprietors of separate stories in the same house. It provides thai they all contribute to the main walls and roof, each in proportion to the value of his story ; and that each makes the floor under his story, as well as the stairs which lead up to it. Article 539 increases, from ono foot to fifteen inches, the thickness of the counter- wall to be built between a Srivy and a common wall, but iminishos from four feet to twenty-one inches, the thick- ness of wall required when the neighbour has a well on the opposite side. No couuter-wall is however required if the well or privy is at such a distance from the common wall as is prescribed by municipal regu- lations or by established and recognized usage, or, in default of such regulations or usage, at a distance of three feet. The thickness of the counter- wall to be made when it is intended to build a chimney^ a hearth, a stable, or a s'tore for salt or other corrosive sub- stance, against a common wall, or to raise the ground or heap earth against it, is left to bo determined by municipal regu- lations, or established and recognized usage, and in default of these by the courts in each case. In the title Of Succeniona, most important changes are made* The many distinctions of property under our old custom- ary law, which were each governed by special rules in matters of succession, and were a source of so much difficulty STKOPSIS. zxs and confusion, have been abo- lished. It matters not under the Code whether property be- longing to a succession is move- able or immoveable, prop-re or acquit, or to which of eight different kinds of proprea it belongs ; article 699 considTS neither its origin nor its nature, but treats the whole as one inheritance, subject to uniform rules. As regards the order of suc- cession in the collateral lino and the direct lino ascending, new rules are established. Thus, under articles 036, 687, 628 and 639, which treat of successions devolving to ascen- dants, if a person dies without issue, leaving a father ' or mother, or both father and mother, and also brothers or sisters or their children, one half of his succession falls to the father and mother, or to either of them if the other is dead, and the other half to the collaterals just named. No other collate- rals succeed to him, although his father and mother be dead, iS ho leaves any ascendants whatever j but one half goes to the ascendants of the paternal line, and the other to those of the maternal line. Under ar- ticles 631, 633, 633 and 634, which regulate collateral suc- cessions, the brothers, or sisters, or nephews and nieces, of a person dying without issue in- herit one half of his property, if he leaves a father or mother, and the whole of it, if he does not. If they are the issue of different marriages, the pro- perty is divided into two equal Eortions, those of the whole lood sharing in both portion^ and those of the half blood sharing in one portion only. In the event of the deceased person leaving none of the relations above named, but only more distant collaterals and ascendants in one line only, the ascendants and colla- terals each take one half. If, in the same case, he leaves no ascendants, then one half falls to the nearest collateral in the paternal line, and the other to the nearest in the matcmal line. Beside the above changes a few others also relate to the matter of successions. Thus, article 640 provides that where the heirs of an heir who dies without accepting or renounc- ing a succession devolved t» him, do not agree as to whether such succession shall be accept- ed or renounced, it is held to be accepted under benefit of inven- tory. Article 683 declares that^ in the collateral line, the bene- ficiary heir is not excluded by one who accepts uncondition- ally. This is contrary to the old rule, but it is similar to that which governs successions in the direct line. It is not only more equitable, but has the advantage of establishing a uniformity in respect of both lines. Article 713 applies to all heirs, in whatever line of succession, the rule which for- merl;; governed only heirs in the direct line, or those in the collateral line who were also- legatees ; so that in all caso» the heir must return into the mass of the succession all gifts or legacies made in his favor. zzn 8TN0PBI8. Is ) i This obligation, however, is not binding when the gift or the legacy contains an express exemption from it. Article T14r extends the provisions of article 712 to donees who at the time of the gift were not heirs, but who, at the time when the suc- cession devolves, are entitled to succeed. Article 738, for the sake of uniformity and convenience, renders general the rule which was formerly exceptional, by declaring that, in all cases, the return of immoveables by the heir who Is also a donee or a legatee may, at his option, be made either in kind or by taking loss at a valuation. In the title Of Gifts inter vivos and by will, article 833, for the sake of simplicity and uniformity, abolishes the privi- lege which minors over twenty years of age had, under the old law, of bequeathing certain portions of their property. When the age of majority was twenty-five years, minors be- tween that age and twenty formed a considerable class, in favor of whom exceptional pro- visions might justly be made, Ibut when the age of majority was fixed at twenty-one years, no 8u£Soient reason remained for preserving an exceptional rule in favor of minors during only one year of their minority. Article 848, in view of the facility with which notaries may now be procured, enacts that, except in the district of Oaspe, where it may still be diflScult in many instances to •obtain their services, ministers of religion can no longer act as notaries and can only serve as ordinary witnesses. Article 871 contains an amendment which is but a corollary of that con- tained in the title Of Obliga- tiona on the subject of defaults (art. 1067.) It provides that in cases where, under the old law, fruits and interest arising from a thing bequeathed would not have accrued until after a judicial demand, they may now date from the time when the debtor of the legacy is put in default. Article 878 declares that universal legatees and legatees by general title, after they have accepted, are per- sonally liable for the debts and legacies imposed upon them by law or by the will. Un- less tboy have obtained benefit of inventory; and assimilates their position in other respects to that of the heir. This article however, is rather an interpre- tation of the old law than the introduction of a change, and is in harmony with a subse- quent article (891) which, in the matter of seizin and ali the consequent rights and actions, places legatees, by whatever title, in the same position as heirs. Articles 881 and 883 relate to the presumptions re- sulting from the legacy of a thing which does not belong to the testator. Under the old law such legacies were valid if the testator was aware that the thing did not belong to him, or if the thing belonged to the heir or legatee charged with the payment of it j the presumption being, in either case, that he intended the .thing to be procured or the SYNOPSIS. XXIII value of it to bo paid in fulfll- ment *" ♦he legacy. As wills, however, ore now drawn in ordinory language, and the testator has every facility for giving a clear expression of his intentions, no reason exists for maintaining these presump- tions, and according to the two articles just mentioned they are no longer recognized. If, however, the testator, after bequeathing the property of another, should become owner of it, article 883 provides that the legacy will be valid as regards any portion of it re- maining in his succession ; but any alienation of it by the tes- tator destroys the legacy, even though, by reason of the nullity of such alienation, the property should have returned into his succession. Article 889, re- versing the rule of the old law, declares that, if property be- queathed is hypothecated for a debt due by tne testator, the hypothec is borne by the parti- cular legatee. No reason in- deed could be given for the former presumption that the testator intended it to be chargeable to his heir or his universal legatee. Article 897 provides that any alienation whatever by the testator, of property by him bequeathed, except when it is both involun- tary and void, annuls tjie legacy j provided his intention to the contrary is not expressed. This is in conformity with the lule of the French Code, which is more simple, and more in accordance with the correct inference from the circum- stances, than the rule of the old law, under which forced salee, expropriations for public pur- poses, and sales urged by pressing necessity formed an exception, and did not annul the legacy. Article 899 declarei that heirs cannot be disinherited without all the formalities re- quired for a will. Under the old law the act of exheredation needed only the ordinary nota- rial form. Under our present system these acts have become useless, inasmuch as a will, disposing of the property to other persons than the one in view, effectually excludes him from the succession ; disinhe- ritances have therefore been brought under the same rules as other testamentary disposi- tions. Articles 905 and 924 supply a deficiency in the old law, by reason of which wills in many instances, could not be executed, as no one but the testator could name testament- ary executors. Under these articles the testator may bot only name executors, but may provide for the manner in which they shall be appointed or suc- cessively replaced, and the courts and judges may appoint them whenever the testator has expressed his intentions to that effect, or whenever an executor- ship, which the testator intend- ed to continue, has become vacant, and the will makes no provision under which the vacancy can be filled. Article 911 also supplies a deficiency by affording to testamentary executors a means of being relieved from the executorship for sufficient cause. Article 913 facilitates the execution of D Txir SYNOPSIS. .(>•> wills by providing that in the absenoo of ono or more Joint executors from the plaoo, the others may do alono all acts of a oonserratory nature, or re- quiring dispatch. The old law only allowed this to be done when the abfionoo was out of Lower Canada. Article 017 furnishes a remedy which it was doubtful whether the old law afforded. It provides for the removal of testamentary executors who do not or cannot act, or who act improperly. Article 930 declares that sub- stitutions made by other gifts than contracts of marriage may be revoked, so long as thoy havo not opened, unless the substitute has accepted. For- merly, the acceptance required to bo more formal than that of gifts in general ; but the Code establishes a uniform rule, and any acceptance which would suffice for a gift will be suffi- cient to prevent the grantor from revoKing a substitution. Article 060 settles a point pre- viously doubtful, by deciding that any active or passive dobt of the institute, which, in con- sequence of his accepting as heir or legatee, may be extin- guished by confusion, revives between the substitute and tho institute, or his heirs, when the substitution opens ; except as regards interest up to that time for which confusion still holds. In the title Of Obligations, article 104:7 adopts the doctrine of the French Code, as more equitable than the old rule, and declares that when a person, who has received a thing which is not due to him, is in good faith, he Is not mality was previously required only when tne deed was not in authentic form, but there seems to be no reason for any excep- tion in such cases, and the affi- davit is now required whether the deed be authentic or not. In the title Of Insurance, article $9548 settles a point upon which different opinions prevailed. It declares that upon an accepted abandonment of a ship, the freight earned after the loss belongs to the insurer of the ship, and that the freight earned previously belongs either to the ship- owner, or to the insurer on freight to whom it is abandoned. Some were of opinion that tho insurer was entitled to the whole freight, others that he was entitled to none. The CodO} as an equitable compromise, adopts the rule of the American law upon the subject. Ottawa, July, J 866. \ ZZZI TABLE OF REFERENCE. Tho articles of the Code containing new law will be found in the first columns, and tho pages of the Synopsis in the second. 71 xvra 629 XXI 878 xxn' 77 xvni 631 XXI 881 XXTI 93 xvm 632 XXI 8R2 XXII 97 xvin 633 XXI 883 XXIII 132 XVIII 634 XXI 889 xxni 141 XVIII 649 XXI 893 XI 143 XIX 661 XVI 897 XXIII 149 XI 683 XXI XXI 899 xxni 161 XI 712 905 xxm 167 XIX 714 xxn 911 XXTTI 158 XIX 728 XXII 913 xxni 203 XTX 731 XVI 917 XXIV 210 XIX 761 VIII 924 XXIII 223 XI 764 m 930 XXIV 224 XI 767 III 932 XVI 225 XIX 768 III 954 XI 226 XIX 769 IV 966 XXIV 276 XIX 775 IV 972 IV • 301 XIX, vni 777 V 981 XVII 302 XIX 786 IV 1006 vni 304 XIX 788 IV 1010 VIII 307 iTLI 792 vin 1012 VIII 319 vm 796 V 1025 V 344 XIX 812 XVI, X 1027 V 388 XX 816 IX 1040 xn 393 XX 833 XXII 1047 XXIV 394 XX 843 VI 1064 XXIV 423 XI 844 VI 1069 XXIV 514 XX 846 VI 1076 IX 621 XX 846 VII 1101 XXIV 532 XX 847 VII 1116 XII 699 XXI 848 xxu 1123 XXIV 626 XXI 851 VII 1135 IX 627 XXI 863 VII 1149 IX 628 XXI 871 XXII 1166 vir 2 jxxn TABLE OF BEFEBENOE— Con IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Ui 122 12.2 1.1 I.-^IKS ||l.25 II 1.4 11.6 ^ — ^ . ^ 6" > V] 71 7 ''^ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. M5S0 (716)873-4503 fi' .% ^ K- AN ACT RisPBomo THB Oim. Code of Lower Cakada.o (29 Victoria, chapter 41.) WHEREAS the Commission- ers appointed under the «eoond Chapter of the Consoli- dated Statutes for Lower Cana- da, to codify the Laws of that diTilBion of the Provinoe in €iyil Matters, have completed ^at portion of their work men- "Honed in the said Act as the OivU Code of Lower Canada, embodying therein such provi- sions only as they hold to be now actually in force, and giving the authorities on which they believe them to be so, and have suggested such amend- ments as they think desirable, stating such amendments sepa- rately and distinctly, witli the reasons on which they are founded ; and have in idl res- pects complied with the re- quirements of the said Act as regards the said Code and amendments ; and whereas the «aid Code with the amend- ments suggested by the said ■Commissioners, has, by com- mand of the Governor, been laid before the Legislature, in •order that the said Code, with such amendments aa may be Adopted by the Legislature, may be made law by enact- ment; and whereas such of the amendments suggested by the ■Commissioners, and such other amendments as are mentioned in the resolutions contained in the Schedule hereunto annezed» have been finally agreed to by both Houses : Therefore, Her Majesty, by and with the ad- vice and consent of the Legis- lative Council and Legislative Assembly of Canada, enacts as follows : 1. The printed roll attested as that of the said CivU Cod&, of Lower Canada, under the signature of His Excellency the Governor General, that of the Clerk of the Legislative Coun- cil, and that of the Clerk of the Legislative Assembly, and de- gosited in the office of the lerk of the Legislative Coun- cil, shall be held to be the original thereof reported by the Commissioners as contain- ing the existing law without amendment ; but the marginal notes, and the references to existing laws or authorities at the foot of the several articles of the said Code, shall form lio part thereof, and shall be held to have been inserted for con- venience of reference onjiy, and may be omitted or corrected. %, The Commissioners Under the Act mentioned in the pre- amble of this Act, snail incorporate the amendments mentioned in the resolutions contained in the Schedule to this Act with the said Civil Code as contained in the roll 29 TiOT. 0. 41, aforesaid, adapting their form and language (when necessary) to those of the said Code, bnt without changing their effect^ inserting them in their proper places, and striking out of the said Code any part thereof in- consistent with the said amend- ments. 3. The Governor may also select any Acts and parts of Acts passed during the session now last past and the present session, which he may deem It advisable to be incorporated with the said Code, and may cause them to be so incorpo- rated by the said Commis- sioners, in the manner herein- before prescribed with respect to the amendments above men- tioned, striking out of the Code or amendments any part there- of inconsistent with the Acts or parts of Acts incorporated therewith. 4. The Commissioners may alter the numbering of the Titles and Articles of the said Code or their order, if need be, and make the necessary changes in any reference from one part of the Code to another, and may correct any misprint or error whether of commission or omission, or any contradic- tion or ambiguity in the origi- nal Roll, but without changing its effect. 5. 8o soon as the said work of incorporation and correction shall have been completed, the said Commissioners shall cause the Code to be reprinted as amended and corrected, care- fully distinguishing in such reprint the substantive amend- ments and additions made in or to the original Roll, and shall submit the same to the Governor, who may cause a correct printed Roll thereof, attested under his signature and countersigned by the Pro- vincial Secretary, to be de- posited in the office of the Clerk of the Legislative Council, which Roll wall be held to be the original thereof; any such marginal notes or references thereon as are mentioned in Section one, being held to form no part thereof, but to be in- serted for convenience of refer- ence only. 6. The Governor in Council may after such deposit of the Roll last mj^ntionea, declare by Proclamation the day on, from and after which the said Code as contained in the said Roll shall come into force and have eff'ect as law, by the designa- tion of "The Civil Code of Lower Canada," and upon« from and after such day the said Code shall be in force accordingly. 7. The laws relating to the distribution of the printed copies of the Statutes shall not apply to the said Code, which shall be distributed in such numbers and to such per- sons only as the Governor in Council may direct. 8. This Act and the Pro- clamation mentioned in sec- tion six, shall be printed with the copies of the said Code printed for distribution as aforesaid. 9. So much of the Act cited in the Preamble as may be inconsistent with this Act is hereby repealed. JB VICTORIA, by the Grace of God, of the United King- dom of Great Britain and Ireland, Queen, Defender of the Faith, &o., &o., &o. To all to ^hom these presents shall oome, or whom the same may in any wise con- cern — Greeting : Geo. Et. Cabheb, } Whebeas Atty^ Genl, ) in and by a certain Act of the Legis- lature of the Province of Cana- da, passed in the twenty-ninth year of Our Beign, intituled : "An Act respecting the Civil Code of Lower Canada," it is amongst other things in effect enacted that the printed roll attested as that of the said Civil Code of Lower Canada, under the signature of His Excellency the Governor Gene- ral, that of the Clerk of the Legislative Council, and that of the Clerk of the Legislative Assembly, and deposited in the office of the Clerk of the Legislative Council, shall be held to be the original thereof reported by the Commissioners as containing the existing Law without amendment j but the marginal notes, and the refer- ences to existing laws or au- thorities at the foot of the several articles of said Code, shall form no part thereof, and shall be held to have been in- serted for oonvenieuoe of refer- ence only, and may be omitted or corrected ; that the Commis- sioners appointed under the second chapter of the Consoli'^ dated Statutes for Lower Cana- da, to codify the Laws of that Division of the Province in civil matters, shall incorporate the amendments mertioned in the resolutions contained in Hxe Schedule to that Act with the said Civil Code as contained in the roll aforesaid, adapting their form and language (when necessary) to those of the said Code, but without changing their effect, inserting them in their proper places, and strik- ing out of the said Code any part thereof inconsistent with the said amendments ; that the Governor may also select any Acts and parts of Acts passed during the session then last past, and that session, which he may deem it advisable to be in- corporated with the said Code, and may cause them* to be so incorporated by the said Com- missioners, in the manner thereinbefore prescribed with respect to the amendments above mentioned, striking out of the Code or amendments any part thereof inconsistent with the Acts or parts of Acts incor'> porated therewith; that the Commissioners may alter the numbering of the Titles and Articles of the said Code or PBOCLAMilTION. XLI their order, if need be, and make the necessary changes in any reference from one part of the Code to another, and may correct any misprint or error whether of commission or omission, or any contradiction or ambiguity in the original Boll, but without changing its effect ; that bo soon as the said work of incorporation and cor- rection shall have been com- pleted, the said Commissioners shall cause the Code to be re- printed as amended and cor- rected, carefully distinguishing in such reprint the substantive amendments and additions made in or to the original Roll, and shall submit the same to the Governor, who may cause a correct printed Boll thereof, attested under his sig- nature and countersigned by the Provincial Secretary, to be deposited in the office of the Clerk of the Legislative Coun- cil, which Boll shail be held to be the original thereof; any such marginal notes or refer- ences thereon as are mentioned in section one, being held to form no part thereof, but to be inserted for convenience of reference only; and that the Governor in Council may after such deposit of the Boll last mentioned, declare by Procla- mation the day on, from and after which the said Code as contained in the said Boll shall come into force and have effect as law, by the designation of "The Civil Code of Lower Ca- nada," and upon, from and after such day the said Code shall be in force accordingly; And WHESEAS the said Commis- e loners have incorporated the amendments mentioned in the resolutions contained in the achedule to the said Act with the said Civil Code as contained in the roll aforesaid, having adapted their form and langu- age to those of the said Code but without having changed their effect, having inserted them in their proper places, and having struck out of the said Code any part thereof inconsistent with those amendments; Ain> WHEREAS the said Commission- ers have been duly directed to incorporate, and have incorpo- rated with the said Code such Acts and parts of Acts, passed during the last two sessions of the Legislature of Canada, as were deemed advisable to be in- corporated therewith, and havo struck out of the said Code and amendments any part thereof inconsistent with such Acts or parts of Acts so incorporated; AxD WHEBEA^ the Said Com- missioners have altered the numbering of the Titles and Articles of the said Code and have made the necessary changes in any reference from one part of tne Code to another, and have corrected any mis- print or error, whether of com- mission or omission in the origi- nal roll, but without changing its effect; And whereas so soon as the said work of incorpora- tion and correction was com- pleted, the said Commissioners have caused the Code to be reprinted as amended and corrected, having carefully distinguished in such reprint the substantive amendments and additions made in or to XLn PROCLAMATION. the original Roll and have sub- mitted the same to the Gover- nor of Oar said Province of Canada; And whebbas all the provisions of the first five sec- tions of the above Act have been dnly carried into effect; And whebeas Chables Stanley VisoouNT MoNOK, being Gover- nor General of Our said Pro- vince of Canada, after the pro- visions contained in the first five sections of the said Act had been as above and in every other particular duly carried into effect, hath caused a correct printed roll of the said Civil Code, attested under his signa- ture and countersigned by the Provincial Secretary, to be de- posited in the office of the Clerk of the Legislative Council; And WHEREAS Our said Governor General of Our said Province of Canada, after such deposit of the said printed roll of the said Civil Code, hath, by and with the advice and consent of Our Executive Council, for the said Province, fixed the FIRST day of AUGUST next, as the day on, from and after which the said Code as contained in the said Roll shall come into force and have effect as law, by the designation of "The Civil Code of Lower Canada;" Now Enow tb, that by and with the advice of Our Ex- ecutive Council for the said Province of Canada, We do, by this Our Royal Proclamaiion, declare that on, from and after the FIRST day of the month of AUGUST next, the said last mentioned Roll attested under the signature of Our said Gover- nor General of our said Pro- vince of Canada, countersigned by the Provincial Secretary and deposited in the office of the Cleric of the Legislative Council of the said Province as afore- said, shall come into force and have effect as law by the de- signation of "The Civil Code of Lower Canada ; " Of all which Our loving subjects of Our said Province, and all others whom these presents may concern^ are hereby required to take notice, and to govern them- selves accordingly. In Testimony Whereop, "Wo have caused these our Letters to be made Patent, and the Great Seal of Our said Pro- vince of Canada to be here- unto affixed: Witness, Our Right Trusty and Well- Beloved Cousin the Right Honorable Charles Stanley VisoouNT MoNCK, Baron Monok of Ballytrammon, in the County of Wexford, Governor General of British North America, and Captain General and Governor in Chief in and over Our Pro- vinces of Canada, Nova Scotia, New Brunswick, and the Island of Prince Edward, and Vice Admiral of the same, &o., &o., &o, *At Our Government House, in Our CITY OF OTTAWA, in Our said Province of Canada, this TWENTY-SIXTH day of MAY, in the year of Our Lord, one thouasnd eight hundred and sixty-six, and in the Twenty-ninth year of Our Reign. By Command, WM. McDOUGALIii Secretary* ABBREVIATIONS. a. — article; articles. Abbott, — ^Abbott on Shipping. A. D. — Anoien Denizart. al. — alin^a. Alau. — Alanzet, Des Assu- rances. Alnutt, P. W.— Alnutt, Practice of Wills. Ang. Ins. — ^Angell, on Life and Fire Insurance. a. pr. — article pr^liminaire. Arg. — Argou. Am. — Arnonld, on Insurance. Am. Corp. — ^Arnold on Corpo- rations. Arr. — Arrdtj Arrdt^s. " 0. S.— Arrdt du Conseil Sup^rieur. " de Boni. — ^Arrdts de Boni- face. " Lam. — Arrdt^s de La- moignon. " P. P.— Arret du Parle- ment de Paris. Ass. — ^Assurance. Aug.— Augeard. Auth. or Author. — ^Authorities. b. — ^book. B.— Bills. Ba. Ab.' — Bacon's Abridgment. Bao. D. J. — Bacquet, Droits de Justice. Bar. — Bartolus. Bard. — Bardet. Bas. — Basnage. Bar. & L. — Baroux et Loiseau, Jurisprudence du Code Civil. Bay. B.— Bayley on Bills. B. d'Arg. — ^Boucher d'Argis. Beaub. — Beaubien, Lois du Canada. Beawes — Beawes, Lex Merca- toria. B6o. Q. — Bdcano, Questions sur le Droit Commercial. Bell, Com. — Bell's Commenta- ries. Ben. — Benecko, Principles of Indemnity. Bi.— Biret. " Exp. — Biret, Explication du Code. Bing. N. C. — Bingham's New Cases. Bio. — ^Bioche, Dictionnaire de Procedure. Bl.— Biois. Bla. — Blaekstone's Commenta- ries. Boi. — Boiloux, Commentaires sur le Code Civil. Boic. — Boiceau. Bon. — Bonnier. Boni. (Arr. de) — Arrets de Bo- niface. Bor. — Bornier. Bosq. — Bosquet, Dictionnaire des droits domaniaux. XllV ABBREVIATIONS. Bouch. — Bouoheul, Biblio- thdqne. Boud. — Boudousqni^. Bouh. — Bouhier. " 0. B.— Bouhier, Cou- tuine do Bourgogne. Bottl. Stat. — BcJuIlenoiSi Des Statuts. " Dissert. — Boullenois, Dis- sertations. Bon.-Pat. — Bonlay-Paty, Droit Commercial. Bour. — Bourjon. Bous. — Bousquet. Bout. — Bontaric. Boutil. S. R.— Bontillier, Som- me Burale. B. R. — Bail k Rente. Bret. H. — Bretonnier snr Hen- rys. " Q. — Bretonnier, Questions de Droit. Bril.— Brillon. Bur. — Burge. Byles— Byles on Bills. O. c. — chapter. ♦* C. — Civil Code of Lower Cana- da. C A ) C Ani S ^°"*'*"'*® d'Anjou. Cad. — Cadres. Cap. Charl. — Capitulaires de Charlemagne. " Louis D4b. — Capitulaires de Louis le D^bonnaire. Car. — Carondas. *' Rep.— Carondas, R^ponses. Cas. — Casar^gis, Discours. Cat. — Catellan. C. B. — Coutume de Bourgogne. C. Bourb. — Coutume de Bour- bonnais. C. Br. — Coutumo do Bretagne. C. Co. — Code de Commerce. C. C. V. — Code du Canton de Vaud. Ch. — Change. Chab. — Chabot. Chalm. Op. — Chalmer's Opi- nions of Eminent Lawyers. Champ, et Rig. — Champion- ni^re et Rigaud. Char. — Chardon. Chau. — Chaudon. Che. — Chenu. Chep. — Cheptels. Chit. B.— Chitty on Bills. " Co. L.— Chitty on Com- mercial Law. " Con. — Chitty on Contracts " Cr. L.— Chitty on Crimi- nal Law. " Pr.—Chitty on Prero- gative Law. Chit. & H. — Chitty andHulme. cit.^itations. Cho. — Chopin. Christie, P. W.— Christie, Pre- cedents of Wills. C. L. — Civil Code of Louisiana. Clam. — Clamageran. Cleirac, 0. H. — Cleirac, Ordon- nances Hans^atiques. " U. C. M.— Cleirac, Us et Coutumes de la Mer. 0. N. — Code Napoleon. C. Nor. — Coutume de Norman- die. C. 0. — Coutume d'Orl^ans. Coch. PI. — Cochin, Plaidoyers, (Edition 1821.) Cod. — Codex Justianus. col.— column. Coll. Part. — CoUyer on Part- nerships. , Com. — Comyn. " (following the name of an author). — Communaut^. Con. — Contracts. Conf. du C. — Conferences da Code. ^ cons. — consequence. ABBBBVUTIOKS. XLV Cons, de M. — Consulat do la Mer. oont. — eontrh, Coq. — Coquille. Con. — Oonohot. 0. P. — Coatnme de Paris. C. B. — Oonstitntion de Rente. C. B. S. — Code of Boman States. C. 8.— Code Sarde. C. S. C. — Consolidated Statutes of Canada. €. S. L. C— Consolidated Sta- tutes for Lower Canada. Cub. — Cubain. Cug. Cugnet. Ouj. — Cujas. D. D.— Dard. Dag. PI. — Daguessean, Plai- doyers. Dal. — Dalloz. " D. — Dalloz, Diotionnaire. " J. G. — Dalloz, Jurispru- dence Gdn^rale. " B. J. — Dalloz, Beoeuil de Jurisprudence. Danty, — Danty, Preuve par t^moins. Darg. C. B. — Dargentrd, Cou- tume de Bretagne. Dar.Inj. — Dareau, Injures. Pel. — Declaration, d^f.— d^finiUon. Delh. — Delhommeau. De L'H. — De L'Hommeau. Dels. — Delsol. Delv. — Delvinoourt. Delv. Dr. C— Delvinoourt, Droit Commercial. Dem. — Demante. Demo. — Demoly. Demol. — Demolombe. D4n. Ac. de Notor. — ^Denizart, Actes de Notoriety. D^p.— D€p6t. Desg.— Desgodets. Desp.— Despeisses. De V. A Gil.— De VilleneuTO & Gilbert. De Vil. D. C. C— De ViUe- neuve, Diotionnaire du Con« tentieuz Commercial, dist.— distinction. D'Ol.— D'Olive. Dom. — Domat. Don. — Donations entre vifs. " M. — Donations entre Mari et Femme. Dou. — Douaire. Dou. Can. Abs. — Douoet, Ca- nadian Abstract. Dowd. Ins. — Dowdswell, Insu- rance (F. & L.) Drapier, — Drapier, sur les Dizmes. Drion, — Drion, du Notaire en Second. Duer, — Duer, on Insurance. Dum. — Dumoulin. " M. — Dumoulin, Coutume du Maine. " P — Dumoulin, Coutume de Paris. Dun. — Dunod, Prescriptions. Dup. — Dup^rier. Dupl. C. r. — Duplessis, sur la Coutume de Paris. Dur. — Duranton. Duv. — Duvergier. B.— Edit. East. — East's Beports. ed. — edition. Ed. & O.—Edits et Ordon- nances. e. 1. — eodem loco. Ellis,— Ellis, Life and Fire Insurance (Shaw's.) Em. — Em^rigon. Em. (Bou.-Pat) . — Emdrigon, par Boulay-Paty. XL VI ABBHEVUTIOKS. Enoy.— Enoyolopddle de Droit. " Absent (e. g.) — Enoyolo- pddie, verbo Absent. Ersk. Inst.— Erskine's Insti- tutes. e. t. — eodem titulo, et. pas.— et j)a««fm. e. r,—eodem verbo, P. ff. — Digestum Justinianl. Fa. — Favre. Pav. — Farard. " do Lang. — Favard de Langlade. F. 0. P.— French Code of Civil Procedure. Fen. — Fenet. " Poth. — Pothier par Fenet. " T. P. — Fenet, Travaux Pr^aratoires. Fer. Cf. P. — ^FerriSre, Ooutume de Paris ■' D. — Ferridre, Diotionnaire de Droit. " G. C— Ferridre, Grand Coutumier. Flan. — Flanders or Shipping. Foel. — ^Foeliz (Denangeat). " H.— Foelix ot Henrion. fol.— folio. Fost. — Foster. Four. S.— Foumel, Ti^s^t6 de lla Seduction. W " V. — ^Foumel, Voisinage. Fr€m.— Fr^minville. Fur. — ^Furgole. O. Gin, — Gin, Analyse du Droit "Eran^aAs. Gir. L. 0. — Girouard, Lettres de Change. gl.— glose. Glf. Ev. — Greenleaf on Evi- dence. Gou. — Gousset, Code Civil. Gow, — Gow on Partnership (3d ed.) Grant, Corp. — Grant on Corpo* rations. Grav. L.— Graverol sur La- roche. Gr. C. — Grand Coutumier. Gren. Hyp. — Grenier, Hypo* thdqnes. Gren. on E. — Grenier, sur Edit de 1771. Guen. — Guenois, Beoueil d'Or- donnanoes. Guidon — Le Guidon de la Mer. Guy. — Guyot, Repertoire. " Absent (c. gF.^— Guyot, B^pertoire, verbo Absent. Guyp. — Guypape. Halifax, A. C. L. — Halifax, Analysis of Civil Law. Ha. P. C— Hale, Pleas of the Crown. Hein. — Heineocius. Hen. — ^Henrys. Henn. — ^Hennequin. Her. — H^rioourt, Vente des Immeubles. h. t. — hoe titulo, Hou. — Houyvet, Ordre des cr^anciers. Hyp. — ^Hypothdques. * lb. — Ibidem, ' Id. — Idem. i. f. — in fine, Imb. — Imbert, Pratique Judi- ciaire. Ind. to Stat. — Index to Statutes. Inf. b, fort. — ^Inference b, for* tiori. ^ Ins. — Insurance. ▲BBRITUTIOyt XLvir In0. lur Oonv. — Instrnotiona faoiles sur les Oonyentions. Inst. — • Institationea JaRtini- ani. Intr. — ^Introdaotlon; Introduo- tioD G^ndrale auz Ooutumea. {, p. — in prinoipio, I. S. — ^Imperial Statute. Tsam. — ^Isambert. i. V. — iiadem verbis, J. J. A. — Journal des Andienoes. Jarman, — Jarman on Wills. J. Ol^ron, — Jugomenta D'016- ron. Jones, Bts. — Jones, Bailments. J. P.---Joarnal da Palais. Jon. A. J. — Jonsse, Admini- stration de la Justice, " 0. — Jousse, Ordonnance. Jony, Pr. des Dizmes. — Jouy, Prinoipes des Dizmes. Et. — ^Kent's Commentaries. 1. — liber; livre. L. Mar, — ^Louage, Maritimes. L. & B. — Louet & Brodeau. L. & B. 0. P. — ^Louet & Brodeau, Goutume de Paris. Lao. — ^Rousseau de Lacombe. Lah. — ^Lahaie. Lai. — ^Lalaure. Lam. M. — Lamoignon, M€- moires. " Arr. — Arrdtes de Lamoi- gnon. Lan. — Lange. Lap. — ^LapeyrSre. Lar. — ^Laroolie. Lau. — ^Lauri^re. 1. t,—4oco citato. L. 0. J. — Lower Canada Jurist. L. C. R. — Lower Canada Re- ports Leo. — Lebrun. Lebret, S. — Lebrot, de la Souye- rainet^. Lem. — Lemattro. Lep. — Lepage. Lepr. — Leprestre. let. — letter. Levi, — Levi, Commercial Law. Lew. Mar. — Lewis, on Marri- age. Lo. — Loor^. " E. C— Locrd, Esprit du Code. " L. C. — Loord, Legislation Ciyile. Loi. I. C. — Loisel, Inatitutea Coutnmidres. Lor. — Lorieuz. Loui. R. (0. B.) — Louisiana Reports (Old Series.) Lovelass, W. — Lovelasa on Wills. Loy. Seign. — Loyseau, De» Seigneuries. " Of.— Loyseau, Des Offices^ Mac. — ^Maclaohlan. Magens. — Magens on Insu» ranoe. Mai. — ^Maleville. Man. — ^Manuel de Paillet. Mand. — Mandat. Mar. — ^Mariage. Marc. — ^Marcad^. Marsh. — Marshall, on Insu- rance. Mas. — ^Massol. maz.— mazim. May. — Maynard. Men. — Menochius. Merc, de tut. — Mercier, De- tutelis. XLVIII ABBBITIATIONf. !! Merl.— Merlin, Repertoire. " Absent (e. ^.) — ^Merlin, Rthier, Posses- " Pres. — Pothier, Pre- scription. «< " Prflt C— Pothier, Pr«t do Consomption. " Prflt U.— Pothier, Pr«t & Usage. " Pr. G. A.— Pothier, Prdt h la Qrosse Avonture. " Prop. — Pothier, Do- maine de Propriety* " Soc— Pothier, Sooidt«. " Sub.- Pothier, Substi- tutions. *' Sue— 'Pothier, Succes- sions. *' Test.— Pothier, Dona- tions testamentaires. " Vonte— Pothier, Vente. P. Ponl.— Dn Pare Poulain. pr. (a.)— pr6Iiminaire 6trtiole.) Pr. de la Jan. — Prevdt de la Jannds. Pres. — Prescription. Pro. C. N. — Projet du Code Napoleon. Prop. — Propriety. Proud. — Proudhon (Valette.) " C. D. F.— Proudhon, Conrs de Droit Fran^ais. " D. P.— Proudhon, Do- maino de Propriety. pt.— partj partie. P. V. C— ProcSs Verbal des Conferences. Q. — Questions. q.— question, questions. Quen. — Quenault, Assurances. B. r. — rSgle; rule. Rav. — Raveau. Ravi. — ^Raviot. R. de Vil.— RoUand de Vil- largues. R. Lyon. — Rdglement de Lyon. Ren. — Renusson. ABBBBVUTI0N8. Bon. Subr. — ^Renussoiii Subro- gation. Bep. — ^B^pertoire. Bev. — ^Bevue de Legislation et de Jarisprndenoe da Bas Canada. Bio. — Bicard« Bich. — Bioher. Biv. — ^Bividre. B. J. — Beoeail de Jarispra- dence (Dalloz.) Bod. — Bodier. Bodi. — ^Bodidre. Bog. — ^Bogron. Bos. B. — ^Boscoe on Bills. Bus. Cr. — ^Bussell on Crimes. B. Wol.— Bevue Wolowski. 8. 8. — section. . Sal.— Salie. " C. des Cur^s.— Salie, Code des Cur^s. Salv. — Salviat. Salraing, U. E. — Salvaing, Usage des Fiefs. Sav. — Savigny. Savary, P.— -Savary, Par^res. " *« 39(c.flr.)~Savary, Par^res, Pardre 39. ** P. N.—Savary, Parfait N^gociant. Sedg. — Sedgwick, on Measure of Damages. Ser.— Serres. Serp.— Serpillon. Sm. Con.— ^mith on Contracts. ** M. L.— Smith, Mercantile Law. Soe. — Society. Soe. — Soefve. Sol. — Solon, som. — sommaire. Stair, Inst. — Stair, Institutes. Steph. — Stephen's Commenta- ries, btev. — Stevens, on Average. Sto. Ag. — Story, on Agency. " B. B.— Story on Bills of Exchange. " Bts.-^tory on Bailments. " Con. — Story on Contracts. ** Conf.— Story on Conflict of Laws. ■ " Part.— Story on Partner- ship. " P.N. — Story on Promissory Notes. Str. — Straocha, de navibns. St. Bep. — Stuart's Beports. Sub.— Subrogation. Sue. — Successions. Sug. V. P. — Sugden, Vendors and Purchasers, nup. — Buprh. S r. Tay. — Taylor, on Evidence. Test. — Testaments. Teu. et Sul.— Teulet et Sulpicy, Codes Fran^ais. Thev. - Des. — Th^venot-Des- fiaules, Diotionnaii'e Du Di- geste. Tom. — Tomlin's Law Diction- ary. " Treason (e. gr.) — Tom*- lin's Law Dictionary, verho Treason. Toub. — Tonbeau Toul.— Toullior. Tr.— Troplong. " P. & H.— Troplong, Pri- vileges et Hypoth^ques. 1. 1. — toto titulo. Tud. — Tudor, Mercantile Law. V. V. — for verbOf is generally omitted. ^ v. — ^Victoria. IBBBBVIATIONS. LI Va. — Valin. «* 0. M. — ^Valin, Ordonnanoe de la Marine. " Ass. — Valin, Bur TOrdon- nanoe de la Marine, titre Des Assurances. Vaz. — ^Vazeille. V. c. — verho citato, or verbis citcUit, Vin. Q. S. — Vinnius, Ques- tiones Selectee. " in Pek.-— Vinnius in Pek- ium. Voet, P. — Voet ad Pandectas. W. Wat. Part. — Watson, Partner- ship. Weatherly G. P.— Weatberly Guide to Probate. Whar. — Wharton's Law Lexi- con. Woolrich, C. L. — Woolrich, Commercial Law. Z. Zach. — Zaoharias. The abbreviations of the Latin titles of the Institutes, Digest, Code, or Novellae, are not included in the above List, as their meaning may readily be found with the assistance of the Alphabetical Tables of the Corpus Juris CivUis» NOTE. The dash " — ", in the text of the articles, indicates the beginning of a paragraph. Two hyphens "- -", after the number of a page, or other reference, mean : ** and following." The numerals and figures between brackets, at the end of each article, refer to the volume and page of the Draft as finally reported by the Commissioners. \ CIVIL CODE OF LOWER CANADA. PRELIMINARY TITLE. OP THE PROMtTLGATION, DISTRIBUTION, EFFECT, APPLICATION, INTER- PBETATION AND EXECUTION OF THE LAWS IN OENEBAL. 1. Acts of the imperial par- liament which affect Canada are deemed to be promulgated and come into force from the day on which they receive the royal assent, unless some other time is therein appointed.— 1 Bla. 102-107; 1 Chit. Cr. L. 638; 1 P. Fr. 407; Chalm. Op. 158, 228, 231, 292, 611 j C. N. 1. [I. 243-1 *2. The acts of the provincial parliament are deemed to be promulgated : 1. If they be assented to by the governor, from the date of such assent ; 2. If they be reserved, from the time at which the governor makes known, either by procla- mation, or by speech or message to the legislative council and assembly, that thoy have re- ceived the royal assent.— 0. S. C. c. 5, 8. 4 ; Union Act, s. 38» 39 ; IP. Fr. 407, p. xxvi. ; C. S. L. 0. 0. 3, 8. 1 ; C. N. 1. [1. 243.] ^3, Any provincial act as- sented to by the governor, ceasetr to have force and effect from the time at which it is an- nounced, either by proclama- tion, or by speech or message to the legislative council and assembly, that such act has been disallowed by Her Majes- ty, within the two years follow- ing the reception, by one of her principal secretaries of state, of the authentic copy which has been transmitted to him of such act.— Union Act, s. 38. [I. 243.] *4:. An authentic copy of the statutes assented to by the gov- NoTE.— The changes and additions made in virtue of the statute of 1865, intituled : An Act respecting the Civil Code of Lower Canada, and contained in the Schedule of Resolutions appended to the said statute, are, in this Code, inserted between brackets []. PBELHIIKABT TITLK. I }! «rnorf or the assent to which has been published as provided in article 2, is furnished by the clerk of the legislative council to Her Majesty's printer, whose duty it is to print and cause to be distributed, to all entitled thereto, the number of copies mentioned in the list trans- mitted to him by the provincial secretary, after the close of «ach session. C. S. C. c. 5, B.7. [1.243.] *5« The persons entitled to sueh distribution are : — The members of both houses of par- liament, and the public depart- ments, administrative bodies and public officers mentioned in the said list. — lb. s. 8, 9. [I. 243.] 6. The laws of Lower Canada gorem the immoveable pro- ferty situate within its limits. — Foel. n. 60 — ; 1 Marc. n. 75 ; 1 Boul. 7, 26 - J Poth. Intr. n. 22, 23 — ; 1 Toul. n. 119 ; C, N. 3. [I. 243.] Moveable property is governed by the law of the domicile of its owner. But the law of Lower Canada is applied when- ever the question involved re- lates to the distinction or nature of tiie property, to privileges and rights of lien, contestations as to possession, the jurisdic- tion of the courts and procedure, to the mode of execution and attachment, to public policy and the rights of the crown, and also in any other cases specially provided for by this code. — 1 Foel. n. 61 ; 1 Boul. 8, 338, 339 ; Poth. Intr. n. 24 ; 1 Toul. n. 117 ; 1 Marc. 56 ; 5 P. Fr. 35, 6 ; 1 Dur. n. 99 ; 18 Merl. 432; 1 Bog. 7; 1 Zach. 38; 1 Dels. 24; 1 Proud. 98; Lah. 2, on a. 3 ; Riv. 25 ; 1 Prev. de la Jan. Lzzxin ; Dem. 8 ; 1 Demol. n. 94 ; Cub. 412, 3 ; 8 Sav. 169, 173. [I. 245.] The laws of Lower Canada relative to persons, apply to all persons being therein, even to those not domiciled there ; sub- ject, as to the latter, to the exception mentioned at the end of the present article. — 1 Toul. n. 113 -; 1 Zach. 36, 37; 1 Foel. 19, 62. [1.245.] An inhabitant of Lower Can- ada, so long as he retains his domicile therein, is governed, even when absent, by its laws respecting the status and capa- city of persons ; but these laws do not apply to persons domi- ciled out of Lower Canada, who, as to their status and capacity, remain subject to the laws of their country. — 1 Toul. n. 1 14, 115; IZach. 37; 1 Foel. 58; 1 Boul. 147, 152; 1 Mai. 10. [I. 245.] 7. Acts and deeds made and passed out of Lower Canada are valid, if made according to the forms required by the law of the country where they were passed or made.— Dom. 1. prel. t. 1, § 2, n. 20 ; Poth. Intr. o. 1, n. 6, 7; D. 2, cit.; Lah. 2; C.N. 3;C. L. 9. [L 245.] 8* Deeds are construed ac- cording to the laws of the coun- try where they were passed, unless there is some law to the contrary, or the parties have agreed otherwise, or by the nature of the deed or from other circumstances, it appears that the intention of the parties was to be governed by the law of another place; in any of PBELDUNART TITLE. irhioh oases, effect is given to such law, or such intention ex- pressed or presumed.—! Foel. lo — J 1 Toul. n. [I. 245.] *9. No act of the legislature affects the rights or prerogatives of the crown, unless they are included therein by special en- actment. The rights of third parties, who are not specially men- tioned in any such act, are likewise exempt from the effect thereof, unless the act is public and general. — 0. S. C. c. 5, s. «, § 25. [I. 245.] ^10. An act is public, either by its nature or by its being so declared. All other acts are private. All persons are bound to take cognizance of public acts ; but private acts must be pleaded, —lb. §27. [1.246.] 11. A judge cannot refuse to adjudicate under pretext of the silence, obscurity or insuffi- ciency of the law.— ff. L. 12 De leg. ; Dom. 1. jprel. 1. 1, s. 2, n. 9-24; C. S. L. C. c. 82, s. 1; 1. P. Fr. 424 ~ J 1 Lo. B. C. 213, 214; 1 Dur. n. 95, 100 ; D. 2, a. 4 ; C. N. 4 ; C. L. 21. [I. 245.] 12. When a law is doubtful or ambiguous, it is to be inter- preted 80 as to fulfil the inten- tion of the legislature, and to attain the object for which it was passed. The preamble, which forms part of the act, assists in ex- flaining it. — C. S. 0. o. 5, s. 6, 28 ; 0. S. L. C. o. 82, s. 1. [I. 247.] 13. No one can by private agreement, validly contravene the laws of public order and good moralf.— Poth. Ob. n. 15 ; Merl. Loi, n. 43, S 8 ; Lah. 4 ; C. N. 6 • C. L. 11. [I. 247.] 14. Prohibitive laws import nullity, although such nullity be not therein expressed. — Cod. L. 5, De leg. 1. 1, 1. 14; 1 Toul. n. 90 ; 1 Bouh. 390 ; 0. L. 12. [I. 247.] 15. The word "shall" is to be construed as imperative, and the word ** may" as permissive. — G. S. L. C. c. 1, 8. 13, § 3. 16. Penalties, confiscations and fines incurred for contra- ventions of the laws, are )re- coverable, unless it is otherwise specially provided, by ordinary process of law, in the name of Her Majesty, alone, or jointly with another prosecutor, before any court having civil jurisdic- tion to the amount sought to bo recovered, except only the Com- missioners' Courts for the sum- mary trial of small causes, which are prohibited from tak- ing cognizance of these cases.— C. S. C. c. 5, 8. 6, § 17 : C. S. L. C. c. 94, s. 8. [I. 247.] *17. The words, terms, ex- pressions and enactments enum- erated in the following schedule, wherever used in this code or in any act of the provincial legislature, have the meaning and application respectively as- signed to them in such schedule, and are interpreted in the man- ner therein specified, unless there is some special euactment to the contrary. SCHEDULE. 1. Each of the expressions "Her Majesty," "the King," " the Sovereign," "the Queen," " the Crown," means the king 5 PBSLIMINABT TITLV. or the qaeen, his or her heirs and sncoessors, sovereigns of the United Kingdom of Great Britain and Ireland.— G. S. C. 0. 5, 8. 6, S 1. [I. 247.] 2. The words "imperial par- liament" mean the parliament of the United kingdom of Great Britain and Ireland ; the words "Imperial acts or statutes" meai\ the laws passed by that parliament, and the words "act" and ''statute," whenever they are made use of in this code, without qualification, mean the acts and statutes of the parlia- ment of Canada. By the words ''provincial parliament" is un- derstood the parliament of Can- ada, and the words " provincial acts or statutes" mean the laws passed by that parliament. II. 247.] 3. The words "governor," "governor of this province," "Governor General," or "Go- vernor in Chief," mean the governor, lieutenant-governor or the person administering the government of this province. — C. S. C. c. 5, s. 6, § 2. [1. 249.] 4. "Governor in Council" means the governor, lieute- nant-governor, or the person administering the government, acting with the advice of the executive council of this pro- vince.— lb. § 3. [1.249.] 5. The word "proclamation" means proclamation under the great seal; and by "great seal" the great seal of the province of Canada is under- stood. — C. S. L. C. 0. 1, s. 13, § 6. [1.249.] 6. "Lower Canada" means all that part of the province of Canada which, previously to the union, constituted the pro- vince of Lower Canada; and "Upper Canada" that part whicn, at the same time, con- stituted the province of Upper Canada.— C. S. C. s. 6, 9 4, 6. [I. 249.] 7. The words "The United Kingdom" mean the United Kingdom of Great Britain and Ireland; and "The United States," the United States of America.— lb. § 6. [I. 249.] 8. The name commonly given to a country, place, body, cor- poration, society, officer, func- tionary, person, party or thing, designates and means the country, place, body, corpo- ration, society, officer, func- tionary, person, party or thing thus named, without the neces- sity of more ample desciiption. —lb. §6. [1.249.] 9. The masculine gender includes both sexes, unless it appears by the context that it is only applicable to one of them.— lb. §7. [1.249.] 10. The singular number extends to more than one person, or more than one thing of the same sort, whenever the context admits of such exten- sion.— lb. [1.249.] 11. The word "jperson" in- cludes bodies politic and corpo- rate, and extends to heirs and legal representatives, unless such meaning is contrary to law or inconsistent with the particular circumstances of the case.— lb. §8. [1.249.] 12. The words "writing," "written," or terms of like import, include words printed, or otherwise traced or copied, —lb. 5 9. [1.249.] PBELIMINAHT TITLE. 13. The word «* month" means a calendar month. — lb. S 11; Sto. B. E. 379; 2 Whar. 656. [I. 249.] 14. By "holidays" are un- derstood the following days : Sundays, New Year's Day, the Epiphany, the Annunciation, Good Friday, the Ascension, Corpus- Chriati, the festival of St. Peter and St. Paul, All Saints' Day, Christmas Day and any other day fixed by proclamation as a day of gene- ral fast or thanksgiving ; saving the special provisions estab- lished by the statutes concern- ing the collection of the revenue and the payment of bills of exchange and promissory notes. — C. S. C. 0. 5, s. 6, § 12 ; c. 16, 8. 16 ; c. 57, s. 5 ; C. S. L. C. c. 64, s. 32. [I. 249 j III. 373.] 15. The word "oath" in- cludes the solemn affirmation which certain persons are permitted to make instead of an oath. — C. S. C. c. 5, s. 6, § 13 ; C. S. L. C. c. 34, s. 8 ; c. 82, s. 13. [1.249.] 16. The word "magistrate" means a justice of the peace. "Two justices of the peace" means two or more justices sitting or acting together. When any thing is ordered to be done by or before a justice of the peace, magistrate, func- tionary or public officer, one is understood whose powers or jurisdiction extend 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. — C. S. C. c. 6, s. 6, § 20. [I. 249.] 17. The right of nominating to an office or , employment carries with it that of removal, —lb. 8 22. [1.249.] 1^. 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.—Ib. § 23 j C. S. L. C. c. 77, 8. 16. [I. 249.] 19. When an act is to be performed by more than two Eersons, it may be validly done y the majority of them, except in the cases otherwise specially provided. — 0. S. C. o. 6, s. 6, § 24 ; G. S. L. C. o. 1, s. 13, § 5. [I. 249.] 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, cur- rency. The "sovereign" is of like value. — C. S. 0. c. 15, s. 4 J C. S. L. C. c. 82, s. 3. [I. 249.] 21. By the terms "inhabi- tant of Lower Canada" is meant a person having his domicile in that part of the province. 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 kep and in which such acts are entered. " Officers of civil status" are those intrusted with the keep- ing of such registers. 23. By "bankruptcy" is meant the condition of a trader who has discontinued his pay- PBELIMIKART TITLK. ments.— 2 Bor. 0. 1673, 666; Guy. Faillite, 273; Bon. 726, 312 ; Par. n. 1001 ; 1 Delv. C. 242. [I. 249.] 24. A fortuitous e^ent is one 1: which is unforeseen, and caused by superior force which it was impossible to resist. [III. 373.] T ■' BOOK FIRST. OP PERSONS. TITLE FIRST. OF THE ENJOYMENT AND LOSS OP CIVIL RIGHTS. CHAPTER FIRST. OF THE ENJOYMENT OF CIVIL BIGHTS. 18« Erery British subject is, as regards the enjoyment of civil rights in Lower Canada, on the same footing as those bom therein, saving the special rules relating to domicile. — Ca- pit. of Queb. 1759 ; Treaty of St. Germain 1763: 0. N. 8. [I. 251.] 19. The quality of British subject is acquired either by right of birth, or by operation of law. — C. S. C. c. 6, 8. 4; IDur. 120;O. N. 7. [1.253.] 20. A person bom in any part of the British empire, even of an alien, is a British subject by right of birth, as also is he whoso father or grandfather by the father's side is a British subject, although he be himself born in a foreign country ; saving the exceptions resulting J from special laws of the empire. — C. S. C. c. 8, s. 1 ~ ; Poth. Pers. 573 ; 1 Dur. n. 120 ; Lah. a. 5; 1 Bla. 374, n. 16 - 18, 366, n. 1 ; 2 K. 38 ; 2 Steph. 429, 515 ; Chalm. Op. 332 ; 1 Ha. P. C. 68 ; 1 Com. 541 ; Chit. Pr. 13 ; Man. 23 j C. N. 10. [L 253.] 21. An alien becomes a Brit< ish subject by operation of law, by conforming to the conditions the law prescribes. — 1 Bla. 374 n. 16 - 18 ; 2 Steph. 427 - 433 ; Ha. 1. c. ; Post. 184j C. N. 9 ; Donegani vs. Donegani, St. BejD. 605. [I. 253.] ^QQ. These conditions, as pre- scribed by the laws of this pro- vince, 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 resi- dence and allegiance required by law ; or in the 'case of a LOSS or OITIL BIGHTS. woman the oath of residenoe alone ; 3. Procuring from the proper court, with the necessary lor- malities, the certificate of natu- ralization required hy law.— C. S. C. 0. 8, 8. 1,2, 3, 4 i C. N. 9. [1,253.] ^23. An alien woman is naturalized by the mere fact of the marriage she contracts with a British subject. — 0. S. C. c. 8, 8. 7. [I. 253.] 24* Naturalization confers in Lower Canada, on hiin by whom it is obtained, all the rights and privileges he would have if born a British subject, lb. s. Ij C. N. 13. [1.253.] ^''25. Aliens have a right to acquire and transmit by gratui- tous or onerous title, as well as by succession or by will, all moveable and immoveable pro- perty in Lower Canada, in the same manner as British-bom or naturalized subjects. — lb. s. 9 ; Poth. Pers. 578 j C. N. 11. [L 253.] 'i^ 26. Aliens may also serve as jurors, in all cases where, according to law, a jury must be composed one half of foreign- ers — C. S. C. c. 8, 8. 23 J C. S. L. C. c. 84, 8.' 41, § 3, 8. 4. [I. 253.] *27* Aliens, although not re- sident in Lower Canada, may be sued in its courts for the fulfilment of obligations con- tracted by them even in foreign countries. — 12 V. c. 38, s. 14, 49, 94; C. S. L. C. c. 83, s. 61 J 2 P. Fr. 140 ; 1 Pi. 85 j Rav. 6; Ord. 1667, t. 2, a. 7j C. N. 14. [I. 253.] 28. Any inhabitant of Lower Canada may be sued in its courts for the fulfilment of obligations contracted by him in foreign countries, even in favor of a foreigner. — 0. N. 16. [I. 255.] ^29. Every person, not resi- dent in Lower Canada, who brings or institutes any action, suit or proceeding in its courts, is bound to give to the opposite party, whether a subject of Her Majesty or not, security for the costs which may be incurred in consequence of such proceed- ing.— C. S. L. C. 0. 83, s. 68 ; 2 P. Fr. 143 ; Poth. Pers. 677 j C. N. 16. [I. 255.] CHAPTER SECOND. OF THE LOSS OF CIVIL BIGHTS. 30. Civil rights are lost : 1. In the oases which are provided for by the laws of the British Empire ; 2. By civil death. Rich. Mort civ. 62 — ; Poth. Sue. 10, 11 ; 1 Fav. Conf. 61 ; 1 Toul. n. 180, 266 - j 14 & 15 Hen. VIII, c. 4j 1 Pet. 463 or 321 ; 2 Tom. Treason § 2 1 1 Bl. 370, n. 3, 374, n. 21 ; Fost. 841 ; Bur. 707, 8 ; and author- ities under the following article. [I. 255.] SECTION I. Of Civil Death. 3L Civil death results from condemnation to certain cor- poral punishments.— Rich. Mort civ. 15, 16 J Poth. Mar. 264; Poth. Pers. 585 ; Poth. Intr. n. 28 J 11 Guy. Mort civ. 634 j 2 Bla. 121 ; 1 Bla. 132, 133, n. 16 J C. N. 22. [I. 255.] 32a Condemnation to death 8 LOSS or CIVIL BIGHTS. carries with it civil death.— Poth. Intr. n. 30 ; Rich. Mort eiv. 26 ; Gny. 1. o. ; Rochon vs. Ledno, 1 L. 0. R. 252 ; 0. K. 23. [1. 255.1 33. Civil death also results ftrom the condemnation to any other corporal punishment for life.— 1 Bla. 134 ; Guy. 1. o ; Rich. 29; Poth. Intr. n. 30; Id. Pers. 595; Id. Sue. 5. [I. 257.] 34. The disabilities which result as regards persons pro- fessing the catholic religion, from religious profession by solemn and perpetual vows made by them in a religious community recognized at the time of the cession of Canada to England and subse<]^uently approved, remain subject to the laws by which they were governed at that period. — Poth. 587-9 ; Id. Sue. 125 ; Id. Mar. n. 264; Id. Intr. n. 28; 0. 1167, t. 20, a. 15, 16 ; 11 Guy. 1. 0. ; Rich. 596, 607 --, 643, 647, 651, 660 ; 1 Bla. 132, 3, n. 16; 2 Id. 121. [1.267.1 SECTION II. Of tlxe Effects of Civil Death. 35. Civil death carries with it the loss of all the property of the party attainted, which is confiscated to the crown. — C. P. a. 183 ; 2 Bla. 381 ; Poth. Intr. n. SI ; 11 Guy. 637 ; 2 P. Fr. 174 ; Rich. 46, 337 ; C. N. 25. [I. 257.] 36* A person civilly dead : 1. Cannot take or transmit by succession. — ff. L. 18, De bon. pnss ; 2 P. Fr. 183 ; Poth. Pers. 587 ; 11 Guy. 637 ; Rich. 203, 208, 217 — ; Poth. Sue. ; C.N. 25. [1.257.] 2. He can neither dispose of nor acquire property, wnether inter vivoi or by will, and whether by gratuitous or one- rous title ; he can neither con- tract, nor possess property, but he may receive maintenance. — Poth. Pers. 687; N. D. Ali- ments, n. 24; 1 Arg. 16; 11 Guy. 637 ; 1 Dom. Liv. Pr^l. Pi. 36 66: 1 C. Bour. 128; N. 25. [I. 106; 1 1 Dup. 257.] 3. He can neither be appoint- ed tutor nor curator, nor take part in the proceedings relative to such appointment. — 2 P. Fr. 185,6; Poth. Pers. 611; 11 Guy. 637. [I. 257.] 4. He cannot be a witness to any solemn or authentic deed, nor can he be admitted to give evidence in a court of justice, or to serve as a juror. — ff. L. 18, S 1, Qui. test. fac. ; L. 20 ; 2 P. Fr. 185, 6 ; ff. L. 3, De test. § 5 ; 11 Guy. 637, 8 ; Rich. 251, 254. [I. 259.] 5. He cannot be a party to a suit, either as plaintiff or defendant. — ^ff. L. 2, De cap. min. ; 2 P. Fr. 189, 190 ; Jou. 0. 1667, a. 8, t. 2, p. 28 ; Rod. on do. 31 ; 1 Pi. 66. [I. 259.] 6. He is incapable of con- tracting a marriage that will S reduce any civil effect. — Poth. om. 20; Id. Mar. 433, 440, 486 ; Id. Sue. o. 1, s. 2, a. 2, § 4 ; 11 Guy. 638 ; 0. 1639, a. 7 ; 2 P. Fr. 191 -. [I. 259.] 7. Marriage previously con- tracted by him is dissolved for the future, in so far as regards its civil effects only ; the marri- age tie subsists. — Poth. Suo. A0T8 OF CIVIL STATUS. 20; Id. Mar. 467; 3 P. Fr. 446 - ; Gon. a. 227, p. 94, 5. a. 25, p. 19, 20 ; 1 Maf. 41 - ; 1 Dar. n. 225 ; 2 Dur. 620 ; 1 Toul. 285, 6. [I. 259.] 8. His consort and Lis heirs may respectiyely exercise the rights and actions to which natural death would give rise ; saying rights of sunriyorship, to which oiyil death only giyes rise when that effect results from the terms of the marriage contract.—;^. L. 121, § 2. De v. sig. ; 2 P. Fr. 198 ; 1 Demol. n. 210 ; Rich. 506; Lao. 459; 1 Toul. n. 286. [I. 259.] 37* Ciyil death is incurred from the time of the sentence. — Poth. 8uo. 0. 1, 8._1, p. 5, 6 ; o* 596 ; 20 Merl. Mort civ. 9 1, 3, p. 125, 6 ; Id. Pers. t. 3, p. 596 ; 20 Merl. Mort civ. 9 1, p. 432 ; Rich. 143-4-6-7 ; 5 Merl. Gondamn^, n. 1 ; ff. L. 15, 9 1, De int. et rel; L. 10, 9 1» L. 29, De poen. ; Oou. 21, on a. 26 ; 0. N. 26. [I. 259.] 38* Pardon, liberation, and the remission of the penalty or its commutation to another which does not carry with it civil death, restore the civil ability of the person con- demned, but without any re- troactive effect, unless such effect be specially granted by act of parliament. — C. S. 0. o. 99, s. 113. [1. 259.] TITLE SECOND. OF ACTS OF CIVIL STATUS. CHAPTER FIRST. OENEBAL PBOVISIONS. 39i In acts of civil' status nothing is to be inserted, either by note or recital, but what it is the duty of the parties to declare.— C. N. 35. [I. 261.] 40. In cases where the parties are not obliged to ap- pear in person at the making of an act of civil status, they may be represented by an attorney, specially authorized to that effect.— C. N. 36. [I. 261.] 41. The public officer reads to the parties, or to their attor- ney, and to the witnesses, the act which he makes. — C. N. 37. [I. 261.] "^ <9:2. Acts of civil status are inscribed in two registers of the same tenor, kept for each Roman Catholic parish church, each Protestant church or con- gregation, or other religious community, entitled by law to keep such registers, each of which is authentic, and has in law equal authority. — 0. 1667, t. 20, a. 8; Del. 1736, a. 1 ; C. S. L. 0. c. 20, s. 1, 16, 17 : C. N. 40. [I. 261.] *43. The registers are fur- nished by the churches, con- gregations or religious com- munities, and must be in the A0T8 or OITIL STATUS. I ;' ♦• form proscribed by the Code of Civil Procedure. — C. S. L. C. 0. 20, s. 1, 9 2j C. N. 40. [I. 261.i Hc4b4« The registers are kept by the rector,^ curate or other priest or minister having charge of the churches, con- gregations, or religions com- munities, or by any other officer entitled so to do. — C. S. L. C. 0. 20, 8. 1, 9 1 ; C. N. 40. [I. 261.1 *45* The duplicate register f kept, before it is used, must, at the instance of the party keeping it, be presented to one of tne judges of the Superior Court or to the prothonotary of tiie district, or to the clerk of the Circuit Court instead of the prothonotary in the case speci- fied in the statute 25 Vict., chap. 16, to be by such judge, prothonotary or clerk num- bered and initialed in the man- ner prescribed by the Code of Civil Procedure.— C. S. L. C. c. 20, s. 1, S 2 ; C. N. 41. [I. 261 ; III. 373.] 46> Acts of civil status, as soon as they are made, are inscribed in the two registers, in successive order and without blanks ; erasures and marginal notes are acknowledged and initialed by all those who sign the body of the act. Every- thing must be written at length without abbreviation or figures. — C. S. L. C. c. 20, s. 1 : C. N. 42. [1. 261.] *47". Within the first six weeks of each year, the person who kept the said registers, or who has charge thereof, de- posits in the prothonotary's office of the Superior Court of his district, or in the office of the clerk of the Circuit Court in the cases provided for in the statute already mentioned in the present chapter, one of the said duplicates, the delivery of which is acknowledged by a receipt which the said pro- thonotary or clerk is bo^.nd to give free of charge. — C. P. 241 ; 0. Bl. a. 181 ; 0. 1539, a. 51-53 ; 0. 1667, a. 8, t. 20 ; C. S. L. C. c. 20, s. 8 ; C. N. 43. [I. 261 J III. 373.] *^8, Within six months after such deposit, each protho- notary or clerk is bound to verify the condition of the registers deposited in his office, and to draw up a summary report of such verification. — 0. 1667, t. 20, a. 11. [I. 263 ; III. 373.] 49. The other duplicate register remains in the custody and possession of the priest, minister or other officer who kept the saiae ; to be by him preserved and transmitted to his successor in office. — 0. 1667, t. 20, a. 8 ; Del. 1736, a. 19, 20 ; C. S. L. C. 0. 20, s. 8 ; C. N. 43. [1. 263.] 50* Thedepositary of either of the registers is bound to give extracts thereof to any person who may require the same; and such extracts, being certi- fied and signed by him, are authentic. — C. S. L. C. c. 20, s. 8, 5 2; C.N. 44. [1.263.] 61* On proof that, in any parish or religious community no registers have been kept, or that they are lost, the births, marriages and deaths may be proved either by family registers and papers, or other ▲0TB OF CITIL STATUS. II writings, or by ■witnesses.— C S. L. 0. 0. 20, s. 13j 2 P. Fr. 263 ; 0. 1167, t. 20. a. 14 j Del. 1736 J 0. N. 46. [T. 263. j 52. Every depositary of such registers is oivilly lo- sponsible for any alteration made therein, saving his re- course, if any there be, against the party altering the same. — 2 P. Fr. 278 ; D. on a. 51 ; 0. N. 61. [I. 263.] 53* Every infraction of any article of this title by any of the officers therein named, which does not amount to a criminal offence, and which is not punishable as such, is punished by a penalty not ex- ceeding eighty aoUars, nor less than eight.— 0. 1667, t. 20, a. 12, 13, 18 ; Del. 1736, a. 19, 33 39; 2P. Fr. 278} 2 V. o. 4, s. 2 } 0. S. L. C. c. 20, 8. 9 i C. N. 50. [I. 263.} CHAPTER SECOND. OF ACTS OF BIBTH. 54. Acts of birth set forth the day of the birth of the child, that of its baptism, if performed, its sex, and the names given to it ; the names, surnames, occupation and do- micile of the father and mother, and also of the sponsors, if any there be. — C. S. L. C. c. 20, s. 6; 0. 1667, t. 20, a. 9j Del. 1736, a. 4 J C.N. 67. [1.263.] 55. These acts are signed in both registers, by the officer officiating, by the father and mother if present, and by the sponsors if any there be; if any of them cannot sign, their declaration to that effect is noted. — C. S. L. C. c. 20, s. 5, § 2; 0. 1667, t. 20, a. 10; C. N. 39. [I. 263.1 56- V^hen the father and mother of any child presented to tho public officer are either or both of them unknown, the fact is mentioned in the ro« giater.— 0. S. L. C. o. 20, s. 5» U J C. N. 65, 66, 58. [I. 265.] CHAPTER THIRD. OF ACTS OF MABBIAOE. 57. Before solemnizing a marriage, the officer who is to perform the ceremony must be furnished with a certificate establishing that the publica- tion cf bans required by law has been duly made; unless he has published them himself, in which ease such certificate is not necessary. — Poth. Mar. n. 66-84, 349; C. N. 63. [L 265.1 58 This certificate, which is signed by the person who published the bans, mentions, as do also the bans themselves, the names, surnames, qualiilds or occupations and domiciles of the parties to be married, and whether they are of age or minors ; the names, surnames, occupations and domiciles of their fathers and mothers, or the name of the former husband or wife. And mention is made of this certificate in the act of marriage. — Poth. Mar. n. 66 — ; 0. Bl. a. 40 ; 2 P. Fr. 320, 1 ; C. N. 63, 166. [I. 266.] '''59. The marriage ceremony may, however, be performed without this certificate, if the Sarties have obtained and pro- uce a dispensation or license,, from a competent authority. 12 ▲GTS OF CrVIL STATUS. II 7 I authorizing the omission of the publication of bans. — Poth. Mar. 1. 0. & n. 70; 0. Bl. a. 40; C. S. L. Co. 20, s. 6: C. N. 63. [I. 265.] 60. If the>marriage be not solemnized within one year from the last of the publications required, they are no longer sufficient, and must be renewed. —3 N. D. Bans de Mar. Ill; 2 P. Fr. 328 ; 2 Merl. Bans, 442; 2 Guy. Bans, 175 j 1 Toul. n. 667 J 0.1667; C. N. 65; Del. 1736. [1. 266.] ^ 61. In the case of an oppo- sition, the disallowance thereof must be obtained and be noti- fied to the officer charged with the solemnization of the marri- age. — Poth. Mar. n. 82 ; Guy. Oppos. ^ un mar. al. 1, 2 ; Fer. D.I.V.; C.N. 68. [1.265.] 62. If, however, the oppo- sition be founded on a simple promise of marriage, it is of no effect, and the marriage is proceeded with as if no such opposition had been made. — 0. S.Ii. 0.0.34,8.4. [1.265.] 63. The marriage is solemn- ized at the place of the domicile of one or other of the parties. If solemnized elsewhere, the person officiating is obliged to verify and ascertain the identity of the parties. For the purposes of marriage, do- micile is established by a residence of six months in the same place. — Fen. Poth. 18; Poth. Mar. 356 ; 0. N. 74. [I. 265.1 64. The act is signed by the officer who solemnizes the marriage, by the parties, and by at least two witnesses, Tolatod or not, who have been present at the ceremony; and if any of them cannot sigtt, their declaration to that effect is noted. — 0. S. L. 0. o. 20, s. 6. [1.265.] 65> In this act are set forth : 1. The day on which the marriage was solemnized ; 2. Tne names, surnames, quality or occupation and do- micile of the parties marriod, the names of the father and mother of each, or the name of the former husband or wife ; 3. Whether the parties are of age, or minors ; 4. Whether they w?re mar- ried after publication of bans, or with a dispensation or li- cense ; 5. Whether it was with the consent of their father, mother, tutor or curator, or with the advice of a family council, when such consent or advice is required ; 6. The names of the wit- nesses, 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 opposi- tion made has been disallowed ; Poth. Mar. 375 ; *0. S. L. 0. c. 20, 8. 6, § 1, 2 ; 0. N. 76. [I. 267.] CHAPTER FOURTH. OF ACTS OF BURIAL. 66. No burial can take place before the expiration of twenty- four hours after the decease; and whoever knowingly takes part in any burial before the expiration of such time, except in cases provided for by police ACTS OP CIVIL STATUS. 13 f regulations, is subject to a penalty of twenty dollars. — C. S. L. C. c.21,8.1jC. N.77. ri. 267.] ♦67. The act of burial men- tions the day of the burial, and that of the death, if known; the names, surnames, and quality or occupation of the deceased; and it is signed by the person performing the burial service, and by two of the nearest relations or friends there present ; if they cannot sign, mention is made thereof. — C. S. L. 0. c. 20, s. 7 J 0. 1667, t. 20, a. 10; Del. 1736, a. 10 ; 2 P. Fr. 382 ; 0. N. 79. [1. 267.] 68* The provisions of the two preceding articles apply to religious communities and hospitals where burials are per- mitted.— 0. 1667, t. 20, a. 13 ; C. S. L. C. 0. 20, s. 11 ; C. N. 80 ; tl. 267.] ^69* When there is any sign or indication of death having been caused by violence, or when there are other circum- stances 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 cannot be proceeded with until it is authorized by the coroner or other officer whose duty it is to inspect the body in such case?. — Del. 20 Sep. 1712 ; 20 Isam. 674 ; Del. 1736, a. 12 ; 1 Jou. 306 ; 1 Rus. Cr. 468 ; 1 Bla. 265, n. 27 ; 4 & 5 V. c. 24, 8. 5 C. N. 81. [I. 267 ; III. 373.] CHAPTER FIFTH. OF ACTS OF BELiaiOnS PB0FE8- SION. 70. In every religious com- munity in which profession may be made by solemn and perpe- tual vows, two registers of the same tenor are kept, in which are inscribed the acts esta- blishing the taking of such rows.— 0. 1667, t. 20. a. 16; Del. 1736, a. 26 ; Serp. 232-7- 8; Sal. 234-6-7, 236, n. (a) [I. 269.] 71* [These registers are numbered and initialed like the other registers of civil status, and the acts are in- scribed therein in the manner prescribed in article 46.] — 0. 1667, a. 16 ; Del. 1736, a. 25 ; Serp. 332 ; Sal. 236. [1. 269.] 72. The acts set forth the names and surnames, and the age of the person making pro- fession, the place of her birth and the names and surnames of her father and mother. They are signed by the party, by the superior of the community, by the bishop or other eccle- siastic who performs the cere- mony, and by two of the near- est relations, or by two friends who were present. — Del. 1736, a. 27, 28. [1. 269.] 73. The registers are used during five years, after which one of the duplicates is depo- sited in the manner declared in article 47, and the other remains with the community to form part of its records.— Del. 1736, a. 8. [I. 269.] 74* Extracts of such regis- ters, signed and certified by the superior of the community, w DOiaOlLE. or tbe depositary of one of the duplicates, are authentic, and are delivered by one or other of them at the option and on the demand of those requiring them.— Del. 1736, a. 29. [I. 269.] CHAPTER SIXTH. OP THE RECTIFICATION OF ACTS AND BEGISTEBS OF CIVIL STATUS. 75. If any error have been committed in the entry made in the register of an act of civil status, the court of origi- nal jurisdiction in the office 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 in- terested.— 0. 1667 J Del. 1736, a. SO; 1 Ency. 205,6; Merl. Acte del'et. civ.; 1 Rog. a. 99, p. 86; F. C. P. 855; 35 Geo. 111.0.4,8.13; C.N. 99. [I. 269.] 76* The depositaries of the registers, on receipt of a copy of any judgment of rectifica- tion, are bound to inscribe the same on the margin of the act so rectified, and if there be no margin, then on a sheet of paper which remains annexed thereto.— Del. 1736, a. 30 ; C. N. 101. [1.269.] 77. [If any act which ought to have been inserted in the register be entirely omittedf the same court may, at the instance of one of the parties interested, the others being notified, order that such omis- sion be supplied, and the judg- ment 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 an- nexed thereto.] — 35 Geo. 3, c. 4, s. 11, 13 ; 1 Mai. 375 ; 0. 1667, t. 20, a. 14; Serp. 338- 341; Del. 1736, a. 30; Jou. 321; Rod. 356 ~; 1 Bor. 160; 27 Merl. 263; 11 Id. 148; F. C. P. a. 855 ; 1 Toul. n. 342, 350; C.N. 99. [1.271.] 78. The judgment of rec- tification cannot, at any time, be set up against those who did not seek it, or who were not duly notified. — 2 P. Fr. on a. 1000, p. 406 ; Rog. on do. 85 ; C.N. 100. [1.271.] TITLE THIRD. OF DOMICILE. 79. The domicile of a person, for all civil purposes, is at the place where he has his princi- pal establishment. — Cod. L. 7, be incol.; Poth. Intr. 8, 20; Id. Mar. 355 ; Merl. Domicile, § 2, n. 3, 4; 2 P. Fr. 409, 413; 1 Toul. n. 364-6; C. N. 102. [L 271.] 60. 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 princi- AB8E1TTBE8* ik fal establishment. — Poth. Intr. 4 ; ff. L. 4 & 20, ad. muni, et do incol.; 1 Toul. 323; G. N. 103. [I. 271.] 81. The proof of such inten- tion results from the declara- tions of the person and from the circumstances of the case. C. N. 104. [1. 271.] 82. A person appointed to fill a temporary or revocable public office, retains his former domicile, unless he manifests a contrary intention. — Poth. Intr. 9, 15 ; Cod. L. 2, De incol ; G. N. 106jC.L.46. [1.271.] 83. 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 domi- cile of a person of the age of majority interdicted for insani- ty is wth his curator. — ^Poth. Intr. 10-12, 18, 19 j Id. Mar. 357 J 2P.Fr. 423; C.N. 108; C. L. 48. [1. 273.] 84. The domicile of persons of the age of majority, who serve or work continuously for others, is at the residence of those whom they serve or for whom they work, if they reside in the same house. — ff. 1. o. L. 6, § 3 ; L. 22 ; Merl. Domicile, § 4. n. 1 ; 2 P. Fr. 227 ; 1 Bour. 90 ; C. N. 109. [I. 273.] 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 no- tifications, demands and suits relating thereto may be made at the elected domicile, and before the judge of such domi- cile. — Loy. Seign. o. 14, n. 15 ; Bao. c. 8, n. 16 ; Bavi. Q. 297, n. 21 ; 8 Merl. Domicile ^lu, § 2 ; D. 26, 27; 2 P. Fr. 431 • C. N. 111. [I. 273.] TITLE FOURTH. OF ABSENTEES. OENEBAL FBOVISIOX. 86. An absentee, within the meaning of this title, is one who having had a domicile in Lower Canada, has disappear- ed, without any one having received intelligence of his existence. — 1 Mai. 127, 116; Demo. Absence, 5 ; 2 Lo. E. C. 281; 1 Toul. n. 381; Ency.42; C. N. 115. [I. 273.] 4 CHAPTER FIRST. OF CUBATORSHIP TO ABSENTEES. 87. If it be necessary to provide for the administration of th^ property of an absentee who has no attorney, or whose attorney is unknown or refuses to act, a curator may be ap- pointed for that purpose.— Bret. Q. Absent, c. 3, p. 7 ; N. 10 ABSENTEES. D. Absence, 56; 0. S. L. C. c. 86, 0. 2 — ; Bi. Absenoe, p. 21 j Rog. on a. 112: 0. N. 112. [1.273.] 88. The necessity for such appointment is determined, at the instance of those interest- ed, on the adiEice of a family council called and composed in the manner provided in the title Of Minority, Tutorship and Emancipation, and homo- logated by the court, or by one of its judges, or by the protho- notary.— C. S. L. 0. c, 86 s. 2—, 0. 78, s. 23 J C. N. 116. [1. 273.] 89. Curators to the property of absentees make oath faith- fully to fulfil the duties of their oflBce and to account. — 2 Pi. 610, fiUjC.L. 62. [1.275.] 90. The curator is bound to cause to be made, in notarial form, a faithful inventory and valuation of all the property committed to his charge, and for his administration he is liable to the same obligations as those to which tutors are subject.— Pi. 1. 0. : C. L. 52. [I. 275.] 91. The powers of such curator extend to acts of administration only ; he can neither alienate, pledge nor hypothecate the property of the absentee. — Ency. Absent j Arr. Lam. t. 6, Des Abs. p. 37-} Bav. & L. 137 -. [I. 275.J 9u. 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 author- iied to take provisional posses- sion of his property, in the cases provided by law. — ^Enoy. Absent ; Arr. Lam. t. 6> p. 37 -J 1 Bav. & L. 137. [1. 275.] CHAPTER SECOND. 07 THE PROVISIONAL POSSESSION OF THE BEIBS OF ABSENTEES. '''93. Whenever a person has ceased to appear at nis domi- cile or place of residence, and has not been heard of for a period of [five] years, his pre- sumptive heirs at the time of his departure or of the latest intelligence received, may obtain from the court authority to take provisional possession of his property, on giving security for tneir due administration of it. — Poth. C. 0. t. 17, n. 37 J Id. Sue. o. 3, s. 1, § 1 J Bret. Q. D. c. 3, p. 7, 8j3P. Fr. 3; C. N. 115, 120 j C.L. 68. [I. 275.] 94* Provisional possession may be authorized before the expiration of such delay, if it be established to the satisfac- tion of the court that there are strong presumptions that the absentee is dead. — Bret. Ab- sents, c. 3, p. 7j 1 Ency. 44 j Leb. Sue. 1. 1, c. 1.* 8. 1, n. 5; J. A. Arr. 2 jan. 1634, 23 mar. 1688 J 2 Bret. H. 1. 4, Q. 46 j 3 P. Fr. 14 J 10 N. D. Absent, 62; C.N. 117 J C.L. 61. [1.277.] 95. In pronouncing on such demand, the court takes into account the reasons of the absence and the causes which may have prevented the recep- tion of intelligence concerning the absentee. — Potk. C. 0. t. ABSENTEES. IT 17, n. 37 } Leb. Sue. 1. o. ; 0. N. 117 J C. L. 62. [1.277.] 96. Provisional possession is a trust which gives to those who obtain it, the administra- tion of the property of the absentee and makes them liable to account to him or to his heirs and legal representa- tives.— 0. N. 125. [I. 277.] :{( 97. Those who have obtain- ed provisional possession are bound to make an inventory, before a notary, of the move- able 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, and the costs are paid out of the absentee's property.] — The court which granted the pos- session may, if there be ground for it, order the sale of the moveables or of any part of them ; in which case, the price of such sale is invested, as are also all rents, issuThs and profits accrued. — Bi. Absence, p. 129 ; C. N. 126. [I. 277 J III. 373.] 98. If the absence have con- tinued during thirty years from the day of the disappearance, or from the latest intelligence received, or if a hundred years have elapsed since his birth, the absentee is reputed to be dead from the time of his dis- appearance or from the latest intelligence received ; in con- sequence, if provisional pos- session have been granted, the sureties are discharged, the partition of the property may be demanded by the heirs or others having a right to it. and the provisional possession becomes absolute. — Bi. Abs* 245, 248 ; Arr. Lam. Absents, o. 6, a. 4, p. 38 ; 2 Lam. M<;m. t. 6, AbB. p. 43 ; 3 P. Fr. 46, 7 j Bret. Aosonts, 13 ; Lah. 41, on a. 129 ; 1 N. D. Absence, 55 ; la Id. 70 ; J. A. Arr. 2 jan. 1634 ; 1 Guy, Absent, 68 ; 2 Demol. p> 71 J C.N. 129. [L277.] 99. Notwithstanding the presumptions mentioned in the preceding article, the succes- sion of the absentee devolves from the day on which he is proved to have died, to th& 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.— D. 31 j C. N. 130 ; C.L. 72. [1.279.] 100. If the absentee reap- pear, or if his existence be proved during the provisional possession, the judgment grant- ing it, ceases to have effect. — C.N. 131 J C.L. 73. [L279.} 101. If the absentee reap- pear, or if his existence d& proved, even after the expira- tion of the hundred years of life or of the thirty years of absence, as mentioned in ar- ticle 98, he recovers his pro- perty in the condition in which it then is, and the price of what has been sold, or the pro- perty arising from the invest- ment of such price. — 3 P. Fr. 45, 6; Bi. Abs. 245; 2 DemoK 283-9 J Merl. Q. H^ritier, 325, 328, 330-2 J 9 N. D. H^ritier, § 2, n. 16, p. 600 ; C. N. 132. [I. 279.] 102. The children and direct descendants of the absentee may likewise, within the thirty 18 ABSENTEES. '! years f^om the time at which the said possession becomes absolute, claim the restitution of his property, ai mentioned in the preceding article. — C. N. 133 : P. Fr. 1. o. : C. L. 75. [I. 579.1 103. After the judgment authorizing provisional posses- sion, persons having claims against the absentee can only enforce them against those who have been authorized to take Sossession. — Arr. Lam. t. 6, a. , p. 38 ; Bret. Absents, p. 15 ; Lam. Mdm. 44; C. L. 76; C. N. 134. [I. 279.] CHAPTER THIRD. OF THE EFFECT OF ABSENCE IN BLLATION TO CONTINGENT BIGHTS WHICH MAT ACCBUE TO THE ABSENTEE. 104:. Whoever claims a right accruing to an absentee must prove that such absentee was living at the time the right accrued; in default of such proof his demand is not admitted. — Poth. Sue. 8, 9, o. 1, 8. 2, a. 1 ; 1 N. D. Absence, § 2, p. 67; Bi. Abs. 157 — ; Poth. 0. 0. t. 17, n. 6, 7 ; 2 Demol. 4, 5 ; 1 Guy. Absent, 66 ; Lah. 43, on a. 135 ; 10 N. D. Absence, 70; Bret. Q. Absents, 9, 10; Arr. 2 jan. 1634; C. N. 135. [I. 279.] 105. If an absentee be called to a succession, it devolves exclusively to those who would have shared with him, or to those who would have sncceeded in his stead. — 10 N. D. Absent, 70 ; 1 Toul, n. 473-475, 400, 481 ; 4 Id. 306, 516; 7 Id. 34; 10 Id. 7 ; 2 P. Poul. 46, n. 7, 8; 3 P. Fr. 59 ; Bi. 287-9; C.N. 136. [1.281.] 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, his heirs and legal representatives, and are only extinguished by the lapse of time required for prescrip- tion.— 3 P. Fr. 60; C. N. 137. [L 281.] 107. So long as the ab- sentee 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. — 1 Merl. Absent, 94; Poth. Prop. n. 395-6 ; 1 Delv. n. 4, p. 50 ; C. N. 138. [I. 281.] CHAPTER FOURTH. OF THE EFFECTS OF ABSENCE IN BEL^TION TO MABBIAGE. 108* Th% presumptions of death arising from absence, whatever be its duration, do not apply in the case of marri- age; the husband or wife of the absentee cannot marry again without producing posi- tive proof of the death of such absentee. — Bi. Abs.' 30, 216- 232 ; 2 Demol. n. 7, 260 ; Demo. Abs. n. 511 ; 1 Zach. 315, 202; Dag. 28 Plaid ; R. de Vil. Abs. n. 343-4; 1 Merl. Absence, 96; 3 P. Fr. 61 ; 2 Lam. M6m. 42 ; 1 Id. Arr. 38; 10 N. D. 71; Bret. Q. Absert, 3, c. 1 ; Poth. Mar. n. 106; Ency. Ab^t- it, 45; 1 Guy. Absent, 67. [I- 281.] 109. If there be communi- ty of property between the li AB8KNTBE8. 19 consorts, such community is provisionally dissolved, from the day of the demand to that «ffect by the presumptive heirs, after the time required for ob- taining authority to take pos- session of the absentee's pro- perty, o' f'oi^ ^^® ^^^ ^^ ^he action that the consort who is present brings against them, for the same purpose ; and in these oases, the liquidation and partition of the property of the community may be pro- ceeded with on the demand of such consort, or of the persons authorized to take provisional possession, or of any other parties interested. — Poth. Com. n. 505 ,* 1 Guy. Absent, 69 ; 1 Char. D. 3 Puis. 220 j C. N. 124. [1. 283.] 110> In the cases provided for in the preceding article, the covenants and rights of the consorts, dependent on the dis- solution of the community, become effective and absolute. — 1 Lam. Arr. 37 ; 2 Id. M^m. 42; C. N. 124. [I. 283.] ill. If the husband be the absentee, the wife may obtain possession of all the matrimo- nial profits and advantages resulting from the law or from her marriage contract ; but on condition of giving good and sufficient security to account for and restore all that she shall have so received, should the absentee return. — 2 Lam. M^m. 42 ; 1 Ency. Absents, 49 ; Bret. Q. 4 ; C. N. 124. [1. 283.] 118* If the absent consort have no relations entitled to his succession, the consort who is present may obtain provi- sional possession of the proper- ty .—Poth. C. 0. t. 17, n. 35 ; ff. L. un. undd v. et ux. ; 1 Tonl. 411 J IDelv. 48; 3 P. Fr. 64 ; Lah. 45 } C. N. 140. [I. 283.] CHAPTER FIFTH. OP THE CARE OF MINOR CHILDREN OF A FATHER WHO HAS DISAP< FEARED. 113. If a father have dis- appeared, leaving minor chil- dren issue of his marriage, the mother has the care of such children and exercises all the rights of her husband as to their person and as to the ad- ministration of their property, until a tutoir is appointed.— Cod. arg. ex L. 1, ubi pup. edu. : 3 P. Fr. on a. 141, p. 65 ; 1 Toul. 389 ; 1 Dur. 438; C. N. 141. [1. 283.] 114. After the disappear- ance of the father, if the mother be dead or unable to administer the property, a provisional or a permanent tutor may be ap- pointed to the minor children. — Bret. Absents, o. 2, p. 6 ; 1 Guy. Absent, 68 ; 3 P. Fr. 65 j C. N. 142. [I. 283.] ICABBUOB. TITLE FIFTH. OF MARRIAGE. CHAPTER FIRST. OF THE QUALITIES AND CONDI- TIONS KEOESSAfiY FOB CON- TKACTINO MARRIAGE. 115. A man cannot contract marriage before the full age of fourteen years, nor a woman before the full age of twelve years. — Poth. Mar. n. 94 j Inst, t. de nupt. ; 3 P. Fr. 139 ; D. on a. 144 J C.N. 144. [1.283.] 116. There is no marriage when there is no consent. — Poth. Mar. n. 92, 93, 227, 307 j 3 P. Fr. 141 -- J C. N. 146. [I. 285.] *117. Impotency, natural or accidental, existing at the time of the marriage, renders it null ; but only if such impoten- cy be apparent and manifest. — This nullity cannot be invoked by any one but the party who has contracted with the impo- tent person, nor at any time after three years from the marriage. — Poth. Mar. 96, 445, 458 ; Merl. Congrds, n. 3, Im- Juissance, n. 2; 3 Demol. n. 2 J 6 Lo. L. C. 85 J 6 Id. 35 ; 2 Toul. n. 805 j 3 P. Fr. 275 ; 2 Dur. n. 67, 71 j A. D. Impuissance, n. 32, 36 ; C. N. 180, 313. [I. 285.] 118. A second marriage cannot be contracted before the dissolution of the first. — Poth. Mar. n. 103, 105 ; 3 P. Fr. 154; Lah.47; C.N. 147. [1.285.] 119. Children who have not reached the age of twenty-one years must obtain the consent of their father and mother before contracting marriage ^ in case of disagreement, the consent of the father suffices. —Poth. Mar. n. 324 - 328 ; Poth. Pers. pt. 1, t. 6, s. 2 J 3 P. Fr. 165; Del. 1639 : Dag. 30e Plaid J C.N. 148. [1.285.] 120. If one of them be dead or unable to express his will, the consent of the other suffices. — Cod. L. 25, de nupt. ; 3 P. Fr. 164, 178; C. N. 149. [I. 285.J 121. A natural child who has not reached the age of twenty-one years must be au- thorized, before contracting marriage, by a tutor ad hoc duly appointed for the purpose. —Cod. 1. 0. ; Poth. Mar. 342 ; C. N. 148, 149. [I. 285.] 122. If there be neither father nor mother, or if both be unable to express their will, minor children, before con- tracting 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 subject. — ff. L. 20, de ritu nupt.; Cod. L. 8, de nupt. ; 3 P. Fr. 189; Poth. Mar. n..321, 333, 334, 336; Lah. 52; 0. Bl. a. MABRIAOE. n 43 ; Del. 1721, a. 5; Dol. 1743, a. 12 ; Ed. et 0. R. ; 0. N. 160. [I. 285.] 123. Respectful requisitions to the father and mother are no longer necessary. [1. 285.] 124. In the direct line, marriage is prohibited between ascendants and descendants and between persons connected by alliance, whether they are legi- timate or natural. — Inst. 1. 1, t. 10; ff. L. 53, 54, de ritu nupt; Poth. Mar. n. 132, 148 i, f., 153 ; 3 P. Fr. 197, 198, 2d5 -- ; 1 Merl. Affinitd, § 1 ; C. N. 161. [I. 285.] 125. In the collateral line, marriage is prohibited between brother and sister, legitimate or natural, and between those connected in the same degree by alliance, whether they are legitimate or natural. — ff. L. 14, L. 39, de ritu nupt. ; Cod. L. 5, de incest, nupt. ; Poth. Mar. n. 133, 154, 158, 160 j 1 Toul. n. 537 J C. N. 162. [I. 285.1 126. Marriage is also pro- hibited between uncle and niece, aunt and nephew. — ^ff. 1. 0. ; Inst. De nupt. L. 39 ; 10 Merl. EmpSchement, § 4 ; Poth. Mar. n. 133, 146, 148, 164, 161 J C. N. 163. [I. 285.] 127* The other impediments recognized according to the different religious persuasions, as resulting from relationship or affinity ur from other causes, remain subject to the rules hitherto followed in the differ- ent churches and religious com- munities.*— The right, lilcewise, of granting dispensations from such impediments appertains, as heretofore, to those who have hitherto eAJoyed it.— 2 Stoph. 240, 284. [I. 287 ; III. 373.] OHAPTER SECOND. OF THE FOBMALITIES BELATINO TO THE SOLEMNIZATION OF MARRIAGE. 128. Marriage must be solemnized openly, by a com- {>etent officer recognized by aw.— C.N. 165. [1.287.] 129. All priests, rectors, ministers and other officers au- thorized by law to keep regis- ters of acts of civil status, are competent to solemnize mar- riage. — 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. — Poth. Mar. 346, 349, 354-360 ; 1 Rus. Cr. 192 - J 35 Geo. III. c. 4, s. 1 ; C. S. L. C. c. 20, 8. 16, 17 i C.N. 75. [1.287.] 130. The 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 if there be no morning service, at evening service, on three Sundays or holidays witfe reasonable intervals. If the parties belong to different churches, these publications take place in each of such churches. — Poth. Mar. 72-5, 356 ; 0. Bl. a. 40 ; Merl. Mar. § 4 J Whar. L. L. Bans ; 1 Rus. Cr. 189-; 2 Id. 190; 4 Geo. IV, c. 76, s. 6, 7 ; 2 P.. Fr. 321 "i 4 Geo. IV, c. 76, s. 2; 93 UARRIAOB. Low. Mar. 82 ; 0. N. 63, 160. [1.287.] 131a If the actual domioilo of the parties to be married has not been established by a resi- dence of six months at least, the publications must also be made at the place of their last domicile in Lower Canada. — Guy. Bans de Mar. 175 ; 0. N. 167. [I. 287.] 132. [If their last domicile be out of Lower Canada, and the publications have not been made there, the officer who, in that Cbse, solemnizes the marri- age, is bound to ascertain that there is no legal impediment between the parties.] [1. 287.] 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 ?ower such parties are. — Poth. 2, 357 ', C. N. 168. [I. 287.] 134. The authorities who have hitherto held the right to grant licenses or dispensations for marriage, may exempt from such publications. — Poth. 77, 78 ; 0. Bl. a. 40 ; 2 P. Fr. 324 ; 4 Geo. IV, 0. 76 j 35 Geo. Ill, 0. 4, s. 4 J C. N. 169. [I. 289.] 136. A marriage solemnized out of Lower Canada between two persons, either or both of whom are subject to its laws, is valid, if solemnized accord- ing 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. — 2 Merl. Bans. 436, 7j 1 Toul. n. 577; 1 Vaz. 314 J R. de Vil. Mar. n. 22 J 3 Fav. Rep. 30 j Poth. Mar. 327, 363 ; 1 Bouh. 390 ; C. N. 170. [I. 289.] CHAPTER THIRD, or OPPOSITIONS TO MARBIAOB. 136. The solemnizing of a marriage may be opposed by any person already married to one of the parties intending to contract. — Poth. n. 81 j 3 P. Fr. 241 J 0. N. 172. [I. 289.] 137. The marriage of a minor may be opposed by his father or, in default of the latter, by his mother. — Poth. Mar. 81 ; Merl. 0pp. k Mar. on a. 173; 1 Toul. 489; C. Cf. 173. [I. 289.] 138. In default cf both father and mother, the tutor or, in cases of emancipation, the curator may also oppose the marriage of such minor; 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. — Poth. Mar. 81; Merl. 0pp. h Mar. on a. 172 ; 1 Toul. 425, 490 ; 3 P. Fr. 248 ; 2 Fav. Mar. 8. 2, § 1, n. 3, p. 59; 1 Delv. 62; C.K. 176. [1.289.] 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 grand- mothers, the uncles and aunts, and the cousins-german, who are of full age, may opj^ose the marriage of their minor relative; but only in the two following cases : 1. When a family council^ IfARBIAGE. 23 which, according to article 122, should have heen consulted, has not been so ; 2. When the party to be married is insane. — Authorities under preceding article ; 2 Toul. 446, 7 } 0. N. 174. [1.289.] 1^0. 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 marri- age without consulting a family council, the opposant must cause a tutor ad hoe to be appointed; in order that such tutor, curator, or tutor ad hoc may represent the interests of the minor in such opposition.— [I. 289.] 14:1< [If a person about to be married, being of the age of majority, be insane, and not interdicted, the following per- sons may oppose the marriage, in the following order : 1. The father, and in his de- fault> the mother; 2. In default of both father and mother, the grandfathers 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 mooting of a family council, which should be consulted as to the interdic- tion.] 3 P. Fr. 246, 7; C.N. 174. [1.291.] 142I. 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 delay.— 3 P. Fr. 247 ; Poth. Mar. n. 81 ; Merl. 0pp. au Mar. 98 — , & n. 4 on a. 174; C. N. 174. [I. 291.1 143. [Whatever 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 pro- ceeded with, notwithstanding. —3 P. Fr. 254. [I. 291.] 144. The Code of Civil Procedure contains the rules as to the form, contents and notifications of oppositions to marriage, as well as those relative to the peremption mentioned in the preceding article, and to the other pro- ceedings required. — C. N. 176 ; [I. 291.] 145. 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 is to be solemnized, or before a judge of such court. — 3 P. Fr. 253; C.N. 177. [1.291; III. 373.1 146. Proceedings upon ap- peals from such judgments are summary and take precedence. u MARRIAQE. ■I ill —3. P. Fr. 253,4; C. N. 178. [1.291.] 147. If the opposition be rejected, the opposants, other than the father and mother, may be oondomnod to pay costs, and are liable for damages according to circumstances. — 3 P. Fr. 255, 6 J C. N. 179. [I. 291.] CHAPTER FOURTH. or ACTIONS FOB ANNULLING UABBIAOE. 148. A marriage contracted without the free consent of both parties, or of one of them, can only bo 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. — Poth. Mar. 444, 308 j 3 P. Fr. 146, 7 j Merl. Mar. s. 1, § 2 ; 8. 6, § 2 ; C. N. 180. [I. 291.] 149. [In the oases 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.] — 0. N. 181. [I. 291.] 150. A marriage contracted without the consent of the father or mother, tutor or curator, or without the advice 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. — Poth. 1. 0. & 447; C. N. 182. [I. 291.] 151> [In the cases of articles 148 and 150, an action for an- nulling 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 tnose whose con- sent was necessary ; nor if six months have been allowed to elapse without complaint on their part since they became aware that the marriage had taken place]. — Poth. Mar. n. 446 ; Id. Pers. pt. 1 t. 6. s. 2 ; 3 P. Fr. 207,268; C. N. 183. [1.293.] 168> Any marriage con- tracted in contravention of ar- ticles 124, 125 and 126, may be contested either by the par- ties themselves, or by any of those having an interest there- in.— Poth. 444, 449, 451 ; 3 P. Fr. 271-275; C.N. 184. [1.293.] 153. But a marriage con- tracted 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 pro- per age ; 2. When the wife, under that ago, has conceived before the termination of the six months.— Poth. 94, 95 ; P. Fr. 275, 281 ; C. N. 185. [I. 293.] 154. The father, mother, tutor or curator, or the rela- tions who have consented to the marriage, in the cases men- tioned in the preceding article, are not allowed to seek the nullity of such marriage.— Poth. 446; 3 P. Fr. 282-3; C. N. 186. [1. 293.] MASRUOI. 35 16B* In the oasos referred to in article 152, where the action for annulling the mar- riage belongs to all those interested, the interest must be existing and actual, to permit the exercise of the right of action by the grandparents, collateral relatives, children bom of another marriage, and third persons. — Poth. Mar. n. 1; 10 Merl. Q. 9 5, p. 19; Merl. Mar. 483 ; Lah. on a. 187 ; liOb. Sue. I. 3, c. 6 ; 3 P. Pr. 283 " J C. N. 187. [I. 293.] 156. Every marriage which has not been contracted open- ly, nor solemnized before a competent officer, may be con- tested by the parties them- selves and by all those who have an existing and actual interest, saving the right of the court to decide according to the circumstances. — Poth. Mar. 361, 362, 461 J 0. N. 191. [I. 293.] lo7< [If the publications required were not made, or their omission supplied by means of a dispensation or license, or if tho legal or usual intervals for the publications or the solemnization have not elapsed, the officer solomnizing the marriago under such cir- cumstances, is liable to a pen- alty not exceeding five hundred dollars.]~C. N. 192. [I. 293.] 158. [Tho penalty imposed by the preceding article is in like manner incurred by any officer who, in the execution of the duty imposed upon him, or which he has undertaken, as to the solemnization of a mar- riage, contravenes the rules prescribed in that respect by the different articles of the f resent title.]— 0. X. 193} oth. Mar. 364. [1.293.] 159« No one can claim tho title of husband or wife and the civil effects of marriage, unless he produces a cortifloate of the marriage, as inscribed in the registers of civil status, except in the cases provided for by article 61.— Poth. 378 j 0. 1667, t. 20, a. 7 J C. N. 194. [I. 296.] 160* Possession of the sta- tus does not dispense those who pretend to be husband and wife, from producing the certi- ficate of their marriage. — Poth. 374-378} 0. 1667, t. 20, a. 8} Del. 1736; 3P. Fr. 319} C.N. 196. [I. 295.] 161. When the parties are in possession of tho status, and the certificate of their marriage is produced, they cannet de- mand the nullity of such act. — 3 P. Fr. 322 } C. N. 196. [I. 295.1 162> Nevertheless, in the case of articles 159 and 160, if there be children issue of two Eersons who lived publicly as usband 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 uncontradicted by the act of birth. — Cod. L. 9 de nupt. ff. L. 14, De probat. ; 1 Coch. PI. Bourjolasj 3. P. Fr. 325- 337; Merl. L6gitimit<5, s. 1 § 2, p. 28; 1 Toul. 320, 498 ; 2 Id. 151; 1 Delv. 173; C. N. 197. [I. 295.] 163. A marriage although 26 UABBIAOE. declared null, produces civil effects, as well with regard to the husband and wife as with regard to the children, if con- tracted in good faith. — Poth. 'Mar. 104, 437, 438, 419, 441, Sue. c. 1, s. 2r a. 3, §4, Com. Intr. n. 17 j C. 0. t. 17, n. 13 j Merl. L^gitimite, s. 1, § 1, n. 8 J C.N. 201. [1.295.] 164:> If good faith exist on the part of one of tho parties only, the marriage produces civil effects in favor of such party alone and in favor of the children issue of the mar- riage.-— Poth. Mar. 439, 440 j Com. 20; Sue. o. 1, s. 2, a. 3, § 4j C. 0. t. 17, n. 13 J D. 45: C. N. 202. [I. 295.] CHAPTER FIFTH. OF THE OBLIGATIONS ABISINO FBOM MABBIAGE. 165> Husband and wife con- tract, by the mere fact of marriage, the obligation to maintain and bring up their children.— Poth. Mar. 384, 394 j Mori. Aliments, § 1, a. 1, n.-S, 5, 6 ; ff. L. 4, 5, de agn. & alend. lib. J 2 Toul. 2,237 J 1 Delv. 91 j C. N. 203. [I. 295.] * 166* Children are bound to maintain their father, mother and other ascendants, who are in want. — Poth. Ob. 123 ; Mar. 389, 390, 392, 393, 395; Pdrs. &1, t. 6, 8. 2 ; Intr. n. 117 ; 1 arc. n. 722; C. N. 205. [I. 295.] ^167. Sons-in-law and daughters-in-law are also ob- liged, in like circumstances, to maintain their father-in-law and mother-in-laWy but the obligation ceases : 1. When the mother-in-law contracts a second marriage ; 2. Whenthe consort, through whom the affinity existed, and all the children issue of the marriage, are dead. — 3 P. Fr. 360; C.N. 206. [1.295.] 168* The obligations which result from these provisions are reciprocal. — Poth. Mar. 386-7; Merl. Aliments, § 2 bis. n. 2 ; 2. Toul. 3 ; 1 Delv. 92 : C. N. 207. [I. 297.] 169* Maintenance is only granted in proportion to the wants of the party claiming it and tho fortune of the party by whom it is due. — Poth. 1. o. ; Mar. 385, 389, 390; P. Fr. 356-364 ; C. N. 208. [I. 297.] 170' Whenever the condi- tion of the party who furnishes or of the party who receives maintenance is so changed that the one can no longer give or the other no longer needs the whole or any part of it, a discharge from or a reduction of such maintenance may be de- manded.— 3 P. Fr. 364 ; C. N. 209. [1. 297.] 171* If the person who owes a maintenance, justify that he cannot pay an alimentary pen- sion, the court may order such person to receive and* maintain m his house the party to whom such maintenance is due. — Poth. Mar. n. 391 ; Pers. p. 1, t. 6, § 2 ; Merl. Aliments, § 1 ; Lah. 71 : C. N. 210. [I. 297.] 172. The court likewise de- cides whether the father or mother, who, although able to pay, offers to receive and main- tain the child to whom a main- tenance is due, shalV in that case be exempted from paying UABBIAGE. 87 an alimentary pension. — Poth. Mar. 391,394,395; 1 Soe. cent. 3, c. 100 J 2 Desp. 241, n. 67 j P. Fr. 366, 369 J C. N. 211. [I. 297.] CHAPTER SIXTH. OP THE RESPECTIVE EIGUTS AND DUTIES OF HUSBAND AND WIPE. 173. Husband and wife mutually owe each other fideli- ity, succor and assistance. — Poth. Mar. 380, 882; Merl. Aliments, § 3, n. 5; 1 Marc. 548, n. 724; C. N. 212. [I. 297J 174. A husband owes pro- tection to his wife; a wife obedience to her husband. — Poth. Mar. 382, 400, P. Mar. n. 1 ; 1 Toul. 14 ; 1 Delv. 79 ; C. N. 213. [I. 297.] ^ 175. A wife is obliged to live with her husband, and to follow him wherever he thinks fit to reside. The husband is obliged to receive her and to supply her with all the neces- saries of life, according to his means and condition. — Poth. Mar. 382, P. Mar., 1 C. 0. 1. 10, n. 143 ; 3 P. Fr. 376 ; C. N. 214. [I. 297.] *176. A wife cannot appear m judicial proceedings, with- out her husband or his author- ization, even if she be a public trader or not common as to pro- perty ; nor can she, when sepa- rate as to property, except in matters of simple administra- tion.— 0. P. a. 224, 234; Poth. Ob. 878, P. Mar. 15, 55, 66, 61, 62, 0. 0. t. 10, n. 201; 3 P. Fr. 378-387; 0. N. 215. [I. 297; III. 373.] i^ 177. A wife even when not common as to property, cannot give nor accept, alienate, nor dispose of property inter v%vo0, nor otherwise enter into con- tracts or obligations, unless her husband becomes a party to the deed, or gives his consent in writing ; saving the provisions contained in the act 25 Yict.» 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. —Poth. Ob. 60, 52, P. Mar. 2, 15, 34, 42, 43, 71, Prop. 7, Com. 622, 0. 0. t. 16, n. 6; Merl. Autorit^ marit. s. 2, § 3, n. 2 ^ 3 Mai. 262 ; 2 Lo. E. C. 510 — ; C. N.217. [I. 297; III. 373.] 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. — C. P. 224; Poth. P. Mar. 12,. 57, 59, C. 0. t. 10, n. 201 ; a P. Fr. 421-424; Merl. AutoritS marit. s. 8, n. 2 — ; 5 Toul. 78,209; 0. N. 218. [1.299.] 179. A wife who is a public trader may, without the au- thorization of her husband, ob- ligate herself for all that re- lates to her commerce ; and in such case she also binds her husband, if there be community between them. — She cannot become a public trader with- out such authorization express or implied.— 0. P. 235, 236; Poth. P. Mar. 20, 21, 22, C. 0. 1. 10, n. 196-197 ; Arr. Lam. t. 32, a. 82 ; C. N. 220. [1. 299 ; III. 373.] 180. If a husband be inter- dicted or absent, the judge may authorize his wife, either iB HABBIAQB. to appear injudicial proceed- ings or to contract. — Poth. P. Mar. 25 -28 J 3 P. Fr. 397, 398; Fen. Poth. on a. 222, p. 67 J 0. N. 222. [I. 299.] 181* All general authoriza- tions, even t^se stipulated by marriage contract, are only valid in so far as regards the administration of the wife's property. — Poth. Com. Intr. 5 j P. Mar. 67 ; Den. Ac. de notor. 22 Fdr. 1695, 12 Nov. 1699, 23 F^v. 1708 ; Lepr. cent. 1, o. €7 J 3 P. Fr. 435 j C. N. 223. [I. 299.] 18 2i A husband although a minor may, in all cases, au- thorize his wife who is of age ; if the wife be a micor, the au- thorization of her husband, whether he is of age or a minor, is sufBcient for those cases only in which an emancipated minor might act alone. — 1 Mai. 208 ; Lac. Autorisation, n. 6; 3 P. Fr. n. 206, p. 436 ; 2 Merl. Au- torisation, s. 5, § 2, p. 182, 183 ; O. N. 224. [I. 299.] 183* The want of authoriza- tion by the husband, where it is necessary, constitutes a cause of nullity which nothing can cover, and which may be taken advantage of by all those who have an existing and actual in- terest in doing so. — Poth. P. Mar. 74, 75 ; 2 Merl. Autorisa- tion, 174, 175 J 2 Toul. n. 661 j 1 Marc. n. 749, n. 1, p. 567 ; 2 Demo. 436; 3 Zach. 343; 2 Dur. n. 515; 1 Dels. 204; C. N. 225. [I. ,299.] 184. A. wife may make a will without the authorization of her husband. — Poth. P. Mar. 43, 47 ; Test. o. 3, s. 1 ; 3 P. Fr.442; C. N. 226. [1.299.] CHAPTER SEVENTH OF THE DISSOLUTION OF UAB- BIAOE. 185> Marriage can only be dissolved by the natural death of one of the parties ; while both live, it is indissoluble. — Poth. Mar. 462, 467 ; Gou. on a. 25, 94 ; 3 P. Fr. 446 ; 2 Dur. n. 520 ; C. N. 227. [I. 299.] TITLE SIXT H. OF SEPARATION FROM BED AND BOARD. CHAPTER FIRST. •OF THE CAUSES OP 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 <}on8ent of the parties. — Lao. Separation, n. 9, p. 639 ; Poth. Mar. 517 ; 2 Pi. 200, 213, 240 ; 1 MaL 272; 4 P. Fr. 149; C. N. 306. [L 301.] 187. A husband may de- mand the separation on the ground of his wife's adultery. —Poth. Mar. 525) 2 Pi. 239 j 0. N. 229. [I. 301.} SEPARATION FBOM BED AXD BOARD. M 188i A wife may demand the separation on the ground of her husband's adultery, if he keep his concubine in their common habitation. — Cod. L. 8 Do repud. j Nov. 22, o. 15, § 1 j 117, 0. 9, § 6 J Lao. Adult5re, 13} Guy. AdultSro, 196; 2 Pi. 209, 210, 211, 223 j Merl. Adul- t6re, 243, n. 8 bis j C. N. 230. [1.301.1 189i Husband and wife may respectively demand this separation on the ground of outrage, ill-usage or grievous insult committed by one toward the other.— 2 Pi. 236-9 j Gou. 96 J 4 P. Fr. 36: C. N. 231. [I. 301.] 190. The grievous nature and sufficiency of such outrage, ill-usage and insult, are left to the discretion of the court which, in appreciating them, must take into consideration the rank, condition and other circumstances of the parties. — Poth. 608 J 2 Pi. 203 : Gou. 96. [I. 301.] 191* The refusal of a hus- band to receive his wife and to furnish her with the necessaries of life, according to his rank, means and condition, is another cause for which she may de- mand the separation. — Poth. 511 J 2 Pi. 205. [I. 301.] CHAPTER SECOND. or THE FORMALITIES OP THE ACTION FOR SEPARATION FROM BED AMD BOARD. 192i The action for sepa- ration from bed and board is brought before the competent court of the district in which the consorts have their domi- cile.— Poth. 518; 2 Pi. 214; 0. N. 234. [I. 301.] ^193* This action is brought, tried and decided in the same manner as all other civil ac- tions, with this difference, that the parties cannot admit the allegations, proof of which must always be made before the court.— Poth. 619; 1 Pi. 228; 2 Pi. 226 ; 4 P. Fr. n. 127 -, 162; C.N. 307. [1.301.] 194* The wife must apply, by a petition setting forth ner 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. — ^Poth. 518; 2 Pi. 216. [1.301.] 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.— Poth. 1. c; 2 Pi. 218; O.N. 268. [1.303.] 196. The action for separa- tion from bed and board is ex- tinguished by a reconciliation of the parties taking place either since the facts which gave rise to the action, or after the action brought. — ^Poth. 620 ; 2 Pi. 219 ; 0. N. 272. [I. 303.] 197. In either case the action is dismissed. — The plaintiff may nevertheless bring another, for any cause which has happened since the recon- ciliation, and may in such case make use of the previous causes in support of the new action.— Poth. 620; 2 Pi. 219; C. N. 273. [I. 303.] 198. If the action be dismissed the husband is obliged to take 80 SEPARATION FROM BED AND BOABD. li^ back his trife, and the wifo is obliged to return to her hus- band, within such delay as the court by its judgment deter- mines.— Foth. 521 ; 2 Pi. 232 ; 5 P. Fr. 77. . [I. 303.] 199i When the action is brought for outrage, ill-usage, or grievous insult, although the same be well established, the court may refuse to 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 reconcilia- tion.— Pi. 231 J 2 Dur. n. 610 ; C.N. 259. [1.303.] CHAPTER THIRD. OF THE PBOVISIONAL UEASUBES TO WHICH THE ACTION FOE 8EPABATI0N FBOM BED AND BOABD MAY GIVE BISE. 800. The provisional care of t'le children remains with the father, whether plaintiff or defendant, unless the court or judge orders otherwise for the greater advantage of the child- ren.— 14 P. Fr. 90, n. 66 j Mas. Separation, 151 — ; 4 Lo. £. C. 332 - : C. N. 267. [I. 303.] 201* A wife sued in separa- tion may leave her husband's domicile , and reside during the suit in a place indicated or approved of by the court or judge.— Poth. 518. [I. 303.] *fi02. 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 ne'cessary, to deliver to the wife at the place to which she has withdrawn, the clothing she may require. — Poth. 1. c. j 2 Pi. 216 ; 2 Dur. n. 695, 612; C.N. 268} F. C. P. 878. 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 dismissed, saving her re- course, should she refuse to obey the order ^iven her to return within a given delay to the place she has thus quitted.] —2 Dur. n. 578: C. N. 269. [I. 303.] 204. A wife who is in com- munity 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 arti- cles 195 and 201, obtain per- mission from the court or judge to cause the moveablo effects of such community to be at- tached for the preservation of the share which she will have a right to claim when the par- tition takes place; in conse- quence of which, her husband is bound as judicial guardian, to represent the things seized or their value when required. —2 Toul. 59; 2 Pi. 184; 1 Mai. 250; 4 P. Fr. 64; C. N. 270. [1.303.] 205* AH obligations con- tracted by a husband, affecting the community, and all alien- ations made by him of the immoveable property of such community, subsequent to the rendering of the order men- 8EPABATI0N FROM BED AND BOABD. 81 tioned in articles 195 and 201, are declared null, if it be established that such obliga- tions or alienations were con- tracted or made in fraud of the rights of his wife.— 4 P. Fr. 96 ; C. N. 271. [I. 306.] CHAPTER FOURTH. OP 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 con- tract a new marriage while both are living. — Poth. 523. [I. 305.] 2l07> The separation re- lieves 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. — Poth. 622 J Bouh. C. B. c. 22, n. 201; 2 Toul. n. 773 j Proud. C. D. F. c. 19, § 3 J Mas. 198 j 4 P. Fr. 163. [1.305.] 208. Separation from bed and board carries with it sepa- ration of property j it deprives the husband of the rights which ho bad 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, tne separation also gives the wife the right to claim the benefit of all the gifts and aJvantages conferred on her by the marriage contract; sav- ing the rights of survivorship, to which such separation does not give rise, unless the con- trary has been specially stipu- lated.— Poth. 522 J 4P.Fr.l63, 4;C.N. 311,1452. [1.306.] 209. When community of property exists, the separation operates its dissolution, imposes on the husband the obligation of making an inventory, and gives to the wife, in case of acceptance, the right to de- mand the partition of the pro- perty, unless by the judgment she has been declared to have forfeited this right. — Poth. 1. c. j 4 P. Fr. 1. 0. [I. 305.] *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 j but for all acts and suits tend- ing to alienate her immoveable property, she requires the au- thorization [of a judge.]— Poth. 1. C.J 4 P. Fr. 164. [I. 305.1 211. For whatever cause the separation takes place, the party against whom it has been declared, loses all the advanta- ges granted by the other party. —2 Pi. 233 ; 1 N. D. 291 ; 8 Id. 543 ; 4 P. Fr. 135, 6 ; 2 Dur. n. 629 J 1 Pail. 110, 11 j Lah. on a. 299 ; Mas. 297, 299, 305, 306 ; 4 A. D. Revocation, 286 j 16 Merl. 61; 2 N. Pi. 571 ; 1 Mai. 269 ; C. N. 299, 1452, [1. 305.] 212. The party who has ob- tained the separation retains all the advantages granted by the other, although they may I have been stipulated to be re- ' ciprocal and the reciprocity 32 FILIATION, does not take place. — 2 Pi. 233, 234; 4 P. R-. 135: C.N. 300. [1.307.] 213. Either of the parties thus separated, not having stiffioient means of subsistence, may obtain* judgment against the other for an alimentary pension, which is fixed by the court, according to the condi- tion, means and other circum- stances of the parties. — ^Mas. 194 J 2 Dur. n. 633; 4 P. Fr. 165, n. 134; 2 Pi. 234; 2 Toul. n. 780 ; 1 N. D. Aliments, 453 ; Merl. Aliments, § 3, p. 176 ; C. N.301. [1.307.] 214:* The children are en- trusted 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 entrust- ed to the dare of the other party, or of a third person. — 2 Pi. 233; 9 Fen. T. P. 486; Mas. 321, 322 ; 1 Pail. Ill ; 2 Dur. 680, n. 636 ; 1 Rog. 205 ; C. L. 153; C. N. 302. [I. 307.] 215. Whoever may be en- trusted with the care of the children, the father and mother respectively retain the right of watching over their mainun- ance and education, and are obliged to contribute thereto in proportion to their means. — 2 Pi. 233; 4 P. Fr. 140, 141; a N. 303. [I. 307.] 216. Separation from bed and board judicially declared does not deprive the children, issue of the marriage, of any of the advantages allowed them by law or by the marriage covenants of their father and mother; but these rights only become open in the same way and under the same circum- stances as if there had been no such separation.— 4 P. Fr.l^; C. N. 304. [I. 307.] 217. Husband and wife thus separated, for any cause whatever, may at any time re- unite and thereby put an end to the elects of the separation. — By such reunion, the husband reassumes all his rights over the person and property of his wife, the community of proper- ty is re-established of right and, for the future, is consider- ed as never having been dis- solved. — Poth. Mar. 624; C. N. 309. [I. 307.] TITLE SEVENTH. OF FILIATION. CHAPTER FIRST. OP THE FILIATION OP CHILDREN WHO ABB LEGITIMATE OR CON- CEIVED DURING MARRIAGE. 218. A child conceived dur- ing 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 mar- riage was solemnized, or within riLIATIOK. 3S three hundred days after its dissolution, is held to have been conceived during marriage. — Author, under next article. C.N. 312. [1.307.1 219> 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 ho is not the father.— 8 N. D. 5 — j £f. L. 6, de h. q. sui vel al ; f£. L. 11> § 9f ad leg. jul. de adult. ; 3 Hen. I. 6, c. 5, q. 38, p. 850-4 ; Leb. Sue. 1. 1, c. 4, s. 2, n. 6, p. 62; 2 Toul. n. 789; Merl. L^gitimit^, s. 2, § 2, n. 4, 5; 4P.Fr. 186, 7; C. N. 313. [I. 309.] 220' Neither can the hus- band disown the child on the ground of his impotency, cither natural or caused by accident 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 exist- ing at the time of the marriage, of distance, or of any other cause, in the physical im- possibility of meeting his wife. — ff. L. 6, de h. q. sui. vel al. ; Leb. Sue. 1. 1, c. 4, s. 2, n. 3, 4 ; 3 Hen. 1. 6, o. 6, q. 38, p. 850- 854; Merl.L6gitimit6,B. 2, § 2; Guy. L6gitimit6, 379 - ; 2 Toul. n. 791, 799 ; 4 P. Fr. 179, 180, 183 J C. L. 208; C. N. 312, 313. [1.309.] 221. A child born before the one hundred and eightieth day after the marriage was solemnized, may be disowned by the husband.— ff. L. 12, de Stat. homi. ; Ood. L. 4, de posth. hoer; Poth. Sue. 8; Guy. L6- gitimit^, 372 ; 2 P. Fr. 181; 2 Toul. n. 791 ; 2 Boi. 62, 66, 67 f O.N. 314. [1.309.] 222. Nevertheless a child bom before the one hundred and eightieth day of the marri- age, cannot be disowned by the husband in the foPowing oases : 1. If he knew of the preg- nancy 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 cannot sign ; 3. If the child be not de- clared viable. — 2 Toul. n. 821 -; 4 P. Fr. 188,9; Merl. L6- gimit^, s. 2, § 1, n. 4; C. N. 314. [1. 309.] 223* [In all the oases where the husband may disown the child, he must do so : 1. Within 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 *ho discovery of the fraud, if the birth have been concealed from him.]— C. N. 316; C. L. 210. [I. 309.] 224. [If the husband die before disowning the child, but still being within the delay allowed for so doing, the heirs have two months to contest the legitimacy of the child from the time he has taken posses- sion of the property of the hus- band, or from the time that the heirs have been disturbed by him in their possession.] — C. N. 317; C. L. 211. [1.309.] 225* [Such disavowal, on Zi filiation; the part of the husband or of his heirs, must be made by an action at law, directed against the tutor, or tutor ad hoc, appointed to the child, if ho be a minor; and the mother, if living, must* be made a party to the action.] — 2 Marc. 22 ; 5 Bemol. n. 164, 170, 365; 4 P. Fr. 192, 3 ; 6 Loc. B. C. 112 - ; Rog. on a. 318 ; 2 Boi. 88 ; 2 Toul. n. 842, 3; C. N. 318. [I. 309.] 226* If the disavowal do not take place, [as prescribed in the present chapter], the child which might have been disowned is held to be legiti- mate. — (Consequence contrario of this chapter.) [I. 311.] 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. — (Author, under a. 219.) ff. L. 3, § 11, de fiuis et legit, hser; Fer. D. Naissance ; Guy. e. v. ; Fer. C. P. a. 118, gl. 3, s. 2, § 1, n. 22- 24; Lcb. Sue. 1. 1, o. 4, s. 1, n. 12 ; Merl. L6gitimit<$, s. 2, § 3; 2 Fav. de Lang. conf. on a. 315, p. 273 ; 1 Mai. 280 ; CJ. N. 315. [I. 311.] CHAPTER SECOND. OF THE EVIDENCE OP THE FILI- ATION OF LEGITIMATE CHILDBEN. 228. The filiation of legiti- mate children is proved by the acts of birth inscribed in the registers of civil status. — flf. L. 14 de prob. ; Cod. L. 15 de prob. ; C. S. L. C. c. 20, § 13 ; €. N. 319. [I. 311.] 229' In default of such act, the uninterrupted possession of the status of a legitimate child is sufficient. — Cod. L. 9, de nupt. ; 4 Dag. 47th PL; 2 Coch. 43 ~ ; 2 Desp. 35 ; 3 P. Fr. 198, 9 ; C. L. 213 ; 0. N. 320. [1. 311.] 230* Such possession is established by a sufficient concurrence of facts, indicating the connection of filiation and relationship between the indi- vidual and the family to which he claims to belong. — Cod. L. 9 de nupt. ; N. D. Etat, 9 — ; 1 Bour. 17, 18 ; 2 Coch. 43 — ; 2 Dag. 256; 2 Toul. n. 871 - ; 5 Loc. E. C. 125 -; C. N. 321. [I. 311.] 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 conformable to his act of birth. — 2 Coch. 107; 4 Coch. 345; N. D. Etat, (Q. d') 9 ; 2 Toul. n. 881 ; 6 Demol. n. 219; 3 P. Fr. 200; C.N. 322. [1.311.] 232. In default of the act of birth and of an uninterrupted 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 bo made by testimony ; nevertheless this evidence can only be admitted when there is a com- mencement of proof in writing, or when the presumptions or indications resulting from facts then ascertained, are suffi- ciently strong to permit its admission. — Cod. L. 2 de test.; L. 6 de fide instr. ; L. 9 de nupt.; FILIATION. 35 Arr. 16 Mar. 1641 j 0. 1667, t. 20, a. 14 J Guy. L6gitimit6, s. 2, § 4, n. 6 ; 4 Coch. 344, 346, 483,486; Lao. Etat, 270 j C. S. L. C. 0. 20, 8. 13 i Merl. Nais- sance J Id. Q. d'dtat, § 1 - j 2 Toul. n. 883 j 4 P. Fr. 201, 2 ; 6 Lo. 140, 1 J C. N. 323. [I. 311.1 233' 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 writings pro- ceeding from a party engaged in the contestation, or who would have had an interest therein had he been alive. — ff. L. 29, de prob. j 0. 1667, t. 20, a. 14 J 5 Lo. 141-3 j 2 Toul. n. 890 - ; Bod. 1667, t. 20, a. 14; C. S. L. C. c. 20, s. 13 J 4 P. Fr. 203 : C. N. 324. [I. 313.] 234k> 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. — C. S. L. 0. c. 20, a, 13 J 1 Jou. 0. 1667, t. 20, a. 1, p. 344 J 2 Toul. n. 820, 893 - j 4P. Fr. 204, 5; C. L. 216 j C. N. 325. [L 313.] 235> The action of a child to. establish his status is im- prescriptible.— 2 Toul. n. 908 ; 2 Marc. 35, 36 ; Lah. on a. 328; C. N. 328. [I. 313.] 236* Thir 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 J but they may con- 7 tinue the action already brought. — fif. L. 1, ne de stat. def. J Dun. p. 2, o. 7, p. 169 — ; 2 Hen. 1. 4, q. 28 j Lac. 270, 1, Etat, n. 4 J 2 Marc. 36 — ; 1 Bi. Exp. 102 J 2 Toul. n. 911 -j Merl.L6gitimit6, s. 4, § 1, n. 1, p. 471 "J C.N. 329. [1.313.] CHAPTER THIRD. OP ILLEGITIMATE CHILDREN. 237. Children born out of marriage, other than tho issue of an incestuous or adulterous connection, are legitimated by the subsequent marriage of their father and mother. — Poth. Mar. n. 408, 411, 412, 415, 422, Pers. t. 4, p. 601, 602, Sue. s. 2, 0. 1, a. 8, § 5, p. 20 j Fen. Poth. on a. 331, p. 77, 78 j 2 Toul. n. 924 J 1 Bi. Code Civil, 104; 2 P. Fr. 80 ; 2 Marc. 43 1 C. L. 217; C.N. 331. 11.313.] 238' Such legitimation takes place even in favor of the de- ceased children who have left legitimate issue, and in that case it benefits such issue.— Inst, de hoer q.; Poth. Mar. n. 413, Sue. s. 2, a. 3, § 5, q. 4, p. 23; 2 P. Fr. 87; 4 lb. 223, 4; 2 Toul. n. 931 -; C. L. 218; C.N. 332. [I. 313.] 239. Children legitimated by a subsequent marriage have the same rights as if they were born of such marriage. — Poth. Mar. n. 421 ; Id. Sue. c. 1, s. 2, a. 3, § 5, q. 4; Leb. Sue. n. 16, 17, p. 24; 2 Toul. n. 929; 2 Marc. 48; 4 P. Fr. 225-228; C.L. 219; C.N. 333. tL313.] 240. The forced or volun- tary acknowledgment by tho father or mother of their il- legitimate child, gives the I 36 PATEEKAL AUTHORITY. latter the righL to demand maintenance from each of them according to circumstances.-— Lao. Batard, n. 6; Quy. Ali- ments, 318; 2 Boi. 122; 2 P. Fr. 229j C.N. 338. [I. 313.] 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 condi- tions and restrictions set forth in articles 232, 233 and 234.— Four. S. 129 -J Merl. Filia- tion, n. 2; 2 Toul. n. 937, 967; 1 Gin, 197--; 0. N. 340, 341. [I. 316.] TITLE EIGHTH. OF PATERNAL AUTHORITY. 24:2. A child, whatever may be his age, owes honor aud respect to his father and mother. — S. L. 9, de obs. ; L. 6, de in jus voo. ; Nov. 12, c. 9 ; Poth. Mar. n. 389, Pers. 604; 3 Dom. 16 ; 4P. Fr. 317; Poo. Puis. pat. 30 ; 1 Gin, 220 ; C. L.233; C. N. 371. [1.315.] 243. He remains subject to their authority until his ma- jority or his emancipation, but the father alone exercises this authority during marriage ; saving the provisions contained in the act 25 Vict. chap. 66. — if. 1. 60, t. 16, L. 196 ; Inst. 1. 1, t. 2 and 12 ; Poth. Mar. n. 389, 399, Pers. 604-6, Intr. t. 9, n. 2 ; Arr. Lam. t. 2, a. 1 — ; 2 Toul. n. 1041-6-9. 1176 j 2 P. Fr. 306; 4 P. Fr. 3.34, 327 - ; C. L. 234; 0. N. 372, 373. [I. 316.] 244. An unemancipated minor cannot leave his father's house without his permission. —Poth. Pers. t. 6, s. 2 ; Merl. Puis. pat. 8. 3, § 6 ; 2 Toul. n. 1046-7 ; Poc. 32 ; 4 P. Fr. 328; 0. L. 236 ; C. N. 374. [L 316.] 245. The father and, in his default, the mother of an un- emancipated minor have over him a right of reasonable and moderate correction, which may be delegated to and exer- cised by those to whom his edu- cation has been entrusted.^ Poth. Pers. 605 ; Poc. 32 ; 6 J. A. 1. 12, 0. 26 ; Dou. Can. Abs. 86 ; Arr. Lam. t. 3, a. 18 ; Cug. 121; Poth. Garde 371; N. D. Garde, 183, 201; 2 Toul. 1050; Fen. Poth. 85 ; 1 Gin, 224,227, 240, 242 ; 4 P. Fr. 360 -, 357- 8 ; C. L. 236 ; C. N. 875. [I. 316.] 87 TITLE NINTH. OP MINORITY, TUTORSHIP AND EMANCIPATION. CHAPTER FIRST. OP MINORITT. 246. Persons of either sex remain in minority until they attain the full age of twenty - one years. — 0. S. L. 0. c. 34, s. 1 J 4 P. Fr. 474 j 10 Fen. 644 -- : 0. N. 388. [I. 316.] 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 firom majority. — Guy. Emanci- pation, 669, 660. [I. 316.] 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. [I. 317.] CHAPTER SECOND. OF TUTORSHIP. SECTION 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 domi- cile, or by the prothonotary of such court. — Poth. Intr. 1. 1, t. 9, a. 183; Mes. Min., 8, 77, 86, 86, 133 J IBour. 47j Guy. Tut. 313} Lam. Tut. 8j Poth. Pers. 610 ; Lac. Tut. s. 4, n. 1, 2 ; 2 Pi. 303 ; 1 Pi. 71 j 34 Geo. III. c. 6,s.9jl2V.c. 38,8. 74j 14 & 15V.C. 68; 16V.c.91;18V. c. 17 ; C. S. L. C. c. 86 ; 1 Mai. 360 ; 4 P. Fr. 392, 609 j Merc, de tut. 6 ; Del. 16 Dec. 1721 ; Del. 1 Oct. 1741 ; C. S. L. C. o. 78, s, 23 ; 0. N. 405. [I. 317.] 250> The convocation of a family council may be de- manded by all those related or allied to the minor, without regard to the degree of rela- tionship, by the subrogate- tutor, by the minor himself in certain cases, by his creditors, and by all other persons inter- ested. — Arr. Lam. t. 4, a. 3, p. 8 ; Poth. Intr. t. 9, § 3, p. 269 j Id. Pers. t. 6, s. 4, § 2, p. 610 ; 2 Pi. 301-3} Mes. 89 ; 17 Guy. 316} 2 Boi. 336} 7 Demol. n. 281, 2 } C. N. 406. [I. 317.] 261' 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. — ^ff. L. 2 Qui pet. tut. } Arr. Lam. t. 4, a. 4, p. 8 , Rav. 6 } Poth. Intr. t. 9, n. 11 } Id. Pers. t. 6, s. 4, a. 1, § 2 } 2 Pi. 303 } Mes. 91 ; 17 Guy. 317} C. N. 407. [I. 317.] mixob:ty, tutorship and emancipation. f II 262* With tho exception of the mother and other female ascendants during widowhood, the relations must be males, of the full age of twenty -one years, and residing in the dis- trict whore th'o appointment of a tutor is to be made. — Lam. Arr. t. 4, a. 4, p. 8 ; 2 Pi. 303 j 4 P. Fr. 613 J 0. N. 408. [I. 317.1 2o3. If, however, a suffi- cient number be not found in the district, they may be taken 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 the number required. — Arr. Lam. t. 4, a. 4: Poth. Pers. 610 j 2 Pi. 303 ; 17 Guy. 318; 2 Boi. 351; C. N. 409. [I. 317.] 254. Persons related or al- lied to the minor, qualified to make part of the family coun- cil, and who have not been called, have a right to attend, and to give their advice as if they had been called. — 2 Pi. 303. [1. 319.] 255. The judge or protho- notary, on petition of a 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 notified to the parties at the instance of the person seeking the convoca- cation. — C. S. L. C. o. 86, s. 2, 10; 0.78,8.23. [1.319.] 256* If the persons to be called reside at a greater dis- tance than five leagues, the court, judge or prothonotary may, if requested, authorize a notary or other competent per- son to hold such family coun- cil at tho place whore such parties rosldo, to administer the necessary oath, to take their advice on the appoint- ments to bo made, and oven to administer the oath of office to the tutor chosen. — C. S. L. C. c. 78, s. 23; c. 86, s. 2,3. [1. 319.] 267. In every case in which, according to tho preceding articles, a judge may call be- fore him, or delegate tho right to call a family council, it is lawful for any notary, residing or present at the place where the meeting is to be held, with- out regard to distance, to call it himself without the authori- zation of the judge, and to act therein in the same manner in every respect as if he had been delegated by the judge. — C. S. L. C. 0. 86, s. 6, 9. [I. 319.] 258. The notary can, how- ever, act in conformity with the preceding article, only when 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 man- ner as if it were addressed to a judge. Of this declaration the notary must draw up an act in writing.— C. S. L. C. c. 86, s. 6. [I. 319.] 259. Family councils thus called by notaries,, are com- posed in the same manner as those called before a judge. It is only in default x>{ persons MINORITT, TUT0B8HIP AND EUAKCIPATION. 80 related or allied to the minor, that his friends are admitted, and this default must be veri- fied by the notary, and men- tioned in his report. — C. S. L. C. 0. 86, 8. 7. [1. 319.1 260* The declaration re- quired by article 258 is first read to the family council ; the notary takes their advice and draws up an act in writing of their deliberation, which act must mention the oppositions that were made, and the differ- ent opinions which were given, as also the quality, place of residence, and degree of rela- tionship of those who composed the meeting. — C. S. L. C. o. 86, 8.7,8. [1.319.] 261* In all oases where a family council is called and held by a notary, whether delegated by a judge or pro- thonotary or not, such notary is bound to make a complete and circumstantial report of his proceedings to the proper court or judge, or prothonotary, accompanied with tho acts and declarations that it L his duty to draw up. — C. S. I. C. o. 86, 8. 2, 7, 9 J c. 78, 8. 23. [1. 321] 262* The court, judge or prothonotary receiving this report, may homologate or reject the proceedings therein contained, which, without ho- mologation, produce no effect. They may likewise make any order relative to such proceed- ings that they deem advisable, in the same manner as if the family council had been called before them. — C. S. L. C. o. 86, 8. 2, 8 ; c. 78, s. 23. [I. 321.] 263. In all cases where a tutor has been appointed out of court, the court may, on the Eetition of any one entitled to ave a meeting of the family council called, and after having heard the tutor, cancel his appointment and order a new one.— 2 Pi. 307, 8 j 0. S. L. C. 0. 86, 8. 4. [I. 321.] 264. One tutor only is named to each minor, unless he has immoveable property in places remote from one another, or in different districts, in which oases a tutor may bo appointed for each place or district wherein such immoveable pro- perty is situated. These tutors are independent of one another ; each of them is only liable for that portion of the property which he has administered.— The tutor of the domicile of the minor has the care of his per- son. — Nevertheless, in certain oases, a separate tutor may be appointed to the person of the minor. — The motner or other female ascendant, who has re- married, may also be appointed joint-tutor with her second hus- band. — Arr.Lam. t. 4, a. 15, 16 ; Poth. Intr. t. 9, n. 12 j Mes. 98 j 4 P. Fr. 462; C. N. 417. [I. 321.1 265. A tutor acts and ad- ministers, as such, from the time of his appointment, if it take place in his presence, otherwise from the time of his being notified of it. — ff. L. 1, § 1, Do adm. et peui. tut. ; Poth. Intr. t. 9, n. 13 ; Arr. Lam. t. 4, a. 56-9; C. i,. 297; C. N. 418. [1. 321.] 266. Tutorship is a personal office which does not pass to the heirs of the tutor. They are simply responsible for his 40 MINOBITT, TUTORSHIP AND EMANCIPATION. IIS administration. If they be of age, they are bonnd to continue suoh.administration until a new tutor is appointed. — 1 Bour. 70 J Mes. 221; C. N. 419. [I. 321.] SECTION II. Of Subrogate-Tutora. 267. In every tutorship there must be a subrogate- tutor, whose appointment is made by the same act, and in the same manner, and is subject to the same revision as tiat of the tutor. His du- ties consist in causing the act of tutorship tO be registered, being present at the inventory, watching over the administra- tion of the tutor, causing his removal if there be ground for it, and in acting for the inter- ests of the minor whenever they are opposed to those of the tutor.— 0. P. 240 j Poth. Pers. 626-7 ; Arr. Lam. t. 4, a. 11 ; Mes. 103, 170 j 4 A. D. 676. 1 Mai. 383 J 4 P. Fr. 622 ; 2 Toul. n. 11, 28 -; C. L. 300, 301j C. N. 420, 422 ; C. S. L. 0. o. 37, s. 31. [I. 323.] 268. The subrogate-tutor does not of right replace the tutor, when the tutorship be- comes vacant, or when the tu- tor becomes incapable of acting by absence or any other cause, but in these cases it is his duty to have a new tutor appointed, and in default of so doing, he is liable to pay the damages which may result to the minor from his neglect. — Mes. 663 ; C. N. 424. [I. 323.] 269> If during the tutor- ship a minor happen to have any interests to discuss judi- cially with his tutor, he is for such case given a tutor ad hoo whose powers extend only to the matters to be so discussed. —2 Lan. 148; 1 Pi. 71; Fen. Poth. 96-6 ; Den. Ac. de not. 473 ; 16 Merl. Subr. tut. 460. [I. 323.] 270* The functions of a subrogate-tutor cease in the same manner as those of & tutor.— 4 P. Fr. 626 ; 2 Toul. n. 1136; C. N. 426. [I. 324.] 271. The jprovisions con- tained in sections three and four of the present chapter, apply to subrogate-tutors. — Q. N.426. [1.323.] V SECTION III. Of the causes which exempt from Tutorship. 272. No one is bound to accept a tutorship, unless he has oeen called to the family council which elected him.— Mes. 268 ; Arr. 14, Jan. 1641 ; 9 Mar. 1714; Lap. 616; Poth. Pers. 610; 1 Mai. 382; 4 P. Fr. 649, 650. [I. 323.] 273* He who is neither re- lated nor allied to the minor cannot be compelled to accept the tutorship, if any one who is related or allied be in a posi- tion to take charge of it. — Ser. Inst. t. 26, § 10 ; Poth. Pers. 610 ; 1 Bous. 626 ; 4 P. Fr. 636; C.N. 432. [1.323.] 274. Any person of the age of seventy years complete may refuse to be appointed tutor. He who has been appointed before he was of that age, may be discharged yrheh. he has attained it.— Cod. L.un. q. 8et.8e laKOBITT, TUTOBSHIP AND EMANOIPATIOX. 41 exons; Inst. 1. 1, t. 25, §13; 1 Arg. 63; Lao. Tuteur, 778; Arr. Lam. t. 4, a. 37 j 4 P. Fr. 637 J 6 Lo. E. C. 163,4 j 0. N. 433. ri. 323.] 27o. Persons laboring un- der serious and habitual infir- mity are exempt from being tutors; they may even obtain their discharge if such infir- mity supervene after 4;heir ap- pointment. — Cod. L. un. q. morb. se exous. ; ff. L. 11, 40, de excus. tut. ; Poth. Pers. 612; Id. C. 0. t. 9, n. 14; 1 Arg. 53 ; Arr. Lam. t. 4, a. 37 ; 4 P. Fr. 539; C. L. 317; C. N. 434. [I. 323.] 276. [Two] tutorships are, for any person, a sufficient reason for refusing to accept a third, other than that of his children. A husband or father, who is already charged with one tutorship, is not bound to accept a second, unless it is that of his own children. — ff. L. 2, L. 3, de excus. tut.; Arr. Lam. t. 4, a. 48, p. 16 ; Poth. C. 0. t. 9, n. 14: Id. Pers. 612; Lao. Tuteur, 778; C. N. 436. [I. 325.] 277. Those who have five legitimate children are ex- empted from any tutorship but that of their own children. Children who have died leav- ing issue still living, are counted in this number. — Poth. C. 0. t. 9, n. 14; Id. Pers. 612 ; 1 Bous. 630 ; Arr. Lam. t. 4, a. 44-6 ; 6 Lo. E. C. 174 ; 4 P. Fr. 644-5 ; C. N. 436. [I. 325.1 278. The birth of children during tutorship does not au- thorize its abandonment. — Poth. 1. c. ; Arr. Lam. t. 4, a. 46, 53 ; 1 Bous. 532 ; C. N. 437. [1.325.] 279. If the person who has been elected by a family coun- cil be present, he is bound, un- der pain of forfeiting his grounds of exemption, to state them, in order that their vali- dity may be determined at onoe, when the proceeding takes place before a court, judge or prothonotary, or in order that they may be report- ed to the court, judge or pro- thonotary by the notary or person delegated, if it be be- fore either of these that the family council has been called. —Lam. t. 4, a. 66 ; For. Tu- telles, 123; Mes. 269; C. N. 438; C. S. L. C. c. 78, s. 23. [I. 325.] 280. If the person elected be not present, a copy of the act of election is served upon him, and he is bound, within five days, and under pain of forfeiting his grounds of ex- emption, to lodge them in the office of the court before which, or before the judge or protho- notary of which the proceed- ings were had, or in the hands of the notary or party delegat- ed, if it be before either of these that the family council was called, in order that the matter may be dealt with in conformity with the preceding article. — Arr. Lam. a. 66, t. 4 ; 0. S. L. C. 0. 78, s. 23 ; C. N. 439. [I. 325.] 281. The decision given as to the validity of sush grounds by the judge or the protho- notary, out of court, is subject to revision by the court, whose judgment may also be appealed 42 MINOBITT, TUTORSHIP AXD EUiLNCIPATION. from; but during the litiga- tion, the person elected is obliged to administer provi- eionally; and all his acts of administration are valid, eyen if he be afterwards discharged from the tutorship. — C. 263 j Lam. a. 58, 59 ; C. S. L, G. c. 86, s. 4 J lb. c. 78, s. 23 j C. N. 440. [I. 327.] SECTION IV. Of Incapacity, Exclusion and Removal from Tutorship. 282. The following persons cannot be tutors : 1. Minors, except the father who is bound to accept the office, and the mother, who although a minor, has a right to the tutorship of her children, but is not bound to accept it ; 2. Interdicted persons ; 3. Women, other than the mother and female ascendants, who are entitled, during their widowhood and in the case pro- vided for in the last paragraph of article 264, to the tutorship of their children and grand- children, but are not bound to accept it ; 4. All those who themselves or whose father and mother have against the minor a suit at law involving his status, his fortune, or an important portion of it.— Poth. Pers. 602, 611 j Arr. Lam. a. 23-27, 36, 42; Nov. Ill, c. 5 J Fer. Tut. 66 j Mes. 245, 247, 252-3; A. D. Tutelle, 769 j 2 Pi. 306 ; 1 Bous. 637, 8 ; 1 Mai. 398, 9 ; 4 P. Fr. 444-5 ; C. N. 442. [I. 327.] 283. Mothers an^ grand- mothers who have been ap- pointed to a tutorship during their widowhood, are deprived of it from the day on which they contract a second marri- age; and if the minors have not been provided with another tutor prior to such marriage, the husbands of such piothers or grandmothers remain re- sponsible for the administra- tion of the property of the minors during the second mar- riage, even if there be no com- munity. — Arr. Lam. a. 29, 32 j Mes. 112, 114. [I. 327.] 284* Condemnation to an infamous punishment carries with it by law exclusion from tutorship; it also entails re- moval from a tutorship pre- viously conferred. — Lam. a 36; Mes. 236, 7 ; Ser. Instit. 86 ; Lar. 1. 4, t. 9, a. 4; 1 Bous. 639; 4 P. Fr. 559; C. N. 4431 [L 327.] 285. The following persons are also excluded from tutor- ship, and even may be de- prived of it when they have en- tered upon its duties : 1. Persons whose misconduct is notorious ; 2. Those whose administra- tion exhibits their incapacity or dishonesty. — ff. L. 6, L. 8. do susp. ; Poth. Pers. 621 ; Mes. 226-8 ; 1 Bous. 539 -; 4 P. Fr. 660 ; C. N, 444. [I. 329.] 286. Actions for the remov- al of tutors may be brought before the court, by any one related or allied to the minor, by the subrogate-tutor, or by any other person having an in- terest in such removal. — Lam. a. 115 ; Mes. 229 ; 12 V. o. 38, § 14; 1 Bous. 542-3-6; 4 P. Fr. 563 ; C. N. 446, 448. [I. 329.] lONOBITT, TUTOBSHIF AND EUAXCIFATION. 43. 287* The removal of a tutor can only be ordered upon the advice of a family counoll, which is composed in the same way as for nis appointment, and is called in such manner as the court directs. — ^Lam. a. 115; Mes. 229; 1 Sous. 543; 4 P. Fr. 564-5. [I. 329.] 288* The judgment cf re- moval must contain the grounds on which it is founded, and order the rendering of au ac- count and the appointment of a new tutor, who is appointed with the usual formalities so soon as the judgment becomes executable either by acquies- cence, by want of appeal in due time, or by its being con- f rm I in appeal. — C. S. L. C. 0. » j^, 39; C. N. 447. [I. 32 > ^^O^, During the litigation, the tutor sued retains the management and administra- tion of the person and of the property of the minor, unless the court orders otherwise. — Lam. a. 116 ; 1 Bour. 70, n. 197 ; 1 P. Poul. 341 ; 2 Toul. 355; 4 P. Fr. 564-6; 2 Boi. 391 ; 1 Bous. 646 ; i Val. Proud. 350, n. a; 7 Demol. 301 ; 1 Mai. 397. [1. 329.] SECTION V. Of the administration of tutors. 290« A tutor has the care of the person of his pupil, and represents him in all civil acts. ^He is bound to manage his property like a prudent admi- nistrator, and is liable for the damages which may re.ult from bad management. — He can neither buy the property of his pupil, nor take it ou lease, nor accept the transfer of any right or any debt against his pupil.-— Poth.Pers. 614,620 ; Id. Prop. n. 7, 266 ; Id. C. 0. t. 9, n. 15 ; A. D. Tutelle, n. 61-4; 1 Arg. 71 ; 1 Bous. 549, 550, 551, 553, 554; 4 A. D. 772-4 ; Fen. Poth. 103 ; 4 P. Fr. 565,6; Mes. 153-4; Nov. 72,. 0. 5 ; Lam. t. 4, a. 91, 96 ; L. & B. let. T. n. 4 ; 6 Goch. 528 ; C. N. 450. [I. 329.] 291. A tutor as soon as his appointment is known to him, and before acting under it,, must make oath to well and truly administer the tutorship. — Cod. L. 27, De epis. et cler. ; 1 Arg. 55-56; 4 A. D. 772; Lam. t. 4, a. 57 ; Poth. Pers. 618 ; Id. C. 0. t. 9, n. 13 ; 0. 1579; Pap. L 15, t. 5, a. 4; 4 P. Fr. 565. [I. 331.] 292. As soon as he has taken the oath, the tutor de- mands the removal of seals, it they have been affixed, and proceeds forthwith to the taking of an inventory of the property of the minor, in presence ot the subrogate-tutor.— If any thing be due to him by the minor, the tutor must declare it in the inventory, on pain of forfeiting his claim. — Poth. Pers. 618 ; Lam. a. 60, 63, 65 ; Mes. 122,3; 1 Arg. 56; Lac. Tuteur, n. 4, p. 781. Dom. 1. 2, t. 1, s. 3, n. 10 ; 1 Gin, 322 ; C. N. 451. Nov. 72, o. 4 ; Pap. 1. 15, t. 6, n. 2 ; 1 Frem. Tutel- les.n. 208; 4 A. D. 772, n. 65 f 2 Hen. 311-2; Lam. t. 4, a. 68; 1 Bous. 556; 1 Gin, 323; 2 Proud. 357-359 ; 0. N. 451. [L 331.] 44 mKOBITT, TUTORSHIP AND EUAN0IPATIO17. 293. Within the month which follows the olosing of the inventory, the tutor causes all the moveable eJSects, ex- cept those which he is allowed or bound to keep in kind, to be sold by public auction, in pre- sence of the subrogate -tutor, and after due publications, which must be mentioned in the minute of sale. Cod. L. 22, L. 24, Be admin, tut ; 0. 1560, a. 102 ; Ser. 78 : Lam. t. 4, a. 70 J 4 A. D. 772,3 j 2 Hen. 1. 4, q. 112 ; Mes. 136 ; 1 Gin, 323 J 4 P. Fr. 674j C. N. 462. [I. 331.] ^294. Within the six months which follow such sale, the tutor, after discharging the 4ebts and other liabilities, must invest whatever money remains in his hands, whether it proceeds from the sale, or is found upon making the inven- tory, or is subsequently re- ceived from the debtors of the minor. — 1 Arg. 57 j Lam. a. "90; Poth. Pers. 619 j 4 A. D. 772 - J 1 Gin, 325-6. [I. 331.] .^ 295. During the tutorship, lie must likewise invest the excess of the revenues over the «xpensos, as well as all capital £ums which have been reim- bursed and all o^'ier moneys which he has received, or ought to have received; and this he must do within the same delay of six months from the day when he had or ought to have had a sufficient sum, considering the means and condition of the minor, to form a suitable investment. — ff. L. 15, De admin, tut. ; Lam. a. «9-104 ; 1 Arg. 68 j Mes. 164 j Poth. Pers. 619,620; 4 A. D. 772 -J 1 Gin, 326. [I. 331.] 296* In default of the tu- tor having made, within the delays, the investment requir- ed, he is bound to account to his pupil for interes|t on the sums which he ought to have so invested, unless he can es- tablish that such investment was impossible, or unless, on his application, the judge or the prothonotary, upon the advice of a family council, has dispensed with the investment or prolonged the delays. — 1 Arg. 57,8 J Poth. Pers. 619, 620 ; Lam. a. 99, 102 ; 4 A. D. 773, n. 66,7 J Mes. 161--; 2 Pi. 112 ; Lepr. cent. 1, o. 52 ; 1 Gin, 326; D. 96, n. a; G. S. L. C. 0. 78, 8. 23. [I. 331.] *297. Without the authori- zation of the judge, or the pro- thonotary, granted on the advice of a family council, the tutor is not allowed to borrow for the minor, nor to alienate or hypothecate his immoveable property j nor is he allowed to make over or transfer any capital sums belonging to the minor, or his shares and inte- rest in any financial, commer- cial, or manufacturing joint- stock company.— Such au thorization can only be granted .in cases of necessity or for an evident ad- vantage. — In the case of ne- mNOSITT, TUTORSHIP AKD EUANCIPATION. 46 cessity, the judge or prothono- tary grants hi 3 autnorization only when it is established by a summary account submitted by the tutor, that the moneys, moveable effects and revenues of the minor are insufficient. — In all cases, the authorization indicates what property is to be sold or hypothecated, and any conditions deemed expe- dient.— C. S. L. C. c. 78, s. 23. [I. 333.] *299* The sale, although authorized, must, in order to be valid, be made judicially, in presence of the subrogate- tutor, to the highest bidder, by public auction before the court, judge, prothonotary, or any other person specially ap- pointed for that purpose, and after publications made at such times and places as are named by the judgment authorizing it.— Poth. Pers. 617, C. 0. t. 9, n. 16 J Fer. Tutelles, 226, 227, 232 ; Mes. 144 j 1 Arg. 60, 61 J 1 Mai. 411 J 1 Bous. 567 J C. S. L. C. 0. 78, s. 23 : C. N. 459. [I. 333.] 300. The formalities re- quired by articles 298 and 299 for the alienation of the pro- perty of a minor, do not apply to cases where a judgment, on the demand of a coproprietor, has ordered the licitation of undivided property. But in these cases, the licitation can only be made in the form pre- scribed by law. Strangers are admitted to bid. — Poth. Pers. 617, Vente n. 616, Soo. n. 171, Com. n. 710; 4 P. Fr. 688 ; C. N". 460. [I. 333.] 301. [A tutor cannot accept or renounce a succession, which falls to his pupil, without authorization being granted on the advice of a family council. The acceptance can only be made under benefit of inventory. Accompanied by these formalities the accept- ance or renunciation has the same effect as if made by a person of age.] — Poth. Pers. 616 ; Sue. 136 ; 2 From. Tutelle, 3; 1 Gin, 334; 2 Toul. 394; 1 Delv. 125 ; Mont. 143 ; 2 Cha. Sue. 30; C.N. 461. [1.336.] 302. [In any case where a succession renounced in the name of a minor has not been accepted by any one else, it may be afterwards accepted either by the tutor duly autnor- ized on the advice of a family council consulted anew, or by the minor become of age ; but it is so taken in the state in which it is then, and the sales or other acts legally made dur- ing the vacancy cannot be questioned.] — 2 From. Tutelle, 2, 3 ; 4 P. Fr. 490 -- ; 1 Mai. 412, 3 ; 6 Lo. E. C. 280, 1 ; 1 Bous. 672; 1 Zach.438; C. N. 462. [1. 335.] 303* Gifts made to a minor may be accepted by his. tutor, or a tutor ad hoc, or by his father, mother, or other ascend- ants; such acceptance being valid without the advice of any family council. — 0. 1731, a. 7 ; Mes. 393; 1 Ric. Don. 196; 1 Sal. 0. 1731, p. 45 -; C. N. 463. [I. 336.J 304* Actions belonging to a minor are brought in the name of his tutor, except those for wages, which minors when of the ago of fourteen years may bring alone to the amount of 4A lUNOBITT, TUTOBSHIP AND EUAKOIPATIOK. I Iv ffifty] dollars. — No action brought by a tutor can be maintained unless he shows that the act of tutorship has been registered. — C. S. L. C. 0. 82, s. 35; c. 37, s. 33 ; o. 94, 8. 21 J lPi.*67. [1.335.] 805. A tutor cannot demand the definitiye partition of the immoveable property of the minor, but he can, even with- out authorization, defend an action of partition brought against such minor. — Poth. Com. n. 695, 6, Soc. n. 164, Pers. t. 6, s. 4, a. 3, § 2 ; Lam. t. 6, a. Ill ; Leb. Sue. 1. 4, c. 1 ; 1 Mai. 414, 5 ; 4 P. Fr. 599, 600. [I. 335.] . 306* A tutor cannot appeal from a judgment, until ne is authorized by the judge, or the prothonotary, on the advice of a family council. — 0. April, 1560; Mes. 44; Lo. E. C. 290. [I. 335.] 307. [A tutor cannot trans- act in the name of the minor unless he is authorized by the court, the judge or the protho- notary, on the advice of a family council. Accompanied by these formalities, transaction has the same effect as if made with a Fersori of age.] — C. N. 467. I. 335.] SECTION vr. Of the account of tutorship. * 308. Every tutor is account- able for his administration when it has terminated. — ff. L. 1, § 3. Do tut. ct ratio. ; Nov. 72, c. nit. ; 0. 1667, t. 29 ; Poth. Pors. 622, C. 0. t.9, n. 17; O.1660; 2 Pi. 27; 1 Bous. 680; 1 Mai. 417; 1 Gin, 339; C. N. 469. [I. 337.] 809. Any tutor may be com- pelled, even during the tutor- ship, on the demand of any one related or allied to the minor, of the subrogate -tutor, or of any other parties interested, to produce from time to time, a summary account of his ad- ministration; such account to be furnished without any judi- cial formality or costs. — ff, L. 5, § 11. De reb. eor. ; 2 L. & B. let. M, som. 15, p. 170 ; Ser. 0. 1667, t. 29, p. 535 ; Lao. Tutcur, s. 8, p. 784; Mes. 290 ; P. Poul. 297 ; Rav. 657 ; 2 Pi. 104 - ; 1 Bour. 62 ; 1 Mai. 418 ; 1 Gin, 341 ; C. N. 470. [I. 337.] 310* The definitive account of a tutorship is rendered* at the cost of the minor, when he has attained his majority, or has been emancipated; the tutor advances the costs of such account. — He is allowed all the expenses which he can justify, and of which the object was useful.— 0. 1667, t. 29 ; Poth. Pers. 614, 623, C. 0. t. 9, n. 18 ; Dom. 1. 2, t. 1, s. 5, n. 1, 2 ; 1 Delv. 129 ; 4 P. Fr. 467,607; C N. 471. [1.337.] 311. Every settlement be- tween a minor become of age and;his tutor, relating to the administration and account of the latter, is null, unless it is preceded by a detailed account, and the delivery of vouchers in support thereof. — Poth. Pers. 622, C. 0. t. 9, n. 18 ; 1 Arg. 68 ; Lara. t. 4, a. 129 ; 1 Mai. 420 ; 1 Gin, 340; C. N. 472. [I. 337.] 312> If the account give rise to contestations, they are proceeded with and adjudieated upon in the manner provided laNORITT, TUTOBSHIF AND EMANOIPATIOX. 47 in the Code of Civil Procedure. Poth. Pers. 624; 0. 1667, t. 29. [1.337.] 313. Any balance due by the tutor bears interest without demand, from the closing of the account. Interest on any sum due by the minor to the tutor, only runs from the time of his being put in default by the tutor, after the closing of the account. — Poth. Pers. 624, 5; Lam. t. 4, a. 127, 8; 1 Arg. 68 ; 1 Sous. 584 ; 1 Mai. 421 ; IGin, 341, 2. [1.337.] CHAPTER THIRD. OF EMANCIPATION. *3l4:. Every minor is, of right, emancipated by marri- age.— C. P. 239, 272 J Lara. t. 2, a. 2. t. 4, a. 121 ; 1 Arg. 64 ; Mes. 210-2-6 j Poth. Pers. 621, C. 0. t. 9, n. 21 J 4 P. Fr. 610 j 1 Gin, 342 -J C. N. 476. [I. 337.1 315. An unmarried minor may, at his own request, or that of his tutor, or of any one related or allied to him, be emancipated by any court, judge or prothonotary having jurisdiction to confer tutorship, on the advice of a family council called and consulted as in the case of tutorship. — 34 Geo. 3, 0. 6, 8. 8 J 12 V. c. 38, 8. 8; C. S. L. C. 0. 86, s. 1, c. 78, s. 23 J 1 Arg. 64 j Poth. Pers. 622, C. 0. t. 9, n. 18 ; N. D. Emancipation, § 5, n. 4, p. 502 J 4P. Fr. 616j 1 Gin, 344; C. N. 478. [I. 337.] 316* If the emancipation be granted out of court, it is subject to revision, and may be annulled by the court to which the judge or prothonotary who pronounced it belongs. From this judgment an appeal lies. — C. S. L. C. c. 86, s. 1 J 0. 78, 8. 23. [I. 339.] 317* Whether emancipation results from marriage or is granted judicially, a curator must be appointed to the eman- cijprted minor. — 5 N. D. 503. [I. 339.] 318. The account of the tutorship is rendered to an emancipated minor with the assistance of his curator.— Lam. t. 4, a. 124 ; Poth. Pers. 626 ; Mes. 290 ; 1 Gin, a. 346 ; 1 Mai. 420-8 ; 4 P. Fr. 616 j C. N. 480 [I. 339.] 319* An emancipated mi- nor may grant leases for terms not exceeding nine years; he may receive his revenues, give receipts therefor, and perform all acts of mere administr9.tion. [He is not relievable from these acts, except in cases where persons of age would be so.] — Poth. Pers. 622, C. 0. t. 9, n. 21 J Ser. 61, 2j 1 Mai. 428 j 1 Gin, 346 J 4 P. Fr. 618j C.N. 481. [I. 339.] 320. He can neither bring nor defend a real action with- out the assistance of his cura- tor.— Poth. Pers. 602-3,622, Ob. n. 877; Ser. Inst. 141, 2; Bout Inst. 107; 1 Pi. 68; 1 Arg. 71,2; 1 Mai. 428; IGin, 347; 4 P. Fr. 618 ~ ; C. N. 482. [I. 339.] 321. An emancipated minor cannot borrow without the as- sistance of his curator. Loans of large amount, considering his means, when effected by deeds bearing hypothec, are null, although made with the 48 IIAJOBITT, INTXBDIOTIOK, ETC, asflistanoe of his curator, if they be not authorized by the judge or prothonotary, on the advice of a family council; with the exception of the cases provided for in article 100/^. ,— ff. L. 27| 9 2, de min. ; Fer. Tutelles, 230,1; Mes. 390,1; Ser. Inst. 141 ; 2 From. Tutel- les, n. 1066; 1 Mai. 430,1; 4 P. Fr. 618 ; 6 Lo. B. C. 350 -; 0. S. L. C. c. 78, 8. 23; O.N. 483. [I. 339.] 322> Moreover, he can nei- ther sell nor alienate his im- moveable property, nor per- form any acts other than those of mere administration, with- out observing the formalities prescribed for unemancipated minors. With respect to any obligations which he may have contracted by purchase or otherwise, they may be reduc- ed if excessive ; the courts taking into consideration the fortune of the minor, the good or bad faith of the persons who have contracted with him, and the utility or inutility of the expenditure. — Cod. L. 3, de h. q. ven. mt. ; Poth. Pers. 603, 0. 0. t. 9, a. 181, n. 5 ; 6 Lo. E. C. 354 ; 1 Mai. 430 ; 4 P. Fr. 619 ; C. N. 484. [I. 341.] 323> A minor engaged in trade is reputed of full age for all acts relating to such trade. — 1 Desp. pt. 4, 1. 11, s. 2, n. 22, & authors cited ; 2 Hen. 1. 4. q. 127; Lac. Restitution, s. 2, n. 10; 0. 1673, t. 1, a. 5; 2 Bor. 448; 4 P. Fr. 622,3; 1 Mai. 431 ; 4 Ency. 671 ', 0. N. 487. [1.341.1 TITLE TENTH. OF MAJORITY, INTERDICTION, CURATORSHIP AND JUDICIAL ADVISERS. CHAPTER FIRST. OP MAJOBITY. 324. Majority is fixed at the complete age of twenty- one years. At that age per- lons are capable of performing all civil acts. — Poth, Pers. t. 6 ; C. S. L. C. c. 34, s. 1 ; '3. N. 488. [I. 341.] CHAPTER SECOND. OP INTEEDIOTION. ^ 326. A person of full age. or an emancipated minor, who is in an habitual state of im- becility, insanity or madness, must be interdicted, even though he has lucid intervals. — flf. De cur. fur.; Cod. L. 1, L. 6. de cur. fur. ; Inst, de cur. § 3 ; Poth. Pers. 625 ; A. D. In- terdiction ; Merl. Interdit, § 3, 4, n. 1, 2, 6; C. N. 489. [I. 341.] 326. Persons who commit acts of prodigally, which give reason to fear that they will XAJOBITT, INTEBDI0TION» ITO. 4» dissipate the whole of their Sropejrty, are also to be inter- ioted.— Poth. Pers. 625 ; Merl. Interdiction, § 1, 2, n. 1 ; 4 P. Fr. 636; 1 Mai. 434; 2 Toul. 1309 ; C. S. L. C. o. 78, 8. 23. [I. 341.] 327> Every person has the right to demand the interdic- tion of any one related or al- lied to him, who is prodigal, mad, imbecile, or insane. Hus- band or wife, likewise, may demand the interdiction the one of the other. — Poth. Pers. 625; Merl. Interdiction, § 3, 4 ; Fer. D. Interdiction, 58 ; C. N.490. [1.341.] ^328. The demand for inter- diction must be made before the proper court, or before one of the judges or the prothono- tary of such court; it must contain a specification of the acts of imbecility, insanity, madness or prodigality. The applicant is obliged to prove these acts. — 34 Geo. 3, c. 6, s. 8; V. 0. 44, s. 91 ; Poth. Pers. 625; Fer. D. 1. o. ; N. D. Cu- ratelle, 710 ; 2 Toul. n. 1319 ; 1 Mai. 435; 1 Gin, 355; C.N. 492, 493 ; C. S. L. C. c. 78, s. 23. [1.343.] 329. The court, judge or prothonotary before whom the demand is made, orders a family council to be called, as in the case of tutorship, and takes its advice as to the state of the person whose interdic- tion is sought ; but he who makes the demand cannot form part of the family council. — Poth. Pers. t. 6, s. 5, a. 1 ; Den. A. N. 113 ; 1 Gin, 356 ; C. N. 494,495; C. S. L. C. c. 78, s. 23. [1.343.] 330. When the demand is made on account of imbecility, insanity or ladness, the de- fendant must be interrogated by the judge, attended by a clerk or assistant, or by the prothonotary ; the examination 18 taken down in writing, and communicated to the family council. — These interrogatories are not required if the inter- diction be sought on account of prodigality ; but in this case» the defendant must be heard or have been summoned to ap- pear. — ^ff. L. 5, De our. fur. ; Den. 113: 1 Bourj. 77 ; Fer.D. Interdiction, 58-9 ; C. N, 496 ; 0. S. L. 0. 0. 78, 8. 23. [I. 343.1 331* If the demand for in- terdiction be rejected, tho court may, if circumstances require it, appoint a judicial adviser to the defendant. — 5 Merl. Conseil Judic. n. 1, p. 96 f Fer. D. Interdiction, 58, 59 ; C. N. 499. [I. 343.] 332. If the interdiction h& pronounced out of court, it is subject to revision by the court, on petition of the person inter- dicted or of any of his relations. The judgment of the court is also subject to appeal.— 41 Geo. III. 0. 7, s. 18. [I. 343.] 333. Every sentence or judgment of interdiction or for the appointment of an adviser is, at the instance of the appli- cant, notified to the defendant, and inscribed without delay by the prothonotary or clerk on the roll kept for that purpose, and publicly, exposed in the office of each of the courts having power to interdict in the district. — ^Fer. D. Inter- 50 MAJOBITT, INTEBDIOTION, ETC. Miction, 59 ; 1 Bour. 79 ; Den. A. N. 116; C. N. 601. [I. 345.] 334:* Interdiction or the appointment of an adviser takes effect from the day of the judgment, notwithstanding the appeal.— All acts done subsequently by the person interdicted for imbecility, mad- ness 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 iigurious to him, in the same manner as thoso of minors and of persons interdicted for prodigality, ac- cording to article 987. — ^Fer. D. Interdiction, 68-9; Poth. Ob. n. 61, Don. s. 1, a. 1; Guy. Interdiction, 443, 460 ; C. N. i02. [I. 346.] 335' Acts anterior to inter- diction 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. — 1 Bour. 76, n. <8-ll; 1 Ric. Don. pt. 1, c. 3, s. 3, n. 146; 2 Aug. 96, arr. 2 April, 1708; C. N. 603. [I. 345.] 336* Interdiction ceases with the causes which neces- 43itated it. Nevertheless it cannot be removed without observing the formalities pre- scribed for obtaining it, and the interdicted person cannot resume the exercise of his rights until after the judgment removing the interdiction. — Poth. Pers. 625, ^6 ; 1 Bour. 77, 8; N. D. Curatelle, 716; Ouy. Interdiction, 450; C. N. 512. [I. 346.] CHAPTER THIRD. OF OUBATOBSHIP. 337* There are two sorts of curatorship, one to the person, the other to property. — Poth. Pers. 628 ; N. T T16-7. [I. 346.1 338* The persons to whom curators are given are : 1. Emancipated minors ; 2. Interdicted persons ; 3. Children conceived but not yet bom. — Poth. 1. c. 6; N. D. 706 ; 1 Id. 64 ; Bret. Q. D. Absent, o. 111. [I. 346.] 339> Curators to the person are appointed with the formal- ities and according to the rules prescribed for the appointment of tutors. They are sworn before entering upon their duties. — N. D. 1. o. ; Poth. 1. c. [I. 346.] 340* A curator to an eman- cipated minor has no control over his person ; be is given in order to assist him in matters and proceedings in which he cannot act alone. This cusa- torship ends with the minority. —Poth. 626; 6 N. D. 701. [I. 345.] 341. A curator to an inter- dicted person is 'appointed by the j udgment whichpronounces the interdiction. — Fer. D. In- terdiction, 68 ; 6 N. D. 708, § 6; Poth. 625. [1.345.] 342* The husband, unless there are valid reasons to the contrary, must be appointed curator to his interdicted wife. The wife may be ouratriz to her husband. — Guy. Interdic- tion, 442 ; 15 Metl. 403 ; Mes. 365; 1 Bourj. 77; 2 Pi. 83; MAJORITT, INTERDICTION, ETC. 51 Den. A. N. 115 ; 4 P. Fr. 653. tl. 247.] :t'84b3. The curator to a per- son interdicted for imbecility, iusanity or madness has over such person and his property all the powers of the tutor over the person and property of a minor ; and ho 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 Erodigality. — Den. A. N. 115 j am. t. 4, a. 137 ; Poth. 626 ; Id. Prop. n. 7, Sue. o. 3, s. 3, a. 1, § 3, C. 0. t. 17, n. 40. [I. 437.] 344. [No one, with the ex- ception of husband and wife, and ascendants and descend- ants, is obliged to retain the curatorship of an interdicted person for moro than ten years ; at the expiration of that time, the curator may demand and has a right to bo replaced. — €.N. 508. [1.347.] 345. The curator to a child oonceived 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 property which is to belong to it, and afterwards he is bound to render an account of such ad- ministration. — Poth. Pers. 627 j 5 N. D. 717 J 2 Toul. 315 -, C. N. 393. [I. 347.] 346. If during the ourator- fihip, 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 ex- tend to the matters to be dis- 8 cussed.— 5 N. D. 701. [I. 347.] 347. Curators to property are those appointed : 1. To the property of absen* tees; 2. In cases of substitution ; 3. To vacant estates ; 4. To the property of ex^'not corporations ; 5. To property abandoned by arrested or imprisoned debt- ors or on account of hypothecs ; 6. To property accepted un- der benefit of inventory. — 5 N. D. 700 ; Poth. 628. [I. 347.] 348. The provisions relat- ing to curators to the property of absentees are contained la the title Of Absentees, Thoso concerning curators to the pro- perty of extinct corporations, in the title 0/ Corporations. In the third book and in the Code of Civil Procedure are to bo found the rules touching tho appointment, powers and du- ties of the other curators men- tioned in the preceding article, who must also be sworn. [I. 347.] CHAPTER FOURTH. OF JUDICIAL ADVISERS. 349. A judicial adviser is given to those who, without being absolutely insane or pro- digal, are nevertheless of weak intellect, or so inclined to pro- digality as to give reason to fear that they will dissipate their property or seriously im- pair their fortune. — Fer. D. Conseil, ZS) . ,Interdit, 58,9; A.D. Conseil, 624 j Guy. Interdic- tion, 436 J C. N. 513, 514. [I. 347.] . 350* Judicial advisers are 6S OOBPORATIUXS. giren by those who have power to interdict, on the demand of any person who has a right to demand interdiction, and with the same formalities. Such demand may also be made by the party • himself.— Fer. D. Conseil, 307, Interdiction, 59, 60; A. D. Conseil, 625, n. 7j N. D. Conseil Jud. § 2, p. 254 : 0. N. 614. [I. 349.] 351. If the powers of the judicial adviser be not defined by the judgment, the person to whom he is appointed is prohi- bited from pleading, trans- acting, borrowing, receiving moveable capital and giving a discharge therefor, as also from alienating or hypothecating his property without the assis* tance of such adviser. — The prohibition can only be removed m the same manner that the appointment has been made.— > Poth. Pers. 626 1 1 Bour. 80; Fer. D. Conseil, 397; A. D. Conseil, 624-5; N. D. Conseil Jud. § 2, p. 254-; C. N. 513. [I. 349.] TITLE ELEVENTH. OF CORPORATIONS. CHAPTER FIRST. OP THE NATURE AND CREATION OF CORPORATIONS, AND OF THEIR DIFFERENT KINDS. 352' Every corporation le- gally constituted is an artificial or ideal person, whose existence and succession are perpetual, or sometimes for a fixed period only, and which is capable of enjoying certain rights and liable to certain obligations. — Poth. Pers. 628 j N. D. Corps, 681 ; 3 Bla. 467. [I. 349.] 353. Corporations are con- stituted by act of parliament, by royal charter, or by pro- scription. — Those corporations also are reputed to bo legally constituted which existed at the time of the cession of the country and which have been since continued and recognized by competent authority. — 2 V. 0. 26; C. S. L. C. c. 19. [I. 349.] 3d4:« Corporations are ag- gregate or sole. — Corporations Aggi^ega>te are those composed of several members; corpora- tions sole are those consisting of a single individual. — 1 Bla. 469; 1 Whar. )i. L. 219 ; Grant, Corp. 6 ; 6 N. D. 681 ; 1 Lor. 485, 6. [I. 349.] 355. Corporations are ei- ther ecclesiastical or religious, or they are lay or secular. — Ecclesiastical corporations are aggregate or sole. They are nil public. — Secular corpora- tions are either aggregate or sole. They are either public or private. — Grant, 9 ; 1 Bla. 470 ; 1 Whar. L. L. 219 ; Dun. OOBPOSATIONB. M pt. 2, p. 8 J Poth. Pres. 142, 191 ; 5 V. 0.26 J 19 ft 20 V. 0. 103. fl. 349.] *3B6. Secular corporations are farther divided into .poli- tical and oiyil ; those that are political are governed by the {)ttblio law, and only fall with- n 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 incorporation, ideal or artificial persons, are as such governed oy the laws affecting individuals ; saving the pri- vileges they enjoy and the dis- abilities they are subjected to. -lBla.41-} IP. Fr.366; 1 Dur.17; 1 Marc. 19. [I. 349.] CHAPTER SECOND. OF THE RIGHTS, PRIVILEOES, AKD DISABILITIES OF OOBPORATIONB. SECTION I. OftJw rights of corporations. 357. Every corporation has a corporate name, which is given to it at its creation or which has since been recogniz- ed and approved by competent authority. — Under such name the corporation is known and designated, sues and is sued, and does all its acts and ex- ercises all the rights which belong to it. — 3 Bla. 475 ; Am. Corp. 8 j C. L. 423. [I. 361.] 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 bo sued, con- tract, incur obligations, and bind others in its favor. — Poth. Pers. 628 ; 5 N. D. 597 ; 3 Bla. 476, 6 ! 1 For. D. 441 ; 2 V. o. 26; Ind. to Stat. Wioksteed, 126; C.L.424. [1.351.] 359* For these objects, every corporation has the right to select from its members, officers whoe'^ number and clu- nominations ■ ro determinedly the instrumrnt of its creation or by its by-laws or logula- tions.— Poth. Peii. 62f ) Fer. D. 1. c. ; 3 Dom, 1. 15, s. 2, n. 9; C. S. 0.0.6, 8. 6, $24. [T 361.1 360* These officers rep re- sent the corporation ".. ull acts contracts or suits, ) .nd Sind it in all matters which do not ex- ceed the limits of the powers conferred on them. These powers are either determined by law, by the by-laws of the corporation, or by Lho nature of the duties imposed. — Poth. 1. 0. ; Fc r. D. I.e. : 0. L. 430. [I. 351.] 361. Every corporation has a right to make, for its in- ternal rovemment, for the order ^■'■' ^.s proceedings and for the management of its affairs, by-laws and regula- tions which its members are be and to obey, provided they axe legally and regularly passed. — Poth. 1. c. ; 5 N. D. 694 ; 3 Bla. 476 j C. S. C. c. 6, s. 6,5 24; C.L. 430. [1.351.] 54 CORPORATIONS. SECTION II. Of the privileges of corpo- rations. 362* Besides the special privileges which may be grant- ed to each* corporation by its title of creation or by special law, there are others which result from the fact of incorpo- ration and which exist of right in favor of all corporate bo- dies, unless taken away, re- strained or modified by such title or by law.-— 3 Bla. 476 j 0. S.C.I, c. [1.351.] 363. The principal of these privileges is that which limits the responsibility of the mem- bers of a corporation to the interest which each possesses therein, and exempts them from all personal liability for the payment of obligations contracted by the corporation within the scope of its powers and with the formalities re- quired.— Poth. Pers. 628,9 j Fer. D. 1. c.j 5 N. D. 697; 3 Bla. 468 J C. S. C. 1. o. [1. 353.] SECTION III. Of the disabilities of corpo- rations. 364:. Corporations are sub- ject to particular disabilities which either prevent or re- strain them from exercising certain rights, powers, pri- vileges and functions, which natural persons may enjoy and exercise ; these disabilities arise either from their corpo- rate character or they are Im- posed by law. — 3 Bla. 475; Poth. Pers. 630 j Fer. D. 441 } N. D. 697. [I. 353.] 365. In consequence of the disabilities which arise from their corporate character, they can neither be tutors nor cura- tors, saving the exception con- tained in chapter 34 of the Consolidated Statutes for Lower Canada, nor can they take part in meetings of family councils. — They cannot be en- trusted with the execution of wills or any other administra- tion which necessitates the taking of an oath, or imposes personal responsibility. — They cannot be summoned personal- ly, nor appear in court other- wise than by attorney. — They cannot sue nor be sued foi as- sault, battery or other violence on the person. — They cannot serve as witnesses nor as jurors before the courts. — They can neither be guardians nor judi- cial sequestrators, nor can they be charged with any other functions or duties the exer- cise of which may entail im- prisonment. — Poth. Pers. 628,- 9; 3 Bla. 476; Fer. D. 441; 6 N. D. 697. [I. 363.] ^366. The disabilities aris- ing from the law are : 1. Those whioh are imposed on each corporation by its title, or by any law applicable to the class to which such cor- poration belongs ; 2. Those comprised in the general laws of the country respecting mortmains and bo- dies corporate, prohibiting them from acquiring immove- able property or property so reputed, without the permis- sion of the crown, except for certain purposes^ only, and to a fixed amount and value ; OOBPOKATIONS. 66 3. Those which result from ihe same general laws impo- sing, for the alienation or hy- pothecation of immoveable pro- perty held in mortmain or be- longing to corporate bodies, particular formalities, not re- quired by the oomiaon law. — Poth. Pers. 630 j Fer. D. 1. o. j 5 N. D. 697. [I. 363 J III. 375.] 367* AH corporations are prohibited from carrying on the business of banking unless they have been specially au- thorized to do so by their title of creation. — C. S. C. c. 6, s. 6, § 24.— [I. 363.] CHAPTER THIRD. OP THE DISSOLUTION OP COBPO- EATIONS AND THE LIQUIDA- TION OP THEIR APPAIBS. SECTION I. Of tlie dissolution of corpo- rations. 368* Corporations are dis- solved : 1. By any act of the legisla- ture declaring their dissolution ; 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 in- curred J 4. By the natural death of all the members, the diminu- tion of their number, or by any other cause of a nature to in- terrupt the corporate existence, when the right of succession is not provided for in such cases ; 6. By the mutual consent of all the members, subject to the modifications and under the circumstances hereinafter determined. — 1 Bla. 484; C.S. L. 0. c. 88, s. 10. [1.366.] 369. Ecclesiastical and se- cular corporations of a public nature, other than those ^rmed for the mutual assistance of their members, cannot be dis- solved by mutual consentwith- out a formal and legal surrender or the authority of tho legisla- ture, as the case may be. — Thd same rule applies to banks, to railway, canal, telegraph, toll- bridge, and turnpike compa- nieSy and generally to private corporations who have obtained privileges which are exclusive or exceed those resulting by law from incorporation. — C. 13; L. 38, ff. de pact.; L. 46, de reg.jur.; Cod. L. 6, de pact. [L 365.] 370. Public corporations formed for the mutual assist- ance of their members, and those of a private nature not included in the preceding ar- ticle, 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. — Bute that private rights may he waived / L. 7, § 7, ff. de pact. ; Cod. L. 29, e. t. [I. 366.] SECTION II. Of the liquidation of the affairs of dissolved corporations. * 371. A dissolved corpora- tion is, for the liquidation of 69 DISTINCTION OF THINOS. its affairs, in the same position as a vacant succession. The creditors and others interested have the same recourse against the property which belonged to it, as may be exercised against vaeant successions and the property belonging to them.--[I. 356.] * 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 for- malities observed in the case of vacant estates. — 0. S. L. C. c. 88, s. 10. [I. 355.] '^.373. Such curator must be sworn; he must give security and make an inventory. He must also dispose of the move- ables, and must proceed to the sale of the immoveable pro- perty, and to the distribution of the price between the credit- ors and others entitled to it, in the manner prescribed for the discussion, distribution and division of the property of vacant estates to which a cu- rator has been appointed, and in the cases and with the for- malities required by the Code of Civil Procedure. — C. S. L. C. c. 88, s. 10. [I. 357.] BOOK SECOND. OF PEOPERTY, OF OWlfERSHIP AND OF ITS DIFFEREIS'T MODIFICATIONS. TITLE FIRST. OP- THE DISTINCTION OF THINGS. 374. All property, incorpo- real as well as corporeal, is moveable or immoveable. — 0. P. 88; 2 P. Poul. 55 ; Arr. Lam. pt. 2, t. 8, a. 1 ; Poth. Com. 27, 66 ; Id. Intr. 45 ; 3 Toul. 4, 5 ; 6 P. Fr. 35; C. N. 516. [I. 445.] CHAPTER FIRST. OF IMMOVEABLES. 375. Property is immove- able either by its nature, or by its destination, or by reason of the object to which it is attach- ed, or lastly by determination of law.— C. N. 517; C. L. 454; Poth. Intr. 49, Choses, 638, 642 ; Lam. t. 8, a. 1, p. 46 ; 2 Boi. 595; 2 Mai. 5, 6; 2 Marc. n. 340, p. 327-8, n. 371, p. 364 ; 9 Demol. 40, 41, n. 93, & p. 248, 9, n. 378 - ; 2 Boi. 619, on a. 526. [I. 445.] 376* Lands and buildings DISTINCTION OP THINGS. 67 are immoveabl« ,*>y their nature. Poth. Choses, t»o3 - Id. Intr. n. 47; Lam. t. 8, a. 1, p. 47; 3 Toul. 8 J 2 P. Poul. 63 j Inst. De rer. div. 1. 2, t. 1, § 30 j C. N. 618 J 0. L. 455. [I. 446.] 377. Windmills and water- mills, built on piles and forming part of the building, are also immoveable by their nature when they are constructed for a permanency. — C. P. 90 j Poth. Com. n. 36, 37 j Id. Choses, 638-9; Id. Intr. n. 47; 2 Boi. 600, on a. 619 ; 2 Marc. 328-9; C. N. 619. [I. 445.] 378. Crops uncut and fruits unplucked are also immove- able. — According as grain is eut and as fruit is plucked, they become moveable in so far as regards tLe portion cut or plucked. The same rule ap- plies 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.— -C. P. 92 ; ff. L. 44, De rei. vind. ; L. 26, § 6, Qusa in frau. ored. ; Lam. t. 8, a. 19 ; Poth. Com. n. 45 ; Id. Choses, 640 ; 3 Toul. 8 ; 6 P. Fr. 40 ~ ; C. N. 520. [I. 445.] 379. Moveable things which a proprietor has placed on his real property for a permanency or which he has incorporated therewith, are immoveable by their destination so long as they remain there. — Thus, within these restrictions, the following and other like objects are immoveable : 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 immove- able by destination. — ff. L. 15, De act. emp. ; 1 Bour. 143 ; 3 Toul.12,11 ; C. N. 623;— on § 1: C. P. 90 ; Poth. Com. 47 - ; Id. Chosea, 641 ; 6 P. Fr. 68-9 ; 2 P. Poul. p. 66, n. 10, 11 ; D. on a. 624, p. 112 ; Fen. Poth. on a. 624, p. 123 ; C. N. 624;— on § 3 : 2 P. Poul. 65, 66, n. 8, 9; C. P. 90; Poth. Com. n. 50-52 ; Id. Choses, 638 - ;— on § 4 : Poth. Com. n. 47 — ; Id. Choses, 1. c. ; 2 P. Poul. 66, n. 10-; 5 P. Fr. 66, 7; 2 Mai. 10 ;— on § 5 : Poth. Com. n. 40 j Id. Choses, 639; ff. L. 17, De act. emp. [I. 447.] 380. Those things are con- sidered as being attached for a permanency which are placed by the proprietor and fastened with iron and nails, imbedded in plaster, lime or cement, or which cannot be removed with- out breakage, or without de- stroying or deteriorating that part of the property to which they are attached. — ^Mirrors, pictures and other ornaments are considered to have been placed permanently when with- out them the part of the room they cover would remain in- complete or imperfect. — C. P. 90 ; Poth. Com. 47 - ; Id. Choses, 641 ; Lam. t. 8, a. 6 ; 2 P. Poul. 66, n. 10 ; C. N. 525. [1. 447.] 381. Rights of emphyteu- sis, of usufruct of immoveable things, of use and habitation, servitudes, and rights or actions which tend to obtain possession of an immoveable, are immove- S8 dishnotion of things. able by reason of the objects to which they are attached. — Poth. Com. 67 J 2 Bol. 611 -j 2 Maro. 342 — ; 9 Demol. n. 529 — , n. 490 — J 2 Zach. 20 j 1 Dem. 298 j 2 Fur. Don. q. 31, n. 17 J Poth. Intr. n. 61j 1 Arg. 109 i (3. N. 626. [1. 447.] 882. AH moveable property, of which the law ordains or authorizes the realization, be- comes, immoveable by deter- mination of law, either ab- solutely or for certain purposes. — The law declares to be im- moveable 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 minor- ity of constituted rents belong- ing to minors. — Tho same rule applies to all sums accruing to a minor from the sale of his immoveables during his minor- ity, which sums remain im- moveable so long as the minor- ity 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. — C. P. 93, 94 J 1 Lau. 241-246 j 1 Arg. 102 - J 2 P. Poul. 63 — J Poth. Ghoses, 646 j Intr.n. 66 ; Mes. 610 j 6 P. Fr. 75, 6 j 2 Marc. 364 : 9 Demol. 248. [I. 447.] CHAPTER SECOND. OF MOVEABLES. 888. Property is moveable by its nature or by determina- tion of law. — Poth. Intr. 45, 46 j Id. Com. 28, 29; Id. Choses 638 J 1 Arg. 98 J 9 Demol.n. 338 -: 2 Maro. n. 373, p. 364: C. N. 627. [1.447.] 884. 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. — ff. L. 93, De verb. sig. j Poth. Com. n. 28-30, 34, 39 j Id. Choses, 638 J Id. Intr. n. 46 j 3 Toul. 13, 14 J 9 Demol. n. 394-5 j C. N. 528. [I. 449.] 885. Boats, scows, ships, floating mills and floating baths and generally all manu- factories not built on piles and not forming part of the realty, are moveable. — Poth. Com. 29, 36 J Id. Intr. 46 j Id. Choses, 638 J 1. Lam. t.-8, a. 13, 14; 0. Mar. 1. 2, t. 10, a. 1 : C. N. 631. [1. 449.] 886. Materials arising from the demolition of a building, or of a wall or other fence, and those collected for the construc- tion of a now one, are move- able 80 long as they are not used. — But things forming part of a building, wall or fence, and which are only temporari- ly separated from it, do not cease to be immoveable so long as they are destined to be placed back again. — Poth. Com. 39,62, 195; Id. Intr. 48; Id. Choses, 642 ; 6 P. Fr. 88; C. N, 632. [I. 449.] 887. Those immoveables are moveable by determination of law, of which the law for certain purposes authorizes the mobilization, so are all obliga- tions and actions respecting DISTINCTION OF THINGS. A» moveable effects, including debts created or guaranteed by the province or by corpora- tions, also all shares or inter- ests in financial, commercial or manufacturing companies, although, such companies, for the purposes of their busi- ness, should own immoveables. These immoveables are reput- ed to be moveable with regard to each partner, only so long as the company lasts. — 1 Lau. 225 — ; Lam. t. 8, a. 1, 2 ; Poth. Com. 69 J Id. Intr. 60, 62, 56 J Id. Choses, 644 — j C. P. 89 ; C. N. 629. [I. 449.] 388* [Constituted rents and all other perpetual or life rents, are also moveable by determination of law; saving those resulting from emphy- teusis, which are immoveable.] —9 Demol. 286-7; 2 Mar. 347; Poth. Intr. n. 66; 0. N. 629. [I. 449.] 389* No ground-rent, or other rent, affecting real es- tate, 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 al- though created for ninety -nine years, or for the lives of three persons, are, at all times, re- deemable, at the option of the debtor, in the same manner as constituted rents to which they are assimilated. — C. S. L. C. c. 60, s. 1, p. 484 -; C, N. 630. [I. 449.] 390. It is nevertheless competent for the parties to stipulate, in the title creating these rents, that they shall only bo redeemed at a certain time agreed upon, which can- not exceed thirty years ; every stipulation extending this term being null with regard to the excess. — lb. s. 2 ; C. N. 530^ [I. 449.] 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. — C. N. 630. [I. 461.] 392* Bents created by em- phyteutic lease are not however subject to such redemption, nor those to which the creditor has only a conditional or a limited right.— lb. s. 3. [I. 461.] 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 re- demption is effected by the payment of a sum sufficient to produce a like rent for the future, at the legal rate of interest at the time of the redemption.] — Special provi- sions concerning the redemp- tion of the rents substituted for seigniorial rights, are con- tained in chapter forty-one of the Consolidated Statutes for Lower Canada. — C. N". 530* [I. 451 ; III. 376.] «0 DISTINCTION OF THINGS. 394. [Life-rents and other temporary rents, at the termi- nation of which no reimburse- ment of the capital is to take place, are not redeemable at the option of either of the parties ajone. — 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.] [III. 376.] 395. The word "move- ables" employed alone in any law or act, does not comprise money, precious stones, debts due, books, medals, scientific, artistic or mechanical instru- ments, body-linen, horses, car- riages, arms, grain, wines, hay and other provisions, nor stock in trade. — ff. De supel. leg. ; 1 Bour. 1. 1, c. 4, s. 1, p. 140; Poth. Test. c. 7, a. 4, s. 2 j Fen. Poth. on a. 633 ; 6 P. Fr. 89 ; 7 Lo. E. C. 79 J C. N. 533. [I. 451.] 396. The word "furniture" comprises only the moveables ^hich are destined to furnish and ornament apartments, such as tapestry, beds, seats, mirrors, clocks, tables, china and other objects of a like kind. — It also comprises pictures and statues^ but not collections of pictures "which are in galleries or par- ticular rooms. — As regards china, likewise, only that which forms part of the decoration of a room comes under the deno- mination of furniture. — 1 Bour. I. 1, c. 4, 8. 2, p. 140 J Fen. Poth. 131 J 5 P. Fr. 02-3 j Poth. Test. 0. 7, a. 4, § 2, 9 ; Merl. Biens, § 1, n. 15 ; 3 Toul. 18 : C. N. 634. [I. 461.] 397. The expressions " moveable property," and "moveable things^* comprise genera^'/ whatever is reputed moveable 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. — Poth. Test. c. 7, a. 4, s. 2, 3, 4 J 1 Bour. 1. 1, c. 4, s. 3 J 5 P. Fr. 95 j 3 Toul. 18 J C. N. 536. [I. 461.] 398. The sale or gift of a house with all that it coixtains, does not comprise ready mbney, nor debts due or other rights the titles to which happen to be in the house. It comprises all other moveable eflfects.— Poth. Test. 0. 7, a. 4, § 5j 6 Toul. 504 ; 6 P. Fr. 95, 96 j C. N. 536. [I. 461.] CHAPTER THIRD. OP PROPERTY IN ITS RELATIONS WITH THOSE TO WHOM IT BE- LONGS OR WHO POSSESS IT. 399. Property belongs ei- ther to the crown, or to munici- palities or other corporations, or to individuals. — That of the first kind is governed by pub- lic or administrative law. — That of the second is subject, in certain respects as to its ad- ministration, its acquisition and its alienation, to certain rules and formalities which are peculiar to it. — As to indivi- duals, they have the free dis- posal of the thihgs belonging to them, under the modifica- OWNEBSHIP. 61 tions established by law. — Cod. L. 21, Mand. ; Poth. Prop. n. 6, 7j 3 Toul. 23 — ; ODemol. 330 - i 3 Ency. 136, n. 116 ; 2 Marc. 380, n. 393; 6 P. Fr. 96 —J 7 Lo. E. C. 86 ; C. N. 637 J Poth.Intr. n. 101 j Id. Pers. pt. 1, t. 7, a. 1, p. 637. [I. 453.] 4:00« Roads and public ways maintained by the state, navigable and floatable rirera and streams and their banks, the sea-shore, lands reclaimed from the sea, ports, harbors and roadsteads and generally all those portions of territory which do not constitute private property, are considered as being dependencies of the crown domain. — Boutil. S. R. 1. 1, t. 72, 73, 86 ; Loi. 1. 2, t. 2, a. 5 ; Lebret, S. 1. 2, c. 16 ; Loy. Seign. c. 12, n. 120 j Chit. Pr. 142, 206, 207 j 2 Bla. 261, 262, n. 6 J 3 Toul. n. 30, 31, p. 24 J 3 Ency. 136 j C. N. 638 ; C. S. L. C. c. 24. [I. 463.] 401> AH estates which are vacant or without an owner, and those of persons who die without representatives or whose succession is abandoned, belong to the crown. — C. P. 167 J Cod. de bon. vac; lb. L. 2, De pet. bon. ; 3 Toul. 25 ; 5 P. Fr. 109 J 7 Lo. 99 ; D. 117, n. (a) I C. N. 639. [I. 453.] 4:02. The gates, walls, ditches and ramparts of mili- tary places and of fortresses also belong to the crown. — lb. : C. N. 640. [I. 453.] 4:03« The same rule applies to the lands, fortifications and ramparts of places which are no longer used for military purposes j they belong to the crown, if they have not been validly alienated. — Ed. Dec. 1681 J 3 Toul. p. 26, 28, 348 j 2 Marc. 382; 3 Ency. 136; 7 Lo. 96,97; 5P.Fr. 110,11; C.N. 641. [I. 453.] 404. The property of muni- cipalities and other corpora- tions is that to which or to the use of which these bodies have an acquired right. — S. L. 6, De div. rer. ; 3 Toul. n. 44, 46, 47- 62; C. N. 642 ; 3 Ency. 137; 5 P. Er. 111. [I. 463.] 405. A person may have on property either a right of ownership, or a simple right of enjoyment, or a servitude to exercise. — 3 Toul. 245 ; 2 Marc. 384; 3 Ency. 138; C. N. 543. [I. 463.] 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 pro- hibited by law or by regula- tions. — Cod. L. 21, Mand ; Potih. Prop. n. 4, 13, 14; Id. B. R.n. •wmammmm'imnytmt l 92 OTTNERSHIF. 42, 112 J Intr. n. 100, 101 . 0. N. 544; 5 P.Fr. 180; 2 Maro. 396. [I. 456.] 4:0y. No one can be com- pelled to give up his property, except for public utility and in consideration of a just indemnity previously paid. — Poth. Vente, n. 610-514; Id. Prop. 274; 6 P. Fr. 183 ; 0. N. 646. [1.455.] 408. Ownership in a thing whether moveable or immove- able gives the right to all it produce^', and to all that is joined to it as an accessory whether naturally or artificial- ly. This right is called the right of accession. — ff. L. 6, De adq. rer. dom, L. 6, De rei. vind.; Poth. Prop. 6, 150, 151, 260; Id. Intr. 100 ; 0. N. 646. [1.455.] CHAPTER FIRST. OF THE KIGHT OF ACCESSION OVER WHAT IS PRODUCED BY ATHIKO. 409. The natural and in- dustrial fruits of the earth, civil fruits, and the increase of animals belong to the pro- prietor by right of accession. — n. L. 6, L 9, De adq. rer. dom.; L. 6, De rei. vind.; Poth. Prop. 151-154; 6 P. Fr. 161, 184; 3 Toul. 71; C. N. 547. [I. 455.] 410* The fruits produced by a thing, only belong to the proprietor subject to the obli- gation of restoring the cost of the ploughing, tilling and sow- ing done by third persons. — f£. L. 9, do adq. rer. dom. ; L. 5, de rei vind. ; Poth. Prop. 151 ; 6 P. Fr. 185; C. N. 548. [I. 466.] 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 jproduce as well as the thing itself to the pro- prietor who claima it. — ^A pos- sessor in good faith is not bound to set off the fruits against improvements for which he has a right to be reim- bursed. — ff. L. 25, de usu. et fruc. ; Cod. L. 12, de rei vind. ; Poth. Pos. 82, 83; Id. Pres. 78; Id. Prop. 155, 281, 332- 336, 341 -; Id. Intr. 107; Id. Vente, 326; C.N. 649. [I. 455 ; III. 375.] 412. A possessor is in.good faith when he possesses in virtue of a title the defects 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. — ^ff. L. 109, de verb, sig. ; Ser. Inst. 88; 2 Arg. 501 ; Poth. Pos. n. 82, p. 550, Prop. 1. c. n. 335, 341, 342 ; 1 Fur. 328; 2 Maro. n. 550 -; 9 Demol. 586 — ; 3 Toul. 49 ; 2 Mai. 28 — ; I'Dem. n. 653 ; 1 Dur. n. 584 ; D. 120. n. (a) ; 3 Ency. Bonne foi, 236 ; C. N. 560. [1.455; III. 375.] CHAPTER SECOND. OF THE RIGHT OP ACCESSION OVER WHAT BECOMES UNITED AND INCORPORATED WITH A THING. 413. Whatever becomes united to or incorporated with OWNERSHIP. 68 a thing belongs to the pro- Erietor, according to the rules ereinafter established. — Inst. 1. 2, t. 1, § 29 J flf. L. 23, §, Jenul. De rei vind. ; Poth. Prop. 56 : 3 Toul. 73 ; 9 Demol. n. 640 -- J C.N. 661. [1.467.] 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. — The proprietor may make upon the soil any plamta- tions or buildings he thinks proper, saving the exceptions established in the title Of Beat Servitudes. — He may make be- low it any buildings or excava- tions he thinks proper, and draw from such excavations any products they may yield, saving the modifications result- ing from the laws and regu- lations relating to mines, and the laws and regulations of police. — ff. L. 24, de serv. praed. urb.; L. 21, § 2, quod vi aut clam ; Cod. L. 8, L. 9, de serv. et aq. j C. P. 187 j Poth. Com. 32; Lam. p. 2, t. 20, a. 13; Merl. Cave, Voisinage, § 6 j 4 Dur. n. 370 j 2 Mai. 31, 2 ; C. N. 652. [I. 457.] ^ 415. AH buildings, planta- tions and works on any land or underground, are presumed to have been made by the proprietor at his own cost, and to belong to him, unless the contrary is proved j without prejudice to any right of pro- perty, either in a cellar under the building of another or in any other part of such building, which a third party may have acquired or may acquire by proscription. — ff. Arg. ex. L. 7, 1 10, De adq. rer. dom. ; Poth. Prop. 177 : 1 Delv. 181, n. 4; 4 Dur. n. 372: 2 Marc. 406, 7j O.N. 663. [1.457.] 416* The proprietor of the soil who has constructed build- ings or works with materials which do not belong to hiin, must pay the value thereof; he may also be condemned to Eay damages, if thero bo any, ut the proprietor of the mate- rials has no right to take them away.— ff. L. 23, § 7, De rei vind. ; lb. L. 1, L. 2, de tig. June.; Poth. Prop. 170-172, 178 J 2 Mai. 32 J 5 P. Fr. 202, 3 j 3 Toul. 82 ; 2 Marc. n. 424 ; 9 Demol. 606 j 1 Dem. n. 668 — j 0. N. 664. [I. 467.] *417. "When improvements 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 pro- prietor of the land cannot nave them taken away ; ho must, in all cases, pay what they cost, oven 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 projprietor 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 64 OWNEBSHIP. m in bad faith, the proprietor has the option either of keeping them, upon paying what they cost or their actual value, or of permitting such posoensor, if the latter can do so with advantage to himself and with- out deteriorating the land, to remove them at his own ex- pense ; otherwise, in each case, the improvements belong to the owner, without indemnification; the owner may, in every case, compel the possessor in bad faith to remove them. — Author, under a. 419. [I. 457.] 418. In the case of the third paragraph of the preceding article, if the improvement made by the possessor bo 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 pro- perty, and to pay the estimated value of it. — Author, under a. 419. [1. 457.] *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 re- imbursed, he has a right to retain the property until such reimbursment is made, with- out prejudice to his personal recourse to obtain repayment j saving the case of surrender in any hypothecary action, which is specially provided for in the title 0/ Privileges and Hy- pothecs. — 1 Merl.Am^liorations, 367 J Lac. Impenses, 342 — j Poth. Prop. 170-2, 346, 7j 5P. Fr. 204; 2 Mai. 34 - ; 3 Toul. 83 i Lah. 54 ; Fen. Poth. 138, 9; Lawrence & Stuart, 6, L. G. R. 294; 0. 1667, t. 27, a. 9 ; 2 Marc, on a. 555; C. N. 555. [1.457; III. 377.] 420. Deposits of earth and augmentations which are gra- dually and imperceptibly form- ed on land contiguous to a stream or liver are called al- luvion. — 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.— 2 Mai. 35, 6; 0. E. F. 1669, t. 28, a. 7; 2 E. ,& 0. 24; 7 Lo. E. C. 165 -; C.N. 556 ; Inst. 1. 2, 1. 1, § 20 ; May. 1. 10, 0. 3; Dup. 1. 2, q. 3; Dum. § 1, gl. 5, n. 115; Bao. D. J. c. 30, n. 8; 2Bous. 56, 7 j Lao. Alluvion, 34. [I. 459.] 421. As to ground left dry by running water which insensibly 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 re- claim tne land he has lost. — This right does not exist as regards land reclaimed from the sea, which forms part of the public domain. — fif. L.7, § 1, De adq. rer. ; 0. 1681, 1. 4, t. 7; Lebret, 1. 2, c. 14 ; Poth. Prop, n. 159 ; 5 P. Fr. 211 ; 2 Mai. 37; 3 Toul. 105; 2 Bla. 262; Com. D. Prerog. D. 61; Chit. Pr. 207, 8; 2 Bous. 58; 2 Marc.417; C. N. 557. [1.459.] 422* Alluvion docs not take place on the borders of lakes and ponds which are private OWNEBSHIP. «6 property j neither the pro- prietor of the lalco nor the proprietor of the adjacent land gains or loses in conseqnenco of the waters happening to riso or fall above or below their ordinary level. — flf. L. 7, § 6, L. 12. Do adq. rer. ; 2 Bous. 50 ; 6 P. Fr. 213 J 4 Proud. D. P. 677 — J Lao. Alluvion, n. 3, p. 34 : C. N. 658. [I. 469.] 423. If a river or stream, whether navigable or not, carry away by a sudden force a con- siderable and distinguishable 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 nas been united.] — S. L. 7, § 2, De adq. rer. j A. D. Alluvion, n. 4, p. 94; Lac. Alluvion, n. 2, p. 34; Poth. Prop. n. 168, 165 j 1 N. D. Alluvion, n. 2, p. 465-7 j C. N. 659. [I. 459.] 424. Islands, islets and deposits of earth formed in the beds of navigable or floatable rivers and streams belong to the crown, if there be no title to the contrary. — Poth. Prop, n. 160-163; Loi. I. C. 1. 2, t. 2, a. 12 ; Bac. D. J. c. 30, n. 2, 6, 6; Bout. Inst. 1. 2, t. 1, § 22 J C. N. 560. [I. 459.] 425* Islands and deposits of earth, which are formed in rivers which are not navigable or floatable belong to the pro- prietors of the banks on the side where the island is formed. If the island bo not formed on one side only, it belongs to the proprietors of the banks on both sides, divided by a lino sup- posed to be drawn in the mid- dle of the river.— ff. L. 29 Do adq. rer. ; Inst. 9 22 de adq. rer. ; Poth. Prop. n. 164 ; Lac. Isle, Islot, n. 1, p. 373 : C. N. 661. [1. 461.] 426> If a river or stream, by forming a new branch, cut and surround the field of a pro- prietor contiguous to it, and thereby form an island, the proprietor retains the property of his field, although the island be formed in a navigable or floatable river or stream. — ff. L. 7, § 4, De adq. rer. ; Inst. § 22 ; De div. rer. ; Poth. Prop, n. 162 ; A. D. Alluvion, n. 4 ; 2 Marc. 421 ; 6 P. Fr. 137-8; C. N. 662. [I. 461.] 427. If a navigable or float- able 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 pro- prietors of the land newly oc- cupied take as an indemnity the ancient bed, each in pro- portion to the land which has been taken from him. — Poth. Prop. n. 161-4; 2 Hen. 1. 3, q. 30 ; Ser. Inst. 1. 2, t. 1, § 23 ; 2 Bous. 65 ; C. N. 663. [1. 461.] 428. Pigeons, rabbits and fish which go into another dove-cot, warren or pond, be- come the property of him to whom such pond, warren or dove-cot belongs, provided they have not been attracted there by fraud or artifice. — ff. L. 3, § 2 De adq. rer. ; Poth. Prop. 166-8, 278-9 ; Inst. 1. 2, 1. 1, § 14-16 ; Lap. let. Q. n. 29 } 46 OWNEBSaiP. "^. 2 B0U8. 66 ; 2 Mai. 43 ; Mori. Colombior ; 10 Domol. 150; 5 P. Fr. 216-7 ; 7 Lo. E. C. 189, 190) C.N. 664. [1.461.] SECTION II. Of the right of accession in relation to moveable property. 429* Tho right of accession, "vrhen it has for its object two moYoablo things, belonging to two different owners, is entire- ly subordinate to tho principles of natural equity. — The follow- ing rules which are obligatory in tho cases where they apply, servo as examples in the cases not provided for, according to circumstances. — Inst. 1. 2, t. 1, S 27 ; 2 Bous. 67 on a. 565; 5 P. Fr. 128 ", 217 ; 2 Marc. 425-6 ; 3 Toul. 73 ; 2 Mai. 43-4 ; C. N. 665. [I. 461.] 430* When two things be- longing 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 tho 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. — ff. L. 26, § 1. De adq. rer. ; Poth. Prop. n. 169, 170, 179, 180 ; Ency. Ac- cession, 104 ; 4 Dur. n. 435 ; 7 Lo. 193; 3 Toul. 74; C. N. 566. [I. 461.] 4:31. That part is reputed to be tho principal one to which the other has boon united only for tho use, ornament or com- pletion of the former. — ff. L. 26, § 1, De adq. rer. ; Poth. Prop. n. 173, ' larc. 426, 7; 3 Toul. 74 ; P. Fr. 218; Ency. Accession, lOG — ; 4 Dur. n. 436 -; C. N. 667. [I. 463.] rincipal mployed of ita ) that sepa- 'oturnod thing to »ed may iry.— ff. ; Inst. i Poth, Enoy. Dur. n. C. N. 7fl } 6 P. Fr. 219, 220 j 0. N. 670. [1.463.] 436* If however the work- manship bo 80 important that it greatly exceeds the value of the material employed, it is then considered as the prin- cipal part, and the workman has a right to retain the thing, on paying the price of the material to the proprietor. — ff. L. 9, S h 2, De adq. rer. ; Poth. Prop. n. 173 j 1 Enoy. p. 104, 6 ; 6 P. Fr. 220, 1 j C. Jr. 671. [1.463.] 436* When a person has mado 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 cannot be separated without inconveni- ence, the thing is common to the two proprietors, in proportion, as respects the one, to the material belonging to him, and as respects the other, to the material belonging to him and to the price of the work- manship. — ff. L. 7, 5 8, 9, L. 12, § 1, De adq. rer.; Poth. Prop. n. 187 J 3 Toul. 77} 5 P. Fr. 167, n. 31 ~ & p. 221 ; C.N. 672. [1.463.] 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 sepa- rated, the owner, without whose knowledge the materials have been mixed, may demand their division. — If the materials can- not be separated without incon- 9 veuienoe, the parties acquire the ownership of the thing in common, in proportion to the quantity, quality and value of the materials belonging to each. — ff. L. 12, S 1> Be adq. rer. ; L. 6, De rei vend. ; Poth. Prop. n. 175, 190, 191 ; 3 Toul. 78 J 6 P. Fr. 167, 222 j C.N. 673. [I. 463.] 438. If the material be- longing to one of the proprie- tors be much superior in quan- tity and price, in that ease the proprietor of the material of superior value may claim the thing produced by the admix- ture, on paying to the other the value of his material — ff. Arg. ex lege 27, Do adq. rer. , Poth. Prop. n. 192 ; 3 Toul. 78; C. N. 674. [I. 405.] 439. When the thing re- mains 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. — ff. L. 6, de rei vend. ; Inst. 1. 1, t. 2, § 28, De rer. div ; Poth. Prop. n. 192 j 2 Bous. 75 5 6 P. Fr. 156 — ; 2 Marc. 432 J C. N. 676. [I. 466.] 440t In all cases 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. — Poth. Prop. n. 191, 2 J 6 P. Fr. 223 ; 2 Bous. 76 ; 2 Marc. 432, n. 463; C. N. 676. [I. 466.] 68 rSUFBUCT, USE AND HABITATION. 441> Whoever is bound to give back a moveable object upon which he has made im- provements or additions for which he is entitled to be re- imbursed, iliay retain such ob- ject until he has been so reim- bursed, without prejudice to his personal remedy. — [III, 377.] 442« Persons who have employed materials belonging to others and without their consent, may be condemned to pay damages if any there be. —C.N. 677. [I. 466.] TITLE THIRD. OF USUFKUCT, USE AND HABITATION. CHAPTER FIRST. OF USUFRUCT. * 443. Usufruct is the right of enjoying things of which another has the ownership, as the proprietor himself, but sub- ject to tho obligation of preserv- ing the substance thereof — flF. L. 1, 2, 4, Do usuf. et q. j L. 28, De verb. sig. ; Inst. 1. 2 t. 4, inpr.; Poth. Dou. n. 194, 209, 216-218, 220 ; Id. Vento, n. 548 J 2 Bous. 77; 2 Marc. 444 - J 2 Mai. 50 ; 7 Lo. 218 - j C. N. 578. [I. 465.] 444. Usufruct may be established by law, or by the will of man.— ff. L. 6, § 1, Do usuf. etc. ; Poth. Vente, n. 648; Guy. Usufruit, 393; C. P. 230, 314, 249, 265, 262; 2 Bous. 78 ; 5 P. Fr. 231 - ; 2 Marc. 447; 2 Mai. 60, 1; 0. N. 679. [I. 466.] 445. Usufruct may bo established purely or condi- tionally, and may commence at once or from a certain day. — flF. L. 4, De usuf. etc. ; Lao. Usufruit, n. 8, p. 817 ; 6 P. Fr. 241; 2 Marc. 449; C. N. 580. [I. 465.] 446* It may be established upon property of all kinds, moveable or immoveable. — ff. L. 3, § 1, 7, De usuf. etc. j Lac. Usufruit, 817, n. 4 ; 2 Marc. 449-; C.N. 681. [1.465.] SECTION I. Of the rights of the usufruc- tuary. 447. The usufructuary has the right to enjoy every kind of fruits, whether natural, in- dustrial or civil,, which the thing subject to the usufruct can produce. — ff. L. 1, 7, 9, 16, 69, 68, De wsuf. etc.; Poth. Dou. n. 194, 199, 200 ; Poth. Prop. n. 163; 3 Toul. 261; 6 P. Fr. 242; C.N. 582. [1.467.] 448. Natural fruits are those which are the spontaneous produce of tho soil. The pro- duce and tho increase of ani- mals are also natural fruits. — The industrial fruits of the soil are those obtained by tho cul- tivation or working thereof. — USUFRUCT, USB AND HABITATION. 69 ff. L. 77, De verb. sig. ; L. 36, § 6, De her. pet. ; Poth. Dou. n. 198, 199, Com. n. 115; 3 Toul. 262 J 5 P. Fr. 161, 245 j C. N. 583. [I. 467.] 449. Civil fruits are the rent of houses, interest of sums due and arrears of rents. The rent due for the lease of farms is also included in the class of civil fruits.— ff. L. 121, De verb. sig. ; L. 36, De u. et fruc, L.62, De reivend. ; Poth. Dou. n. 203, 204, Com. n. 205, 221 ; 6 P. Fr. 161, 245--; 2 Henn. 366; 3 Toul. 263; C. N. 584. [I. 467.] 4:50i Natural and indus- trial fruits attached by bran- ches or roots, at the moment when the usufruct is open, belong to the usufructuary. — Those in the same condition at the moment when the usu- fruct ceases, belong to the proprietor, without recompense on either side for ploughing or sowing, but also without pre- judice to the portion of the fruits which may be acquired by a farmer on shares, if there be one at the commencement or at the termination of the usufruct. — ff. L. 27, L. 58, L. 59, De usuf. etc. ; L. 13, Quib. mod. usuf. et us. ; L. 32, L.42, Deu. etusuf. ; C. P. 231 ; Poth. Dou. n. 160, 194, 199, 202,273, 275; Id. Com. n. 206-7-9, 212-3; Id. CO. 1. 10 ; Id. Mand. n. 192 ; 3 Toul. 264; 5 P. Fr. 248 -; N. D. Fruits, § 3, n. 3 ; 3 P. Poul. 290, 1; C. N. 585. [I. 467.] 4:dli Civil fruits are con- sidered to be acquired day by day, and belong to the usu- fructuary in proportion to the duration of his usufruct. — This rule applies t9 rent from the lease of farms, as it does to the rent of houses and to other civil fruits. — ff. L. 7, De sol. matrim.; L. 26, De usuf. et q. ; Poth. Dou. n. 160 & 205; Id. Com. n. 220, 1 ; C. N. 586 [I. 467.] 452. If the usufruct com- prise things which cannot bo used without being consumed, such as money, grain, liquors, the usufructuary has the right to use them, but subject to the obligation of pay ing back others of like quantity, quality and value, or their equivalent in money, at the end of the usu- fruct. — ff. L. 7, De usuf. ear. rer. ; Lac. Usufruit, n. 4, p. 817 ; Poth. Don. M. n. 215 ; 2 Mai. 55, 63 ; 2 Henn. 251 — ; 5 P. Fr. 251 ; 3 Toul. 259 j Merl. Usufruit, § 4, n. 8; C. N. 587. [I. 467.] 453. The usufruct of a life- rent gives also to the usufruc- tuary, during the period of his usufruct, the right to retain the whole of the payments that ho has received as payable in ad- vance, without being obliged to make any restitution. — Poth. Dou. n. 25 ; Id. Don M. n. 219 ; Id. Com. n. 232 ; 2 Mai. 55 ; 5 P. Fr. 245; Lac. Usufruit, n. 4, p. 817 ; 2 Henn. 248, 9 ; C. N. 588. [1. 467.] 4:54:i If the usufruct com- prise things which, without being at once consumed, de- teriorate gradually by use, as linen or furniture, the usufruc- tuary has the right to use them for the purpose for which they are destined, and, at the end of the usufruct, ho is only obliged to restore them in the condition 70 USUPBUCT USE AND HABITATION. If in which they may be, and not deteriorated by his fraud or fault.— ff. L. 15, § 1, 2, 3, 4, De usuf. etc. J L. 9, § 3, Usuf. quern, j Poth. Don. n. 194, 209, 215-218, 220 ; Id. Vente, n. 649 ; 2 Mai. 56 J Merl. Usufruit, § 2, n. 3, § 4 J 6 P. Fr. 252 ; 3 Toul. 248, 324; 1 Proud. Usufruit, n. 67 ; 2 Id. n. 887, 1056, 1081, 1111 J 3 Id. n. 1726; 4 Id. n. 2234 ; 6 Id. n. 2579, 2651 ; 2 Bous. 84, 6; Dom. 1. 1, Usu- fruit, t. 11, § 3 ; C. N. 589. [I. 469.] 455. The usufructuary can- not 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 acci- dentally. — If however among tho latter there bo not a suffi- cient quantity of a suitable kind for the repairs to which he is obliged, and for the keep- ing 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 gene- rally used in the locality for that purpose. — flF. L. 12, De usuf. et q. ; Lac. Usufruit, n. 7, p. 819, 823; Poth.Dou.n. 197; 6 P. Fr. 259; 3 Proud. Usu- fruit, 65, n. 1194; N. D. Bali- veaux, §4; 3 Toul. 271, n. (1.) C. N. 690, 591, 692, 693. [I. 469.1 4k56. Any fruit trees which die, even those which are up- rooted or broken by accident, belong to tho usu:'. . i tuary, but he is obliged to replace them by others, unless the larger proportion has been thus de- stroyed, in which case he is not obliged to replace them. — 5. L. 12, Du usuf. et q. ; Poth. Dou.n. 210, 211; 3 Toul. 271; 3 Proud. 1175, 1199; 6 P. Fr. 262 ; C. N. 594. [I. 469.] 457. The usufructuary may enjoy his right by himself, or lease it, and may even sell it or dispose of it gratuitously. — If he lease it, the lease expires with his usufruct; neverthe- less the farmer or the tenant has a right and may be com- pelled to continue his enjoy- ment during the rest of the year which had begun before the usufruct expired; subject to the payment of the rent to the proprietor. — ff. L. 12, L. 67, De usuf. et q. ; L. 9, Loc. cond. ; Poth. Dou. n. 195, 220, 270, Vente, n. 549 ; Id. Louage, n. 43 ; Lac. Usufruit, n. 15, p. 825 ; Loy. Ddguerpissement, 1, 6, c. 1, n. 6; 3 Toul. n. 413, p. 273; 3 Proud. Usufruit, n. 1212, 1215; 10 Demol. n.349, p. 309; C. N . 595. [I. 469.] 458. The usufructuary en- joys any augmentation caused by alluvion to the land of which he has the usufruct. — But his right docs not extend to islands formed during the usufruct near tho laiid which is subject to it and to which such '"elands be- long.— ff. L. 9, § 4, De usuf. etc. ; Poth. Dou. n. 68 ; 2 Mai. 60; 6 P. Fr. 263, 4; 2 Bous. 89; C. N. 696. [I. 469.] 459. He enjoys ail rights of servitude, of passage, and generally all the rights of the proprietor in the same manner as the proprietor himself. — ff. USUFfiUCT, USE AND HABITATION. n L. 12. Com. praed. j L. 20. § 1, Si serv. vind. j L. 25, De serv. praed. rust, j Poth. Dou. n. 195, 209, 210; 2 Mai. 60 j 2 Bous. 89 J 5 P. Fr. 264,5 j 3 Toul. 262, 273 j Mcrl. Usufruit, § 4, n. 11; C. N. 597. [I. 471.] *460i Mines and quarries are not comprised in the usu- fruct of land. — The usufruc- tuary may nevertheless take therefrom all the materials necessary for the repair and maintenance of the estate sub- ject to his right. If however these quarries, before the open- ing of the usufruct, have been •worked as a source of revenue by the proprietor, the usufruc- tuary may continue such work- ing in the way in which it has been begun. — Poth. Dou. n. 195, Com. n. 97, 204 ; Id. C. 0. t. 10, n. 100 ; 10 Demol. n. 433 ; Id. n. 430, p. 376 ; Pro. Code N. 1. 2, t. 3, a. 23, p. 140 ; Merl. Usufruit, § 4, n. 3 ; 2 Mai. on a. 698, i. f. p. 62 ; C. N. 598. [I. 471.] ^61. The usufructuary has no right over treasure found, during the usufruct, on the land which is subject to it. — £f. L. 7, § 12, sol. matr. ; Ser. Inst. 91 ; 1 Desp. n. 9, p. 558; Poth. Dou. n. 196; 5 P. Fr. 266,7; C.N. 598. [1.471.] 462. The proprietor can- not, by any act of his whatever, injure the rights of the usufruc- tuary. — On his side, the usu- fructuary cannot, at the cessa- tion of the usufruct, claim in- demnity for any improvements he has made, oven when the value of the thing is augment- ed thereby.— He may however 7* take away the mirrors, pic- tures and other ornaments which he has placed there, but subject to the obligation of re- storing the property to its for- mer condition. — fF. L. 15, § 6, 7 ; L. 16, De usuf etc ; fF. L. 12, De u. et usuf. j Poth. Dou. n. 241-3, 271, 277-9 j Id. Prop, n. 12 ; Fen. Poth. on a. 524, p. 126; 2 Mai. 63; 2 Bous. 91,2 ; 3 Toul. 12, 284, 285, 292-, 306 j 5 P. Fr.267 --, n. 37, 38 ; Proud, n. 1108, 1124, 1426, 1463; C. N. 599. [I. 471.] SECTION II. Of flic oWgations of the usufructuary. 4:63. The usufructuary takes the things in the condi- tion in which they are ; but he can only enter into the enjoy- ment of them after having caused an inventory of the moveable property and a state- ment of the immoveables sub- ject to his right to be drawn up, in the presence of or after due notice given to the proprie- tor, unless he is dispensed from doing so by the act constitut- ing the usufruct. — fif. L. 65, § 1, De usuf. ; L. 12, De u. et usuf.; L. 1, i. p. & § 4, usuf. quem. cav. ; Cod. L. 4, § 1, Do usuf. et hab. ; Ser. Inst. 148, 310; Poth. Dou. n. 221-8, Don. M. n. 44, 212, 215, 240 j Guy. Usufruit, 393 ; Merl. Usufruit, § 2, n. 2 ; 2 Mai. 65, 6, 279; 1 Arg. 202; 5 P. Fr. 271-3; 10 Demol. 473,4; 3 Toul. n. 419, 420 ; C. N. 600. [I. 471.] 4:64. He gives security to enjoy the ujufruct as a prudent 72 VSUFBUOT, USEf AND HABITATION. administrator, unless the act creating it exempts him from so doing; nevertheless the vendor or donor who has re- served thejasufruct is not ob- liged to give security. — flF. L. 2, L. 7, L. 9, § 1, Usuf. quem. ; Cod. L. 1, De usuf. et hab. j Poth. Dou. n. 211, 221 j C. P. 285 J Lao. Usufruit, 818 — ,n. l~j Guy. Fsufruit, 393,4; 1 Arg. 204; 3 Toul. 279, 280; Fen. Poth. on a. 601, p. 154; 6 P. Fr. 275-, n. 41-; 10 Demol. n. 480 - ; C. N. 601. [I. 471.] 465i If the usufructuary cannot give security, the im- moveables are leased, inarmed or sequestrated. — Sums of money comprised in the usu- fruct are invested; provisions, a.id other moveable things which are consumable by use, are sold, and the price pro- duced is likewise invested. — The interest of such sums of money, and the rent from leases belong in these cases to the usufructuary. — flf. L. 5, § 1, Ut leg. seu. fid. ; Car. on a. 285, C. P.; Poth. Dou. n. 227; 2 Marc. 483 — ; Lac. Usufruit, n. 1, p. 819 ; Guyp. Q. 250 ; 6 P. Fr. 281, 2 ; Ric. Don mut. n. 285 ; 10 Demol. n. 493 - ; 2 Proud. Usufruit, n. 840 - ; C. N. 602. [I. 473.] 466i In default of security the proprietor may require that moveablo property liable to be deteriorated by use, bo sold in order that the price m \y be in- vested and received as in the preceding artiele. — Neverthe- less the usufructuary may de- mand 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 oaih, and sub- ject to the obligation of pro- ducing them at the expiration of the usufruct. — flf. L. 5, § 1, Ut leg. seu fid. ; Inst. De satisd. § 2; 1 Salv. 142; Poth. Dou. n. 227; Ser. Inst. 105, 6; Cit. under a. 465 ; C. N. 603. [I. 473.] 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. — flf. L. 10, § 1, De usuf. ear. ; Inst. § 3 , Do fidej. ; Lac. Usufruit, n. 1, p. 818 ; 5 P. Fr. 283 ; 2 Mai. 69 ; 10 Demol. 616, p. 445 ; C. N. 604. [I. 473.] 46 8. 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 .Ince the commencement of ih'» usufruct, in which case the usufructuary is also held liable.— flf. L. 7, § 2, L. 13, De usuf. et q. ; Cod. L. 7, De usuf. j Poth. Dou. n. 238, 239, 280 ; Id. Don. M. 236-8; Id. B. R. n. 43 ; Id. Com. n. 272 ; Lac. Usu- fruit, s. 2, n. 11 ; 5 P. Fr. 284-5; 2. Mal.69; C.N. 605. [L473.] 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. — flf. L. 7, De usuf. et q. ; C. P. 262; Poth. Dou. n. 238; Id. USUFBUOT, USE AND HABITATIOyr 73 Com. n. 272 ; 2 Bour. 34 ; Lac. Usufruitier, s. 2, n. 11 j 2 Mai. 70 J 6 P. Fr. 287, 8; lODemol. n.651--, 682 1 C. N. 606. [I. 473.f 4v0i Neither the proprietor ncr the usufructuary is obliged to rebuild what has fallen into de^ay or what has been de- stroyed by unforeseen event. — ff. L. 7, § 2, L. 46, § 1, L. 65, § 1, Do usuf. etc. ; Dom. De I'usuf. s. 5, n. 5; 5 P. Poul. 324 n. 411 J 2 Desg. on a. 262, 0. ?. 29 - ; Poth. Dou. n. 238, 239, 246 J Id. Don. M. n. 238 ; Lac. Usufruit, n. 12, p. 821 j 3 Toil. n. 443 --, p. 296 -- ; 2 Ma.. 71 J 2 Mate. 448 -j 5 P. Fr. 289 — J 10 Demol. n. 707; Ser. Inst. 108; C.N. 607. [L473.] 471^ The usufructuary is liaHe, during his enjoyment, fc- all ordinary charges, such aa ground-rents and other amual dues and contributions eicumbering the property when tie usufruct begins. — fla is Ikewise liable for all charges of an extraordinary nature im- psed thereupon since that t:me, such as assessments for +36 erection and repair of xiiurcheSj public and muni- eipal contributions and other like burthens. — ff. L. 27, § 3, 4, L. 7, § 2, L. 62, De usuf. etc. ; ff. L. 28, De u. et usuf. ; C. P. 287 ; Lac. Usufruit, n. 14 ; Car. Pand. I. 2, c. 13 ; Poth. Don. M. n. 236, 242; Id. Dou. n. 230 ; Guy. Usufruit, 396 ; Fen. Poth. on a. 608, p. 157 — ; 2 Mai. 71 ; 6 P. Fr. 291 - ; 3 Toul.n.431; 2 Marc. 493 — ; 2 Henn. 445 ; 2 Dem. n. 451 bis ; 10 Domol. 650 -, n. 601 — ; C. N. 608, 609. [L 475-3 472. 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 bjr the legatee by general title of the usufruct according to the extent of his enjoyment, with- out any recourse in either case. — Cod. L. ult. § 4, De bon. q. lib.; A. D. Usufruit, n. 36 j Guy. Usufruit, 396; 2 Mai. 72 j 6 P. Fr. 294; 7 Lo. E. C. 299- 302; 4 Dur. n. 636, 7; 2 Boi. 763; C.N. 610. [1.476.] 4:73. A usufructuary by particular title is not liable for the payment of any part of the hereditary debts, not even of thoso for which the land subject to the usufruct is hypothecated. — 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. — ff. L. ult. de u. et Usuf.; Lac. Legs, p. 403, Usufruit, n. 15 ; Guy. Usufruit, 396 ; 2 Marc. n. 631 -, p. 601 -; 2 Boi. 769 -; 7 Lo 304; 6 P. Fr. 295 ; 10 Demol. n. 604; 2 TouL n. 432; 4 Proud. Usufruit, n. 1829, 1843 ; Dal. D. Usufruit, 572 : 0. N. 611. [I. 475.] **74. A general usufruc- tuary or a usufructuary by geneial title must contribute with the proprietor to the pay- ment of the debts as follows : — The immoveables and other things subject to the usufruct are valued, and the contribu- tion to the debts is fixed in pro- portion to such value. — If the usufructuary advance the sum for which the proprietor must u VSUFBUOT, USE AND HABITATIOX. contribute, the capital of it is restored to him at the expira- tion of the usufruct, without interest. — If the usufructuary will not make this advance, the proprietor 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 causing a sufficient por- tion of the property siibject to the usufruct to be sola. — Cod. L. 15, De don.; Darg. on a. 219, C. Br. ; Guyp. Q. 641 j Lap. let. V, n. 75; Lao.Dettes, 172, n. 13, & p. 821 J C. P. 334, 335 j 5 N. D. Contrib. aux dettes, 499 J 17 Guy. 396 j 2 Boi. 761, 2 ; 2 Marc. 600, n. 629 j 0. N. 612. [1. 476.] 4:75. The usufruciuary is only liable for the costs of such suits as relate to the enjoyment, and for any other condemna- tions to which tlieso suits may give rise. — ff. L. 60, Do usuf. j L. 5, si usuf. ; Lac. Usuf. 821 j 10 Demol. n. 619 -- j 3 Toul. 289 J 2 Boi. 787 ; 2 Marc. 674 ; 2 P. Fr. 299; C. N. 613. \I. 477.] ^76. If during the continu- aitce of the usufruct, a third ^arty commit any encroach- ments on the land, or otherwise attack the ri;i,lits oc* the pro- prietor, the usufructuary is ob- liged to notify him of it, and in default thereof he is re- sponsible for all the damage which may result therefrom to tho proprietor, in the same manner as he would be if the injury were done by himself. — flf. L. 15, § 7, de usuf. ; L. 1, § 7, L. 2, Usuf. q^uom. J Poth. Dou. n. 281, 2 ; Fen. Poth. 159 ; 2 Boi. 768, n. 614; 2 Marc. 606, on a. 614; C. N. 614. [L 477.] 4:77t If an animal only 1>e the subject of the usufrui3t, and it perish without the fault of the usufructuary, he is lot bound to givo back anotler, nor to pay its value. — flf. L. 70, § 3, De usuf. ; A. D. Usufrait, § 2, n. 6 ; 2 Mai. 76 ; 3 TjuI. 291 ; C. N. 616. [L 477.] 478. If the usufruct be created on a hord or flock, and it perish entirely by acciient or disease, and without the fault of the usufructuary, le is only obliged to account to the proprietor for the skins or tieir value. — If the flock do not perish entirely, the usufructu- ary is obliged to replace the animals which have perished, up to the number of the ii- crease.— flf. L. 68, § 2, L. 69, L. 70, § 1-6, De usuf. ; Inst. Je div. rer. § 38 ; 6 P. Fr. 302 -, 2 Toul. 291; 2 Mai. 76; 2 Boi. 765, 6; C. I^. 616. [:. 477.] SECTION III. Of the termination of usit- fnict. 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 j — By non-user of the right dur- ing thirty years, atd by pre- scription acquired by third persons; — By the total loss of USUFRUCT, USE AND HABITATION. 7ft the thing on which tho usu- fruct is established. — fif. L. 3, § ult. L. 17, L. 27, Quib. mod., &o. ', ff. L. 8, De an. leg. ; ff. L. 22, L. 29, De u. et asuf. j ff. L. 10, De cap. min. j Cod. L. 12, L 14, L. 16, De usuf. j Inst. De usut. § 3 ; God. L. 13, De servi. & aq. ; L. 3» De prescr. § 30, vel 40 J Poth. Dou. n. 247, 249, 255, 74, 253, 268 j Poth. Don. M. n. 252 — j Poth. Vente, n. 549 J D. 136 j Merl. Usuf. § 5, a. 1, a. 3, n. 3 j Guy. Usu- fruit, 402 — J Lao. TJsufruit, s. 4, p. 827 — J Ser. Inst. 106-8 j 6 P. Fr. 307, n. 62-68 j 2 Boi. 771 " ; C. N. 617. [I. 477.] 480i Usufruct may also cease by reason of the abuse the usufructuary makes of his enjoyment, either by commit- ting waste on the property or by allowing it to depreciate for want of care. — The creditors of the usufructuary may inter- vene in contestations, for the preservation of their rights j they may offer to repair the injury done and give security for the future. — The courts may, according to the gravity of the circumstances, either pronounce the absolute extinc- tion of the usufruct, or only permit the entry of the pro- prietor 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 the usufruct shall cease. — ff. L. 38; De rei vind. j Inst. De usuf. § 3 ; Pap. Arr. 1. 14, t. 2, a. 6 ; Mor. on L. 4, Cod. De usuf. j Fa. Cod. 1. 3, t. 3, d6fm. Ij Mey. 1. 8, 0. 7 ; Guy. Usufruit, § 4, p. 405 — J Lao. Usufruit, n. 18, p. 830 ; Poth. Dou. n. 249 ; & P. Fr. 324 -J C.N. 618. [I. 477.i 481. A usufruct which is granted without term to a corporation only lasts thirty years. — ff. L. 68, Ad leg. falc. ; Dom. t. 11, de I'usuf. p. 310 j Dun. Pros. 211, 2 j Ser. Inst. 107 J Lao. Usufruit, 828, n. 7; Guy. Usufruit, 403 j 5 P. Fr. 327,8 J 2 Mai. 79 j C. N. 619. [I. 479.] 4:82« 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. — Cod. L. 12, De usuf. ; Guy. Usufruit, 407, § 5j Merl. Mort civ. § 1, a. 3, n. 11 ; 3 Toul. n. 450 J C. N. 620. [I. 479.] 483. The sale of a thing subject to usufruct does not in any respect change the right of the usufructuary; he con- tinues to enjoy his usufruct, unless he has formally re- nounced it. — ff. L. 17, § 2, De usuf. et quem. ; S. L. 19, Quib. mod. usuf.; 5 P. Fr. 315, 332 j 3 Toul. 251, 293, 321, 322 ; 2 Mai. 80; C. N. 621. [I. 479.} 4:84. The creditors of the usufructuary may have his re- nunciation annulled, if it be made to their prejudice. — ff. L. 10, L. 15, Quae in fraud, cred. ; 2 Mai. 80; 5 P. Fr. 332; 2 Marc. 560, p. 528; C. N. 622. [I. 479.] 485. If only a part of the thing subject to the usufruct perish, the usufruct continues to exist upon the remainder. — ff. L. 34, § 2, L. 53, De usuf. et 76 USUFBUOT, USE AND HABITATIOX. I "i ?[uem.; Ser. 108; Guy. TJsu- ruit, 404 ', Lao. XJsufruit, s. 6, n. 14, p. 829; 3 Toul. 320; 5 P. Fr. 333 ; 2 Mai. 81 ; C. N. 623. [1.479.] 486. If tho usufruct be es- tablished upon a building only, and such building bo destroyed by fire or other accident, or fall from 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 build- ing destroyed formed part, the usufructuary enjoys the ground and the materials. — ff. L. 5, § 2, L. 9, L. 10, Quib. mod. usuf. ; ff. L. 34, § ult. L. 36, de usuf. «t quern. ; Inst, de usuf. § 3, i. f. ; Ser. 108; Lac. Usufruit, 829 ; 5 P. Fr. 318, 333 ; 2 Boi. 783 ; Fen. Poth. on a. 624, p. 162; 10 Demol. n. 704-711 ; C. N. 624. [I. 479.] CHAPTER SECOND. OP USB AND HABITATION. 487. A right of use is a right to enjoy a thing belong- ing 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 habi- tation. — fiF. De u. et hab. 1. 1. ; Lac. Usage, 814, Habitation, 326 ; Poth. Habitation, n. 1 — ; Guy. Usage, 378 ; Merl. Habi- tation, 191 ; 5 Proud. 2739 — , 2 Boi. 784,5; 2 Marc. 534; 5 P. Fr. 237; 2 Henn. p. [1. 479.] 488. Eights of use and habitation are established only Ijy the will of man, by deed inter vivoa or by last will. — They cease in the same manner as usufruct. — Poth. Hab. n. 22 --; N. D. Habitation, § 4, p. 569 ; Merl. Habitation ; 2 Marc, n. 668, p. 635; 2 Boi. 785, n. (2) ; C. N. 626. [L 481.] 489. These rights cannot be exercised without previous- 13^ giving security, and making statements and inventories as in the case of usufruct. — flf. L. 13, De usuf. et quem; L. 1, usuf. quem. ; Cod. De usuf. et hab. ; Poth. Hab. n. 20 ; Merl. s. 1, § 2, n. 6, p. 199 ; C. N. 626. [L 481.] 490. He who has a right of use or of habitation, must ex* ercise it as a prudent admini- strator. — Cod. Arg. ex L. 4, De usuf. et hab.; 7 Lo. 337; C. N. 627. [I. 481.] 491. Bights of use and of habitation are governed by the title which creates them, and are more or less extensive ac- cording to its dispositions. — Poth. Hab. n. 17, 31; N. D. Habitation, 563; Proud. Usu- fruit, n. 2768; G.S. 628. [I. 481.] 492. If the title be not explicit as to 'the extent of these rights, they are governed as follows.— C. N. 629. [1. 481.] 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 children born to him after the grant of the right of use. — ff. L. 12, L. 19, De u. ethab. ; 2 Boi. 788 ; 2 Marc. 537 ; Proud. 2768; 2 Mai. 83; C. N. 630. [I. 481.] SERVITUDES. 77 494. He who has a right of use can neither assign nor lease it to another. — ff. L. 2, L. 8, L. 11, De Q. et hab. ; 2 Boi. 791 ; 2 Mare. 538 ; Merl. Habit. 8. 1, § 2, p. 196 J C.N. 631. [1.481.] 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. — ff. L. 2, L. 3, L. 4, L. 6, L. 6, L. 7, L. 8, De u. ethab. ; Poth. Habit, n. 18 ; Lam. Arr. t. 35, a. 13, p. 233 J C. N. 632. [1. 481.] 496. A right of habitation is confined to what is necessary for the habitation of the person to whom it is granted and his family. — ff. 1. c. ; Poth. Habit, n. 33 ; Merl. Habit, s. 1, § 3, n. 6 J 0. N. 633. [I. 481.] 497. A right of habitation can neither be assigned nor leased. — ff. L. 8, De u. et hab. ; Inst. De u. et hab. § 5 ; Poth. Habitation, n. 18 ; Merl. Habit- ation, 196; Proud. 2345: C.N. 634. [1.481.] 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 usu- fructuary. — If he only take a portion of the fruits, or if he only occupy a part of the house, he contributes in the propor- tion of his enjoyment. — ff. L. 18, Deu. et hab.j Ser.Inst. 109; Poth. Habit, n. 21, 22, 33j Merl. Habit, p. 200, s. 1, § 2j Proud. Usuf. n. 2762, 2786, 2793, 2823; 6 P. Fr. 340; C. N. 635. [1. 483.] TITLE FOURTH. OF REAL SERVITUDES. GENERAL PROVISIONS. 499. A real servitude is a charge imposed on one real estate for the benefit of another belonging to a different proprie- tor. — ff. L. 15, § 1, De serv. ; lb. t. t. 8; Inst. 1. 2, t. 3; Poth. C. 0. 1. 13, n. 2-4; Merl. Serv. § 1; 2 Mai. 85, 6; 7 Lo. E. C. 348, 9 — ; 2 Marc. 557, n. 658 ; 0. N. 637. [I. 483.] 500. It arises either from the natural position of the pro- perty, or from the law, or it is established by the act of man. — ^ff. L. 2, De aq. et aq. ; 1 Pr. de la Jan. 353 ; Lai. Servitude, 14; 2Lau. C. P. 165- 2 Mai. 86 ; Rog. on a. 639 ; C. N. 639. [I. 483.] CHAPTER FIRST. OP SERVITUDES WHICH ARISB FROM THE SITUATION OF PRO- PERTY. 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 proprie- tor of the lower land cannot 78 BERVITUOEB. \ I rftise any dam to provent this flow. The proprietor of the higher land can do nothing to aggravate the servitude of the lower land.— ff. L. 1, 9 13, 23 ; L. 2, § 1, Be aq. ot aq. ; Lam. AiT. t. 20, a. 7 J Poth. SooUi6, 236-6-7-9 J Merl. Eaux plu- Tiales, n. 2,3; 2 Maro. 659, 660 J 3 Toul. 356 — j Lai. Ser- vitudes, 19 ; Car. Pand. 1. 4, c. 22, t. Ij 2 Bous. 126; C. N. 640. [I. 483.] 502t He who has a spring on his land may use it and dispose of it as he pleases. — God. L. 6, De serv. et aq. ; ff. L. 1, § 12; L. 21, L. 26, De aq. et aq. ; Lam. Arr. t. 20, a. 6 ; Dun. Pres. p. 88, 89 ; 2 Hen. 1. 4, q. 76; 2 Fav. de Langlade, 221—; 2 Mai. 88; 6 P. Fr. 368; 7 Lo. 368,9--; C. N. 641. [I. 483.] 603« He whose land bor- ders on a running stream, not forming part of the public do- ]main, may make use of it as it f»asses. for the utility of his and, but in such manner as not to prevent the exercis e of the same right by those to whom it belongs ; saving the provisions contained in chap- ter 61 of the Consolidated Sta- tutes 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 sub- ject to the obligation of allow- ing it to take its usual course when it leaves his land. — ff. L. 26, De damno inf. ; 5 N. D. Cours d'eau, 651, n. 3; Dun. Pres. 88 ; 2 Hen. 1. 4, q. 189 ; 0. 1669, t, 27, a. 44; Guy. Cours d'eau, 135,6; 2 Bas. Servitudes, 489 ; Merl. Cours d'eau, n. 'A ; 1 Dem. n. 661 ; 2 Bous. 130 -, 2 Maro. 669; 2 Mai. 91 ; C. N. 644. [I. 483.] 604i Every proprietor may oblige his neighbour to settle the boundaries between their contiguous lands. — The costs of so doing are common ; those of the suit, in case of contesta- tion, are in the discretion of the court. — Cod. L. 6, com. div. ; Poth. Soc. 231-3; 1 Four. V. 240 ; 3 N. D. Bornago, 654, 6; 2 Bous. 134 - ; 2 Mai. 93 ; 6 r. Fr. 379; 3 Toul. n. 180; 1 Par. Servitudes, n. 129 ; 3 Ency. 250; Mil. Bornage, 652; Sol. Servitudes, 87, n. 78; 0. N. 646. [I. 485.] 505. Every proprietor may oblige his neighbour to make in equal portions or at common expense, Ibetween their respec- tive lands, a fence or other sufficient kind of separation according to the custom, the rej^'Tations and the situation of . locality.— 2 Ed. & 0. 272, 444; 13 &14V. c. 40, s. 2-9; C. S. L. C. c. 26, s. 32, 33 ; C. P. a. 209-213 ; 6 P. Fr. 394 - ; 2 Mai. 93, 4 ; Poth. C. 0. t. 6 ; 3 Guy. Cloture, p. 596 — ; 4 N. D. Clos, 671 -J C. N. 647, 648. [I. 485.] CHAPTER SECOND. OF SERVITUDES ESTABLISHED BY LAW. 506* Servitudes established by law have for their object public utility or. that of in- dividuals.— C. If. 649. [L 485.] 507* Those established for U III BERVITVDES. n public utility have for their object the foot-road or tow- path along the banks of navi- gable or floatable rivers, the construction or repair of roads or other public workii. — What- ever concerns this kind of servi- tude is determined by particu- lar laws or regulations. — C. N. 650. [I. 485.] 508. The law subjects p«:o- prietors to different obligatDns with regard to one another in- dependently of any stipulation. C. 1^. 651. [I. 485.] 509* Some of these obliga- tions are governed by 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 property of a neighbour, to the eaves of roofs, and to rights of way . C. N. 662. [I. 485.] SECTION I. Of division walls and ditches, and of clearance. 510i Both in town and country, walls serving for sepa- ration between buildings up to the required heights, or be- tween 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. — C. P. 211 J Lam. Arr. t. 20, a. 30; Poth. Ob. 844, Soc. 201-6, C. 0. t. 13, a. 234 j Merl. Mi- toyennet^, § 1, n. 2-5; 2 Mai. 95, 6 ; 1 Dom. 361 ; 5 P. Fr. 404-5-7; 7 Lo.410 -; 2 Marc. 676; C.N. 663. [1.485.] 511. It is a mark that a Trail 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 the corbels and m< ' lings.— C. P. 214; Desg. i Lep. 43, 4 ; Lam. t. 20, a. . i; Poth. Soc. n. 206, C. 0. t. 13, a. 241 ; 6 P. Fr. 409 ; 2 Mai. 96, 7 ; 1 Dem. 361 ; 2 Marc. 677; C. N. 654. [I. 487.1 &12. The repairing and re- building of a common wall are chargeable to all those who have any right in it, in pro- portion to the right of each. — C. P. 206; Poth. Soc. 219; 220-2 ; Desg. 278 - ; 3 Toul. 131-133 ; Merl. Mitoyennet^, § 2, n. 1 ; 6 P. Fr. 409 - ; C. N. 666. [I. 487.] 513* Nevertheless every co- proprietor of a common wall may avoid contributing to its repair and rebuilding by aband!oning his share in the wall and renouncing his right of making use of it. — C. P. 210; Desg. 377; Poth. Soc. n. 221; 2 Marc. 378, 9; 2 MaL 97; 6 P. Fr. 416; C. N. 666. [I. 487.] 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 prejudice to the right which the neighbour has to force him to reduce the beam to the half thickness of the wall. IMAGE EVALUATION TEST TARGET (MT-3) :/. <- 1.0 1.1 liO ■^ lii 12.2 |^|U|j4 ^ 6" ► Photographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 # V ^\ 4 O^ ^ '^.f^ '9> ^ $ 80 8ERTITUDES. in case he should himself desire to put beams in the same plaoe, or to build a chimney against it.— ff. L. 62, § 13, Pro soo. j L. 12, Com. dir. j C. P. 198, 207, 208 J C. 0. 232 J Poth. Soo. 207-9; Desg. 206 -- j Lam. t. 20, a. 36, 7j 5P. Fr. 416 j 2 Mai. 98; 1 Lep. 68: 7Lo.421: O.N. 657. [f.487.] 515«^ Every coproprietor may raise the common wall at will, but at his own cost, upon paying an indemnity for tne additional weight imposed, and bearing for the future the expense of keeping it in re- pair above the height which is common. — The indemnity thus payable is the sixth of the Talue of the superstructure. — On these conditions such super- structure becomes the exclu- sive property of him who built it; Ifut it remains, as to the right of view, subject to the rules applicable to common walls.— C. P. 196, 197; 2 Lau. 172; Desg. 168, 194; Lam. t. 20, a. 29; Poth. Soc. 200, 212, 213, 222; 2 Mai. 98, 9; 6 P. Fr. 418; 2 Marc. 679, 680; 0. N. 658. [1. 487.] 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 be taken on his own side. — C. P. 196; Desg. 174; 2 Lau. 173; Poth. Soc. n. 212, 216, 250, 262 ; 2 Marc. 680; 6 P. Fr. 419; C. N. 669. [L487.] 517. The neighbour who has not contributed to the super- straotnre 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. — 0. P. 196 ; C. 0. 237 ; Poth. Soc. 217, 262; 6 P. Fr. 419; 2 Mai. 99 ; 2 Marc. 680 ; C. N. 660. [I. 487.] 618i Every owner of pro- perty adjoining a wall, has 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 com- mon, and half the value of the ground on which such wall is built.— C. P. 194; Poth. Soo. 247, 248, 250, 251, 264; 0. 0. 1. 13, a. 235, 237; Merl. Vue, § 3, n. 8 ; 6 P. Fr. 420,1 ; 2 Marc. 581 ; C. N. 661. [L 489.] 519* One neighbour can- not 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, without having caused to be settled by experts the neces- sary means to prevent the new work from being injurious to the rights of the other. — C. P. 199, 203; C. 0. 231; Poth. Soc. n. 218; Desg. 218; 6 P. Fr. 422 - ; 2 Mai. 99-101 ; C. N. 662. [I. 489.] 520i Every person may oblige his neighbour, in incor- porated eities and towns, to contribute to the building and repair of the fence-wall sepa- rating 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 BEBVITUDES. 81 of eighteen inches, each of the neighbours being obliged to famish 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. — C. P. 209; C. 0. 236 ; £f. L. 35, L. 36, L. 37, L. 39, De dam. inf. ; Poth.Soc. 192,223, 234, C.O.t. 13, a. 236 ; Desg. 200, 236 ; 5 P. Fr. 432 ; 2 Mai. 101,2 j Per. E. P. Q. 73 J Id. E. C. S. 33 j C. N. 663. [I. 489.] 521. [When the different stories of a house belong to dif- ferent 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 J — The proprietor of each story makes the floor under him J — The proprietor of the first story makes the stairs which lead to it ; the proprie- tor of the second story makes the stairs which lead from the first tohis, and so on. — C. 0. 267 ; Lam. t. 20, a. 32 ; 2 Bous. 146 ; 7 Lo. 442, 443 J 2 P. Fr. 436 j C. N. 664. [I. 489.] 522t "When a common wall or a house is rebuilt, the active and passive servitudes continue with regard to tho new wall or to the new house, provided they are not rendered more onerous, and provided the re- building be done before pre- scription is acquired. — 5 P. Fr. 440 J 7 Lo. lUi C. N. 665. [I. 489.] 623. All ditches between Mighbouring properties are presumed to be common if there be no title nor mark to the contrary. — Poth. Soo. 224; 3 TouL 154; 7 Lo. 445; 1 Mai. 104; 2 Marc. 585; C. N. 666. [I. 489.] 524* When the embank- ment 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. — Poth. Soo. 224; 2 Bous. 149; 5 P. Fr. 442; C.N. 667. [1.489.] 525. A ditch is presumed to belong exclusively to him on whose side the earth is thrown out. — Poth. Soc. 224; 3 Toul. 154; C. N. 668. [I. 491.11 526. A common ditch must be kept at common expense. — Poth. So<>. 226 ; Desg. 399 — ; 5 P. Fr. 442-; 7 Lo. 447; 2 MaL 104; 2 Marc. 585; C. N. 669. [I. 491.] 527. Every hedge which separates land is reputed to bo common, unless only one of tho lands is inclosed, or there is a sufficient title or possess- ion to tho contrary. — 2 Coq. q. 298 ; 2 Marc. 585 - ; Poth. Soc. n. 225, 6 ; Lam. t. 20, a. 40 ; Desg. 384 ; Merl. Haie, n. 3; 3 TouL 154-6; 7Lo. 445; 1 Lep. 219 ; C. N. 670. [1. 491.] 528. No neighbour can plant trees or shrubs or allow any to grow nearer to the line of separation than the distance prescribed by special regula- tions, or by established and recognized usage; and in de- fault of such regulations and usage, such distance must be determined according to tho nature of the trees and their situation, so as not to injuro 82 BKBVITUDES. the neighbour. — ff. L. 13, Fin. reg. J Desg. 386, n. (1) ; 1 Guy. Arbres, 561 ; Lam. t. 20, a. 41 ; Poth. Soo. n. 242, C. 0. t. 13, a. 259 J 1 Four. 134-7-8-9, 141 j N. D. Arbres, 247, 8 ; 1 Lep. 224, 5 ; 2 Sous. 150 ; 5 P. Fr. 449 — J 7 Lo. 440 — ; Perrin, n. 771 —J Enoy. Arbres, 3j 2 Mai. 104, 5; 2 Maro. 590; C. N. 671. [1.491.1 629i Either neighbour may require that any trees and hedges which contravene the preceding article be uprooted. — He over whose property the branches of his neighbour's trees extend, although the trees are growing at the prescrib- ed distance, may compel his neighbour to cut such branches. — If the roots extend upon his property, he has a right to out them himself. — ff. L. 1, § 1, 6, 7, de arb. oeed.; Coq. q. 274; Bas. on a. 608, C. Nor. ; Four. 134 —J Poth. Soc. n.243; 6 P. Fr. 453 — ; Merl. Arbre, n. 6 j Mai. 106; C.N. 672. [1.491.] 630. Trees growing in a common hedge are common as the hedge itself, and either of the neighbours has a right to have them felled. — ff. L. 13, Fin. reg. ; L. 2, de arb. caed. ; Desg. 386; 1 Four. 149-154; Poth. Soc. n. 226 ; 1 Lep. 228, 231, 2 J 3 Toul. 157; C. N. 673. [1. 491.] 631* Every proprietor or occupier of land in a state of cultivation, contiguous to un- cleared land, may compel the {>roprietor or occupier of the atter 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 regula- tions having force of law, or by established and recognized usage. — Trees, however, which may be preserved on or near the line, with or without cur- tailing the branches or roots, according to the three last pre- ceding 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 contraven- tion does not free one from the necessity of giving the clear- ance ordered by a competent tribunal, nor from the damages actually incurred since the party was put in default. — C. S. L. C. c. 26, s. 17. [I. 491.] SECTION II. Of the distance and the inter- mediate ivorJcs required for certain structures. ^ 532. The following provi- sions 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 neigh- bour, must make a counter- wall of masonry one foot thick; 2. He who wishes to have a privy near such walls must make a counter-wall of the same kind [fifteen inches] thick ; — If, however, there be a well opposite, on the neigh- bouring property, tfie thickness must be [twenty-one -inches ;] 3. [When the well or privy is at the distance from the wall SERVITUDES. 83 determined by municipal rogu- i lations and by established and I recognized usage, such counter- wall is no longer required. If there be no such regulations or usage the distance is three feet J ] 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 wall belong- ing 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 [deter- mined by municipal regula- tions, by established and re- cognized usage, and, in default of any such, by the courts in each case ;] 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.— C. P. 118, 119, 120, 121, 122, 188, 189, 190, 191, 192 J C.N. 674. [1.493.] SECTION III. Of vieio on the property of a neighbour. 533. One neighbour can- not, without the consent of the other, make in a common wall any window or opening of any kind whatever, not even those with fixed glass. — ff. L. 10, Do serv. prsed. urb. ; L. 28, Com. div. ; Cod. L. 8, De serv. et aq. J C. P. 199 j Poth. Soc. n. 217, 240 ; Lam. t. 20, a. 22 ; Desg. p. 218-224 J C. 0. 231; Merl. Vue, § 3, n. 9 ; 2 P. Fr. 10 467,8 J 7 Lo. 466} C. N. 676. [I. 496.] 634i 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 tho bars of which are not more than four inches apart, and a window-sash fastened with plaster or other- wise in such a way that it must remain closed. — ff. L. 2, De serv. prsed. urb; L. 26, Da dam. inf. ; C. P. 200, 201 ; C. 0. 229; Lam. t. 20, a. 23; Merl. Vue, § 3, n. 9; Desg. 226, 247; 2 Lau. 176; 2 MaL 109 -; 6P. Fr. 470 -; C. N. 676. [I. 495.] 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. — C. P. 200 ; 2 Lau. 175; Desg. 225-242; 7 Lo.464; C.N. 677. [L 495.] ^ 536. One neighbour cannot have direct views or prospect- windows, nor galleries, balco- nies or other like projections overlooking tho fenced or un- fenced land of the other ; they must be at a distance of six feet from such land. — C. P. 202 ; Poth. C. 0. 1. 13, n. 2, a. 231 ; Desg. 247-269 ; 2 Lau. 176 ; Lam. t. 20, a. 27 ; 2 Mai. 110-1; 7 Lo. 467; C. N. 678. [I. 496.] 537. Nor can he have pide openings or oblique views overlooking such land, unless H SEBVITUDES. they are at a distance of two feet.— C. P. 202 j Desg. 247 -- j 0. N. 679. [I. 496.] 538. The distances men- tioned in the two preceding articles are reckoned from the exterior facing of the waU where the opening is made, and if there be a balcony or other like projection, from the ex- terior line thereof. — Desg. 247 "J Merl. Vue, § 1, n. 7 J 2 Bous. 167 J 6 P. Fr. 174} C. N. 680. [I. 496.] SECTION IV. Of the eaves of roofs. 639. Roofs must be con- structed in such a manner that the rain and snow from off them may fall upon the land of the proprietor, without his hav- ing a right to make it fall upon the land of his neighbour. — Poth. Soc. n. 240 ; Desg. 49 - ; Lam. t. 20, a. 6 ; Poc. Des Servit. 1. 2, t. 4, a. 26 j 2 Toul. 211 J 7 Lo. 473 J 6 P. Fr. 475 j 2 Mai. Ill J C. 1^. 681. [I. 497.] SECTION V. Of the right of way. 640. 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 neigbours fov the use of his property, subject to an indemnity proportionate to the damage he may cause. — Poth. Vente, n. 614, 616, Soc. 246, Dou. 210 ; Lam. t. 20, a. 21; 2 Mai. 112; 5 P. Fr. 478; C. N. 682. [I. 497.] 54:1. The way must gene- rally be had on tha side where the crossing i'' shortest from the land so enclosed to the public road. — Poth. Vente, 614, 616 ; Lam. t. 20, a. 21 ; 2 Mai. 113; C.N. 683. [1.497.] 642* It should however be established over the part where it will be least injurious to him upon whose land it is granted. — ^Dom. Servitudes, t. 12, s. 8, n. 2, p. 334 ; 2 Mai. 114 ; 7 Lo. 476-600 ; C. N. 684. [1. 497.] 54:3« If the land become so enclosed in consequence of a sale, of a partition, or of a will, it is the vendor, the oo- partioner, or the heir, and not the proprietor of the land which offers the shortest cross- ing, who is bound to furnish the way, which is in such case due, without indemnity. — ff. L. 22, De cond. indeb ; L. 1, § 2, 3, Si usuf. pet. ; Grav. L. let. S. 1. 3, t. 4; Coq. q. 74, p. 214 — ; Lap. let. S, n. 39; 2 Four. Voisinage, 404 ~ ; 2 Mai. 130 ; 6 P. Fr. 478; 1 Par. Servitudes, 496-8 ; C. S. 619 ; C. L. 697, 698. [I. 497.] 644« If the way thus grant- ed cease to be necessary, it may be suppressed, and in such case the indemnity paid is re- stored, or the annuity agreed upon ceases for the future.— 1 Par. Senritudes, 602, 3 ; 0. S. 620; C. C. V. 476. [1.497] 8EBTITUDE8. 85 OHAPTER THIRD OF SERVITUDES ESTABLISHED BT THE ACT OF MAN. SECTION I. Of the different kinds of servi- tudes which may he estab- lished on property. 645i Every proprietor hav- ing the use of nis rights, and being competent to dispose of his immoveables, may establish over or in favor of such im- moveables, such servitudes as he may think proper, provided they are in no way contrary to public order. — The use and the extent of these servitttdes are determined according to the title which constitutes them, or according to the following rules if the title be silent. — ff. L. 1, L. 6, L. 16, Com. praed. ; L. 5 De sorv., L. 19 Do usuf. et quem. ; Poth. C. 0. 1. 13, n. 5, 6, 9, 10 J 3 Toul. 62, 241-246, 426, 446 J 5 P. Fr. 484 - ; 1 Dom. Servitudes, s. 1, u. 3, 14 ; 2 Mai. 131-33 7 Lo. 607 -j 2 Bous. 162 -J C. N. 686. [I. 497.1 54:6. Real servitudes are established either for the use of buildings or for that of lands. — 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 second kind are called rural without regard to their situation. — Servitudes take their name from the property to which they are due, independently of the one which owes them. — ff. L. 1, L. 2, De serv. praed. rust.; L. 198, De verb. sig. ; Poth. C. 0. t. 13, n. 2 -- j 2 P. Poul. 294; 2 Mai. 116 -; 7 Lo. 515 - ; 3 Toul. 341 ; 2 Bous. 1G4 ; 5 P. Fr. 345 -, 485, 486 ; C. N. 687. [I. 499.] 54:7i 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 those which require the actual intervention of man for their exercise; such are the rights of way, of drawing water, of pasture and others similar. — ff. L. 14, De serv., L. 1 De aq. quotid. et aest. ; 3 Toul. 413, 443 ; 2 Marc. 614 ; 5 P. Fr. 486, 7 ; 2 Bous. 165 ; 1 Dem. 377 ; 2 Mai. 120 ; 7 Lo. 616 j C. N. 688. [I. 499.] 548. Servitudes are appa- rent 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. — ff. L. 20, Do serv. praed. urb. ; 3 Toul. 443; 1 Dem. 327; 7 Lo. 512, 513 ; 6 P. Fr. 487 ; 7 Mai. 115-121 ; 2 Marc. 614; C. N. 689. [I. 499.] SECTION II. How servitudes are estah- lished. ^64:9i No servitude can be 80 SERVITUDES. established without a title ; possession even immemorial is insufficient for that purpose. — C. P. 186 J C. 0. t. 13, a. 225 j Poth. C. 0. t. 13, n. 19, Pres. n. 164, 286, 287; 2 Mai. 122 : C. N. 690, 691. [I. 490.] 5oO« The want of a title creating the servitude can only be supplied by an act of recog- nition proceeding from the proprietor of the land subject thereto.— 3 Toul. 446, 7j 2 Bous. 170 J 2 Mai. 127 j 6 P. Fr.491, 2j C. N.695. [1.499.] 651« 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. — S. L. 7 Com. praed j C. P. 216, 216 j Ser. Inst. 145 j Bour. Servi- tudes, s. 3 J Poth. C. 0. t. 13, a. 228 & n. ; Lai. Servitudes, 170 J 3 Toul. 449, 451, 466, 476 J C. N. 692, 693. [1. 499.] 652. He who establishes a servitude is presumed to grant all that is necessary for its exercise. — Thus the right of drawing water from the well of another carries with it the right of way. — ff. L. 11, Com. praed; L. 10, De reg. jur. ; 2 Mai. 127 J 6 P. Fr. 494: C. N. 696. [I. 601.] SECTION III. Of the rights of the jyroprie- tor of the land to which the servitude is due. 553t He to whom a servitude is duo has the right of making all the works necessary for its exercise and its preservation.— ff. L. 20, S 1, Do serv. praod. urb. ; L. 10, De ser. L. 15, De serv. praed. rust.; L. 11, com. praed.; Dom. 1. 1, t. 12, s. 1, n. 7, s. 4, n. 1, 2, s. 5, n. 3 ; Lai. 60, 74, 300 ; 3 Toul. 240, 241, 600; 7 Lo. 635; 6 P. Pr. 499 ; 2 Mai. 128 ; C. N. 697. [L 601.] 654:. These works are made at his cost and not at that of the proprietor of the servient land, unless the title constitut- ing the servitude establishes the contrary. — ff. L. 16, De serv. ; L. 6, § 2, Si serv. vind. ; Dom. L c; 1 Mai. 128; 6 P. Fr. 499-; C.N. 698. [1.501.] 555* Even in the case where the proprietor of the servient land, is charged by the title with making the necessary works, for the exercise and for the preservation of the servitude, he may always free himself from the charge by abandoning the servieat. im- moveable, to the proprietor of the land to which the servitude is due. — ff. L. 23, § 2, De serv. praed. rust. ; L. 12, eom. praed; Cod. L. 3, De serv. et aq. ; 1 Dom. Servitudes, s. 4, n. 6; Fav. Ddguerpissement, Servi- tudes; 3 Toul. 150, 217, 220, 224, 226, 601, 610, 611 j 2 Mai. 129; 7Lo. 637-; C. N. 699. [I. 601.] 656. 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 BEBTITUDES. 87 a right to exercise it, but they are obliged to do bo over the same portion of ground. — ff. L. 17, De sery. ; L. 23, De serv. praed. rust ; Dom. Des serv. 8. 4, n. 7 ; 3 Toul. 494, 5 ; 2 Sous. 172 : 7 Lo. 538, 9 ; 2 Mai. 130 ; SP.Fr. 602 J C. N. 700. [I. 601.1 557i The proprietor of the servient land can do nothing which tends to diminish the use of the servitude or to render its exercise more in- convenient. — Thus he cannot change the condition of the premises, nor transfer the ex- ercise of the right to a place different from that on which it was originally assigned.—- How- ever if by keeping to the place originally assigned, the servi- tude should become more one- rous to the proprietor of the servient land, or if such pro- f>rietor be prevented thereby rom making advantageous im- provements, he may offer to the proprietor of the land to which it is due another place as con- venient for the exorcise of his rights, and the latter cannot refuse it. — ff. L. 9, Si serv. vind. J L. 20, § 3, L. 31, De serv. praed. urb. j; Cod. L. 6, § 9, De serv. ', Poth. C. 0. 1. 13, n. 7, Soc. n.212j 6P.Fr.603j 2MaU131; 2Bous.l73j C.N. 701. [I. 601.] 658. On his part, he who has a right of servitude can only make use of it according to his title, without being able to make, either in the land < which owes the servitude, or I in that to which it is due, any j change which aggravates the) condition of the former. — ff. L. 20, § 6, De serv. praed. urb. } L. 24, L. 29, De serv. praed. rust.; L. 1, § 15, 16, De aq. ootid, et aest.; Dom. 1. 1, t. 12, 8. 1, n. 8; Poth. Soc. n. 236-7-9 J 3 Toul. 490-2 j 2 Mai. 132; 2 Sous. 175; 2 Marc. 630; C. N. 702. [I. 603.] SECTION IV. Of the extinction of servi- tudes. 659. A servitude ceases when the things subject there- to are in such a condition that it can no longer bo exercised. —Poth. C. 0. t. 13, n. 13; Dom. 1. 1, 1. 12, s. 6 ; 2 Marc. 630; 5 P. Fr. 607; C. N. 703. [I. 603.] 660. It revives if the things be restored in such a manner that it may be used again, even after the time of pres- cription.— ff. L. 34, L. 35, De serv. praed. rust. ; L. 14, Quern, serv.; L. 19, Si sorv. vind.; Dom. 1. 1, t. 12, s. 6, n. 1 ; 8 Proud. Usufruit, n. 3698 ; 3 Toul. 622, 527, iU-S; 2 Bous.174; 5 P. Fr. 5r-; 2 Mai. 133-4; C. N. 704. [I. 603.] 561. Every servitude is ex- tinguished, when the land to which it is due and that which owes it are united in the same person by right of ownership. — ff. L. 10, Com. praed.; L. 30, De serv. praed. urb. ; Dom. 1. 1, 1. 12, s. 6 ; Poth. 0. 0. 1. 13, n. 14, 16 ; C. 0. a. 226 ; 3 Toul. 503; 2 Mai. 134; 7Lo. 547; 5 P. Fr. 509 ; 2 Bous. 175; C. N. 705. [I. 503.] 562. Servitudes are extin- EHPRTTEUSIS. gnished by non-user during thirty years, between persons of full age and not privileged. — C. P. 186 J Dom. 1. 1, t. 12, s. 6, n. 6-8 ; Poth. 0. 0. t. 13, n. 17, 18 J C. 0. a. 226 j Dom. Serv. s. 1, n. 13 j Ser. Inst. 147 j 2 Cooh. 236,7 J 3 Toul. 624 j Merl. Servitudes, 5 33, n. 11 j 0. N. 706. [I. 603.] 663* The thirty years oom- menoe to run for discontinuous 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 exer- cise. — Dun. 296 J Dom. Serv. 8. 6, n. 6, 8 ; Ser. 144; Lam. t. 20, a. 10 J Poth. C. 0. t. 13, n. 18-20 J 2 Bous. 177 J 6 Mai. 136 J 3 Toul. 627 j C. N. 707 ; C. L. 786. [I. 603.] 664. The manner of exer- cising a servitude may be pre- scribed like the servitude it- self and in the same way. — ff. L. 10, L. 14, L. 17, Quern, serv. amit. ; 2 Mai. 137 j 6 P. Fr. 614; 3 Toul. 486; C. N. 708; C. L. 792. [I. 603.] 665i If the land in favor of which the servitude is estab- lished belong to several persons by undivided shares, the enjoy- ment by one hinders the pre- scription with regard to the others. — ff. L. 6, L. 10, L. 16, Quem. serv. amit. ; Dom. ser- vitudes, B. 1, n. 19, 20 ; 6 P. Fr. 614; 2 Mai. 138-9; 0. N. 709. [1.603.] 666i If among the oopro- prietors there be one agi^nst whom prescription cannot run, such as a minor, he preserves the right for all the others. — ff. L. 10, Quem. serv. amit.; Poth. C. 0. a. 226, n. 2 ; Dom. Servitudes, s. 1, n. 21; Ser. 145,6 ; 2 Bous. 178 ; 6 P. Fr. 616,6 ; 2 Mai. 138 ; C. N. 710. [I. 605.] TITLE FIFTH. OF EMPHYTEUSIS. SECTION I. General provisions. 667. Emphyteusis or em- phyteutic lease is a contract by which the proprietor of an immoveable conveys it for a time to another, the lessee sub- jecting himself to make im- provements, to pay the lessor an annual rent, and to such other charges as may be agreed upon. — Cod. L. 1, L. 2, L. 3, De ju. emph. ; Dom. 1. 1, t. 4, s. 10, n. 1 ; 6 Guy. Emphy- thdose, 680; A. D. Emphy- th^ose, 296, n. 1 ; 7 N. D. JEm^ phythdose, 338 ; 2 Arg. 300 ; 1 Fer. D. 784; Dun. 338; 2 Proud. D. P.' n. 709 ; 1 Proud. Usufruit, n. 97, p. 98 ; Poth. B. R., 16, 6, 67. [I. 606.] BMPHTTEUSIB. 80 a,greed L. 3, , t. 4, nphy- nphy- Em" 00 J 1 (,• 2 J 1 D. 98 ; 606.] 068* Th« duration of em* phyteusis cannot exceed ninety- nine years and must be for more tlian nine. — C. S. L. C. o. 60, i. 1-3 ; 2 A. D. Emphy- th(5ose, 296 ; 7 N. D. e. v. n. 6, . 638 J 13 Id. 280 j 1 For. D. (1) ] 2 Enoy. 221 • Poth. B. R. ?, 83 ; 1 Dom. 221 ; 1 Bour. 45. [I. 606.] 669. Emphyteusis carries with it alienation ; so long as it lasts, the lessee enjoys all the rights attached to the quality of a proprietor. Ho alone can constitute it who has the free disposal of his pro- perty. — Dom. 1. 1, t. 4, s. 10, n. 6; Guy. Emphyt6ose, 682; 2 A. D. e. V. n. 2, p. 296 ; 7 N. J), e. V. S 2, n. 6, p. 639 ; 13 Id. 280; IFer. D. 784} 3 Delv. 186 J Poth. 111. [1.606.] 670i The lessee who is in the exerciso of his rights, may alienate, transfer and hypothe- cate 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. — Dom. 1. c. n. 6 ; Lac. 262 ; 2 Arg. 304; 6 Guy. 681,2; IFer. D. 784 J 7 N. D. 639, 643 j 1 Dur. n. 76, 77, 78, 80 j 2 Ency. 681,2; Foel. H. Rentes fon- oidres, 24.— [I. 606.] 671* Immoveables held under emphyteusis may be seized as real propcgrty, under execution against the lessee by his creditors, who may bring them to sale with the formalities of a sheriff's sale. —6 Guy. 682 ; 1 Fer. D. 785 ; 2A. D. 297; 7 N. D. 642. [I. 606; III. 377.] B72i The lessee is entitled to bring a possessory action against all tnoso who disturb him in his enjoyment and even against the lessor. — 2 Proud. D. P. 326 ; 2 Ency. 166.; Poth. n. 3. [I. 607.] SECTION II. Of the rights and ohligations of the lessor and of the lessee. 573. The lessor is obliged to guarantee the lessee, and to secure him in the enjoyment of the immoveable leased, during the whole time legal- ly agreed upon. — He is also obliged to resume such im- moveable and to discharge 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. — Dom. 1. o. n. 7 ; 6 Guy. 682, 3 ; 2 Per. D. 786 j 2 Arg. 300 -; 7 N. D. 642; 2 Enoy. 455; Poth. 32, 121, 123 -. [I. 507.] 674> On his part the lessee is bound to pay annually the emphyteutic rent ; i f he allow three years to pass without doing so, he may oe judicially declared to have forfeited the immoveable, although there be no stipulation on that subject. — Cod. L. 2, De ju. emph.; Car. 1. 7, E,6p. 39 ; Dom. 1. o. n. 10; IFer. D. 784; 7 N. D. 642 ; 13 N. D. 281 ; Poth. 1, 36, 40, 38. [I. 607.] 575. The rent is payable in the whole, without the lessee having a right to claim its re- mission or diminution, either on account of sterility or of 90 DIPHTTRUSlfl. unavoidablo aooidents which may havo destroyed tho harvest or hindered tho o^Joyment, or even for a loss of a part of tho land. — Cod. L. 1, Do ju. emph. ; Dom. 1. 0. n. 8 ; t For. D. 784; 6 Guy. 682 J 7 N. D. 643; 2 Enoy. n. 27, p. 456 : Poth. 14-16. [I. 507.] 676i The lessee is held for all tho real rights and land charges to which the property is subjected. — 6 Guy. 682 ; Dom. 1. 0. 8. 20 ; 7 N. D. 543 ; 2 Enoy. 456 : Poth. 66, also 110. [I. 607.] 677. 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 expiration of the lease, if he neglect to do so, and the land suffer thereby any considerable deterioration. — Dom. 1. 0. 8. 10, n. 9 ; 6 Guy. 682 i 7 N. D. 544 ; 2 Ency. 457 : Poth. 57, 58, 59 --. [I. 507.] ^ 678. The lessee has not the right to deteriorate the immove- able leased ; if he commit any waste which greatly diminishes Its value, tho lessor may have him expelled and condemned to restore the things to their former condition. — Dom. I. o. ; Nov. 120, c. 8 J 6 Guy. 682 j 7 N. D. 643 : Poth. 42 --. [I. 607.] SECTION III. Of the termination ofemphy- tetisiSf 579. Emphyteusis is not subject to tacit renewal. — It ends: 1. By the expiration of the time for which it was contract- ed, or after ninoty-nino years, in caso a longer term has been stipulated: 2. By forfeiture Judicially pronounced for the causes set forth in articles 574 and 578, or for other legal causes ; 3. By the total loss of the estate leased ; 4. By abandonment. — Dom. 1. 0. n. 7 ; 6 N. D. Ddguerpis- sement, § 2, n. 1 — ; 7 Id. 542 ; 1 Duv. n. 181 ; Tr. Louago, n. 40; 2 Enoy. Bail emph. n. 31 — ; 2 Do V. & Gil. Emphy- t6oso, n. 37; Poth. 53, 121, 116, 114, 190. [I. 607.] 680. The lessoe is only al- lowed to abandon if he have satisfied for the past all the obligations which result from the lease, and particularly if ho have paid or tendered all arrears of the dues, and made the improvements agreed up- on.— 0. P. 109 ; 1 Lau. 327 j Loy. 1. 0. & n. 13 ; 6 N. D. 128 : 7 Id. 642; Poth. 147 -, 186-. [I. 607.] 681. At the end of the lease, in whatever way it happens, the lessee must give up, in good conditicn, the property receiv- ed from the lessor, as well as the buildings ho obliged him- self to construct, but he is not bound to repair those which he has erected without being ob- liged to do so. — L. & B. let. E. eom. 22 ; 1 For. D. 783-6 ; 7 N. D. 643,4; 2 Ency. 457 j Poth. 45, 43. [I. 507.] 682. As to improvements which the lessee ,hus made voluntarily, without being bound to do so, tho lessor has the option of either 'keeping OE.NEBAL PROVISIONS. •1 them, upon paying what they cost or thoir actual value, or permitting the losieo, if the lat- ter can do so with advantage to himself and without deterio- rating the land, to remove them at his own ezpenee ; other- wise, in each case, they belong, without inderaniflcation, to the lessor, who may, nevertheless^ compel the lessee to remove them, in conformity with tho provisions of article 417. — 2 Arg. 303-4 J For. D. 786: 7 N. D. 644-; 1 Duv. n. 174 > 2 Do V. &Oil. 370} Poth. 41. [I. 607 J III. 377.] BOOK THIRD. OF THE ACQUISITION AXD EXERCISE OF RIGHTS OF PROPERTY. OEKERAL FRO VISIONS. 583* Ownership in property is acquired by prehension or occupation, by accession, by descent, by will, by contract, by prescription, and otherwise by the effect of law and of ob- ligations. — Poth. Prop. n. 19— j 3 Marc. 1-3 j 3 Boi. 4 -j C. N. 711, 712. [II. 255.] 684. Things which have no owner are held to belong to the crown. — Cod. De bon. vac. L. 1 ; ff. De adq. rer. j Inst. 1. 2 1. 1, § 12 ; Dom. Dr. pub. I. 1, t. 6, s. 3, n.1-4; 3 Desp. 150, n. 3j 0.401; 4 Toul. 6, 38, 51, 320 ; 0. N. 713. [II. 255.] 585. There are things which have no owner and the use of which is common to all. Ihe enjoyment of these U re- gulated by laws of public policy. — ff. L. 2, De div. rcr. ; Poth. Prop. n. 21, 22, 61, 60 j 3 Toul. 22} 3 Marc. 5} C. N. 714. [II. 255.] 586. Tho ownership of a 8* treasure rests with him who finds it in his own property ; if he finds it in the property of another, it belongs naif to him, and the other half to tho owner of the property. — A treasure is any buriea or hidden thing of which no one can prove himself owner, and which is discovered by chance. — ff. L. 31, § 1, De adq. rer. } Cod. L. un. De thesaur. } Inst. 1. 2, t. 1, ^ 39; Dom. Dr. pub. I. 1, t. 6, s. 3, n. 7 } 3 Desp. 144, s. 4 } Poth. Prop. 64-66 } Fen. Poth. on a. 716, p 186 - } 3 Marc. 6, 7 } C. N. 716. [II. 255.] 687. The right of hunting and fishing is governed by par- ticular laws of public policy, subject to the logally acquired rights of individuals. — ff. L. 3, De adq. rer. ; Inst. 1. 2, t. 1, § 2 & 12; 0. 1516, a. 89; 0. 1681, 1. 5, p. 356 ; 0. 1669, t. 30, 31 ; C. S. C. c. 62 ; C. S. L. C. c. 29 ; Poth. Prop. n. 33, 47, 51, 62, 53, 56 ; 4 Merl. Chasse«. «2 GENERAL PBOVISIONS. 8 2, p. 129 -; 3 Marc. 5 j C. N. 715. [II. 255.] 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 appropriated them. — Steph. bk. 4, p. 436, 625 - ; 0. M. 1. 4,t. 9, a. 19, 20; C. N. 717. [II. 255.] 589. Things once possessed, which are afterwards found at sea, or on the sea shore, or their price, if they hare been sold, continue to be the pro- perty 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 pre- «ervation.--I. S. 17 & 18 V. c. 104 ; Steph. 1. c. ; 0. M. 1. 4, t. 9, a. 24, & Val. on same : €. N. 717. [11.255.] *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, according to the same principles, by the im- perial statute, intituled : The merchant Shipping Act, 1854. —I. S. 17 & 18 V. 0. 104, s. 443-500 J C. N. 717. [II. 257.] 591. 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 restric- tions imposed by law or by regulations. — In other cases, if the crown have not other- wise disposed of it^ it belongs by right of occupancy to him who cut: it. — C. S. L. C. o. 27, s. 1, 2. [II. 257.] *592. Things found in or upon the river St. Lawrence, or the navigable portion of its tributaries, or upon the banks thereof, must be advertised and disposed of in the manner pro- vided by special provincial laws.— 12 V. c. 114, s. 98, 99: 22 V. c. 12. [II. 257.] 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 indemnifica- tion 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 duo, of an indemnity to the person who found and preserved them; if they be not claimed, they be- long to such person by right of occupancy. — Unnavigable rivers are, for the purposes of this article, considered as places on land. — Dom. 1. 1, t. 6, 8. 3, n. 6; Poth. Prop. n. 67-; C. N. 717^ [II. 257.] 594. Among the things subject to the special pro- visions mentioned in the pre- ceding article are : SUGOESSIONS. 93 1. Wood or 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 officers of justice ; 5. Animals found straying. — C. S. L. G. 0. 66; c. 104; c. 26, 8. 9, 10 ; c. 28, s. 2; 0. S. C. c. 31, 8. 29-31. [II. 257.] 595. Certain matters which come under the heading of the present book are incidentally treated in the books preceding. —[III. 377.] TITLE FIRST. OF SUCCESSIONS. GENERAL PROVISIONS. 596* Succession is the trans- mission by law or by the will of man, to one or more persons, of the property and the transmis- sible rights and obligations of a deceased person. — In another acceptation the word ** succes- sion" me'^ns the universality of the things thus transmitted. — Poth. Sue. 2 ; 4 Toul. 63 ; 6 P. Fr. 7, 8; 1 Rog. 610. [II. 257.] 597i Abintestrte succession is that which is established by law alone, and testamentary succession that which is de- rived 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 succes- sions devolves is called heir.— Poth. Sue. 1, 2 ; C. S. L. C. c. 34, s. 2 ; 1 Rog. 610 ; 11 Merl. 152 -; 6 P. Fr. 115-; C.L. 875. [II. 257.] 598i Abintestate succes- sion is subdivided into legiti- mate succession, which is con- ferred by law upon relatives, and irregular succession, when, in default of relatives, it de- volves upon persons not relat- ed.— Poth. Sue. 1, 2 ; 6 P. Fr. 22; C.L. 873, ^74; C. N. 766, 766. [II. 259.] 699. [The law., in regulating a succession, considers neither the origin nor the nature of the property composing it. The whole forms but one inherit- ance which is transmitted and divided according to uniform rules, or the dispositions made by the proprietor.] — 6 P. Fr. 199 -; D. 161, 162, n. («) ; C. S. L. C. e. 34, s. 2, § 1 ; C. N. 732. [II. 259.] 94 SUCCESSIONS. CHAPTER FIRST. OF THE OPENING OF SUCCESSIONS AND OF THE SEIZIN OF HEIBS. SECTION I. Of the opening of successions. 600. The place where a succession devolves is deter- mined by the domicile. — Cod. L. Un. Ubi. de her. ag. j 2 P. Fr. 408 J 1 Toul. 321 j 4 Id. 413 J 1 Delv. 46 J C. N. 110. [II. 259.] 601. Successions devolve by natural death, and also by civil death. — Poth. Sue. c. 3, § 1, Com. n. 602, Intr. n. 176, C. 0. n. 36j C. P. 337 J C. ?6 j Fen. Poth. 189 j C. N. 718. [II. 259.] 602* Successions devob'o by civil death from the moment it is incurred. — flf. L. 10, § 1, De poen. J L. 6, De inj. rumpt. irr.; C. 37 : Rog. 611 J 1 Chab. Sue. 13, 14 J C.N. 719. [11.261.] 603* Where several per- sons, respectively called to the succession of each other, perish by one and the same accident, 80 that it is impossible to as- certain which of them died first, the presumption of sur- vivorship is determined by cir- cumstances, and, in their ab- sence, by the considerations of age and sex, conformably to the rules contained in the fol- lowing articles. — ff. L. 32, § 14, De don. int. vir. ot \xx. ] De reb. dub. ; Poth. Sue. o. 3, s. 1, § 1, C. 0. t. 17, n. 38 J Merl. Mort, § 2, a. 2 J 6 P. Fr. 124 -j 2 Mai. 167; C. N. 720. [II. 261.] 604i Where those who per- ished together were under fifteen years of age, the eldest is presumed to have survived ; — If they were all above the age of sixty, the youngest is Presumed to have survived ; — f some were under the age of fifteen and others over that of sixty, the former are presumed to have survived; — If some were under fifteen or over sixty years of age, and the others in the intermediate age, the presumption of survivor- ship is in favor of the latter. — ff. L. 22, L. 23, De reb. dub. j 4 P. Poul. n. 43, p. 30 ; 1 Chab. Sue. on a. 722, p. 30 — : C. N. 721. ril. 261.J 60b* If those who perished together were all between the full ages of fifteen and sixty, and of the same sex, the order of nature is followed, accord- ing to which the youngest is presumed to survive j — But if they were of different sexes, the male is always presumed to have survived. — ff. 1. c. 4 P. Poul. 1. c. ; 1 Chab. Sue. on a. 722 J 2 Id. 32 J 3 Marc. 15--; Rog. on a. 722 ; C. N. 722. [II. 261.] SECTION ri. Of the seizin of heirs. 606. Abintestate succes- sions pass to the lawful heirs in the order established by law; in default of such heirs, they devolve to the surviving consort, and if there be none, they fall to the crown. — ff. L. un. undd v. '& ux. ; Cod. e. t. L. 1, L. 4, do bon. vac. ; Poth. Sue. c. 1, 8. 2, a. 3, § 3 ; 1 Toul. SnCOEBBIOKS 95 the 66 ; 2 Dem. 9 ; 6 P. Fr. 141, 2 ; C. N. 723. [II. 261.] 607. The lawful heirs, when they inherit, are seized by law alone of the prcrcitj, rights and actions of the deceased, subject to the obligation of discharging all the liabilities of the succession; but the sur- viving consort and the crown require to be judicially put in possession, in the manner set forth in the Code of Civil Pro- cedure.— C. P. 318 ;Poc. 195,6; 3 Lau. 80 -J Poth. Sue. c. 3, s. 2, Prop. n. 248, 261, 332, 336, Pos. n. 67, C. 0. t. 17, n. 301 J 4 Toul. 91, 97, 99, 258 - j 2 Dem. 9, n. 24 j 6 P. Fr. 144--, p. 166, n. 85, p. 163 j 2 Mai. 170 J C. N. 724. [II. 261.] CHAPTER SECOND. OF THE QUALITIES REQUISITE TO INHERIT. 608. In order to inherit, it is necessary to be civilly in existence at the moment when the succession devolves ; thus, the following are incapable of inheriting : 1. Persons who are not yet conceived j 2. Infants who are not viable when born ; 3. Persons who are civilly dead. — ff. L. 6, L. 7, De su. et le. her. J C. P. 337 j Poc. 197, 8 j 4 P. Poul. 26 --; Poth. Sue. c. 1, s. 2, C. 0. 1. 17, n. 6, 8 J Lam. t. 41, a. 3-6 ; 2 Mai. 173 ; 6 P. Fr. 165 J D. 166 J C. N. 725. [II. 263.] 609. Aliens may inherit in Lower Canada in the same manner as British subjects. — C. 25 ; C. S. C. c. 8, s. 9 ; Poth. Pers. o78. Sue. s. 2j 6 P. Fr. 180 -: C. N. 726. [II. 263.] 610. The following persons are unworthy of inheriting and, as such, are excluded from suc- cessions : 1. He who has been convicted of killing or attempting to kill the deceased ; 2. He who has brought against the deceased a capital charge, adjudged to be calum- nious ; 3. The heir of full age, who, being cognizant of the murder of the deceased, has failed to give judicial information of it. — flf. L. 9, De ju. fisci j L. 7, § 4, De bon. damn. ; L. 9, § 1, 2, De h. q. ut indig. ; Poo. 197 ; Lac. Indignity, n. 1-6; Poth. Sue. c. 1, 8. 2, a. 4, § 2, C. 0. t. 17, n. 14; 6 P. Fr. 181 -; 2 Mai. 174; 1 Rog. 623, 4; Fen. Poth. 19, 194; 1 Chab. 69 -; C. N. 727. [II. 263.] 611. The failure to inform cannot however be set up against the ascendants or des- cendants, or the husband or wife of the murderer, nor against the brothers or sii>vers, uncles or aunts, nephews or nieces of the murderer, nor against persons allied to him in the same degrees. — Cod. L. 13, L. 17, De h. q. accus. non. poss. ; 1 Hen. 1. 4, c. 6, q. 101 ; Leb. Sue. 1. 3, c. 9, n, 6 ; 0. 1690, t. Des Plaintes ; L. & B. let. C. c. 25, H. c. 6, S. c. 20 j 1 Fur. 611 -; 6 P. Fr. 191-3-4; 2 Mai. 176; 1 Chab. 83; 2 Bous. 28 ; C. N. 728. [II. 263.] 612. Any heir who is ex- cluded from the succession by reason of unworthiness is bound to restore all the fruits and 96 BUOOESSIONS. revenues that he lias received ^ since the succession devolved. —1 Fur. 698; 6 P. Fr. 193 j 4 Toul. 117 ; 2 Mai. 177 ; 2 Bous. 29; C.N. 729. [11.263.] 613i The children of an un- worthy heir are not excluded from the succession by reason of the fault of their father, if they come to it in their own right and without the aid of representation, which in this case does not take place. — Lob. Sue. 1. 3, c. 9, n. 6 ; Poth. Sue. 0. 1, s. 2, a. 4, § 1, 2, c, 2, s. 1, a. 1, S 2 ; Lac. e. v. n. 6 ; Fen. Poth. 263.] 195 J C. N. 730. [II. CHAPTER THIRD. OF THE DIFFERENT OBDEBS OF SUOOESSIOir. SECTION I. General provisions. 614. Successions devolve to the children and descendants of the deceased, and to his ascend- ants and collateral relations, in the order and according to the rules hereinafter laid down. — ff. L. 7. De bon. damn. ; Poth. Sue. 40, C. 0. 1. 17, n. 15 ; 2 P. Fr.l98;D. 161, n. b, c; C. N. 731. [II. 265.] 615« Proximity of rela- tionship is determined by the number of generations, each generation forming a degree. — flf. L. 10, § 10, De grad. et aff.; Poth. Mar. n. 123; Sue. c. 1, s. 2, a. 3; 4 Toul. 165; 6 P. Fr. 212 - ; C. N. 735. [II. 265.1 616i The succession of de- grees forms the line. — The suc- cession of degrees between per- sons who descend one from the other is called the direct line ; that between persons who do not descend the one from the other, but from a copimon jEincestor, is called the collateral line. — The direct line is distinguished into the direct descending, and the direct ascending line. — The former connects the ancestor with his descendants ; the latter connects the individual with his ancestors. — ff. L. 1, De grad. et aff. ; Poth. Mar. n. 121, 2; Sue. c. 1, s. 2, a. 3; C.N. 736. [11.265.] 617. In the direct line the degrees are computed to be as many as there are generations between the persons ; thus the son is, with respect to the father, in the first degree, the grand- son in the second, and reci- procally as to the father and grandfather in respect of the son and grandson. — ff. L. 10, § 9, 1. 0. ; Poth. 1. c. ; 2 Mai. 183 ; C. N. 737. [II. 265.] 618i In the collateral line the degrees are reckoned by the generations from one rela- tion up to and not including the common ancestor, and from the latter to the other relation. — Thus two brothers are in the second degree, uncle and nephew in the third, cousins- german in the fourth, and so on. — ff. L.l, I. c. ; Inst. De grad. et cog. § 7 ; Poth. Sue. c. 1, s. 2, a. 3; 4 Toul. 168; 6 P. Fr. 212; 2 Mai. 183; C. N. 738. [II. 265.] , SECTIOK' II. i Of representation. 619t Representation is a 8U00ESSIONS. •r IS a fiction of law, the effect of which is to put the representa- tives in the place, in the degree and in the rights of the person represented. — Nov. 18, o. 4; Poth. Sue. 40, C. 0. 1. 17, n. 17: 4 P. Poul. 26, 7j 2 Mai. 184 J C.N. 739. [11.265.] 620. Hepresentation takes place without limit in the direct line descending ; it is allowed whether the children of the deceased compete with the des- cendants of a predeceased child, or whether all the child- ren of the deceased having died before him, the descendants of these children happen to be in equal or unequal degrees amongst themselves. — Cod. L. 3, De sui. et leg. ; Inst. De hered. q. ab intest. ; Nov. 118, 127, c. 1 ; C. P. 319 j Lam. t. 41, a. 20 J Poth. Sue. 41 j 3 Lau. 82; 2 P. Fr. 220 j C. N. 740. [II. 265.] 621* Representation does not take place in favor of as- cendants; the nearest in each line excludes the more distant. —Nov. 118, 0. 2 J 4 P. Poul. 27, n. 36 J Poth. Sue. 79 j IB. d'Arg. 11 ; Lam. t. 41, a. 26 ; 4 Toul. 191j C. N. 741. [II. 267.] 622. In the collateral line representation is admitted only where nephews and nieces suc- ceed to their uncle and aunt concurrently with the brother and sister of the deceased. — C. P. 320 J Nov. 118, 0. 4; Poo. 206; 1 Lau. on a. 320; Poth. Sue. 94, 101; 6 P. Fr. 233; 2 Mai. 185 ; C. N. 742. [II. 267.] 623> In all cases where re- presentation is admitted, the partition is effected according to roots; if one root have several branches, the subdi- vision is also made according to roots in each branch, and the members of the same branch divide among them- selves by heads.^Nov. 118, o. 1; C. P. 320, 321; 3 Lau. 87, 93 ; 1 Arg. 436 ; Poc. 206 ; Poth. Sue. 46; Guy. Succes- sions, 575 ; Lam. t. 41, a. 23 ; 6 P. Fr. 240; 2 Mai. 186; C. N. 743. [II. 267.] 624* Living persons can- not be represented, but only those who are naturally or civilly dead. — A person may represent him whose succession he has renounced. — Nov. 118, c. 1 ; 4 P. Poul. n. 38 ; 1 Arg. 437 ; Poth. Sue. o. 2, s. 1, a. 1, C. 0. 1. 17, n. 18 ; Lam. t. 41, a. 25; 6 P. Fr. 243; 2 Mai. 187; C. N. 744. [II. 267.] SECTION III. Of successions devolving to descendants. 625* Children or their des- cendants succeed to their father and mother, grandfathers and grandmothers, o;r other ascend- ants, without distinction of sex or primogeniture, and whether they are the issue of the same or of different marriages. — They inherit in equal portions and by heads when they are all in the same degree and in their own right ; they inherit by roots, when all, or some of them, come by representation. — Nov. 118, c.l; C. P. 302; 3 Lau. 11, 12 ; Poth. Sue. c. 2, s. 1, a. 1, §4; s. 3, § 1; C. N. 745. [II. 267.] 98 SUCCESSIONS. SECTION IV. Of successions devolving to ascendants. 626i [If a person dying Trithout issue, leave his father and mother and also brothers or sisters, or nephews or nieces in the first degree, the succes- sion is divided into two equal portions, one of which devolves to the father and mother, who share it equally, and the other to the brothers and sisters, nephews and nieces of the deceased, according to the rules laid down in the follow- ing section.]— 6 P. Fr.248-253j 2 Mai. 189; 2 Bous. 58; 2 Marc. 76, 7 J C. L. 899; C. N. 748. [II. 269.] 627. [If, in the case of the preceding article, the father or mother had previously died, the share he or she would have received accrues to the sur- vivor of them.]— 6 P. Fr. 280 j 2 Mai. 194, 5; 2 Bous. 69, 61 j 2 Marc. 78; C. L. 900; C.N. 749. [II. 271.] 628. [If the deceased leave no issue nor brothers nor sisters, nephews nor nieces in the first degree, nor father nor mother, but only other ascendants, the latter succeed to him to tho exclusion of all other coUat- erals.]- 6 P. Fr. 249 ~ ; 2 Mai. 189; C. L. 901; C. N. 746. [II. 271.] 629. In the case of the pre- ceding article the succession is divided equally between the ascendants of the paternal line and thoso of the maternal line. —The ascendant nearest in de- cree takes the half accruing to his line to the exclusion of all others. — Ascendants in tho same degree inherit by heads in their line.]— 6 P. Fr.249 - j 2 Mai. 189 ; 2 Marc. 77 ; 2 Bous. 66 - ; C. L. 902 ; C. N. 746. [II. 271.] 630. Ascendants inherit, to the exclusion of all others, pro- perty given by them to tneir children or other descendants who die without issue, where the objects given are still in kind in the succession, and if they have been alienated, tho price, if still due, accrues to such ascendants. — They also inherit the right which the donee may havo had of re- suming the property thus given. — flf. L. 6, Do jur. dot. : Cod. L. 2, De bon. q. lib. ; C. P. 313 ; C. 0. 315 ; Lam. t. 41, a. 35 ; Poth. Sue. o. 2, s. 2 ; 3 Boi. 82 " ; 1 Rog. 636 ; 3 Marc. 76 ; 2 Mai. 190 — j 4 Conf. du C. on a. 747, p. 29 — ; 2 Bous. 67; 6 P. Fr. 259-; C. L. 904; C.N. 747. [II. 271.] SECTION V. Of collateral successions. 631. [If the father and mother of a person dying with- out issue, or one of them, have survived him, his brothers and sisters, as well as his nephews and nieces in the first degree, are entitled to one Jialf of tho succession.] — 6 P. Fr. 288 ; 4 Toul. 205 -; 2 Mai. 195 -; C. 626; C. L. 907 ; C. N. 751. [II. 273.] 632. [If both father and mother have previously died, the brothers) Asters, and nephews and nieces in tho first degreCf of the deceased 8U0GE8SIONS. 99 and died, and tho eased snooeed to him, to the exclu- sion of the ascendants and the other collaterals. They suc- ceed either in their own right, or by representation as pro- vided in the second section of this chapter.] — Nov. 118, o. 2 ; 127, 0. 1 J 4 Toul. 178, 200-218 j 6P.Fr. 282 ~; O.N. 760. [II. 273.1 633. [The division of the half or of the whole of the suc- cession coming to the brothers, sisters, nephews or nieces, ac- cording to the terms of the two preceding articles, is effected in equal portions among them, if they be all born of the same marriage ; if they be the issue of different marriages, an equal division is made between the two lines paternal and matemsd of the deceased, those of the whole blood sharing in each line, and those ofthe half blood sharing e&,ch in his own line only. If there be brothers and sisters, nephews and nieces on one side only, they inherit the whole of the succession to the exclusion of all the relations of the other line.]— 6 P. Fr. 289 j 2 Marc. 78, 79 j 4 Toul. 216 j Bog. 646; 2 Sous. 63; 3 Boi. 104: C. L. 909 J C. N. 752. [II. 273.1 634i [If the deceased, hav- ing left no issue, nor father nor mother,nor brother8,nor sisters, nor nephaws nor nieces, in the first degree, leave ascendants in one Une only, the nearest of such ascendants takes one half of the succession, the other half of which devolves to the nearest collateral relation of the other line.-— If, in the same ease, there be no ascendant, the 11 whole succession is divided into two equal portions, one of which devolves to the nearest collateral relation of the pater- nal line, and the other to the nearest of the maternal line.] — Among collaterals, saving the case of representation, the nearest excludes all the others ; those who are in the same de- gree partake by heads.— 6 P. Fr. 299; 4 Toul. 219; 2 Mai. 198; Rog. 647: 3 Marc. 80; C. L. 910 ; C. N. 753. [II. 273.] 63o. Relations beyond the twelfth degree do not inherit. — In default of relations within the heritable degree in one line, the relations of the other line inherit the whole. — C. N. 755. [11.273.] SECTION VI. Of irregular successions. 636. When the deceased leaves no relations within the heritable degree, his succes- sion belongs to his surviving consort. — ff. L. un. undd v. et ux.; Cod. e. t.; 3 P. Poul. 310; Poth. C. 0. t. 17, n. 35; Loy. Seign. c. 12, n. 104; 4 Toul. n. 283, 319; C. N: 767. [II. 275.] 637. In default of a surviv- ing consort, the succession falls to the crown. — Cod. L. 1, L. 2, L. 3, L. 4, L. 5, De bon. vac. ; C. P. 167; Poth. Sue. c. 6; Loy. Seign. c. 12, n. 101 — ; 6 N. D. Desh^rence, 323 ; C. 401 ; D. on a. 768; C.N. 768. [II. 275.] 638. In the case of the two preceding articles a statement of the property of the succes- sion, coming to the surviving consort or to the crown, must 100 SUOOESSIONS. be made, at their diligence, by means of an inventory or other equivalent instrument, before tney can claim to be authorized to take posses- sion. — Poth. Sue. 229 J 6 N. D. 319, 321 ; 4 Toul. p. 289, 32, 535 ; 1 Chab. Sue. 592 ; 2 Dem. 36, 36 J 0. N. 769. [II. 275.] 639. This possession must be demanded in the superior court of original jurisdiction of the district in which the suc- cession opens, and the suit is prosecuted and abjudicated up- on in the manner and accord- ing to the forms determined in the Code of Civil Procedure. — 6 ». D. 323; C. 607; 4 Toul. 321 ~ ; 1 Chab. 592 ; 2 Dem. 37 J C.N. 770. [11.276.] 640> Whenever the pres- cribed rules and formalities have not been complied with, the heirs, if any appear, may claim an indemnity, and even damages, according to circum- stances, for the consequent losses incurred. — 1 Chab. 698 - ; 2 Dem. 38 ; C. L. 927 ; C. N. 772. [II. 275.] CHAPTER FOURTH. OF ACOEPTANOE AND RENUNCIA- TION OF SUCCESSIONS. SECTION I. Of acceptance of successions. 641. No one is bound to accept a succession which has devolved to him. — Cod. L. 16, De ju. delib. ; C. P. 316 ; Poth. Prop. n. 248, Sue. c. 3, s. 2 ; 2 Mar. 260 J C. N. 775. [II. 275.] 642* A succession may be accepted purely and simply, or under benefit of inventory. — ff. L. 57, De adq. v. om. hered. ; Cod. L. 22, Deju. delib.; Poth. Sue. c. 2, s. 3, CO. 1. 17, n. 44 ; 2 Mai. 259 ; C. N. 774, 788, 789,793. [11.275.] 643i A married woman cannot validly accept a suc- cession without being autho- rized thereto by her husband, or judicially, according to the provisions of chapter six, of the title Of Marriage. — Successions which devolve to minors and interdicted persons cannot be validly accepted otherwise than in conformity with the provisions contained in the titles which treat respectively of minority and of majority. — C. 177, 178, 180, 301, 302; Poth. P. Mar. n. 33, Sue. c. 3, s. 3, a. 1, § 1, C. 0. 1. 17, n. 40 ; 6 P. Fr. 363; 2 Mai. 227; C. N. 776, 217, 461, 462, 463. [II. 276.1 644. The effect of accep- tance reaches baclc to the day when the succession devolved. — ff. L. 138, L. 193, De reg. jur.; C. P. 318; Poth. Prop. n. 248; C.N. 777. [11.277.] 645. Acceptance may be either express or tacit ; it is express when a person assumes the title or quality of heir in an authentic or private act ; it is tacit when the heir performs an act which necessarily im- plies his intention to accept, and which he would have no right to perform except in his capacity of heir. — ff. L. 20, L. 42, L. 78, L. 86, B. 88, De adq. V. om.hered. ; Cod. L. 2, L. 10, Deju. delib.; C. P.317; C^O. 8U00ESSIONS. 101 op.n. J be it is isumes 334; Poth. Sue. o. 3, s. 3, a. 1 ; C.N. 778. [11.277.] 64!6a Mere conservatory acts and those of supervision and provisional admixustration are not acts of acceptance, if the title and quality uf heir have not been assumed. — ff. L. 20, L. 78, De adq. v. om. hered*; Leb. Sue. 1. 3, c. 8, s. 2, n. 4; Poth. Sue. 0. 3, s. 3, a. 1 ; Ser. 318 ; Merl. H6ritier, s. 2, 9 1, n. 3, 4, Accept, de succes. n. 2 ; 4Toul, 348; C. N. 779. [II. 277.] 647. A gift, sale or trans- fer of his heritable rights made by a coheir, either to a stranger or to all or some of his coheirs, implies, on his part, an accep- tance of the succession. — The same presumption results : 1. From the renunciation made, even gratuitously, by one heir in favor of one or more of his coheirs ; 2. From the renuncia- tion made in favor even of all the coheirs without distinction, if he receive the price of his renunciation. — ff. L. 24, De adq. V. om. hered.; L. 6, Do reg. ju. ; Poth. Vente, n. 630 ; Sue. c. 3, c. 5, s. 3, a. 1 ; 6 P. Fr. 378; 2 Mai. 228; C. N.780. [II. 277.] 64k8i Where the person to whom a succession has devolv- ed dies without having re- nounced or expressly or tacitly accepted it, his heirs may ac- cept or reject it in his stead.-^ ff. L. 86, De adq. v. om. hered.; Cod. L. 3, L. 19, De ju. delib. ; Poth. Sue. c. 3, s. 2, C. 0. t. 17, n. 41, 64; 6 P. Fr. 379, 380; 2 Mai. 229; V. N. 781. [II. 277.] 64:9. [If such heirs do not agree to accept' or to reject the succession, it is held to be ac- cepted under benefit of inven- tory.]— Poth. Sue. 136 ; N. D. Adition d'hdr^d. S 4, U6r6d{t6, §10;6P.Fr. 380;2MaI. 229; 1 Chab. 76; 3 Marc. 149; 4 Conf. du C. a. 786, p. 67 ; 0. N. 782. [II. 277.] 650* A person of full age cannot impugn his express or tacit acceptance of a succes- sion, unless such acceptance has been the result of fraud, fear or violence ; he can never disclaim it on the ground of lesion only, unless the succes- sion has become absorbed or notably diminished by the dis- covery of a will which was unknown at the time of the acceptance. — ff. L. 22, De adq. V. om. hered ; Cod. L. 4, De rep. vel abst. ; Lac. 676 ; 16 Guy. 661, 2 ; 6 Poth. Com. n. 632, Sue. 138, 9 ; 3 Fur. 413 ; 6 P. Fr. 381 ; 2 Mai. 231 ; C. N. 783. [II. 277.] SECTION II. Of renunciation of succes- sions. 651. Benunciation of a suc- cession is not presumed ; it is effected by a notarial deed, or by a judicial declaration which is recorded. — 4 Fur. 62 — ; Lac. 676 ; Poth. Sue. c. 3, s. 3, § 3, C. 0. 1. 17, n. 64, 6 ; Merl. Re- nonciation, § 1, n. 3; C. N. 784. [II. 279.] 652. An heir who renounces is deemed to have never been heir. — Poth. Sue. c. 3, s. 2, al. 9, 10, s. 4, § 4, Prop. n. 248, 261 ; C. N. 785. [IL 279.] 653. The share of a party renouncing accrues to bis co- 102 BUC0E8SI0K8. heirs. If he he alone, the whole succession devolves to the next in degree. — ff. L. 13, De adq. v. om. hered. ; L. 59, L. 63, li. 66, De hered. inst. ; Cod. L. 4, De rep. vel ahst. hered. ; Poth. Sue. o. 3, s. 2, 4, 8 4, Prop. n. 248, C. 0. t. 17, n. 39, 67, Vente, n. 646 j 6 P. Fr. 385 —J 4 Toul. 196 j 2 Mai. 235 J 3 Marc. 157 --J C.N. 786. [II. 279.] €54. No one can take as the representative of an heir who has renounced. If the party renouncing he the sole heir in his degree, or if all his coheirs have renounced, the children take in their own right and inherit hy heads. — L. & B. let. B. c. 17; Che. cent. 1, q. 22 ; Lepr. cent. 1, c. 23 ; 2 Hen. 1. 4, q. 4; 6 P. Fr. 392 J C. N. 787. [II. 279.] 655* The creditors of an heir who renounces, to the prejudice of their rights, may procure the rescission of such renunciation, and afterwards accept the succession them- selves, in right of their debtor, and in his place and stead. — In such case the renunciation is annulled only in favor of the creditors who have demanded the rescission, and merely to the extent of their claims. It is not annulled in favor of the heir who has renounced. — ff. L. 6, De h. q. in fraud.; Poth. Sue. c. 3, s. 3, a. 1, § 2, C. 0. t.l7,n. 4; 6 P. Fr. 394j C.N. 788. [11.279.] 656. An heir is never too late to renounce the succession, as long as he has not formally or tacitly accepted it. — Poth. Sue. 163, Com. n. 534, 544, 556, Intr. t. 10, n. 03 ; Lao. 577 J 2 Mai. 238; C. N. 789. [II. 279.] 657* An heir who has re- nounced a succession may nevertheless resnme it, so long as it has not been accepted by another having a right to it; but ho resumes it in the state in which it then is, and with- out prejudice to the rights which third parties have ac- quired upon the property of such succession, by prescrip- tion or by acts validly made while it was vacant. — Leb. Sue. c. 3, s. 3, a. 1, p. 136; C. 302; 2 Mai. 238; 6 P. Fr. 397; Poth. Sue. 136; C. N. 790. [II. 279.] 658i No one can renounce the succession of a living per- son, or alienate the contingent rights he may claim therein, unless it is by contract of mar- riage. — Lao. 570 — ; Poth. Sue. c. 1, 8. 2, a. 4, § 2, 3 ; c. 3, s. 3, a. 1, § 2 ; 2 Mai. 238 ; 2 Sous. 116 - ; 3 Marc. 167 ; C. 1061; C.N. 791. [11.281.] 659. Any heir who has ab- stracted or concealed property belonging to a succession for- feits the right of renouncing it; notwithstanding his subsequent renunciation he remains uncon- ditional heir, without right to claim any share in the pro- perty abstracted or concealed. — ff. L. 71, § 4, De adq. v. om. hered. ; Poth. Sue. o. 3, a. 2, $ 3, Com. n. 690, C. 0. 1. 10, n. 7, on a. 204 ; Mori. Bec^ld, n. 2; C.N. 792: [11.281.] SUOOESSIONn 108 SECTION III. Of the formalities of accept- ance, of benefit of inventory and its effects, and of the ohligations ofHhe^ beneficiary heir. 660. In order to obtain benefit of inventory the heir is bound to demand it by a or thereafter have in hia hands. — In default of such security, the court may, according to circumstances, adjudge tho heir to have forfeited the benefit of inventory, or order that the moveables be sold and that the proceeds, as well as the other moneys of the suc- cession which ho may have in petition to the court or to one hand, be deposited in court, to of the judges of the court of superior original jurisdiction of tho district in which the succession devolved; this peti- tion is proceeded and adjudi- cated upon in the manner and form required by tho Code of Civil Procedure. — Ser.314; Rod. O.1667,p.95j2Ed.&O.104; 2 Beaub.43; C.N. 793. [11.281.] 661* [The judgment grant- ing the petition must be re- gistered in the registiy office of the division in which the succession devolved.] — [ II. 281.] 662. Such demand must be preceded or followed by the making of a faithful and exact inventory of the property of the succession, before notaries, in the form and within the delays established by the rules of pro- cedure. — Ser. 314 ; Rod. 95 j Poth. Sue. 143, C. 0. t. 17, n. 48; 1 A. D.306 -j C. N. 794. [II. 281.] 663i The beneficiary heir is also bound, if the majority of the creditors or other per- sons interested require it, to give good and sufficient security for the value of the moveable property comprised in the in- ventory, and for whatever moneys, arising from the sale be applied in discharging the liabilities of the succession. — Poth. C. 0. t. 17, n. 48 ; Lam. 246 ; 2 Bous. 144 — ; 2 Mai. 261 J C.N. 807. [11.281.] 664i The heir is allowed three months to make the in- ventory, counting from tho time when tlie succession devolved. — He has moreover, in order to deliberate upon his acceptance or renunciation, a delay of forty days, which begin to run from the day of the expiration of the three months for the inventory, or from the day of the closing of the inventory, if it be com- pleted within the three months. — ff. L. 1, L. 2, L. 3, L. 4, De ju. delib. ; Cod. L. 22, § 2, 3, De ju. delib. } 0. 1867, t. 7, a. 1-5 j Poth. Sue. c. 3, s. 5, C. 0. t. 17, n. 68;6 P. Fr. 413j C.N. 796. [11.281.] 665. If however there be in the succession articles of a perishable nature, or of which the preservation is costly, the heir may cause them to be sold, without thereby incur- ring the presumption of having accepted ; but such sale must be made publicly, and after the notices and publications required by the rules of proce- dure. — flf. L. 6, L. 6, De jur. of immoveables, he mav then I delib; L. 20, De adq. v. om. 104 8U00E88IOK8. bored.: Poth. Suo. 0.3, s. 3, a. 2, 8 6 J C. N. 796. [II. 283.1 666. During the delays for making the inventory and de- liberating, the heir cannot be compelled to assume the criali- ty, nor can any sentence be obtained against him; if he renounce at or before the ex- piration of the delays, the law- ful costs he has incurred up to that time are chargeable to the succession. — ff. L. 22, 9 1> De ju. delib.; Poth. Sue. c. 3, B. 6, C. 0. 1. 17, n. 68 J 0. N. 797. "[11.283.] 667. After the expiration of the above delays, the heir may, in case an action is brought against him, demand a further delay, which the court seized of the case may grant or refuse, according to circum- stances. — ff. L. 3,l)e jur. delib.; 0. 1667, t. 7, a. 4 J Poth. Suo. 0. 3, s. 5, C. 0. t. 17, n. 70 j C. N. 798. [II. 283.] 668. Oosts of suit, in the case of the preceding article, are chargeable to the succes- sion, if the heir prove that he had no knowledge of the death, or that the delays were insuf- ficient, whether by reason of the situation of the property or of the contestations which have arisen; if he make no such proof, he remains per- sonally liable for the costs. — Poth. 1. c. J 4 Toul. 353, 380 j C. N. 799. [II. 283.] 669. The heir, neverthe- less, after the expiration of the delays granted by article 664, and even of that given by the judge under article 667, still retains the power of making an inventory and of becoming beneficiary heir, if he have not otherwise performed any act of heirship, or if he have not been condemned, in his quality of unconditional htfir, by a Judgment which has become final.— ff. L. 10, De Ju. delib. ; Cod. L. 19, e. t. ; Poth. Sue. c. 3, s. 3, a. 1, 2, C. 0. t. 17, n. 46, 70 ; Mori. Hdritier, s. 2, 3, 9 2, Sue. s. 1, 9 5 n. 4; 6 P. Fr. 419 - : 2 Mai. 284 - j 0. N. 800. [II. 283.] 670. An heir who is guilty of concealment, or who know- ingly or fraudulently has omit- ted to include in 'he inventory any effects of the succosttion, forfeits the benefit of inven- tory.— Cod. L. 22, 9 10, 12, Do ju. delib J Nov. 1, c. 2, 9 2; Lap. let. H, n. 3 ; Poth. Suo. o. 3, s. 3, a. 2, 9 3 ; Fur. Testa- ments, 0. 3, s. 6, n. 189 ; 6 P. Fr. 287j C.N. 801. [11. 283.] 67L The effect of benefit of inventory is to give the heir the advantage : 1. Of being liable for the debts of the succession only to the extent of the value of the property he has received from ftj 2. Of not confounding his private property with that of the succession, and of retain- ing against the succession the right of demandingpayment of his own claims. — n. L. 22, De ju. delib.; Poth. Com. n. 739, Ob. 642, Sue. 0. 3, s. 3, a. 2, 9 1, 7, 8, C. 0. t. 17, n. 49, 62 ; Mori. B6n^fice d'inventaire, n. 15 ; 6 P. Fr. 287 j C. N. 802. [II. 283.] . V 672. The beneficiary heir is charged to administer the pro- perty of the succession, and 8CCCE88IOX8. must render an account of his adminisf -ation to the oreditorn and legatees. He cannot he compelled to pay out uf his Srivate property unless he Lib oen put in default to produce his aooount and has failed to fulfil this obligation.— After the verification of the account he cannot be compelled to pay out of his private property except to the extent of the sums remaining in his hands. — Leb. Sue. 1. 3, o. 4, S 85; Poth. Sue. 0. 3, 8. 3, a. 2 S 4, 6, 0. 0. 1. 17, n. 49, 64 J 6 P. Fr. 425; 2 Mai. 249; C. N. 803. [II. 283.] 673. In his administration of the property of the succes- sion the beneficiary heir is bound to exercise all the care of a prudent administrator. — Leb. Sue. 1. 3, c. 5, n. 85 ; Fer. a. C. on a. 342, gl. 1, S 2, n. 24; Poth. Sue. t. 3, c. 3, a. 2, § 4 ; C. 1064, 1070 ; 6 P. Fr. 429 ; C. N. 804. [II. 285.] 674i If the beneficiary heir cause the moveables of the suc- cession to be sold, the sale must be made publicly and after the notices and publications required by the rules of pro- cedure. — If he produce them in kind, he is liable only for the depreciation or the deteriora- tion caused by his negligence. — C. P. 344; Poth. Sue. o. 3, s. B, a. 2, § 5, C. 0. t. 17, n. 1, on a. 342; 2 Bous. 142; 2 Mai. 250;C. N. 805. [11.285.] 675. With regard to the im- moveables, if it become neces- sary to sell them, the sale and the distribution of the price arising from it, are proceeded with in the manner and form IM followed with respect to the property of vacant successions, according to the rules laid down in tho following section. — Cod. L. 22, § 4, 5, 6, Do Jur. dolib.; Poth. Sue. 1. 0., C. 0. a. 343 : C. S. L. 0. 88, 8. 10 ; 0.371-3} Merl. B6n6fice d'lnventaire, n. 9 bis; 4 Toul. 385; 2 Mai. 29; 6 P. Fr. 431 ; C. N. 806. [II. 286.] 676. The beneficiary heir, before disposing of the pro- perty of the succession, and after having made tlie inven- tory, gives notice of his quality in the manner established in the Code of Civil Procedure. — After two months from the giving of the first notice, if thero be no actions, seizures or judicial contestations, by or be- tween the creditors or legatees, the beneficiary heir may pay the creditors and legatees as they present themselves. — If there be actions, seizures or contestations of which he has received judicial notice, he can only pay according to the directions of the court. — Poth. Sue. c. 3, s. 3, a. 2, § 6, C. 0. t. 17,n. 50; C.N. 808. [11.285.] 677. The beneficiary heir may at all times : 1. Renounce the bonofit of inventory, either judicially or by a notarial deed, to become unconditional heir, upon giving the same notices as when he accepted ; 2. Bender a final account in court, upon giving the same notices as when he accepted, and any other notices the court may direct, in order to be freed from his administra- tion, whether he has legally 106 SUCCESSIONS. t I paid, by order of Ihe court or eztra-judicially, all the debts of the succession, or whether he has duly paid them to the extent of the full value he has received. — By means of the discharge obtain- ed from the court he may re- tain in kind any property re- maining in his hands which forms part of the succession. — Extension ofpreced. art.; C. N. 808. [II. 285.] 678. The beneficiary heir may likewise, with the consent of all parties interested, render an amicable account without judicial formalities. — Foth. Sue. c. 3, s. 4, a. 2 ; Lam. t. 43, a. 13. [11.287.] 679. If the discharge be based upon the payment by the beneficiary heir of all the debts, without, however, his having paid out to the extent of what ne received, he is not liberated as regards creditors who present themselves with- in three years from the dis- charge, and shew satisfactory cause for not having come for- ward within the required de- lays, but he is bound to satisfy them so long as he has not Said out the full value of what e received. — Poth. Sue. 146 ; C. N. 809. [II. 287.] 680. The discharge of the beneficiary heir does not pre- judice the claim of the unpaid creditors against the legatee who has received to their de- triment, unless the latter proves that they might have been paid by using due dili- gence, without his being left answerable towards other cre- ditors who received in lieu of the claimant, — Poth. Sue. 146, C. 0. t. 17, n. 51 J C. N. 809. [II. 287.] 681. The expenses of seals, if any have been affixed, of the inventory, and of the account, are chargeable to the succes- sion.— Cod. L. 22, § 4-6, De jur. delib. ; Poth. Sue. c. 3, s. 3, a. 2, § 6, C. 0. t. 17, n. 60; C. N. 810. [II. 287.] 682. The form and contents of the account which the bene- ficiary heir must render are regulated by the Code of Civil Procedure. — Poth. Sue. 146; C. 308. [II. 287.] 683. [In the collateral as well as in the direct line, the heir who accepts under benefit of inventory is not excluded by the one who offers to accept unconditionally.] — C. P. 342, 343 ; 3 Lau. 186, 7 ; Poth. Sue. 152; Lam. t. 43, a, 14, 15; N. D. H^ritier bdndficiaire, § 2. [II. 287.] SECTION IV. Of vacant successions. 684> After the expiration of the delays for making the inventory and for deliberating, if no one come forward to claim a succession, if there be no known heirs, or if the known heirs have renounced, ^uch succession is deemed vacant. —Poth. Sue. 248, C. 0. t. 17, n. 1 ; Guy. Curateur, 197; Merl. Curateur, § 3, n. 1; 6 P.Fr. 438; 2 Mai. 209; C. N. 811. [IL 287.] 685. Upon tho ^^^^i^^l ^^ any party interested, a curator to such succession is named by the court or by one of the BUOOESSIONS. lor judges of the court of original jurisdiction of the district in which it devolves. — This ap- pointment is made in the man- ner and form prescribed by the Code of Civil Procedure. — flF. L. 1, L. 2, De our. j Guy. Cura- teur, 197 j Merl. H6ritier, § 2, s. 2 ; 6 P. Fr. 438 ; 2 Mai. 254; C.N. 812. [11.287.] 686. Such curator gives notice of his quality, is sworn, and forthwith proceeds to the making of the inventory ; he administers the property of the succession, exercises and pro- secutes all the rights pertain- ing to it, answers all claims brought against it, and renders an account of his administra- tion. — ^ff. L. 2, § 1, De cur. J Guy. 1. c. ; Merl. 1. c. ; 4 Toul. 311-3 J 2 Bous. 160-2 j €. N. 813. Yll. 289.] 687. After tL> appointment of the curator, if an heir or legatee appear who lays claim to the succession, he may cause the curatorship to be set aside for the future, and, upon proof of his rights, may obtain pos- session, by means of an action brought before the proper tri- bunal. — Dorion & Denechaud, n. 857, Quebec, 20 Feb. 1832. [II. 289.] 688. The provisions of the third section of this chapter as to the form of the inventory, the notices to be given, the mode of administration, and the accounts to be rendered by beneficiary heirs, apply to curators of vacant successions. —4 Toul. 400 J 2 Delv. 36 ; 2 Bous. 151; 0. N. 814. [II. 289.] OHAFTEB FIFTH. OF PARTITION AND BETUBNS. SECTION I. Of the action of partition and its form 689* No one can be com- pelled to remain in undivided ownership; a partition may always be demanded notwith- standing any prohibition or agreement to the contrary. — It may however be agreed or ordered that the partition shall be deferred during a limited time, if there be any reason of utility which justifies the de- lay, — S. L. 24, Com. divid. ; Cod. L. 5, e. t. ; Poth. Sue. 168, Com. n. 694, 697, 698, Soci^t^, n. 162-3-6, 197, C. 0. 1. 17 n. 71,2 J Mori. Partage, § 1, n. 2, 3 J C. N. 815. [II. 289.] 690. Partition may be de- manded even though one of the coheirs enjoys separately a part of the property of the succession, if there have been no act of partition, nor a suffi- cient possession to acquire pre- scription. — Cod. L. 21, De pac. j L. 4, Com. divid.; Poth. Soc. n. 166, Com. n. 698 j Sue. 169, C. 0. t. 17, n. 72 J Merl. Pres- cription, s. 3, § 3, a. 1, n. 3 ; 2 Mai. 257 J 7 P. Fr. 53 -j C. N. 816. [II. 289.] 691i Neither the tutor of a minor, nor the curator of an interdicted person or of an ab- sentee, can demand the parti- tion of the immoveables of a succession which has devolved to such minor, interdicted per- son or absentee, but ho may be compelled to join in it, and in such case the partition is cf- 108 8UC0KSSI0N8. i I footed 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. — Poth. Sue. 0. 4, a. 1, § 2, C-m. n. 695,6, Pers. 6, s. 4, a. 3, Soc. n. 164; G. 90, 91, 305; C.N. 817. [11.289.] 692. A husband may, with- out the concurrence of his wife, demand the partition of the moveables or immoveables 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 with- out the concurrence cf his wife J he may however, if he have a right to enjoy her pro- perty, demand a provisional division. — The coheirs of the wife cannot demand a defini- tive partition without suing both husband and wife. — Poth. P. Mar. n. 83, 84, C. 0. t. 17, n. 154, Sue. c. 4, a. 1, § 2 ; 7 P.Fr. 63-j C.N. 818. [II. 289.] 693. If all the heirs be of full age, bo present, and agree, the partition may be effected in fiuch form and by such act as the parties interested deem proper. — If any of the heirs be absent or unwilling, if there be among them minors or inter- dicted persons, in all such cases the partition can only be effect- ed judicially, and the rules laid down in the succeeding articles are to be followed. — If there bo several minors represented by one tutor and having adverse interests, a special and sepa- rate tutor must be given to each, to represent him in the partition. — Poth. Sue. o. 4, a. 4 J 7 P. Fr. 163 J 2 Mai. 268 jC. N. 819, 838. [II. 291.] 694. The action of parti- tion and the contestations which arise in it are submitted to the court of the place where the suc- cession devolves, if 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 proceedings connected with them are to be effected.— 7 P. Fr. 96; 2 Mai. 261; C.S.L. C.0.82, S.27; C. N.822. [11.291.] 695. In the action of parti- tion and its incidents the same proceedings are had as in ordi- nary suits, saving any modifica- tions introduced by the Code of Civil Procedure. — Poth. Sue. c. 4, a. 4; C.N. 823. [11.291.] 696. The valuation of im- moveables is made by experts who are chosen by the parties interested, or who, upon the refusal of such parties, are ofl&oially appointed. — The re- port of the experts must declare the grounds of the valuation, it must indicate whether the thing estimated can be con- veniently divided, and in what manner, and must determine, in case of division, each of the portions which may be made of it, and the value of such portion. — Poth. Vente, n. 516, Soci^td, n. 168, Sue. c. 4, s. 4, C. 0. 17, n. 75; C. N. 824. [II. 291.] 697* Each of the coheirs SUGOESSIOKS. 109 may demand his share in kind of the moveable and immove- able 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 dis- charge the liabilities of the suc- cession, the moveable property is publicly sold in the ordinary manner. — ff. L. 26, L. 28, Fam. ercisc. j Poth. com, n. 700, Soo. n. 168, Sue. c. 4, a. 4 ; 2 Toul. 371 J C. N. 826. [II. 291.] 698. If the immoveables cannot conveniently be divided they must be sold by licitation before the court. — ^Nevertheless the parties, if they be all of full age, may consent to the licita- tion being made before a notary upon the choice of whom they agree.— ff. L. 20, L. 30, L. 55, Fam. ercisc; Cod. L. 3, Com. divid.j Poth. Com. n. 707,8, 710, Vente, 616, Mar. 686, Soc. 171, Sue. c. 4, a. 4j 7 P. Fr. Ill-: C. N. 827. [II. 291.] 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 offi- cially named if they do not agree in their choice. — They arc to proceed, before such no- tary, 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 fur- nished to each of the coparti- tioners. — Poth. Soc. n. 167, 168, 170, Sue. c. 4, a. 1, § 3, p. 204, & a. 4, C. 0.t.l7, n.l74; 7 P. Fr. 135 -J C. N. 828. [II. 291.] 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. — Poth. Sue. c. 4, a. 1, § 3, a. 4, C. 0. 17, n. 76 J 7 P. Fr. 137, 8 ; C. N. 829. [II. 293.] 701. If the return be not made in kind, the coheirs entitled to it pretako an equal portion from the mass of the succession. — These prctakings are made as much as possible in objects of the same nature and quality as those which are not returned in kind. — Poth. Sue. c. 4, a. 2, § 8, C. 0. t. 17, n. 94 J 4 Toul. 422 j 2 Mai. 266; 7 P. Fr. 138-140 j C. N. 830'. [II. 293.] 702. After these prctak- ings, 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 .^ Poth. Sue. c. 4, a. 4; 2 Mai. 266 J 7 P. Fr. 140 -j C. N. 831. [II. 293.] 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 of move- ables, immoveables, rights and credits, of the same nature and value. — ff. L. 55, Fam. ercisc. j Cod. L. 7, L. 21, Com. divid.j L. 11, Com. utri.; Poth. Com. u. 701, Sue. c. 4, a. 4, C. 0. U 110 SUCCESSIONS. 17, n. 97 ; 4 Toul. 426 j 2 Mai. 267 J 7 P. Fr. 141 -- -, C. N. 832. [11.293.] 704. The inequality of shares in kind, when it is unavoidable, is to be com- Sensated by payment of the ifference either in rent or in money. — S. L. 55, Fam. ercisc. ; Inst. De off. jud. § 4j Poth. Com. n. 701, al. 5, Soc. n. 170, al. 2, Sue. 0. 4, a. 4, al. 17, a. 5, § 2, al. 1-3, C. 0. t. 17, n. 97 J 4 Toul. 426 j 7 P. Fr. 148 J 0. N. 833. [II. 293.] 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 oflBice ; 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. — Leb. Sue. 1. 4, o. 1, n. 42; 1 Desp. Soc. pt. 1, s. 4, dist. 3, n. 8 ; Ren. C. P. t. Sue. ; Poth. Sue. o. 4, a. 4, al. 6, 19, 20 J 2 Mai. 267 J 7P. Fr. 154; C. N. 834. [11. 293.] 706. Before proceeding to draw, each copartitioner is allowed to propose his objec- tions as to the formation of the shares.— 4 Toul. 423 j 7 P. Fr. 159 J C. N. 835. [II. 293.] 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. — Poth. Sue. c. 4, a. 1, § 1; 2 Delv. 48; 2 Mai. 268; 7 P. Fr. 159, 160 ; C. N. 836. [II. 293.] 708. If in the operations referred to a notary, contesta- tions arise, he must draw up a statement of the difAculties and of the respective allegationb cf the parties, and submit them for the decision of the court that appointed him. These incidents are proceeded upon according to the forms pres- cribed by the laws of proce- dure.— 4 Toul. 422; 2 Delv. 49; 7 P. Fr. 161; C. N. 837. [II. 295.] 709. Where licitation 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 propevty of minors. — Poth. Sue. c. 4, a. 4 ; C. 300, 689, 691, 1563 ; 2 Delvincourt, 47 ; P. Fr. 166 ; C. N. 460, 819, 839. [II. 295.] 710. Every person, even a relation, who is not entitled to succeed to the deceased, and to whom one of the coheirs has assigned his right in the suc- cession, may be excluded from the partition, either by all the coheirs or by one of them, on being reimbursed the price of such assignment. — Cod. L. 22, L. 23, Mand. v. cont. ; Leb. Sue. 1. 4, c. 2, s. 3, n. 66 ; Merl. Droits Sue. n. 8-9 bis, 11 & 12; 2 Mai. 271 ; 2 Chab. Sue. 319; 2 Bous. 181 ; 7 P. Fr. 170 ; C. If. 841. [II. 295.] 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 re- main with him [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 rit?off,directly or indi- rectly; he cannot retain the gifts made nor claim the legacies bequeathed by the deceased, unless such gifts and legacies have been given him express- ly by preference and beyond his share, or with an exemption from return.] — flF. L. 1, De coll. bon.; Cod. L. 17, L. 20, De coll.; C. P. 301-304 ; Leb. Sue. 1. 3, c. 6, s. 1; Poth. Sue. o. 3, s. 3. a. 1, §4; c.4, a. 2, 65, C. 0. t. 17. n. 66, 76, 77 ; Merl. Rap. k Sue. § 3, a. 4, n. 8 ; § 4, a. 2, n. 11; 7P. Fr. 224; C.N. 843. [II. 297.] 713. The heir may never- theless, by renouncing the suc- cession, retain the gifts or claim the legacies made to him. — Cod. L. 17, L. 20, De coll. ; L. 25, Fam. erciso. ; Nov. 92, c. Ij C. P. 307; 3 Lau. 24; 0. 1731. a. 34 ; Poth. Sue. c. 4, a. 2, § 1, C. 0. t. 17, n. 76 ; 2 Mai. 275 ; 7 P. Fr. 235 ; C. N. 846. [II. 297.] 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. — Poth. Sue. c. 4, a. 3, § 2; 2 Mai. 276; 7 P. Fr. 238; C. N. 846. [II. 297.] 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.—flF. L. 6. De coll.; C. P. 306; 3 Lau. 23; C. 0. 308; Leb. Sue. 1. 3, c. 6, s. 2, n. 45; Poth. Sue. c. 4, a. 2, § 4 ; a. 3, § 2; 1 Arg 490; Lam. Arr. t. 44, a. 4; Poc. 490; P. Fr. 240, 241 ; 2 Mai. on a. 847 ; C. N. 847. [II. 297.] 716. A grandson coming to the succession of his grand- father is bound to return what has been given to his father, although he should renounce the succession of the latter. — Cod. L. 19, DecoU.; C. P. 308; Leb. 1. 3, 0. 6, s. 2, n. 46 ; Poo. r. 12, p. 268 ; 1 Arg. 491; Lam. t. 44, a 7; C. N. 848. [II. 297.] 717. The obligation to re- turn the gifts and legacies made during the marriage. I 113 SUCCESSIONS. either to the consort who is entitled to suooeed, or to the other consort alone, or to both, depends upon the interest of the heir who is capable of suc- ceeding and the advantage he derives therefrom, according to the rules laid down in the title concerning marriage covenants, as to the effect of gifts and legacies made to the con- sorts during marriage.— Poth. Sue. c. 4. a. 2, § 4, al. 6-13; a. 3, § 2, al. 24; Merl. Rapport h Sue. § 6, n. 4; 7 P. Fr. 248 -J 2 Mai. 278: C. N. 849. [11. 297.] 718* Return is only made to the succession of the donor or testator. — Leb. pt. 2, p. 130 ; Puth. Sue. c. 4, a. 2, § 4, al. 6-13, C. 0. t. 17, n. 84 ; 2 Mai. 279 ; 7 P. Fr. 254; C. N. 850. [II. 297.] 719i AVhatever has been laid out for the establishment of one of the coheirs, or for the payment of his debts must be returned. — Cod. L. 20, De coll. ; Bar. ad L. 1, § 15, De coll. n. 4-6; Loy. Offices, c. 6, n. 25, 26, 56, 58 ; Lac. Rapport, s. 3, n. 10; Poth. Sue. 180; Lam. t. 44, a. 13-17; 2 Mai. 279; 7 P. Fr. 266 - ; 4 Conf. du 0. 88 ; Chau. Obs. Coll. 213; C. N. 851. [II. 299.] 720* The expenses of nour- ishment, maintenance, educa- tion and apprenticeship, the ordinary expenses of equip- ment, of weddings, and custo- mary presents, are not subject to be returned. — ff. L. 1, § 15, 16, De coll.; L. 20, § 6, L. 50, Fam. ercisc. ; Lac. Rapport, s. 3; Poth. Sue. c. 4, p.lSO--; Lam. t. 44, a. 17; C. N. 852. [II. 299.] 721. The same rule applies to the profits which the heir may have derived from agree- ments made with the deceased, if at the time at which they are made they do not confer an in- direct advantage. — ff. L. 36, L. 38, De cent. empt. ; Cod. L. 3, L. 9, De cent. empt. ; Poth. Sue. 180 - ; Cho. C. A. 1. 3, c. 1, t. 4, n. 5; 2 Mai. 281 -; 7 P. Fr. 270, 275 ; C. N. 853. [II. 299.] 722* The profits and inter- est of the things subject to be returned are due only from the day when the succession de- volves. — ff. L. 5, De dot. coll. ; Cod. L. 20, De coll. ; C. P. 3Q9 ; Poth. Sue. c. 4, a. 2, § 3 ; P6c. r. 15, p. 227 ; Lam. t. 44, a. 29 ; Merl. Rapport. § 4, a. 2, n. 18 ; C. N. 856. [II. 299.] 723* Returns are due only from coheir to coheir ; they are not due to the legatees nor to the creditors of the succession. — ff. L. 1, De coll. ; Poth. Sue. 0. 4, a. 2, § 6, C. 0. t. 17 n. 88 ; Poc. r. 9, p. 225 ; 7 P. Fr. on a. 857, p. 301 ; C. N. 857. [II. 299.] 724. Returns are effected either in kind or by taking less. — C. P. 304, 305; 3 Lau. 20, 21, r. 16; Poc. r.lO, p. 226 ; C. N. 858. [II. 299.] 725* The return oi move- able property is only made by taking less; it cannot be re- turned in kind. — Leb. Sue. 1. 3, c. 6, s. 3 ; Fer. C. P. a. 306 ; Dup. C. P. 1. 3, c. 6, s. 3 ; Poth. Sue. c. 4, a. 2, § 7, G. 0. .. 17, n. 90; Bas. C. Nor., An. 9 Deo. 1653; 2 Mai. 290; 4 Conf. du C. 101 -; 7P. Fr. i290; C.N. 868. [II. 299.] SUOGESSIOXS. iia 786i The return of money received is also made by tak- ing loss in the money of the succession. In case of insuffi- ciency the donee or legatee may dispense with the return of money, by abandoning a proportionate value in the moveable property, or in de- fault of moveable property, in the immoveables of the succes- sion.— Fer. C. P. a. 305 ; Poth. Ob. J Lac. 554 ; 7 P. Fr. 294, n. 476 J 2Chab. 650 j C. N. 869. [II. 299.] 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. — ff. L. 2, § 2, De coll. ; L. 40, De cond. indeb.; L. 58, De leg. ; Lac. 555 ; Poth. Sue. c. 4, a. 2, § 7, C. 0. 1. 17, n. 91 ; Leb. Sue. 1. 3, c. 6, s. 3, n. 40 J 2 Mai. 283 j 7 P. Fr. 276 j C. N. 855. [II. 299.] 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 valua- tion].— C. P. 305 J C. 0. 306; 3 Lau. 20, 21 j Poth. Sue. c. 4, a. 2, § 7, 8, C. 0. t. 17. n. 194; Lac. 554; C. N. 858, 859, 860. [IL 301.] 729* If the immoveable be returned in kind, the donee or legatee has a right to be reim- bursed the expenditures made upon it; those which were neces- sary, conformably to the rules established by article 417, and those which were unnecessary, according to article 582. — Poth. Mar. n. 677, Sue. c. 4, a. 2, § 7, C. 0. 1. 17, n. 92, 97 ; C. 0. 306 ; Lao. 555; 0. N. 861,2. [IL 301.] 730. The donee or legatee must, on the other hand, ac- count for the injuries and de- teriorations which have dimin- ished the value of the immove- able returned in kind, if they result from his own act or from that of his representatives. — This rule does not apply if they have been caused by a fortuitous event, and without his or their participation. — Poth. Mar. n. 676, Sue. c. 4, a» 2, § 7, C. 0. t. 16, n. 78, t. 17, n. 91; Lac. 555; C. N. 863. [II. 301.] 731. [When the return ia made in kind, if the immove- able returned be hypothecated or encumbered, the coparti- tioners 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 returp 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.] — Leb. Sue. 1. 3, c. 6, s. 4 ; Poth. Sue. c. 4, a. 2, § 6, al. 1, 2, C. 0. t. 17, n. 92; Lac. 656; 2 Mai. 288; 7 P. Fr. 306 ; 4 Conf. du C. 96 j C. N. 865. [II. 301.] 732. The coheir who returns, an immoveable in kind may retain possession of it until ho is effectively reimbursed the sums due to him for dis- bursements and ameliorations. —Poth. Sue. c. 4, a. 3, § 7 ; 0. 1657, t. 27, a. 9 ; 1 Rog. 811 ; C. N. 867. [II. 301.] I14> SU00E8SI0NS. 733. The immoveables re- maining 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 bequeathed, are to be estimated according to their value at the time of the parti- tion, according to the oonaition in which they were at the time of the gift, or, as to legacies, at the time when the succes- sion devolved; regard being had to the provisions contain- ed in the preceding articles. — Poth. Sue. 0. 4, a. 2, s. 7, C. 0. 1. 17, n. 95 J Lac. 655; C. N. 860, 861. [II. 301.] 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. — Poth. Sue. o. 4, a. 2, § 7, 0. 0. t. 17, n. 90 j Lac. 665 J 4 Conf.du C. 101 j 2 Mai. 290 J 7P. Fr. 290 j C.N. 868. [II. 303.] SECTION III. Of ;paymcn t of debts. 735. An heir who comes alone to the succession is bound to discharge all the debts and liabilities. — The same rule ap- plies to a universal legatee. — A legatee by general title is held to contribute in propor- tion to his share in the succes- sion. — A particular legatee is bound only in ease of the in- sufficiency of the other pro- Eerty, and is also subject to ypothecary claims against the property bequeathed ; sav- ing his recourse against those who are held personally. — Cod. L. 2, L. 7, De her. et act. ; L. 1, L. 2, Si un. ez plur. ; C. P. 332-334; C. 0. 360; 3 Lau. 141 — ; Poth. Sue. c. 5, a. 2, al. 1, C. 0. t. 17, n. 108, 126, Test. 0. 2, s. 1, § 2 ; D. on a 870, p. 194; C. N. 870, 871. [11. 303.] 736. If there be several heirs or several universal lega- tees, they contribute to ^ho payment of the debts and charges, each in proportion to his share in the succession. — Author, under art. 735; C. N. 870, 871. [11. 303.] 737. A legatee under gen- eral title, who takes concur- rently with the heirs, contri- butes to the debts and charges in the same proportion. — C. P. 334 ; Poth. Sue. c. 6, a. 2, Test, c. 2, s. 1, §2; C.N. 871. [IL 303.] 738. The obligation re- sulting from the preceding ar- ticles is personal to the heir and universal legatees, or lega- tees under general title; it gives a direct action, against each of them respectively, to the particular legatees and to the creditors of the succession. — flF. L. 80, De pign. act. ; Cod, L. 2, L. 7, De her. act. ; Poth. Sue. 0. 6, a. 3, § 1, Test. c. 5, s. 3, a. 2 ; C. N. 873. [II. 303.] 739. In addition to the personal action', the heir and universal legatee, or legatee SUCCESSIONS. lift °> 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. — C. P. 333 J 3 Lau. 144 ; Poth. Hyp. c. 2, s. 2, § 1, C. 0. 1. 16, n. 120} C.N. 871, 878. [11.303.] 740* An heir or universal legatee, or a legatee under general title, who, not being gersonaliy bound, pays the ypotheoary debts charged up- on the immoveable included in his share, becomes subrogated in all the rights of the creditor against the other coheirs or colegatees for their share ; con- ventional subrogation cannot in such a case have a greater effect ; saving the rights of the beneficiary heir as creditor. — Cod. L. 22, De ju. delib.j C.P. 333 J 3 Lau. 144 J Poth. Sue. o. 5, a. 4, al. 9, 10 ; 2 Mai. 296 ; 7 P. Fr. 361,2 ; 2 Dem. on a. 876 j C. N. 875. [II. 303.] 74:1* A particular legatee who pays an hypothecary debt for which he is not liable in order to free the immoveable bequeathed to him, has his re- course against those who take the succession, each for his share, with subrogation in the same manner as any other person acquiring under parti- cular title. — ff. L. 67, De leg. j Poth. Sue. c. 5, 8. 6, a. 4, n. 2, Test. s. 3, § 3, n. 6j 2 Mai. 295 J 7 P. Fr. 347 -j C. N. 874. [II. 305.] 742i In the event of heirs or legatees exercising their re- course against their coheirs or 12 colegatees, by reason of i hypothecary debt, the liability of such as are insolvent is divided rateably among all the others, in proportion to their respective shares. — ff. L. 36, L. 39, De fid. et mand. ; L. 76, De solut. ; 2 Mai. 296 ; 7 P. Fr. 353 ; 4 Toul. 641 j C. N. 876. [II. 305.] 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 proper- ty exists in the hands of the latter, or upon the price of the sale, if it be yet unpaid. — ff. L. 1, De separ. ; Cod. L. 2, De bon. auctor. jud. ; Poth. Sue. c. 6, a. 4, al. 4, 18, 22, 24, 32, C. 0. t. 17, n. 127 J Merl. Se- paration de patrim. § 5, n. 6 ; 2 Mai. 297, 8 ; 7 P. Fr. 357- 368, especially 361 j C. N. 878- 880. [11.306.] 744:. The creditors of the heir or legatee are not allowed to claim this separation of pro- perty, nor to exercise any right of preference, against the creditors of the succession. — ff. L. 1, § 2, De Sep. j Leb. Sue. 1. 4, c. 2, s. 1 ; Poth. Sue. c. 6, a. 4, al. 32, 34, C. 0. t. 17, n. 130; 2 Mai. 298 j 7 P. Fr. 366, 7 j 2 Chab. 647 j C. N. 881. [II. 305.] 745. The creditors of the succession and those of the co- partitioners have a right to be present at the partition if they require it. — If the partition be made in fraud of their rights. V. I 1 116 8UCCE88I0KS. they may attack it in the same manner as any other act made to their detriment. — L. & B. let. K. n. 20, 21 ; Leb. Sue. 1. 3, c. 8,8. 2, n. 23, 28 J C. N. 865, 882. fll. 305.] * SECTION IV. Of the effects of partition and of the warranty of shares, 74:6. Each copartitioner is deemed to have inherited alone and directly all the things comprised in his share, or which he has obtained by licit- ation, and to have never had the ownership of the other pro- perty of the succession. — ff. L. 20, L. 44, Fam. ercisc. ; Cod. L. 1, Com. utri ; Poth. Ob. n. 445, Com. n. 140, 711, 713, Vente, n. 631, Soc. n. 179, Sue. c. 4, a. 5, § 1 ; 2 Mai. 330; C.N. 883. [11.305.] 747. Every act having for its object to put an end to in- division amongst coheirs and legatees is deemed to be a par- tition, although it should pur- port to be a sale, an exchange, a transaction, or have received any other name. — Cod. L. 20, De trans.; 0. April, 1560; 2 Arr. de Bon. 1. 3, t. 13, o. 3 ; Pap. 1. 36, t. 7, a. 7; Poth. Soc. n. 174, Sue. o. 5, a. 6, p. 216 ; De L'H. 1. 3, max. 3 ; Merl. Transaction, § 5, n. 13 ; C. N. 888. [II. 305.] 74:8* The copartitioners are respectively warrantors towards each other for all disturbances or evictions pro- ceeding from a cause anterior to the partition. — Such war- ranty does not take place if the kind of eviction suffered have been excepted by some provision of the act of partition; it ceases if the party suffer eviction through his own fault. — ff. L. 20, L. 25, L. 33, Fam. ercisc. ; Cod. L. 14, e. t. ; L. 77, De evic. ; Ley. Gar. des rentes, c. 3, n. 3 ; Poth. Vente, n. 633, Soc. n. 178, Com. n. 716-718, 723, 724, C. 0. 1. 17, n. 98, 99, Sue. c. 4, a. 5, $ 3; 2 Mai. 300-2; C. N. 884. [II. 305.] 749. Each of the coparti- tioners is personally bound, in proportion to his share, to indemnify his coheir fci the loss caused to him by tho 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. — Cod. L. 1, L. 2, Si nn. ex plur. ; Poth. Coiv. n. 170) al. 1, Vente, n. 635, C. 0. t. 17, n. 98, 100, Sue. 0. 4, a. 6, § 3, al. 22, 23, 29; 2 Mai. 302; C. N. 885. [II. 307.] 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 ii\ the same manner OITTS INTER VIVOS AKD OT WILL. 117 as eviction. — ff. L. 74, De evic, L. 4, De her. v. act. vend. ; Leb. 8uo. 1. 4, o. 1, n. 66 ; Poth. Com. n. 723, al. 3, 5, 12, Vento, n. 634, Sue. c. 4, a. 5, § 3, al. 25, 28, 29 ; Lao. Partage, s. 4, n. 2;7P. Fr. 374; 2 Mai. 303 j C. N. 886. [II. 307.] SECTION V. Of rescission in matters of partition. 751. Partitions may be re- Bcindod 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 Obligationa.'} — The mere omission of an object belonging to the succession does not give rise to the action of rescission, but only gives a right to a supplement of the actof partition.— C. 1001-1012 j Cod. L. 1, Q. met. causd ; Poth. Ob. n. 35, Yente, n. 636, Soc. n. 174, Com. n. 715, Sue. c. 4, a. 6, al. 1, 2 ; Merl. Ldsion, S 6 ; 2 Mai. 303-5; C. N. 887, 889. [II. 307.] 752* When it becomes ne- cessary to decide whether there is lesion, the value of the objects at the time of the partition is to be considered. — Cod. L. 8, De reso. vend. ; Leb. Sue. I. 4, 0. 1, n. 59 ; C. N. 890. [II. 307.] 753. The defendant in an action of rescission of partition may arrest its progress and pre- vent 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. — Cod. L. 2, De reso. vend. ; Leb. Sue. 1. 4, 0. 1. n. 62, n. 61 ; Dum. P. a. 33, gl. 1, n. 42 ; Poth. Sue. c. 4, a. 6 ; 2 Mai. 307 ; 7 P. Fr. 378 J C. N. 891. [II. 309.] TITLE SE COND. OF GIFTS lliTEB VIVOS AND BY WILL. CHAPTER FIRST. GENERAL PROVISIONS. 754. A person cannot dis- pose of his property by gra- tuitous title, otherwise than by gift inter vivos or by will — ff. L. 1, de don. ; 1 Ric. Don. pt. 1, n. 43j Poth. Don. 437, a. pr^l. ; IJ. A. 238; 7N. D. 2; C. N. 893. [II. 309.] 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 ir- revocable, saving the cases provided for by law, or a valid resolutive condition. — Poth. lb.; ff. L. 1; L. 9; L. 19, § 2, de don.; L. 69, de reg. ju.; 1 Ric. pt. 1, n. 16; 2 Dour. 77, 105, 119; 2 Lam. 351; Guy. 118 GIFTS INTEB VIVOS AND BT WILL. Don. 104, 173; 7 N. D. 8,49; C. N. 894. [II. 309.] 756. A will is an act of gift in contemplation of death, by means of which the testator, without the intervention of the Serson benefited, makes a free isposal 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 acceptance of it purport- ing to be made in his lifetime is of no effect — ff. L. 1, do mort. causft don.; L. 1, qui test.; 1 Rio. pt. 1, n. 37, 41, 82; Dom. Test. 1. 1, s. 1, n. 4 ; Guy. Don. 164, Test. 99 ; 7 N. D. 6, 7 ; C. N. 895. [II. 309.] 757. Certain gifts may be made irrevocably inter vivos in a contract of marriage, to take effect, however, only after death. 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. — 0. D. a. 15 ; C. N. 897. [II. 309.] 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. — 1 Rio. pt. 1, n. 43; Guy. Don. 212; O.D. a. 15 ; Poth. Don. 442 ; 2 Lam. 350 ; C. N. 943, 947. [II. 309.] 7o9. The prohibitions and restrictions as to tho capacity for contracting, alienating or acquiring, established else- where in this code, apply to gifts inter vivos and to wills, with the modifications contain- ed in the present title. [II. 309.] 760i Gifts inter vivos or by will may be conditional. — An impossible condition, or one contrary to good morals, fo law, or to jpublio order, upon which a gift inter vivos de- pends, is void, and renders void the disposition itself, as in other contracts. — In a will such a condition is considered as not written, and docs not annul tho disposition. — ff. L. 7, do pact. dot. ; L. 15, § 1, ad log. Fal.; L. 1, de cond. ob turp. ; L. 3, de cond. et dem.; Cod. L. 1, L. 2, L. 3 do don. q. sub modo ; 1 Ric. p. 1, n. 1044; Dom. Test. t. 1, s. 8, n. 1, 18 ; Guy. Don, 173, 198 ; 5 N. D. 113-5 ; 7 Id. 9 ; Tr. Don. n. 212 -; Poth. Ob. n. 204, Test. 329 ; C. 1080 ; C. N. 900, 1172. [II. 311.] CHAPTER SECOND. OF 0IFT8 INTER VIVOS. SECTION II. Of the capacity to give and to receive by gift inter vivos. 761. All persons capable of disposing freely of their pro- perty, may do so by gift inter vivos, save the exceptions es- tablished by law.—C. P. 272 ; Poth. Don. 438 ; 1 Ric. pt. 1, n. 126; Guy. Don. 169; 7 N. D. 23 ; Tr. Don. n. 509 ; 5 Toul. n. 62; C. N. 902. [II. 311.] 762. Gifts purporting to be inter vivos are void, as pre- sumed to bo made in contem- plation of death, when they are made durjng the supposed mortal illness of the donor, whether it be followed or not GIFTS INTEB VIVOS AND BY WILL. 119 by bis death, unless oircum- stances tend to render them valid. — If the donor recover, and leave tho donee in peace- able possession for a consider- able time, tho nullity is covered. — C. P. 277; 1 Rio. pt. 1, n. 87—; 2 Bour. Don. t. 4, c. 2, n. 1-3 ; Poth. Don. 439 j 7 N. D. 25 ". [II. 311.] 763« Minors cannot give inter vivos, even with the assistance of their tutors, un- less it bo by their contract of marriage, as provided in the title Of Ohligationa. — Emanci- pated minors may nevertheless give moveable articles, accord- ing to their condition and means, and provided they do not materially affect their capital. — Tutors, curators and other administrators cannot give the property entrusted to them, except things of mode- rate value, in the interest of their charge. — The necessity of a wifo being authorized by her husband applies to gifts inter vivos, whether for giving or for receiving. — Public corpora- tions, even those having power to alienate, besides tho special provisions andformalities which concern them, cannot give gra- tuitously without the sanction of the authorities to whom they are subject and of the main body of corporators ; those who administer generally for eorporations may nevertheless give alone, within the limits above defined as to tutors and curators. — Private corpora- tions may give inter vivos in the same manner as indivi- duals, with the consent of the main body of corporators. — C. P. 272 ; Poth. Pers. 615, Don. 438,439 J Guy. Don. 109, 170 j Bour. Don. t. 1, c. 5, n. 8 ; 7 N. D. 23 ; Tr. Don. n. 686 -, 693; C. N.903, 904, 1095. [II. 311.1 7d4. [The prohibitions and restrictions respecting gifts and benefits bestowed by future consorts in caso of second marriages no longer exist.]^ C. P. 279 ; Poth. Don. 447 ; 1 Rio. 61, n. 700, 1 ; 2 Bour. 197 j C. N. 1098. [II. 313.] 766. All persons capable of succeeding and of acquiring may receive by gxitinter vivos, saving any exception estab- lished by law, and subject to the necessity of legal acceptance by the donee, or by a person qualified to accept for him.— Poth. Don. 438, 445, 456 ; Guy. Don. 169 ; 7 N. D. 33 j Tr. Don. n. 609; 0. N. 902. [II. 313.] 766. Corporations may ac- quire by gift inter vivos, as by other contracts, such property as they are allowed to possess. — C. 368; C. N. 910. [II. 313.] 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 administration actually continues and they have not rendered their ac- count ; [they may however give to their own ascendants who have exorcised these ofiices.]-C. P. 276; Poth. Don. 450 ; 1 Ric. pt. 1, n. 457-465 ; Guy. Incapacite, 108 ; 7 N. D. 34; CIS. 907. [11.313.] 768. Gifts inter vivos laade in favor of the person with I i 1 120 GIFTS INTER VIVOS AND BY WILL. whom tho donor has lived in oonoubinagc, or of the inces- tuous or adulterine children of such donor, are limited to maintenance. — [This restric- tion does not apply to gifts made in a contract of marriage entered into between the con- oubinaries. — Other illegitimate children may receive by gift inter vivos like all other per- sons.] — Ric. Don. pt. 1, n. 408 ~ J 0. 1629, a. 132 j Guy. Incapacitd, 99 j Merl. Concu- binage, n. 2^ 3; 7 N. D. 34 j C. N. 908. [II. 313.] 769. [Gifts inter vivos made in favor of tho priests or ministers of religion having the spiritual direction of tho donor, of the physicians and others attending him with the view of restoring 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 presumption in this case, as in all others, must be estab- lished by facts.] — 1 Rio. pt. 1, n. 498 — J Guy. Incapacity, 107 J Poth. Don. 454, 5 j C. N. 909. [II. 316.] 770. The prohibition against consorts benefiting each other during marriage by acts inter vivos is set forth in the title concerning marriage covenants.— C. N. 1099. [II. 315.] 7vl. The capacity to give or to receive inter 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 eflFectod 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 after- wards born viable. — 1 Ric. pt. 1, n. 790, 1 J Poth. Don. 455, 6 j C. N. 906. [II. 315.] 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 necessary that the substitute should be in existence at the time of the gift by whichvthe substitution is created. — 1 !|Elic. pt. 1, n. 869, 870 : 2 Bour. 113 ; Poth. Don. 455 ; 7 N. D. 34, 53; C. N. 1081. [II. 315.] 773. A gift inter vivos of the property of another is void; it is however valid if tho donor subsequently become proprie- tor of it.— Guy. Don. 173; 1 Th. Des. 192 ; Poth. Don. 486. [11.315.] 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 per- sons interposed. — The ascend- ants, the descendants, the presumptive heir at the time of the gift, and the, consort of the incapable person are held to be interposed, unless rela- tions of kindred, or of services rendered, or other circum- stances tend to destroy 'the presumption. — This* nullity takes place evei| when the person interposed survives the person who is incapable. — 1 Rio. pt. 1, n. 708 ~ ; 2 Bour. GIFTS INTER VIVOS AND BY WILL. m rcum- )y ' the uUity n the OS the le.— 1 Bour. 82—, 93; Guy. Avantago, 715; 2N. D. 645--; 7 Id. 34; 1 Th. Des. 200 ; C. N. 1099, 1100. [II. 315.] 775. [Children of a de- ceased person cannot claim legitim in consequence of gifts made by him inter vivos."} — C. P. 298 ; Guy. L6gitime, 201 ; Poth. Don. 611; C. N. 913. [11.317.] I SECTION II. Of the form of gifts and of their acceptance. ■^ 776. Deeds containing gifts inter vivos must under pain of nullity be executed in notarial form and the original thereof be kept of record. The accep- tance must be made in the same form. — Gifts of moveable property, accompanied by de- livery, may however be made and accepted by private writ- ings, or verbal agreements. — Gifts validly made out of Lower Canada, or within its limits but in certain localities excepted by statute, need not be in notarial form. — 0. 1539, a. 133 ; Decl. Febr. 1549 ; Sal. 0. p. 45 ; 3 Fer. C. P. 1089 ; 0. 1731, a. 1, 2 J Poth. Don. s. 2, a. 4; 2 Bour. 107, 123; Guy. Don. 178 ; 7 N. D. 55; C. S. L. C. C.38; C.N. 931. [11.319.] 777. It is essential to gifts intended to take efieot inter vivos that the donor should ac- tually divest himself of his ownership in the thing given. — EThe consent of the parties is sufficient, as in sale, without the necessity of delivery.] — The donor may reserve to him- self the usufruct or precarious possession, or ho may pass the usufruct to one person, and give the naked ownership to another, provided he divests himself of his right of owner- ship. — The thing given may be claimed, as in the case of sale, from the donor who withholds it, and the donee may demand the rescission of the gift in do- fault of its being delivered, without prejudice to his dam- ages in cases where he may claim them. — [If without re- servation of usufruct or of pre- carious possession, the thing given remain unclaimed in the hands of the donor until his death, it may be revendicated from his heirs, provided the deed has been registered dur- ing the lifetime of the donor.] — The gift of an annuity creat- ed by the deed of such gift, or of a sum of money or other in- determinate thing which the donor promises to pay or to de- liver, divests the donor in the sense that he becomes the deb- tor of thQ donee.— C. P. 273-5; ff. L. 9, § 3, L. 2, § 6 ; L. 6, de don. ; 1 Rie. pt. 1, n. 896, 903, 919, 920, 930, 948, 953, 955, 967 ; 0. D. a. 15 ; Poth. Don. 464 — ; 2 Bour. 112 ; Guy. Don. 175, 178,179, 180, 185; C. N. 899, 938, 949. [II. 319.] 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 X22 GIFTS INTER VIVOS AND BY WILL. article does not extend to gifts made inacontract of marriage. —1 Rie. pt. 1, n. 1024 j Poth. Don. 467-9 j 0. D. a. 3, 4, 15 j Sal. on do. 35,6 j 7 N. D. 39, 60; 2 Bour. 119 j C. N. 943. [li. 321.] 779. A donor may stipulate for the right of taking back the thing given, in the event of the donee alone, or of the donee and his descendants dying before him. — A resolu- tive condition may in all cases be stipulated, either in favor of the donor alone, or of third Eersons. — The right to take ack, or any other resolutive right, is exercised in oases of gift in the same manner and with the same effects as the right of redemption in the case of sale. — Cod. L. 2, de don. q. sub mod. J C. P. 275 j Poth. Ob. n. 72, 73 J 0. D. a. 15 ; C. 1029 ; 14 Merl. Q. 368, 378 j Tr. Don. n. 1263 — ; Archambault vs. Archambault, S. C. Montreal ; O.N. 951, 952. [11.321.] 780. A gift may consist of a person's whole property, and it is then universal ; or of the whole of the moveable or immo- veable property, of the whole of the property of the matri- monial community or of any other universality, or of an aliquot portion of such proper- ty, and is in such cases a gift by general title j or it may be limited to things particularly described, and is then a gift by particular title. — 1 Ric. pt. 1, n. 1656 J 2 Bour. 102 j Guy. Don. 170 J Poth. Don. 456; 7 N. D. 36. [II. 321.] 781. The abandonment or the partition of present proper- ty is considered as a gift inter vivos, and is subject to the same rules. — The same dispo- sition cannot be made in con- templation 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. — Cons, of a. 754, 757 ; 7 N. D. 81 J C. N. 1075. [II. 321.] 782> It may be stipulated that a gift inter vivos shall be suspended, revoked,or reduced, under conditions which 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 the 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. — C. P. 273, 274 J 0. D. a. 16 j Poth. Don. 463>4 j 1 Rio. pt. 1, n. 984 ", 1032, 1033, 1038, 1039, 1044- J 1 Th. Des. 199 7 N. D. 49, 81 "J C. N. 947. [II. 323.] 783.A11 gifts inter vivos sti- pulated to be revocable at the mere will of the donor are void. — This does not apply to gifts made by contract of mar- riage.— C. P. 273, 274 J 1 Ric. pt. 1, n. 970; C. N. 944, 947. [II. 323.] 784* Gifts inter vivos of present property are void if they are made sul^ject to the condition of paying other debts or charges than those which exist at the time of such gifts, 946* GIFTS INTER VIVOS AND BT WILL. 123 or than those to come, the na- ture and amount of which have been expressed and defined in the deed or in the statement annexed to it. — This article does not apply to gifts by con- tract of marriage. — 1 Bio. pt. 1, n. 1027, 1029 j 7 N. D. 49 j 0. D. a. 16 ; Poth. Don. 463,4 j C. N. 945, 947. [II. 323.] 785. The causes of nullity and prohibitions declared in the last three preceding articles and article 778, take effect not- withstanding all stipulations or renunciations by which it may be sought to evade them. —1 Bic. pt. 1, n. 1000 J 7 N. D. 44. [II. 323.] 786. [Unless some special law requires it, a deed of gift need not be accompanied by a statement of the moveable pro- perty given J the legal proof of its nature and quantity de- volves upon the donee.] — 1 Bic. pt. 1, n. 963-5 J Guy. Don. 174; 0. D. a. 15; 7 N. D. 40; C. N. 948, 1085. [II. 323.] 787. Gifts inter vivos do not bind the donor nor produce any effect until after they are accepted. If the donor be not present at the acceptance, they take effect only from the day on which he acknowledges or is notified of it. — Bic. Don. pt. 1, n. 834-6 ; Guy. Don. 171 ; 1 N. D. 87. [II. 323.] 788. [The acceptance of a gift need not be in express terms. It may be inferred from the deed or from circum- stances, among which may be counted the presence of the donee to the deed, and his signature.] — This acceptance is presumed in a contract of 10 marriage, as well with regard to the consorts as to the future children. In gifts of moveable property this presumption also results from the delivery — Bio. Don. pt. 1, n. 838, 842, 869,. 890, 891; Guy. Don. 171, 2; 7 N. D. 81; lid. 87. [11.325.] 789. Gifts inter vivos may be accepted by the donee him- self, authorized and assisted if so it be, as in other contracts ; minors, persons interdicted for prodigality, and those to whom an adviser has been judicially appointed, may also accept un- assisted, Baving their right to be relieved; tutors, curators and ascendants may accept in behalf of minors, as laid down in the title Of Minority, Tutorship and Emancipation, and curators appointed to interdicted per- sons may also accept for such persons. — The persons who compose a corporation or ad- minister for it may also accept gifts in its behalf. — Bio. pt. 1, n. 844, 5 ; 2 Bour. 120, 1 ; Guy. Don. 171 ; 1 N. D. 89, 90 j C. N. 933, 934, 935. [II. 325.] 790. In gifts inter vivos in favor of children born and to be born, where such gifts may be made, the acceptance by those who are born, or by a» qualified person for them, holds good for the others not yet born, if they avail themselves of it. —1 Bio. pt. 1, n. 870. [II. 325.] 791. The acceptance may be subsequent to the deed of gift ; but it must be made dur- ing the lifetime of the donor,, and while he is still capable of giving.— Poth. Don. 460 ; Tr. Don. n. 1102 ; Bic. Don. pt t m GIFTS IKTEB VIVOS AND fiT WILL. n. 792 : C. N. 932. [II. 325.] 792i [Minors and interdict- ed persons cannot be relieved from the acceptance or repudia- tion made in their name by a qualified person, if it have been previously authorized by a judge, upon the advice of a family council. With these formalities the acceptance is as effectual as if it were made by a person of age, in the full exercise of his rights.] — Guy. Don. 172 J Fer. Tutelles, 291 j C. N. 942. [II. 325.] 793. Deeds of gift may be executed subject to acceptance, without the donee being there- in represented. An acceptance purporting to be made oy the notary, or other person not authorized, does not render the gift void, but it is without effect, and the confirmation by the donee can only avail as an acceptance from the time at which it takes place. — 1 Rio. pt. 1, n. 866, 878, 836 j 2Bour. 129 J 0. D. a. 5 J Poth. Don. e. t. J Guy. Accept. 99, Don. 171 ; 0. 1539, a. 133. [II. 325.] 794. Gifts cannot be accept- ed after the death of the donee by his heirs or representatives. — Lem. 372 ; 2 Bour. 123 j Poth. Don. 457 --. [II. 325.] SECTION III. Of the effect of gifts. 795. [Gifts inter vivos of present property when they are accepted, divest the donor of and vest the donee with the ewnership of the thing given, as in sale, without any delivery l>eing necessary.] — 1 Ric. pt. 1, n. 899, 900, 902; 2 Bour. 109 - J Poth. Ob. 44, Don. 485, 7 ; Guy. Don. 179 ; 7 N. D. 39-; C.N. 938. [11.327.] 796. Gifts do not by the mere effect of law give rise to any obligation of Warranty on the part of the donor, who is deemed to give the thing only in so far as it belongs to him. — Nevertheless if the cause of eviction arise from the indeb- tedness or the act of the donor, he is obliged, though he have acted in good faith, to reim- burse the doneo who has paid to free himself ; unless the latter be bound to make such payment in virtue of the deed of gift, either by law or^ by agreement. — Warranty to a greater or less extent may be stipulated in gifts, as in any other contracts. — 2 Bour. 106, 137; A. D. Garantie, n. 17; Poth. Don. 485, 6 ; 7 N. D. 22 ; 1 Th. Des. 192. [11.327.] 797. A universal donee inter vivos of present property is personally liable for all the debts due by the donor at the time of the gift. — A donee by general title inter vivos of such property is personally liable for such debts in proportion to what he receives. — C. P. 334; 1 Rio. pt. 1, n. 1514, 1063; Poth. Don. 487-9 ; 2 Bour. 137; 7 N. D. 11-13 ; Tr. Don. 2416 i. f. [II. 327.] 798. Nevertheless the doneo, by whatsoever title, may, if the things given be sufiiciently particularized in the gift, or if he have made an inventory, free himself from the debts of the donor by rcjtidering an account and giving up all that he has received. — If he be sued GIFTS INTER VITOS AND BY VrtLl. 125 hypothecarily only, he may, like any other possessor, free himself by abandoning the immoveable hypothecated, without prejudice to the rights of the donor, towards whom he may be bound to make the payment. — Poth. Don. 489 j 2 Bour. 137, 8. [II. 327.] 799> A donee by particular title inter vivos is not personally liable for the debts of the donor. In case of an hypo- thecary action he may abandon the immoveable charged, like any other purchasor.-^Poth. Don. 487 j 2 Bour. 137, 8. [II. 327.1 800. The obligation to pay the debts of the donor may be extended or limited by the deed of gift, subject to the legal prohibitions concerning future and uncertain debts. — The right of the creditor in such case against the donee per- sonally, beyond that which re- sults from the law, is governed by the rules sot forth as to delegation and indication in matters of payment in the title Of Obligations. — 1 Ric. pt. 1, n. 1028 J 7 N. D. 12. [II. 327.1 soil The exception of par- ticular things, whatever may be their number or value, in a universal gift or a gift by gen- eral title, does not exonerate the donee from payment of the debts.— 7 N. D. 11. [II. 329.] 802. The creditors of the donor have a right to demand the separation of his property from that of the donee, when- ever the latter is liable for the debt, according to the rules laid down in the preceding title as to such separations in matters of succession. [II. 329.] 803. If at the time of the gift, and deduction being made of the things given, the donor were insolvent, the previous creditors, whether their claims are hypothecary or not, may obtain the revocation of the gift, even though the donee were ignorant of the insolvency. — In the case of insolvent traders, gifts made by them within three months previous to the assignment, or the writ of attachment in compulsory liquidation, are voidable, as presumed to be fraudulent. — 1 Ric. pt. 1, n. 749 — J 0. 1032 - . [II. 329 ; III. 379.] SECTION IV. Of registration as regards gifts inter vivos in particular, 804. Registration of gifts inter vivos in the offices estab- lished for the registration of real rights, takes the place of the inscription in the offices of the courts which is abolished. — Gifts of immoveables must be registered in the office of the division in which they are situate ; gifts of moveable pro- perty, in the office of the divi- sion where the donor resided at the time of the gift. — 0. 1539, a. 132 ; 0. Mou. a. 58 ; 0. D. a. 23 5 C. S. L. C. c. 37, s. 28, 29 : C. N. 939. [II. 329.] 80o. The effect of the regis- tration of gifts inter vivos and of the neglect of such registra- tion, is regulated, as to immo- 126 GIFTS INTBE VIVOS AND BY WILL. veables and real rights, by the general laws concerning the registration of such rights. — Beyond this the registration of gifts is required particularly in the interest of the heirs and the legatees of the donor, his creditors and all otheis inter- ested, according to the follow- ing rules. — 0. D. a. 27 j C. S. L. C. 0. 37, s. 1. [II. 329.] ^806« AH gifts inter vivos, of moveable or immoveable pro- perty, even those which are remuneratory, must be register- ed; save the exceptions con- tained in the two following articles. The donor himself cannot set up the want of regis- tration, neither can the donee or his heirs ; but it may be set up by any person entitled to do so under the general regis- try laws, by the heir of the donor, by his universal or his particular legatees, by his creditors, even though they be posterior and not hypo- thecary, and by all other per- sons interested in having the gift declared void. — 0. Mou. a. 58 J 1 Eic. pt. 1, n. 1231 - j 0. D. a. 20, 27 J 2 Bour. 128 j Guy. Don. 187 j C. N. 941. [II. 329.] 807« Gifts made in the direct line by contract of marriage, are not affected by want of re- gistration further than they may be under the general registry laws. — All other gifts in contracts of marriage, even between future consorts, or in contemplation of death, and all other gifts in the direct line, remain subject to registration in the same manner as gifts in general — 1 Ric. pt. 1, n. 1107, 1123; 2 Bour. 132; 0. D. a. 19, 22, 28. [II. 331.] 808. Gifts of moveable effects, whether universal or particular, are exempt from registration when they are fol- lowed by actual delivery and public possession by the donee. — 1 Ric. pt. 1, n. 1151, 2 ; 2 Bour. 134. [II. 331.] 809. Gifts are subject to the rules concerning registra- tion of real rights contained in the eighteenth title of this book, and are no longer subject to the rules tflrhich governed inscrip- tions in the prothonotary 's office. — C.S. L.C.o.37,s. 1,9. fEI. 331.] 810. The donor is not liable for the consequences of the want of registration, although he have bound himself to effect it. — Married women, minors and interdicted persons can- not be relieved from the failure to register the gift, but they have their recourse against those who neglected to effect such registration. — Husbands, tutors, administrators, and others whose duty it is to attend to such registration, cannot avail themselves of the absence of it. — 1 Ric. pt. 1, n. 1172, 1238, 1239 -; 2 Bour. 128, 9; 0. D. a. 18, 30-32; Guy. Don. 1^8; C. N. 940, 941, 942. [11.331.] SECTION V. Of the revocation of gifts. 811. Gifts inter vivos ac- cepted are liable to be revoked : 1, By reason 'of ingratitude on the part of the donee ; 2. By means of the rfesolutivo GIFTS INTEB VIVOS AND BY WILL. 127 condition, in cases where it may be validly stipulated ; 3. For the other legitimate causes by which contracts may be annulled, unless some parti- cular exception is applicable. — God. L. 2, L. 8, de cond. ob cans, dat. ; L. 1, L. 8, L. 10, de rev. don. ; L. 1, L. 2, L. 3, de don. q. sub mod.; C. 991--, 1006 j 0. D. a. 39 J Poth. Don. 489 —, 602 —J 1 Ric. pt. 1, n. 667, 664 -, 1044 -J 2 Bour. 138, 142, 149, 151 J 7 N. D. 62, 63; C. N. 953, 956. [II. 333.] 812. [In gifts, the subse- quent birth of children to the donor does not constitute a re- solutive condition, unless it is so stipulated.] — Ric. Don. pt. 1, n. 666, 674, 603 -, 648 -j Id. B6v. des don. 65, 66 ; 0. D. 39 - ; Poth. Don. 489 - j 2 Bour. 142-4, 7, 8; C. N. 960- 966. [II. 333.] 813* Gifts may be revoked by reason of ingratitude, with- out a stfpulation to that effect : 1. If the donee have attempt- ed the life of the donor ; 2. If ho have been guilty towards him of ill usage, crimes, or grievous injuries ; 3. If he refuse him main- tenance, regard being had to the nature of the gift and the circumstances of the parties. — Gifts by contract of marriage are subject to this revocation, and so are remuneratory or onerous gifts in so far aa they exceed the value of the services or of the charges. — Cod. L. 10, De revoc. don.; Poth. Don. 602-; 2 Bour. 138,9; Guy. In- gratitude, 228 ; C. N. 966, 956, 959. [11.333.] 814* The demand of revo- 10* cation on the ground of ingra- titude must be made within a year from the date of the of- fence imputed to the donee, or within a year from the day when such offence became known to the donor. — Such re- vocation cannot be demanded by the donor against the heirs of the donee, nor by the heirs of the donor against the donee or his heirs, unless the action has been commenced by the donor against the donee him- self, or unless, in the second case, the donor died within a year after the offence was committed or became known to him. — Cod. L. 10, de revoc. don.; Rio. pt. 1, n. 704 — , 730 ; 2 Bour. 140 ; Poth. .)on. 502-9 ; C. 2262; C. N. 955-957. [II. 333.1 815* Revocation on the ground of ingratitude does not prejudice alienations made by the donee, nor hypothecs or other charges created by him, previously to the registration of the judgment of revocation, when the purchaser or creditor has acted in good faith. — In cases of revocation on the ground of- ingratitude the donee is condemned to restore the thing given, if it be still in his possession, together with its fruits from the date of the judicial demand; if he have alienated it since such demand, he is condemned to restore what it was worth at the timo of the demand. — Ric. Don. pt. 3. n. 714 — ; 2 Bour. 141 ; Guy. Revocation, 702 — ; Poth. Don. 607,8; C. N. 965, 966, 968. [II. 336.] 816* [Gifts cannot be re- 12S GIFTS INTER VIVOS AND BT WILL. yoked by reason of the non- fulfilment of obligations enter- ed into by the donee, as charges or otherwise, unless the revo- cation is stipulated in the deed ; and such revocation is subject in all respects to the same rules as the dissolution of sale in default of payment of the price, without the necessity of any preliminary condemnation obliging the donee to the ful- filment of his obligations.] — The stipulation of all other re- solutive conditions when legal- ly made has the same effect in gifts as in other contracts. — Bio. pt. 3, n. 1044; Guy. Don. 198 J 7 N. D. 9j 0. N. 963, 956. [11.333.] SECTION VI. Of gifts hy contract of mar- riage, whether of present property or made in contemplation of death. 817* The rules concerning l^ts inter vivos apply to thoso which are made by contract of marriage, with such modifica- tions as result from special f revisions.— C. N. 1081, 1092. II. 335.] 818> Fathers and mothers, And other ascendants, relations in general, and even strangers, may, in a contract of marriage, give to the future consorts or to one of them, or to the children to be born of their marriage, even with substitution, the whole or a portion of their pre- «ent property, or of the pro- Serty they may leave at their eath, or of both together. — Bic. pt. 1, u. 1027; 2 Bour. 113,6; Guy. Don. 212; Poth Mar. n. 2; 0. D. a. 17 ; 7 N. D. 81 -, 91, 92 ; 0. N. 943, 1082, 1084, 1089. [II. 335.] 819. Subject to the same rules, when particular excep- tions do not apply, future consorts may likewise, by their contract of marriage, give to each other, or one to the other, or to the children to be born of their marriage, property either present or future. — ^Rio. pt. 1, n. 364 ; 2 Bour. 113 - ; 0. D. a. 17 ; 7 N. D. 81 - ; C. N. 943, 1091. [II. 335.] 820. Owing to the favor of marriage and the interest which future consorts inay have in arrangements made in favor of third persons, it is lawful for relations, for strangers, and for the future consorts themselves, to make in a contract of marriage whereby the future consorts or their children are benefited by the same donor, all gifts what- soever of present property to third parties, whether rela- tions or strangers. — ^For the same reasons, the ascendants of a future consort may, in a contract of marriage by which he also is benefited, make gifts in contemplation of death in favor of his brothers or sisters. All other gifts in contemplation of death made in favor of third parties are void. — Leb. Sue. 1. 3, 0. 2, n. 12, 13 ; 0. D. a. 17 ; Sal. on 0. D. 43 ; Anouilh, Inst. cent. 38, 39 ; 0. N. 943. lII. 335.] 821i Gifts of present pro- perty by contract of marriage are, like all others, subject to acceptance inter vivos. The GIFTS INTER VIVOS AND BY WILL. u» pro- rriago ect to aooeptanoe is presumed in tho oases mentioned in the second section of this chapter. Third parties not present to the deed may accept separately, either before or after the marriage, gifts made in their favor. — Ric. pt. 1, n. 869, 876 j Guy. Don. 172 } 0. D. a. 10, 12, 13 j 7N. D. 81: C.N. 1087. [11. 335.1 822. Gifts by contract of marriage of present or future property are valid, oven as regards third parties, only in the event of the marriage taking place. If tho donor or the third party who has accepted the gift die before the marriage, the gift is not void, but remains suspended by the condition that the marriage will take place. — Cod. L. 24. de nupt. ; Bril. Don. n. 191 ; Poth. Com. intr. n. 17 ; Tr. Don. 2471 — , Mar. 90 J C.N. 1088. [11.335.] 823. Gifts of present pro- perty by contract of marriage cannot be revoked by the donor, even as regards third parties benefited who have not yet accepted, unless for legal grounds, or by reason of a resolutive condition validly stipulated. — Gifts in contem- plation of death, made by such acts, are irrevocable in so far that the donor, without legal grounds or a valid resolutive condition, cannot revoke them, nor dispose of tho given pro- perty by gift inter vivos or by will, unless it is in small amounts, by way of recompense or otherwise. Ho remains nevertheless owner in other respects of the property thus given and may dispose of it by onerous title and for his own benefit. Even if the gift in contemplation of death be universal he may acquire and possess property and dispose of it under the foregoing restric- tions, and may contract, other- wise than by gratuitous title, obligations which affect the property thus given. — Poth. Don. 469 ; Guy. Inst. cont. 393 - : 7 N. D. 85 -- j Tr. Don. 2348 - ; C. N. 1083. [II. 335.1 824. It may be stipulated that a gift, either of present property or in contemplation of death, made in a contract of marriage, shall be suspended, revocable, reducible, or subject to changeable or indeterminate reservations and rights of re- sumption, although the effect of the disposition depend upon the will of the donor. If, in the case of reservations and of a right of resumption, the donor do not exercise his right, the donee retains the full bene- fit of the gift to the exclusion of the heir of the donor. — Ric. pt. 1, n. 1016; 7N. D. 82j 0. D. a. 17, 18 ; Poth. Don. 469 ; C. N. 944, 946, 108l6, 1089, 1093. [II. 335.] 825. Gifts by contract of marriage may be made sub- ject to the charge of paying the debts due by the donor at the time of his death, whether they are determinate or not. — In universal gifts or gifts by general title of future property, or of present and future pro- perty together, this obligation falls on the donee without sti-. pulation to that effect, for the whole or in proportion to what i I 180 QTFXa INTER VIVOS AND BY WILL. he roccivoB. — 0. D. a. 17 j Poth. Test. 46^ J 7 N. D. 91 - j C. N. 947, 1084. [11.337.] 826* The donee however, after the death of the donor, in gifts made wholly in con- templation of death, and so long as he has not otherwise Accepted, may free himself from the debts by renouncing the gift, after making an in- ventory and rendering an ac- count, and by giving back any property of the donor remain- ing in his possession, or which he may have alienated or mjxed up with his own. — Poth. 1. c. j 0. D. 1. c. [II. 337.] 827. In cumulative gifts of present and future property the donee may also, after the death of the donor and so long as he has not accepted other- wise the gift in contemplation of death, free himself from the debts of the donor other than those for which he is liable under the gift inter vivos, by renouncing in the same manner the gift in contemplation of death, to restrict himself to the present property given him — Author, under twoprec. arts. : C. N. 1084. [11. 337.] 8z8« The donee may also at the same time renounce the present property and free him- self from all liability, by mak- ing an inventory, rendering an account, and returning the pro- perty given, in the manner provided in respect of gifts in general.— C. 798. [II. 337.] 829. Notwithstanding the rule which excludes repre- sentation in the matter of legacies, gifts in contempla- tion of death made in favor of future consorts or of one of them, by their ascendants or other relations, or by strangers, are always, in the event of the donor surviving the consort benefited, presumed to be made in favor of the children to bo born of the marriage, unless it is otherwise provided. — The gift becomes extinct if when the donor dies neither the con- sorts or consort benefited, nor any children of theirs be living, — Leb. Sue. 1. 3, c. 2, n. 33-36; Lao. Donation, s. 7 ; 7 N. D. 85,6; 4 Marc. n. 282-285; C. N. 1082. [11. 337.] 830> Gifts in contemplation of death made by contract of marriage, may be expressed in the terms of a gift, of an ap- pointment of heir, of an assign- ment of dowry or dower, of a legacy, or in any other terms which indicate the intentions of the donor.— 5 N. D. 644; C. N. 967. [II. 337.] CHAPTER THIRD. OP WILLS. SECTION I. Of the capacity to give and to receive by will. 831. Every person of full age, of sound intellect, and capable of alienating his pro- perty, may dispose of it freely by will, without distinction as to its origin or nature, either in favor of his consort, or of one or more of his children, or of any other person capable of acquiring and possessing, and without reserve, restriction, or limitation; saving the prohibi- GIFTS INTER VIVOS AND BT WILL. 131 tions, restrictions, and causes of. nullity mentioned in this code, and all dispositions and conditions contrary to public order or good morals. — 0. P. 292 J C. S. L. C. 0. 34, s. 2j C. N. «01. [11. 339.] 832. The capacity of mar- ried women to dispose of pro- perty by will is established in the first book of this code, in the title Of Marriage.— C. 184 j C. N. 906. [II. 341.] 833. Minors, [even of the age of twenty years and over,] whether emancipated or not, are incapable of bequeathing any part of their property. — C. P. 293, 294, 296 j Kic. pt. 1, n. 160 - ; 2 Bour. 297 j Poth. Test. 334 j Guy. Test. 105 j C. 8. L. C. c. 34, s. 2 J C. N. 903, 904. r:i. 341.] 834. Tutors and curators cannot bequeath property for the persons under their con- trol, either alone, or conjointly with such persons. — Persons interdicted for imbecility, in- sanity or madness cannot dis- pose of property by will. The will of a prodigal made sub- sequently to his interdiction may be confirmed or not ac- cording to circumstances and the nature of the dispositions. — A person to whom an adviser has been judicially appointed, whether at his own request or upon an application for his interdiction, may validly dis- pose of property by will. — Guy. Gonseil Judioiaire; Id. Prodi- gue ; Id. Interdiction, 703 ; A. D. Test. 713 J Nov. 39, ofEmp. Leo.: Poth. Test. 336; C. N. 901. [11.341.] 835i The capacity of the 13 testator is considered relatively to the time of making his will ; nevertheless a will made pre- viously to a condemnation irom which civil death results, is without effect if the testator die while he is under the cHect of such condemnation. — Rio. pt. 1, n. 797-9; Guy. Test. 123; Poth. Test. 332. [II. 341.] ^ 836. Corporations and per- sons in mortmain can only re- ceive by will such property as they may legally possess. — C. S. L. C. c. 34, s. 3. [II. 341.] 837* Minors and interdicted or insane persons, though inca- pable of bequeathing, may re- ceive by will. — Ric. pt. 1, n. 126 ; 2 Bour. 156, 298 ; Poth. Tost. 337 ; Guy. Ldgataire, 45 j C. N. 906. [II. 341.] 838. The capacity to re- ceive by will is considered re- latively to the time of the death of the testator ; in legacies the e£fect of which remains suspend- ed after the death of the testa- tor, whether in consequence of a condition, or in the case of a legacy to children not yetborn, or of a substitution, this capa- city is considered relatively to the time at which the right comes into effect. — Persons benefited by a will need not be in existence at the time of such will, nor be absolutely des- cribed or identified therein. It is sufficient that at the time of the death of the testator they be in existence, or that they be then conceived and subse- quently born viable, and be clearly known to be the persons intended by the testator. Even in the case of suspended lega- cies, already referred to in 133 0IVT8 IITTKR VITOS AND BT WILL. this article, it snffloos that the legatee be alive, or oonoeived, Bubjeot to the condition of being afterwards born viable, and that he prove to be the person indicatea, at the time the legacy takes effect in his favor. —2 Rio. Don. 102; 2 Bour. 299; Guy. L6gataire, 44-6, 63 ; 0. N. 906. [11. 341.] 839. As regards testamen- tary dispositions, the legal pre- sumptions of undue influence and want of will, arising from the relation of priest or minis- ter, physician, advocate or attorney, in which the legatee stands towards the testator, have been destroyed by the introduction of the absolute freedom of disposing of pro- perty by will. Presumptions in these cases are to be estab- lished as in all others. — C. S. L. C. c. 34, s. 1 : C. N. 909. [II. 343.] SECTION II. Of the form of wills. 840. Dispositions in con- templation of death made of a person's whole property, or of part thereof, in legal form by will or codicil, and whether they are expressed in the terms of an appointment of heir, of a gift, of a legacy, or in other terms indicating the intentions of the testator, take effect according to the rules herein- after laid down, as universal legacies, legacies by general title, or as particular legacies. — Poth. Test. 314, 5: C. N. 967, 1002. [11.343.] 841« Two or more persons oannot make a will by one and the same act, whether in favor of third persons or in favor of one another. — 0. T. a. 77 ; Merl. Tost. s. 1, 9 1> a. 1 ; Rio. 345 ; 2 Bour. 311 ; 17 Quy. 135: C. N. 968. [II. 343.] 842. Wills may be made : 1. In notarial or authentic form ; 2. In the form required for holograph wills ; 3. In writing and in pre- sence of witnesses, in the form derived from the laws of Eng- land.— 0. S. L. C. c. 34, 8. 3 ; Ric. pt. 1, n. 1482-4 ; Guy. Test. 141 ; 14 Geo. 3, c. 3, s. 10; C. N. 969. [II. 343.] *843. [Wills in notarial or authentic form are received before two notaries or before a notary and two witnesses ; the testator, in their presence and with them signs the will or de- clares that he cannot do so, after it has been read to him by one of the notaries in pre- sence of the other, or by the notary in presence of the wit- nesses. Mention is made in the will of the observance of the formalities.]— C. P. 289; 0. 0. 289 ; Ric. pt. 1, n. 1503 --; Poth. Test. 301, 2; 2 Bour. 304, 5 ; Guy. Test. 155 ; Fer. C. P. 289, gl. 5, n. 7 ; 1 Dupl. 8. 3, a. 11, p. 591 ; 1 J. A. 1. 2, 0. 99 ; Fur. Test. o. 2, B. 3, n. 7 ; 6 Bril. ^est. n. 93; 0. 1735, a. 23; Sal. on same a. ; C. N. 972. [II. 343 ; III. 379.1 844. Authentic wills must be made as originals remain- ing with the notary. — The wit- nesses must be. named and described in' the will. They must be of the male sox, of OlfTS INTEB VIVOS AND DT WILL. U3 fall ago, and must not be civilly dead, nor sentenced to an infamous punishment. [Aliens may serve as wit- nesses.] The clerks and ser- vants of the notaries cannot. — The date and place of its execution must be stated in the will.— 2 Bour. 304 --; Guy. Test. 141 -; Poth. Tost. 306,7, C. 0. t. 16, n. 14; Tr. Don. 1447; C. S. C. o. 99, s. 115; C. N. 971, 972, 976, 980. [II. ^43.1 ^845i [A will cannot bo ex- ecuted before notaries who are related or allied to tho testator or to each other, in tho direct line, or in the degree of brothers, uncles, or nephews. The wit- nesses however may be related or allied to the testator, to the notary, or to one another.] — 2 Bour. 306, 7; Guy. Notaire, 206 ; Poth. Test. 306, 7 ; 0. 0. 16, n. 13. [II. 345.] 846. [Legacies made in favor of the notaries or wit- nesses, or to the wife of any such notary or witness, or to any relation of such notary or witness in the first degree, are void, but do not annul the other provisions of the will.] — Testamentary executors who are neither benefited nor com- pensated by the will may serve as witnesses to its execution. — 0. P. 289 ; 0. Bl. a. 63 ; Fer. C. P. 289, gl. 4, n. 20, 21 ; Rio. Don. pt. 1, n. 554 ; 0. T. a. 43 ; Poth. Test. 305-7, C. 0. t. 16, n. 14; Lac. T^moin, s. 4, n. 4; Merl. Test. 404 ; Tr. Don. 1601. Author, under a. 107; C. C. V. 655 ; Author, under a. 853. [II. 347.] 847* Wills in authentic form cannot be dictated by signs. — [Deaf mutes and others who cannot declare their will by word of mouth, may do so, if they are sufficiently educated, by means of instructions writ- ton by themselves and handed to the notary, before or at the execution of the will. — Deaf mutes and such persons as can- not hear the will read, must read it themaolvos, and aloud, as regards thoso who aro only deaf. — A written declaration that tho deed contains the will of the testator and is pro- f tared in accordance with his nstructions.may bo substituted for the samo declaration by word of mouth, when it is re- quired. — Mention must be made of the observance of these exceptional formalities and of their cause. — If the deaf mutes and others cannot avail them- selves of the provisions of this artici .>. they cannot mako wills in tbe authentic form. — Ric. pt. 1, n. 141, 1503, 1530 ; 2 Bour. 296, 305; Guy. Test. 104. [11.347.] 848i Further and special provisions exist for the district of Gaspe, to remedy the want of notaries for tho oxecution of wills as well as of other acts. — [Saving these provisions of a local nature, ministers of religion cannot replace notaries in the execution of wills ; neither can they serve other- wise than as ordinary wit- nesses.]— C. P. 289 ; Poth. Tost. 300 ; 4 Geo. IV. o. 15 ; 3 & 4 V. c. 5. [II. 349.] 849f Wills made in Lower 134 GIFTS INTEE VIVOS AND BY WILL. Canada or elsewhere by mili- tary men in active service out of garrison, or by mariners during voyages, on board ship w in hospital, which would be valid in England as regards their form, are likewise va'.id in Lower Canada. — I. S. 1 V. c. 26, s. 10, 11 J 29 Car. II. c. 3 j 1 Will. IV. c. 20, s. 48 J Pars. W. 24-30; C. N. 981. [II. 349.] 8dO* Holograph wills must be wholly written and signed by the testator, and require neither notaries nor witnesses. They are subject to no parti- cular form. — Deaf mutes, who are sufficiently educated, may make holograph wills, in the same manner as other persons who know how to write. — 2 Bour. 303 j Poth. Test. 297, 8 j Guy. Test. 137, 8 j 1 Glf. Ev. §366; C.N. 970. [11.349.] 851. Wills made in the form derived from the laws of England, [whether they affect moveable or immoveable pro- perty,] must be in writing and signed at the end with the signature or mark of the testa- tor, made by himself or by another person for him in his presence and under his express direction, [which signature is then or subsequently acknow- ledged by the testator as having been subscribed by him to his will then produced, in presence of at least two competent wit- nesses together, who attest and sign the will immediately, in Eresence of the testator and at is request.] — [Females, may serve as attesting witnesses and the rules concerning the competency of witnesses are the same in all other respects as for wills in authentic form.] —I. S. 29 Car. II. c. 3, s. 6 j 2 Glf. n. 676-8 ; 1 Jarman, 76 j 7 L. C. R. 280, LamSert & Gau- vreau; Lovelass, W. 315,6: I. S. 7 Will. IV. J IV. 0.26 J 15, 16 V. 0. 24. [II. 349: III. 379.] 852. Deaf mutes capable of understanding the meaning of a will and the manner of making one, and all other persons, whether literate or not, whose infirmity has not rendered them incapable of so understanding or of expressing their intentions, may dispose of property by will in the form derived from the laws of Eng- land, provided their intention and the acknowledgment of their signature or mark are manifested in presence of witnesses. — Glf. Ev. 1. c. [II. 349.] 853* In wills made in the last mentioned form, legacies made to any of the witnesses, or to the husband or wife of any such witness or to any rela- tions of such witness [in the first degree], are void, but do not annul the other provisions of the will. — The competency of testamentary executors to serve as witnesses to such wills, is subject to the same rules as in wills in authentic form.— I. S. 25 Geo. II, c. 6; 1 Steph. 676 J Alnutt, P. W. 93, 170; 1 Jarman, W. 65-; Christie, P. W. 153, 171, 173 ; Pars. W. 19. [II. 351.] 854. In holograph wills, and in wills made in the form GIFTS INTER VIVOS AND BY WILL. 135 derived from the laws of England, whatever comes after the signature of the testator is looked upon as a new act, which in the former case must likewise be written and signed by the testator, or signed only in the latter. In this latter case the attestation of the wit- nesses must follow each signa- ture of the testator, or ccme after the last as witnessing the whole of the will preceding such signature. — In wills made in either of the forms men- tioned in this article, date and place, need not be mentioned on pain of nullity. The judges or courts must decide in each case whether their ab- sence creates any presumption against the will or renders un- certain any of its particular provisions. — The will need not be signed upon each page. — Ric. pt. 1, n. 1491; 2 Bour. 304 J Poth. Tost. 299 j Guy. Test. 167,169, 170 j Pars. W. 13, 60 J 1 Jarman, 78, 160. [II. 351.] 855. The formalities to which wills are subjected by the provisions of the present section must be observed on pain of nullity, unless there is some particular exception on the subject. — Nevertheless wills purporting to be made in one form, which are void as such in consequence of the in- observance of some formality, may be valid as made in another form, if they contain all the requisites of the latter. — 7 L. C. R. Lambert vs. Gau- vreau, 277 ; 1 Ric. pt. 1, n. X617j C.N. 1001. [II. 351.] SECTION III. Of the probate and proof of wills. 856. The originals and le- gally certified copies of wills made in authentic form make proof in the same manner as other authentic writings. — C. 1215. [II. 351.] 857. Holograph wills and those made in the form derived from the laws of England, must be presented for probate to the court exercising superior original jurisdiction in the dis- trict in which the deceased had his domicile, or, if he had none, in the district in which he died, or to one of the judges of such court, or to the prothonotary of the district. The court, or judge, or the prothonotary, re- ceives the depositions in writ- ing and under oath of witnesses competent to give evidence, and these depositions remain affixed to the original will, to- gether with the judgment, if it have been rendered out of court, or a certified copy of it, if it have been rendered in court. Parties interested may then obtain certified copies of the will, the proof and the judg- ment, which copies are authen- tic and give effect to the will until it is set aside upon con- testation. — If the original of the will be deposited with a notary, the court or judge, or the prothonotary, causes such original to bo delivered up. — Alnutt.P. W. 618 J 41 Geo. Ill, c. 4, s. 2 ; C. S. L. C. c. 34, s. 3 ; Woathcrly, G. P. 323 j Poth, Test. 300 J 8 Enoy. 26 j 136 GIFTS INTEB VIVOS AND BT TTILL. 6 Bril. 661, n. 176 j 2 Steph. 193 J Lovelass, W. 391, 417 j Dorion & Dorion, Jugt. in ap- peal,1861j C. N. 1007. [11.351.] 858. The heir of the de- ceased need not be summoned to the probate thus made of the will, except it is so ordered in particular cases. — The func- tionary who takes the probate takes cognizance of all that relates to the will. — The pro- bate of wills does not prevent their contestation by persons interested. — Alnutt, 1. o. j Weatherly, 1 j 1 Jarman, 22,3 j IGlf. § 618; 2 Id. §691,692, 344. [TI. 353.] 859. The acknowledgment of a will by the heir or by any interested person has its effect against him, as regards his right to contest its validity 8ubsequently,but does not pre- vent the probate and the de- positing of the will with the prothonotary in the proper manner, in so far as concerns other parties interested.— C. 6. L. C. c. 37, 8. 25, § 2j Lovelass, W. 418. [II. 353.] 860. When the minute or the original of a will has been lost or destroyed by a fortuitous event, after the death of the testator, or has been withheld without collusion, by an adver- sary or by a third party, the will may be proved in the man- ner provided in saoh case for other acts and writings in the title Of Obligations. — If the will have been destroyed or lost before the death of the testator without the fact ever having come to his knowledge, it may be proved in the same manner as if the accident had occurred after his death. — If the testator knew of the de- struction or loss of the will and did not provide for such destruction or loss, he is held to have revoked it, unless he subsequently manifests his in- tention of maintaining its pro- visions.— C. 1217, 1218, 1219, 1233, 61 J Tr. n. 2108; Love- lass, W. 342, 350 ; C. S. L. C. c. 37, s. 25, § 2. [II. 353.] 861. In cases where, in con- formity with the preceding article, a non-produced will may be judicially proved, a probate of it may also be ob- tained, upon petition to -that effect and positive proof both of the facts which justify such a proceeding and of the con- tents of the will. In such case probate of the will is held to be established according to the proof deemed sufficient, and to whatever modifications may be found in the judgment. — Weatherly, 86-8 ; Alnutt, 136 ; 2 Glf. § 688 a, 693 ; 1 Jarman, 136. [II. 355.] 862. The sufficiency of one witness applies to the probate and proof of wills, even of those lost or destroyed, if the court or judge be satisfied. — Alnutt, 170 J 2 Glf. § 694. [II. 355.] SECTION ly. Of legacies, § 1. Oflegaciea in general, 863. Testamentary dispo- sitions of property constitute legacies, either universal, or by general title, or by particu- lar title. — Dom. Legs, s. 1, n. 1 Guy. Legs, 401 ; Poth. GIFTS INTEB TITOS AND BT WILL. 137 Test. 315 J C. 840 j C. N. 1002, 1004. [II. 355.] 864:. The property of a de- ceased person which is not dis- posed of by will, or concerning which the dispositions of his will are wholly without effect, remains in his abintestate suc- cession, and passes to his law- ful heirs. — ^Dom. Test. 1. 1, s. 9, n. 15 ; Legs. t. 2 ; Guy. 1. o. ; LoTclass, 394. [II. 355.] B65. When a legacy made subject to another legacy lapses, from a cause dependent upon the legatee, the legacy to which it is thus subject does not therefore lapse, but is deemed to form a distinct dis- I vsition, charged upon the heir 0' ^^ tee to whom the lapsed . ' ^. .■s accrues. — 2 Bour. 328, A. .iu.j Poth. Test. 375, 6; Guy. L^gataire, 75,6. [II. 356.1 866. The legatee may al- ways repudiate the legacy so long as he has not accepted it. The acceptance may be either express or implied. Accept- ance may be implied from the same acts as m abintestate successions. The right to ac- cept a legacy, not preTiousIy repudiated, passes to the heirs and other legal representatiTes of the legatee, in the same manner as heritable rights de- rived from the law alone. — 2 Bour. 326,7; Poth. Test. 397; Guy. L^gataire, 55, 56, 60. [II. 365.] 867* Tutors and curators may accept legacies, subjec t to the same restrictions as in the case of abintestate successioi^. —The capacity of minors and of persons interdicted for pro- digality, to accept legacies for themselves, is governed by the rules established for the accep- tance of successions. — Guy. L^gataire, 57. [II. 355.] 868i Accretion takes place in favor of the legatees in the case of lapsed legacies, when such legacies are made in favor of several persons jointly. — They are held to be so made when they are created by one and the same disposition and the testator has not assigned the share of each colegatee in the thing bequeathed. Direc- tions given to divide the thing jointly disposed of into equal aliquot shares, do not prevent accretion from taking place.—- The legacy is also presumed to be made jointly when a thing which cannot be divided without deterioration is be- queathed by the same act to several persons separately. — The right to accretion applies also to gifts inter vivos made in favor of several persons jointly, when some of the donees do not accept. — Dom. Test. t. 1, s. 9 ; 2 Bour. 339 — ; Poth. Test. 406; Tr. Don. n. 1789; C. N. 1044. 1045. [II. 355.] '^BoQ* A testator may name legatees who shall be merely fiduciary or simply trustees for charitable or other lawful pur- poses within the limits per- mitted by law; he may also deliver over his property for the same objects to his testa- mentary executors, or effect such purposes by means of charges imposed upon his heirs or legatees. — 2 Ric. Subst. pt. 1, n. 753; and eon- ISB GIFTS INTER VIVOS AND BY WILL. sequence of unrestricted freedom of wills. [11.357.] 870> Payment made in good faith to the ostensible heir, or to a legatee who is in posses- sion of the succession, is valid against the heirs or legatees who present themselves after- wards ; saving the recourse of the latter against him who has received without a right to do 80.— C. 1145; Darg. on 410 C. Br., gl. 3, n. 1 ; Poth. Ob. 603 ; 7 Tonl. n. 26, 29. [II. 357.] 871. Fruits and interest arising from the thing be- queathed accrue to the bene- fit of the legatee from the time of the death of the testator, when the latter has expressly declared in the will Ms inten- tion to that effect. — Life-rents or pensions, bequeathed by way of maintenance, also begin from the date of the testator's death. — In all other cases, fruits and interest do not accrue until they are judicially demanded, [or until the debtor of the legacy is put in default.] — ff. L. 23, de leg. et fid. ; Ric. pt. 2, n. 99 ; 2 Bour. 334, 5 ; Poth. Test. 382 J Bac. c. 8, n. 25; C. N.1016, [II. 363; III. 379.] 872. The rules concerning legacies and the pro: umptions of the testator's intention, as well as the meaning ascribed to certain terms, give way to the formal or otherwise suffi- cient expression of such inten- tion, 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 containing a prohibition or some other ap- plicable declaration of nullity, or to the rights of creditora and third persons. — Ric. Don. pt. 2, n. 129 ; 2 Bour. 353 ; Dom. Test. 1. 1, s. 6, n. 2. [II. 357.] § 2. Of universal legacies and legacies hy general title. 873. Universal legacies are testamentary dispositions by which t^e testator gives to one or to s' eeral persons the whole of the property he leaves at his d' dth. — Legacies are only by g« neral title when the tes- tatoi bequeaths an aliquot part of Lis property, as a hal^ 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 othei legacies are by particular title. — The exception of par- ticular things, whatever may be their number or value, does not destroy the character of universal legacies, or of lega- cies by general title. — Dom. Legs, t. 2 ; Guy. L^gataire, 42, 3 ; Poth. Test. 315 ; Proud. Usuf. n. 1025, 1844, 1845; C. 780, 801; 1 Ric. pt. 3, n. 1527 ; C. N. 1003, 1010. [II. 357.] 874. The legatee has the same delays as the heir to make an inventory and to de- liberate. If he have not as- sumed his quality within the delays, and be afterwards sued for the debts or charges attach- ed to his legacy, he is not freed from the costs by his renuncia- tion, any more' than the heir would be. — Consequence of as- GIFTS INTEB VIVOS AKD BT WILL. 13» mcia- heir ${milating legatees to heira, [11. 367.] 875. The liability of a uni- versal legatee, or of a legatee by general title, or by parti- cular title, for the debts and hypothecs, is explained in the title Of Succeaaiona, and, in certain respects, in the ])resent section, and also in the title Of Usufruct.— 111. 367.] 876. The legatee of a usu- fruct bequeathed as a universal legacy, or as a legacy by gene- ral title, is personally liable towards the creditors for the debts of the succession, oven for the principal, in proportion to what he receives j he is hypo- thecarily liable for whatever claims a£fect the immoveables included in his share, as any other legatee by the same title, and with the same recourse. The valuation is made propor- tionately between him and the proprietor in the manner and according to tiie rules set forth in article 474. — ff. L. ult. De usu. et usuf. ; Lac. Usufruit, s. 2,n. 16 J Guy. Usufruit, 396 j 10 Demol. n. 623, 643, 604; Proud. Usufruit, n. 476, 1859, 1889. [II. 357.] 877* A testator may change, among his heirs and legatees, 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 of the creditors against those who are legally subject to the right claimed, and saving the recourse of the latter against those upon whom tho testator imposed the obligation. — 1 Hie. p. 2, n. 18, 62, 306 ; Guy. L6- gataire, 100 ; 2 Rio. Bisp. oon- dit. n. 214. [II. 369.] 878i [Universal legatees and legatees by general title cannot, after acceptance, free them- selves from personalliability for the debts and legacies imposed upon them by law or by the will, without having obtained benefit of inventory; they are in this respect, and in all that concerns their administration, the rendering of their account and their discharge from lia- bility, subject to the same rules as the heir, and to the obliga- tion 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.] — 2 Bour. 324-6 j Guy. L^gataire, 94-6 j Ric. pt. 3, n. 1606, 1609, 1517, 1619. [II. 369.] 879. The creditors of a suc- cession have a right to the separation of property against a legatee liable for a debt, in the same manner as against an heir, for the portion in which he is liable.— C.S. L. C. o. 37, s. 27, § 3 ; Consequence of a. 891. [II. 359.] § 3. Of legacies hy particular title. 880. The debts of a testator must in all oases 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 140 GIFTS INTEB VIVOS AND BT WILL. has a right to demand the se- paration of property. — If the legacy be imposed upon one particular heir or legatee, the personal action of the legatee Dy particular title does not ex- tend to the others.— The right to a legacy does not carry with it a hypothec upon the property of the succession, but the tes- tator, whatever may be the form of the will, may secure it by a special hypothecation re- quiring, as regards the rights of third parties, that the will he registered. — Poth. Don. 353, 370-3 ; 2 Vofet, 1. 20, n. 27 ;— Bril. Legs, n. 112 j C. S. L. C. 0. 37, 8. 1, 25 J Tr. Don. n. 1793, & n., 1928, 9 J 2 Bour. 323, 325 j €. N. 1017. [II. 359.] 881. [The bequest of a thing which does not belong to 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 pay- ment of it. — The legacy is however valid, and is equiva- lent to the charge of procuring the thing or of paying its value, if such appear to have been the intention of the testa- tor. 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.] — Ric. pt. 3, n. 282- 4-5, 291 " ; 2 Bour. 351, 2 j Poth. Test. 363-5 J Lac. Legs, pt. 2, s. 2 J 2 Dcsp. pi. 288 -, 11.3, 4 J C.N. 1021. [11.361.] 882. [If the thing be- queathed belonged to the testator for a part only, he is presumed to have bequeathed only the part which belonged to him, even when the re- mainder 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 commu- nity ; saving the right of the legatee to the whole of the thing bequeathed under the circumstances enumerated in the title concerning marriage covenants, and generally in the case of the following artidle. — Auth. undera. 881. [II. S61.] 883. [If the 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 suc- cession, 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 aliena- tion of it by the testator. — C. N. 1021. [II. 363.] 884. When a legacy by particular title comprises a universality 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, with- out prejudice to the rights of the creditors against the heirs and universal legatees, or legatees by genei^al title, who have their recourse against the particular legatee* — Proud. GIFTS INTER VIVOS AND ST WILL. 141 TTsufrnit, n. 1025 -, 1845--. [II. 363.] 885* In the case of insuffi- ciency of the property of the gnocession or of the heir or legatee liable for the payment, the legacies entitled to pre- ference are paid first, and the remainder is then divided rate- ably among the other legatees in proportion to the value of their respective legacies. Le- gatees of a certain and deter- minate object take it without being bound to contribute to the payment of the other legacies which have no pre- ference over theirs. — ^Ric. pt. 3, n. 1530 ; 2 Bour. 322-5 ; Poth. Test. 352 — j Guy. Ldgataire, 85, 96, 100. [II. 363.] 886. To obtain the reduc- tion of particular legacies, the creditors must first have dis- cussed the heir or legatee who is personally bound, and have availed themselves in time of the right to separation of pro- perty. — The creditors exercise this reduction against each of the particular legatees for a «hare only, in proportion to the value of his legacy, but the particular legatees may free themselves by giving up the particular legacies or their value. — Auth. under a. 885. [II. 363.] 887* Creditors of the suc- cession, in the case of reduction of particular legacies, have a preferable right to the thing bequeathed, over the creditors of the legatee, as in the case of separation of property. — A particular legatee suffering such reduction has his recourse against the hoirs or legatees who are personally liable, and is substituted by law in all the rights of the creditor thus paid. — Guy. L^gataire, 97 j 2 Bour. 323. 232, 3. [II. 363.] 888* When an Immoveable bequeathed has been increased by further acquisitions of pro- perty, the property thus ac- quired, even if it be contiguous, is not deemed to form part of the legacy, unless from its destination and the circum- stances it may be presumed that the testator intended it to form a mere dependency, con- stituting with the immoveable bequeathed but one and the same property. — Buildings, embellishments and improve- ments are deemed to be ad- juncts of'the thing bequeathed. —Poth. Test. 379 j 2 Bour. 338; 1 Th. Des. 494 J C. N. 1019. [II. 363.] 889* [If before or since the will, the immoveable bequeath- ed have been hypothecated for a debt of the testator remain- ing still due, or even for the debt of a third person whether it was known or not to the tes- tator, the heir, or 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 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, af- fect at the same time the particular legacy and the pro- perty remaining in the succes- I'i 142 GIFTS INTER VIVOS AND BY WILli. sion, the benefit of division may reciprocally bo claimed. — ff. L. 57, L. 69, § 3, de leg. et fid. 1, 1 ; 2 Bour. 332 ; Poth. Test. 377 J Guy. L^gat. 97; O.N. 1020. [11.365.] 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.— fiF. L. 28, L. 29, de leg. et fid. ; Eio. pt. 2, n. 168 ; 2 Bour. 360 ; Guy. L^gataire, 102, 3 J 0. N. 1023. [II. 365.1 § 4. Of the aeizin of legatees, 891. Legatees by whatever title, are, by the death of the testator, or by the event which gives eflTect to the legacy, seized of the right to the thing bequeathed, in the condition in which it then is, together with all its necessary depen- dencies, and with the right to obtain payment, and to prose- cute all claims resulting from the legacy, without being ob- liged to obtain legal delivery. — C. S. L. C. c. 34, 8. 2. [II. 365 J III. 379.] SECTION V. Of the revocation and lapse of wills and legacies. 892. Wills and legacies can- not be revoked by the testator except : 1. By means of a subsequent will revoking them either ex- pressly or by the nature of its dispositions ; 2. By means of a notarial or other written act, by which a change of intention is express- ly stated ; 3. By means of the destruc- tion, 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 loss of the will by a fortuitous event be- coming known to him, as ex- plained in the third section of the present chapter ; 4. By his alienation of the thing bequeathed. — ff. L. 3, § 11, L. 15, L. 16, de adim. v. transf. ; Poth. Test. Rio. pt. 3, n. 121-6, 262, 273 " ; 2 Bour. 397-8 J Tr. Don. n. 2048, 2107-j C. N. 1035. [II. 365.] 893. 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 grievous injury done to his memory, in the same manner as in the case of legal succession, or, if the lega- tee hindered the revocation or modification of the will ; 2. By reason of the resolutive condi- tion J — Without prejudice to the causes for which the validity of the will or legacy may be im- pugned. — The subsequent birth of children to the testator does not effect a revocation. — [En- mity springing up between him and the legatee does not establish a presumption of re- vocation. — Ric. pt. 3, n. 688 ~ j 2 Bour. 396, 403-4 j Poth. Test. 387-396 J C. S. L, C. o. 34, s. 2; C. N. 1046, 1047. [II. 367.] 694. Subsequent wills which GIFTS INTER VIVOS AND BY WILL. 143 do not revoke the preceding ones in an express manner, annul only such disposi- tions therein as are inconsist- ent with or contrary to those contained in the later wills. — Kic. pt. 3, n. 148,9; 2 Bour. 312, 368-9, 385, 395 j Poth. Test. 386, 390, 404 -j C. N. 1036. [II. 367.] 895i A revocation contain- ed in a subsequent will retains its full effect, although such will should remain inoperative by reason of the incapacity of the legatee or of his refusal to accept. — A revocation contain- ed in a will which is void by reason of informality, is also void.— Ric. pt. 3, n. 168,9 j 2 Bour. 393 ; Poth. Test. 388-390 j C. N. 1037. [II. 367 J III. 379.] 896. In the absence of ex- press dispositions, the circum- stances and the indications of the intention of the testator de- termine whether, upon the re- vocation of a will which revokes another will, the former will revives.— 2 Bour. 390 j Tr. Don. 2065 J Ric. Don. pt. 3, n. 178. [II. 367.] 897i [Every alienation by the testator of the right of own- ershi]^ in the thing bequeathed, even in a case of necessity, or by forced means, or with right of redemption reserved, or by exchange, carries with it, un- less he has otherwise provided, a revocation of the will or le- gacy for all that has been thus disposed of, even though, if it were voluntary, the alienation bo void.] — The revocation sub- sists although the thing should afterwards have returned into 11* the hands of the testator, [un- less he appears to have intended the contrary.] — Ric. pt. 3, n. 262 " J 2 Bour. 398, 9 ; VoCt. P. de adim. leg. n. 6 ; Poth. Test. 390, 1 ; 2 Pand. 431, n. 8 j Tr. Don. 2095; C. N. 1038. [II. 369.] 898, A person cannot, other- wise than by the effect of gifts in contemplation of death made by contract of marriage, forego his right to dispose of his pro- perty by will or by gift in con- templation of death, or to revoke his testamentary 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. — 0. T. a. 76 J Poth. Test. 392, 3; Hen. 1. 5, c. 2, q. 13 ; Ric. Don. pt. 3, n. 74 — J 2 Bour. 380 j Pap. 1. 20, t. 1, a. 4, 5; Observations sur Hen-ys, 1. c. n. 8 -- j Arr. cited by Ric. 1. c. [II. 369.] 899i [Heirs cannot be ex- cluded from successions, un- less the act excluding them is clothed with all the formalities of a will.] [II. 369.] 900. Every testamentary disposition lapses if the person in whose favor it is made do not survive the testator. — Ric. pt. 2, n, 66; 2 Bour. 393, 4j Poth. Test. 394; C. N. 1039. [II. 369.] 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. — Poth. Test. 394, 395; 2 Bour. 394; C. N. 1040. [II. 369.] 902> Conditions which are 144 GIFTS INTEB VIVOS AND BY WILL. intended by the testator to sub- Send only the execution of a isposition, do not prevent the legatee from having an acquired right transmissible to his heirs. — Poth. Test. 368 ; 2 Bour. 371 ; C. 1089} C.N. 1041. [11.369.] 903. A legacy lapses if the thing bequeathed perish totally during tho lifetime of the tes- tator. — The loss of a thing be- queathed which happens after the death of the testator falls upon the legatee, except cases wnerein the heir or other holder may be responsible according to the rules applicable gene- rally to things which form the subject of obligations. — Rio. pt. 3, n. 314 - ; 2 Bour. 399, 400, 402 J Poth. Test. 397 -j Lac. Legs, s. 16 ; C. 1049, 1050, 1063, 1064, 1065, 1067, 1068 j C. N. 1042. [II. 369.] 904:« A testamentary dis- position lapses when the legatee repudiates it or is incapable of receiving under it. — Ric. pt. 3, n. 416; 2 Bour. 339; Poth. Test. 387, 395, 396 ; C. N. 1043. [II. 369.J SECTION VI. Of testamentary executors. 905. A testator may name one or more testamentary exe- cutors, [or provide for the man- ner in which they shall be ap- pointed ; he may also provide for their successive replace- ment.] — Heirs or legatees may lawfully be appointed testa- mentary executors. — Creditors of the succession may be exe- cutors without forfeiting their claims. — Single women or widows may also bo charged ttith the execution of wills. — The courts and Judges cannot appoint nor replace testamen- tary executors, [except in the cases specified in article 924.] — If there be no testamentary executors, and non' lave been appointed in the manner in wnich they may be, the execu- tion of the will devolves en- tirely upon the heir or the legatee who receives the suc- cession. — Ric. Don. pt. 2, n. 63, 64, 67; Guy. Exdc. test. 158 ; Poth. Test. 359 ; 2 Bour. 373,4; C.N. 1025. [IL 371.] 906* Married women can- not accept testamentary exe- cutorship 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 require the consent of tho latter to continue the exercise of such office. — A testamentary executrix separated as to pro- perty from her husband, either by contract of marriage or by judgment, may, if he refuse the consent necessary for her to ac- cept or to exercise the office, obtain judicial authorization as in the cases provided for in article 178. — Ric. Don. pt. 2, n. 67 ; Poth. Test. 359 ; Guy. 1. c; 2 Bour. 373 ; Bril. Exdc. test. n. 13; C. N. 1029. [II. 371.1 907* Minors cannot act as testamentary executors, even with the authorization of their tutors. — Nevottheless emanci- pated minors may do so, pro- GIFTS INTER VIVOS AND BT WILL. 145 act as even if their manci- j, pro- vided the executorships be of small importanoe in proportion to their means. — Poth. Tost. 360: C. N. 1030. [II. 371.] 908. The incapacity of corporations to execute wills is declared in the first book. — Persons who compose a cor- poration, or such persons and their successors, may be ap- pointed to execute wills in their purely personal capacity, and may act in that behalf if such appear to have been the inten- tion of the testator, although he may have designated thom solely by the appellation which belongs to them in their corpo- rate capacity. — The same rule applies to persons designated by the title which belongs to their office or position, and to their successors. — Ric. Don. pt. 2, n. 69, 70 J Poth. Test. 368. [II. 371.] - 909* Subject to the pre- ceding provisions, persons who cannot obligate themselves cannot be testamentary execu- tors. — ^Ric. Don. pt. 2, n. 68 j Poth. Test. 369 J Guy. Ex^c. Test. 158 J C. N. 1028. [II. 373.] 910. No person can be com- pelled to accept the office of testamentary executor. — Its duties are performed gra- tuitously, unless the testator has provided for their remun- eration. — If a legacy made in favor of a testamentary execu- tor 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. — If he accept the legacy thus made, he is presumed to have accepted tho executorship. — Testamentary executors aro not bound to be sworn ; nor to give security, unless they have accepted with that condition. — They are not liable to cooroive imprisonir ont. — Cod. L. 3, de cond. insert. ; Ric. Don. pt. 2, n. 95 ; Bac. Btltardise, c. 7, n. 14 ; 4 Fur. Test. 156 ; Poth. Tost. 359, 366 ; Guy. Ex^c. Test. 159 ; Lac. e. v. n. 13 ; Merl. Cent, par corps, § 5, i. f.; Pap. 1. 20, t. 9, n. 10, n. ; 0. 1667, t. 34, a. 1. [II. 373.] ^ 911. A testamentary execu- tor who has accepted the offic<} cannot renounce it [without tho authorization of the court or of a judge, which may be granted for sufficient cause; the heirs and legatees and other execu- tors, if there 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.] — Pars. W. 102 — ; Guy. Ex^c. test. 159; N. D. Exdc. 209, 220. [II. 373.] 912. If several testamentary executors have been appointed, and some of them only, or even one of them alone, have accept- ed, they or he may act alone, unless the testator has other- wise ordained. — In like man- ner, if several have accepted, but some or one only of them survive, or retain the office, they or he ma act alone until the others are replaced, in the cases admitting of it, unless the testator has expressed himself to the contrary. — Bac. B^tar- dise, c. 7, n. 9 ; Ric. pt. 2, n. 65; 2Bour.374. [II. 373.] 146 GIFTS INTEH VIVOS AND DY WILL. ^ 913* If thoroboBovoralJoint testamentary executors, with the same duties to perform, they have all equal powers and must act togetner, 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 dispatch.] — The executors may also act generally as attorneys for each other, unless the intention of the testator appears to the con- trary, and subject to the rcspon- aibility of the one who grants the power. The executors can- not delegate generally the exe- cution of the will to others than their co-executors, but they may be represented by attorney for determinate acts. — Execu- tors exercising these joint pow- ers, are jointly and severally bound to render one and the «ame account, unless the tes- tator 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 property of which they took possession in their joint capa- city, and for the payment of the balance due, savmg the distinct liability of such as are author- ized to act separately. — Cho. C. P. 1. 2, t, 7, n. 4 ; Guy. Ex^c. test. 106; Lac. Exdo. test. n. 15 J Pars. W. 01, 95 j N. D. Exdcut. 234; 2 Bour. 378, & Mor. there cited— C. N. 1033. {II. 376.] 914. The expenses incurred by the testamentary executor in the fulfilment of his duties are borne by the succession. — Poth. Tost. 306 J Rio. pt. 2, n. 96 J 2 Bour. 378 j N. D. Exdcut. 223, 233 ; C. N. 1034. [II. 375.] 915. A testamentary execu- tor may, before the probate of the will, perform acts of a con- servatory nature or which re- quire dispatch, provided he obtains such probate without delay, and furnishes proof of it when required. — Pars. W. 88 : 2 Bour. 379: 8 N.D. 222. [II. 376.J 916. The testator may limit the obligation incumbent upon the executor of making an in- ventory and rendering an ac- count of his administration, and even free him from it entirely. — This discharge does not re- lease him from the payment of what remains in his hands, un> less the testator intended to leave him the disposition of the property without responsibility, or to constitute him legatee, or that the terms of the will other- wise import the release from payment. — Ric. Don. pt. 1, n. 689, 765; pt. 2, n. 70, 90, 91, 92; Bac. Batard. c. 7, n. 18; Poth. Test. 365. [II. 375.] 917. [If, having accepted, a testamentary executor rofuse or neglect to act, or dissipate or waste the property, or other- wise 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 bo removed by the court having jurisdiction.] — 8 N. D. 213 ; 3 L. C. R. 71, Dease & Mcintosh. [11^ 377.] 918. Testamentary execu- tors, for the purposes of the execution of the will/are seized uiFTS nrrBR vnros avd bt will. 147 M legal depositaries of the moveable property of the suc- cession, and may claim posses- sion of it even against tne 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 pre- vented from taking possession. — Wlien 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. — Ric. Don. pt. 2, n. 71, 72, 74, 76 J Poth. Test. 360-366; 2 Bour. 374-7-8 j N. D. 211-3-4, 230; C. N. 1026, 1031. [II. 377.] 919* The testamentary exe- eutor must cause an inventory to be made after notifying the heirs, legatees, and other in- terested persons to be present. He may however perform im- mediately all acts of a con- servatory nature or which require despatch. — He attends to the obsequies of the de- ceased. — He procures ^e pro- bate of the will and its regis- tration when necessary. — If the validity of the will be <)ontested 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 suc- cession, or, after calling in such heir or legatee, witi the authorization of the court. — In the case of insufficiency of moneys for the execution of the will, he may, with the same consent, or with the same 14 authorization, sell moveable property of the succession to the amount required. The heir or legatee may however 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 dutic \ saving his ri , ;ht to call in th ■*, heir or the Ifi .;atoo — Ric. pt. 2, n. 79-81, 86-^.8,945 Poth. I.e.; 2 Bour. 376 ; 8 N. D. 2213 ; C. N. 1031. [II. 377.J 920i The pivvrers of ^ testa- mentary executor do not pass by mere operation of law to 1) J heirs or other succespors, who are however bound to vei'ler an account of his admi liati ^.tion, and of whatever they may themselves have actually ad- ministered.— Poth. Teat.. 367-8 J 8 N. D. 220, n. 10 ; 2 Bour. 374; C. 1043; C. N. 1032. Til. 377.] 921* The testator may mo- dify, restrict or extend the powers, the obligations and the seizin of the testamentary executor, and the duration of his functions. He may consti- tute the C ^t'^mentary executor an admli • ivator of his pro- perty, in whole or in part, and may even give him the power to allonate it with or without tho intervention of the heir or iegatee, in the manner and for the purposes determined by himself.— Poth. Test. 365; N. D. 215 - ; 4 Fur. 147 ; Guy. Exdc. test. 161 ; 2 Delv. 373, n. [II. 377.] 922* A testator cannot ap- point tutors to minors, nor 148 GIFTS INTER VIVOS AND BY WILL. curators to persons requiring their assistance or to substitu- tions — If he have assumed to appoint persons to such offices, the specific powers given to the Eorsonsthus named, and which e might have conferred upon them without such designation, may however be exercised by them as executors and adminis- trators of the will. — The testa- tor 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. —[II. 379.] 923. The testator may pro- vide for the replacing of testa- mentary executors and admi- nistrators, even successively 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 ap- point substitutes, or by indi- cating some other mode to be followed, not contrary to law. — Author, under a. 921. [II. 379.] 924. [If the testator desire that the appointment or the re- placement should be made by the courts or judges, the powers necessary for such pur- pose may be exercised judicial- ly, the heirs and legatees interested being first duly noti- fied. — When testamentary exe- cutors 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, provided it appears that the testator intended the execution and administration of the will to continue independently of the heir or of the legatee.]— [II. 379.1 CHAPTER FOURTH. OF SUBSTITUTIONS. SECTION I. Bides concerning the nfiture and form of substitutions. 925* There are two kinds of substitution : — Vulgar sub- stitution 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 sub- stitution is that in which the person receiving the thing is eharged to deliver it over to another either at his death or at some other time. — Substitu- tion takes its effect by opera- tion 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. — Th. Des. Subatit. n. 7, 10, 11, 31, 190, 502, 612-614; 2 Bour. 153-4 j Poth. Substit. 485-6 ; Guy. Substit. 453 J C. N. 896, 897, 1048. [11.379.] ' 926i Fiduciary substitu- tions include vulgar substitu- tions without any expressions to that effect' being necessary. — Whenever the vulgar is ex- GIFTS INTER VIVOS ANB BT WILL. 149 pressly joined to the fiduciary, to meet particular cases, the substitution is called com- pendious. — When the term aubatitwtion is used alone, it applies to the fiduciary, with the vulgar attached to it, un- less the nature or terms of the disposition indicate the vulgar alone.— Th. Des. n. 1234 — j 0. S. 1. 1, a. 27; 2 Bour. 174; Poth. Subst. 485,6 j Guy. Subst. 607. [11.379.] 927« The person Charged to deliver over is called the insti- tute, and the one who i^i entitled to take after him is called the substitute. When there are several degrees in the substi- tution, the substitute who re- ceives under the obligation of delivering over becomes in turn an institute with regard to the substitute who comes next. — 2 Bour. 155-9; Poth. Subst. 486 ; Guy. Subst. 475, 6. [II. 381.1 '''928i A substitution may exist although the term usu- fruct be used to express the righ t of the institute . In gene - ral the whole tenor of the act and the intention which it suffi- ciently expresses are consider- ed, rather than the ordinary ac- ceptation of particular words, in order to determine whether there is substitution or not. — Th. Des. n. 259, 263, 269 ; Poth. Subst. 497, 698 ; Guy. Subst. 491. [II. 381.] 929. Substitutions may be created by gifts inter vivoa, made in contracts of marriage or otherwise, by gifts in con- templation of death made in contracts of marriage, or by will. — The capacity of the per- sons is governed in each case by the nature of the act. — The disposition which creates the substitution may be condi- tional 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 vivoa which creates the substitution in his favor ; he need not even have been born nor conceived at the time of the act. — Ric. Subst. pt. 1, n. 110, 115 ; Poth. Subst. 486-8, 623-5-9 ; Guy. Subst. 482, 496, 497 ; Th. Des Subst. n. 4, 162-3-6. [II. 381.] 930« Substitutions made by contract of marriage arc irre- vocable like gifts made in the same manner. — Substitutions made by other gifts ^ter vivoa may be revoked by me donor, notwithstanding the acceptance by the institute for himself, [so long as they have not open- ed ; unless they have been ac- cepted by the substitute, or in his behalf, either formally or in an equivalent manner, as in gifts in general.] — The accep- tance made for themselves by institutes, oven when they aro strangers to the donor, also renders irrevocable the substi- tution in favor of their children born or to be born. — The revo- cation of a substitution, when it is allowed, cannot prejudice the institute nor his heirs by depriving them of the possible benefit of the lapse of the sub- stitution, or otherwise. On the contrary, and although the substitute might have received but for the revocation, such re- 150 GIFTS INTER VIVOS AND BY WILL. vocation goes to the profit of the institute and not of 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 testamentary dispositions. — Rio. Don. pt. 1, n. 850, Substit. pt. 1, n. 137, 140 j Th. Des. 1134-8 & n. p. 448; 0. D. a. 11, 12 J C. 772j O.S. 1. 1, a. 11, 12 J Poth. Subst. 489. [II. 381.] 931i Moveable property as well as immoveables may be the subject of substitutions. Unless corporeal moveables are subjected to a different dispo- sition they must be publicly sold and their price be invest- ed for the purposes of the sub- stitution. — Ready money must clso be invested in the same manner. — The investment must in all cases be made in the name of the substitution. — Th. Des. n. 69 ; 0. S. t. 1, a. 3 ; Blanchet vs. Blanchet, 11 L. C. R. 204; 2 Bour. 158; Poth. Subst. 490-1, 529, 564. [II. 383.] 932. [Substitutions created by will or by gifts inter vivoa cannot extend to more than two degrees exclusive of tl e institute.] — Ric. Subst. pt. 2, n. 4; 2 Bour. 171; C. S. L. C. c. 34, s. 2 j 0. N. 1049. [II. 383.] 933. The rules concerning legacies in general also govern in matters of substitution, in so far as they are applicable, save in excepted cases. — Sub- stitutions by gift inter vivoa, like those created by will| are subject to the same rules as legacies, as to their opening, and after they have opened. Whatever relates to the form of the act, and the acceptance and prehension of the property by the first donee, remains sub- ject to the rule^ which belong to gifts inter vivoa. — An accep- tance by the first institute un- der the gift is sufficient for the substitutes, if they avail them- selves of the disposition, and if it have not been validly re- voked. — If the gift inter vivos lapse in consequence of repu- diation or for want of accep- tance on the part of the first donee, fiduciary substitution does not take place, nor does the vulgar unless the donor has so provided. — Th. Des. n. 69, 76, 142-144, 159, 161-163, 170-172, 528, 529, 612; Ric. Subst. c. 10, n. 230 ; 2 Bour. 155-8; Guy. Subst. 482; Poth. Subst. 488, 490, 514 ; 3 L. C. J. 141, Joseph vs. Castonguay. [II. 383.] 934i The testator may im- pose 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. — Poth. Subst. 525; Guy. Subst. 477. [II. 383.] 935« The donor in an act inter vivoa cannot subsequently create a substitution of the pro- perty 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 O'FTS INTEB VIVOS AND BY WILL. 151 the donor or tesioptor may, in a new gift inter vivoa of other property to the same person, or in a will, create a substitution of the property given uncondi- tiontdly in the first gift; such a substitution takes effect only by virtue of the acceptance of the subsequent disposition of which it forms a condition, and does not prejudice the rights acquired by third parties. — 0. S. t. 1, a. 13, 15 ; Th. Des. n. 123,127; C.824; Poth. Subst. 627. [11.383.] 936. Children who are not called to the substitution, but are merely named in the con- dition without being charged to deliver over to rthers, are not deemed to be included in the disposition. — Bic. Subat. pt. 1, n. 601; 2 Bouy. 167; Poth. Subst. 504-7 ; 0. S. 1, a. 19 ; Th. Des. Subst. n. 939 --. [II. 385.] 937* In substitutions, as in other legacies, representation 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 other- wise manifest. — 0. S. 1. 1, a. 21 ; Th. Des. n. 64 ; Ric. Subst. pt. 1, n. 663 -. [II. 385.] SECTION II. Of the registration of substi- tutions. 938i Besides the effect of registration or of the omission to register, as regards gifts and wills respectively as such, any of these acts containing fidu- ciary substitutions, either in respect of moveable or of im- moveable 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 cor- poreal moveables accompanied with actual delivery to the first donee are not exempt from registration. — The failure to register substitutions ope- rates in favor of third parties, to the prejudice of the substi- tutes, though the latter be minors, or interdicted, or not yet born, and even against married women, and they can- not be relieved from it ; saving their recourse against those whose duty it was to procure the registration. — C. S. L. C. c. 37, s. 29 ; 0. Mou. a. 67 ; Ric. Subst. pt. 2, n. 120; 2 Bour. 178-180; Poth. Subst. 491 -; 0. N. 1069. [II. 385.] 939. The want of registra- tion may be invoked against the substitution by all parties interested who are not within some particular exception. — 2 Ric. Subst. pt. 2, n. 120 ; Poth. Subst. 495, 6; C. N. 941, 1070. [II. 385.] 940. Neither the grantor, nor the institute, nor their heirs or universal legatees, can avail themselves of the want of regis- tration, but it may be invoked by those who have acquired from them in good faith by a particular title, whether one- rous or gratuitous, and by their creditors. — Poth. Subst. 495, 6 ; 0. S. t. 2, a. 34; C. N. 941, 1070,1072. [11.385.] 941« The registration of acts containing substitutions takes the place of their inscrip- tion in the offices of the courts. 152 GIFTS INTER VIVOS AND BY WILL. and of their judicial publica- tion, which formrllties are abolished. — Such registration must be effected within six months 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 ex- plained in the title Of Regis- tration of real rights. 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 de- lays established, as regards wills, for the cases where the testator dies beyond Canada, or where the deed has been concealed, apply with equal retroactive effect to the substi- tution contained in the will in such cases. — Substitutions af- fecting 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 proper- ty, 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. — C. S. L. C. c. 37, 8. 28, 29 J Poth. Subst. 494, 5 ; 0. S. t. 2, a. 27-29 j C. 804 ; C. N. 1069. [II.385jIII. 379.] 94b2i The following persons are bound to register substi- tutions, 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 deliver over J 3. Tutors or curators of the institute or of the substitutes, and the curator to the substi- tution ; 4. The husband for his wife who is so bound. — Those who are bound to effect the regis- tration of the substitution, and their heirs and universal lega- tees, or legatees by general title, cannot avail themselves of the want of such registra- tion. — The institute who has neglected to register is more- over subject to lose the fruits, as in the case of neglect to have an inventory made. — Ric Subst. pt. 2, n. 130 j 2 Bour. 178 J 0. S. t. 2, a. 23, 30: Poth. S. 494, 496, 653 ; C. N. 941, 1069, 1070, 1072, 1073. [II. 387.] 943i The acts and decla- rations of investment of the moneys belonging to the substi- tution must also be registered within six months from their date. — Author, under a. 942. [II. 387.] SECTION III. Of substitutions before their opening. 944. The institute holds tne property a? proprietor, subject to the obligation of delivering over, and without prejudice to the rights of the GIFTS INTER VIVOS AND BY WILL. 153 flubstitute. — Rio. Subst. pt. 1, n. 100 ; 2 Bour. 186 j Foth. Subst. 641, 643, 659 j Guy. Subst. 652-3; Th. Des. Subst. n. 11, 631-3. [II. 387.] 'I' 945. If all the substitutes be uot born, the institute is bound to obtain, in the manner established as regards tutors, the judicial appointment of a curator to the substitution, to represent the substitutes yet unborn, and to attend to their interests in all inventories and partitions and other circum- stances in which his inter- vention is requisite or proper. — The institute who neglects to fulfil this obligation may bo 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. — 2 Bour. 160 j Guy. Tuteur k Subst. 339,* 2 Pi. 313 j Th. Des. Subst. c. 88 j C. N. 1055, 1056, 1057. [11.387.] 94k6. The institute is bound, within three months to have an inventory made at his own expense of the property com- prised in the substitution, as well as a valuation of the moveable efifects, if they have not already been included as such and valued likewise in a general inventory of the pro- perty of the succession, made by other persons. All persons interested must either be pre- sent 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 in- ventory and valuation made he is deprived of the fruits.— '2 Bour. 160 ; Poth. Subst. 522, 3 j 2 Pi. 313 J Guy. Tut. k subst. 339; 0. S. t. 2, a. 1,2, 4, 6j C. N. 1058, 1059, 1060. [II. 387.] '^947* The institute performs all the acts that are necessary for the preservation of the pro- perty. — 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 and reimburse- ments, invests capital sums and exercises before tho courts all the powers necessary for these purposes. — For the same purposes ne makes the neces- sary advances for law expenses and other necessary disburse- ments of an extraordinary nature, the amount of which is refunded to him or his heirs, either in whole or in part, ac- cording to what appears to be equitable at the time when he delivers over. — If he have redeemed rents or paid the principal of debts due, without having been charged to do so, he and his heirs havo a right to be paid back, at the same 15i GIFTS INTER VIVOS AND BY WILL. time, tho raonoys so disbursed, without interest. — If such re- demption or payment have been made in anticipation without sufficient reason, and would not have been demand- able 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 interest. — 2 Bour. 160-3 j Poth. Subst. 641, 2 J Guy. Subst. 522 -. [II. 389.] 948. The rules concerning indivision set forth in the title Of Succeaaiona, apply equally to substitutions, save tho pro- visional 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 substitution, and in the case of redemption of rents or capital sums, the institute, or the testa- mentary executors authorized to administer in his place, are bound to invest the price, in the interest of the substitutes, with the consent of all parties interested j or upon the refusal of such parties, the investment is made under judicial author- ization, obtained after due notice to them being given. — 2 Bour. 160 j Poth. Subst. 542, 643, 552 J Guy. Subst. 627. [II. 389.] 949. The obligation of delivering over the property of the substitution in an undi- minished state, and the nullity of all his acts in contraven- tion thereof, do not prevent the institute from hypothecat- ing or alienating such property, without prejudice to tho rights of tho substitute, who takes it free from all hypothecs, charges or servitudes, and even from the continuation of lease, unless his right has been prescribed ac- cording to the rules contained in the tit' a Of Preacription, or unless a third party has a right to avail himself of the want of registration of the substitution. — Author, under a. 951. [II. 389.1 9d0. Forced sales under ex- ecution, or by licitation, are likewise dissolved in favor of the substitute by the opening of the substitution, if it have been registered, unless the sale comes within one of the cases mentioned in article 953. — Author, under a. 951. [II. 589.1 951. The institute cannot compound as to the ownership of the property in such a man- ner as to bind the substitute, except in cases of necessity, when the interests of the latter are concerned, and after being judicially authorized in the manner required for the sale of property belonging to minors. —Rio. Subst. pt. 2, n. 90 j Poth. Subst. 543; Guy. Transaction, 236 J 0. S. t. 2, a. 53; Th. Des. Subst. 788, 857-. [II. 389.] 952. The grantor may in- definitely allow the alienation of the property of the substitu- tion, wnicn takes place, in such case, only when the alienation is not made. — Ric. Subst. pt. 2, n. 76 ; Poth. Subst. 537 ; Guy.. Subst. 507 ; Th. Dps. Subst. n. 787. [II. 3911] '''953. The final alienation of the property of a substitution GIFTS INTER 'VIVOS AND BT WILL, 15& may moreover be validly effect- ed while the substitution lasts : 1. By expropriation for pub- lic 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 posses- sion. The obligation of the institute to discharge the debt or hypotheo does not prevent the sale from being, valid in this case against the substitu- tion, but the institute is liable towards the substitute for all damages ; 3. With the consent of all the substitutes, when they are in the exercise of their rights. If some of them only have con- sented, 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 1 of this chapter. — ^Rio. Subst. c. 6, n. 258, c. 13, n. 99 - J 2 Bour. 160, 179, 189 ~ j Poth. Subst. 531, 533, 534, 648 J Guy. Subst. 527 ~j H6r. 49. [II. 391.] 954. [The wife of the in- stitute has no subsidiary re- course against the property of substitutions for the securing of her dower or her dowry.] — C. N. 1054. [II. 391.] 965. If the institute de- teriorate, waste or dissipate the property, he may be com- pelled to give security or to allow the substitute to be put in possession of it as a seques- trator. — Ric. Subst. c. 10, n. 25, 26; 2 Bour. 160; Poth. Subst. 552; Guy. Subst. 536; Th. Des. Subst. n. 780-782. [II. 391.] 956« The substitute may, while the substitution lasts^ dispose by act inter vivos or by will, of his eventual right to the property of the substitu- tion, subjectto the contingency of its lapsing, and to lis ul- terior effects if it continue beyond him. — The substitute or his representatives may, before the opening, perform all acts of a conservatory nature- connected with his eventual right, whether against the institute or against third per- sons. — Ric. Subst. c. 13, n. 89;. Poth. Subst. 551,2; Th. Des. Subst. n. 757. [U. 391.] 957. The substitute who dies before the opening of the substitution in nis 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 unac- crued legacy. — 2 Bour. 173; Poth. Subst. 550; Th. Des. Subst. n. 610 ~ , 556 - . [II. 391.1 958* As regards the repairs which the institute is bound ta 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 681 and 582. —Poth. Subst. 534. [II. 391.] 959* Judgments obtained by third parties against the insti- tute cannot be impugned by the substitutes, on the ground of the substitution, if, in the 156 GIFTS INTEB VIVOS AND BT WILL. same suits, they, or their tutors or curators, or the curator to the substitution, besides the executors and administrators of the will, if there were any in function, were impleaded. — If the substitutes, or those who may be thus impleaded in their place, have not been included m the suit, such judgments may be impugned, whether the institute has or has not contest- ed the action brought against him.— Del. 22 Mar. 1732, 1 Ed. & 0. 533; Guy. Subst. 545; Th. Des. Subst. n. 1258; 2 Pi. 407. [11- 393.] 960. The institute may, but without prejudice to his credi- tors, deliver over the property in anticipation of the appointed term, unless the delay is for the benefit of the substitute. — 0. Subst. t. 1, a. 42 ; Th. Des. Subst. n. 1044 — ; Ric. Subst. pi. 2, n. 27, 40, 48 ; 2 Bour. 171; Poth. Subst. 556,7; Guy. Subst. 537. [II. 393.] SECTION IV. Of the opening of substitu- tions and the delivering over of the property, 961. When no period is as- signed for the opening of a substitution and the delivering over of the property, they take place at the death of the insti- tute. — ^Bic. Subst. pt. 2, n. 27 ; 2 Bour. 171 ; Poth. Subst. 555; C. N. 1053. [II. 393.] 962. The substitute takes the property directly from the grantor and not from the insti- tute. — 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. — 2 Bour. 172; Guy. Subst. 538 ; Poth. Subst. 559. [II. 393.] 963. If, by reason of a Sending condition or some other isposition 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 exercise his rights, and remain liable for his obligations. -^ Poth. Subst. 563; Th. Des. Subst. o. 30. [II. 393.] 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 adminis- trator, does not retain the pro- perty in the event of the Jappe of the ulterior disposition, or of the impossibility of applying such property to the purposes intended, unless the testator has manifested his intention to that effect. The property in such cases passes to the heir or the legatee who receives the succession. — ^Rio. Subst. pt< 1, n. 752-4; Th. Des. Subst. n. 536, 439. [II. ap3.] 965. The 'institute or his heirs deliver over the property together with its accessories; GIFTS INTEE VIVOS AND BY WILLr 157 they render the frnits and interest acorned since the open- ing, if they have received them, unless the substitute, after being put in default to accept or repudiate the legacy, has failed to assume his quality.— Poth. Subst. 660; Guy. Subst. 539; Th. Des. Subst. o. 69. [II. 393.1 966. (U the institute were a debtor or a creditor of the grantor, and in consequence of his accepting as heir, as uni- versal 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 substitute and the institute or his heirs, when the property eomes 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.] — Guy. Subst. 540; Th. Des. Subst, c. 53-56 ; Ric. Subst. 0. 12, n. 71 ; 2 Bour. 161. [11. 395.] 967* Institutes under age, interdicted, or unborn, or un- der coverture, are not reliev- able from the non-fulfilment of the obligations imposed upon them, or upon their hus- bands, tutors or curators for them, by this and the preceding section ; saving their recourse. —2 Ric. Subst. pt. 2, n. 133-4; Poth. Subst. 496; C. N. 1074. [II. 395.] SECTION V. Of the prohibition to alienate, *968. The prohibition to alienate contained in a deed may, in certain cases, be con- nected with a substitution or may even constitute one. — ^It may also be made for other motives than that of substitu- tion. — It may be stated in ex- press terms, or may result from the conditions and cir- cumstances of the act. — It includes the prohibition to hy- pothecate. — In gifts inter vivo$ the undertaking by the donee not to alienate has the same effects as the prohibition by the donor. — ff. L. 134, do leg. 1 ; L. 38, lb. 3 ; Cod. L. 4, de cond. ob cans. ; Ric. Subst. pt. 1, n. 333 — , 369 ; 3 Hen. 1. 5, o. 4, q. 49 ; 2 Bour. 164 ; Dom. Subst. t. 3, s. 2, n. 5, &l. 5, i. p., Legs* t. 2, 8. 1, n. 3 ; N. D. Defense d'ali^ner, § 1 ; Poth. Subst. 499. [II. 395.] 969. The cause or con- sideration of the prohibition to alienate, may be the in- terest either of the party dis- posing, or of the party receiv- ing, or it may be that of the substitutes, or of third parties. —12 Poth. Pand. 245-252; Rio. Subst. pt. 1, n. 333 ; Poth. Don. Pt. 1, n. 1044. [II. 395.] 970. The prohibition to alienate things sold or con- veyed by purely onerous title is void.— N. D. Defense d'ali6- ner, 6 1, n. 1. [II. 395.] 971. The prohibition to alienate may be simply con- firmatory of a substitution.— It may constitute one, although express terms be not used, ao- 168 OiriS IMTEB VIYOS AND BY WILL. oording to the rules heroinaftor laid down. [II. 396.] 972* [Although the motive of the prohibition to alienate be not expressed, and it be not declared under pain of nullity or Bome other penalty, the in- tention 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 disposing and his heirs a tight to get back the property.] — N. D. 1. 0. n. 3. [II. 397.] 973. If the prohibition to alienate bo made in favor of persons who are designated, or who may be ascertained, and who are to receive the property after the donee, the heir, or the legatee, a substitution is created in favor of such per- sons, although it be not in ex- press terms. — Poth. Subst. 449, 617, 618. [II. 397.] 974. When the prohibition to alienate extends to several degrees and is at the same time interpreted as implying a substitution, those to wnom the prohibition successively applies after the first who receives, become substitutes in turn, as if they were the subject of ex- press dispositions. — 2 Bic. Subst. pt. 1, n. 397-9. [II. 397.1 975. The prohibition to alienate may be confined to acts inter vivos, or to acts in contemplation of death, or may extend to both, or may be otherwise modified according to the will of the party disposing. Its extent is determined accord- ing to the object which the party disposing had in view, and the other attending oir> oumstanoes. — If there be no restriction, the prohibition is deemed to cover acts of every description.— 2 Rla. Subst. pt. 1, n. 340 " . [II. 397.] 976. The simple prohibition to dispose of property by will, without other condition or in- dication, implies a substitution in favor of the natural heirs of the donee, or of the heir or legatee, for so much of the pro- Serty as may remain at the eath of such donee, heir or legatee. — Poth. Subst. 618. [II. 397.] 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 denoting continuance, extend to others than those to whom it is addressed; the persons be- longing to the family who take after them are not subject to it. — If the prohibition be ad- dressed to no person in parti- cular, it is deemed, in the absence of such expressions, to apply only to the person first benefited. — Substitutions made in a family are in all cases interpreted according to the same rules. — Bic. Subst. pt. 1, n. 388, 393, 616; Th. Des. Subst. n. 356, 357, 358-, 363 - , 953-969. [II. 397.] 978. The prohibition to alienate out of ,the family, when no dispositions require the following of the legitimate order of succession, or any i OBLIOATIOKS. other order, does not prevent the alienation, by gratuitous or onerous title, made in favor of the more distant members of the family.— Th. Des. 1. o. [II. 397.] 079« The term/ami7y 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 representation being allowed otherwise than in the case of legacies. — 0. S. t. 1, a. 21, 22; Poth. Subst, 512-514. [II. 399.] 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 qualification either In the disposition or in the con- dition, apply to all the descend- ants, with or without the effect of extending to more than one degree according to the terms of the act. — Rio. Subst. pt. 1, n. 503 — ; Th. Des. Subst. n. 367 — : Poth. Subst. 509 j T L. C. R. 351; 9 Id. 376; li Id. 84, Martin & Lee ; 6 Guy. 718". [11.399.] 981* [Prohibitions to alien- ate, although not accompanied by substitution, must be regis- tered, even as regards moveable property, in the same manner as substitutions themselves. — The person thus prohibited and his tutor or curator, and the husband in the case of a mar- ried woman, are bound to effect such registration.] — [11.399.] TITLE T HIRD. OF OBLIGATIONS. GENERAL PBOVISIONS. 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. — Poth. Ob. n. 1. [I. 37.] 983. Obligations arise from contracts, quasi-contracts, of- fences, quasi-offences, and from the operation of the law solely. —Inst. 1. 3, t. 14, § 1, 2; Poth. Ob. 2. [I. 37.] CHAPTER FIRST. OP CONTBACTS. SECTION I. Of the requisites to the validity of contracts. 984:« There are four re- quisites to the validity of a contract : — Parties legally ca- pable of contracting ; — Their consent legally given ; — Some- thing which forms the object 160 OBLIOATIOKB. of the oontr Aot ; — A lawful cause or oonsideration. — if. L. 1, 9 2, 3, L. 7, 9 i, De pact. ; Poth. Ob. 2 : Dom. 1. 1, 1. 1, 8. S-6-; C.N. 1108 J O.L.1772. [I. 37.] 91. 0/the legal eapaeity to contract, 985* All persons are capa- ble of contracting, except those whose incapacity is expressly declared by law. — Dom. 1. 1, t. 1, 8. 2, 9 1 ; ff* L. 1, De pact.; C.N. 1123. [1.37.] ^^986. Those legally inca- pable of contracting are : — Minors in the cases and ac- cording to tho provisions con- tained in this code. — Poth. Ob. 52 ; Dom. 1. 1, t. 1, s. 5, n. 4 — , &n. ; 4 Boi. 374-6. — Interdicted persons. — ff. L. 40, De reg. jur. j Poth. Ob. 50 ; Dom. 1. 1, t. 2, 8. 2, 9 10. — Married women, except in the cases specified by law.— Poth. Ob. 50} C.P.223, 234. — Those who, by special E revisions of law, are prohi- ited from contracting by rea- son of their relation to each other, or of the object of the contract; — Persons insane or suffering a temporary de- rangement of intellect aris- ing from disease, accident, drunkenness or other cause, or who by reason of weakness of understanding are unable to give a valid consent. — Dom. 1. 1, t. 2, 8, 1, 9 11 J Poth. Ob. 61, 49 ; ff. L. 40, De reg. jur. ; — Persons civilly dead ; — Dom. 1. £t€i. t. 2, s. 2, 9 12, 13 ; C. '. 1124 ; 3 Sav. 90. [I. 37.] 987. The incapacity of minors and of persons ^uter- dioted for prodigality, it estab- lished in their favor. — Parties capable of contracting cannot set up the incapacity of the minors or of the interdicted persons with whom they have contracted. — Dom. 1. 1, 1. 1, s. 5, 9 7 ; Id. 1. 2. 1. 1, 8. 2, n. 10; ff. L. 13, 9 29, De act. emp. & vend. ; ff. L. 0, L. 7, L. 44, De min. ; Poth. Ob. 52: Mes. c. 14, n. 28; ff. L. 5, 9 1, L. 9, i. p. De auc. et cons. tut. ; C. N. 1125. [1. 39.] \ 2, Of content. 988. Consent is either ex- press or implied. It is invali- dated by the causes declared in the second section of tiiis chapter. — Poth. Ob. 16, 17. [I. 39.] 9 3. Of the cause or considera' tion of contracts. 989. A contract without a consideration, or with an un- lawful oonsideration has no ef- fect ; but it is not the loss Valid though the consideration be not expressed or be incorrectly expressed in the writing which is evidence of the contract, ff. L. 7, 9 4, 7 ; L. 27, 9 4 De pac; Poth. Ob. 42, 43, 753 ; ff. L. 26, 9 ult. De prob. 23, 3 ; Dom. 1. 1, t. 1, s. 5, n. 13 ; Id. 1. c. s. 1, n. 5, 6 ; 6 Toul. n. 175" ; 4 Marc. n. 456 ; C. N. 1131, 1132 ; [I. 39 ; III. 381.] 990. The consideration is unlawful when it is prohibited by law, or is contrary to good morals or publio order. — ff. L. 7, 9 7, De pact. ; Poth. 43 ; C. N. 1133. [1.39.] 0BLI0ATI0K8. 161 i 4. 0/ the object of eontraete. See Ohap. V. " Of the object of obligations." SECTION II. Of causes of nullity in eorir tracts. 091< Error, fraud, violence or fear, and lesion are causes of nullity in contracts; subject to tlie limitations and rules contained in this code. [1. 39.] 9 1. 0/ error, 992* Error is a cause of nullity only when it occurs in the naturo of the contract it- self, or in the substance of the thing which is the object of the contract, or in some thing which is a principal considera- tion for making it. — Poth. Ob. 17, 18 ; ff. L. 116, § 2, do reg. jur. L. 67, De obi. & act. ; 0. N. 1110. [I. 39.] 3 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.— Poth. Ob. 29, 31, 32 j Dom. 1. 1, 1. 18, s. 3, n. 1, 3, Id. 1. 1, s. 6, n. 8 J fif. L. 7, § 9, dolo. : C. N. 1116. [I. 41.] 3 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 contract is made or by any other per- lon. — Dom. L 4, t. 6, s. 3, n. 1 ; ff. L. 1, 2, 3, 21, S 5* Q* met. oaus&: L. 116, i. p. De reg. jur. ; Dom. 1. 1, t. 1, s. 6, n. 10 ; Poth. Ob. 21-23 : 0. N. 1109,1111. [1.41.] 995t The fear whether pro- duced by violence or otherwise must be a reasonable and pre- sent fear of serious injury. The age, sex, character and condition of the party are to be taken into consideration. — ff. L. 6, L. 6, L. 9, Q. met. causft, L. 184, De reg. jur.; Poth. Ob. 25 ; 4 Marc. n. 411 ; C. N. 1112. [I. 41.] 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 cir- cumstances of the case. — ff. L. 8, § 3, Q. mot. caus&. ; Poth. Ob. 25; 4 Marc. n. 413; la Dur. n. 152; C. N. 1113. [1. 41.] 997* Mere reverential fear of a father or mother, or other ascendant, withoutany violence having been exercised or threats made, will not invali- date a contract. — Poth. Ob. 27; C. N. 1114. [I. 41.] 998. 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 con- sent.— Poth. Ob. 26 ; ff. L. 3, § 1, Q. met. causd, ; C. L. 1850, 1851. [I. 41.] 999« A contract for the 162 OBLIGATIONS. purpose of delivering the party making it> or the husband, T^ife or near kinsman of such party from violence or threat- ened injury, is not invalidated by reason of such violence or threats ; provided the person in whose favor it is made he in good faith, and not in collusion with the offending party. — ff. L. 9, § 1, Q. met. oaus4; Foth. Ob. 24; 0. L. 1852 J 4 Marc. n. 416. [1. 41.] 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. — Poth. Ob. 29 j Author, under a. 993 : 0. N. 1117. [I. 43.] I 4. Of leaion. 1001. Lesion is a cause of nullity only in certain cases and with respect to certain persons, as explained in this section.— C. N. 1118. [I. 43.] 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 adminis- tration ; 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 speci- ally expressed in this code. — Poth. Ob. 40 ; Dom. 1. 4, t. 6, s. 2, n. 19, 23, 24 J Id. 1. 2, t. 1, 8. 3, n. 16 J Cod. L. 2, Si tut. v. cur. int. j ff. L. 7, § 3, 6, 7, L. 29, L. 34, § 1 ; L. 49 De min. ; Mes. c. 14, n. 27 j C. N. 1305. [I. 43.] 1003i The simple declara- tion made by a minor that he is of the ago of majority forma no bar to his obtaining relief for cause of lesion. — Dom. 1. 4, t. 6, s. 2, n. 7 ; Mes. c. 14, n. 65, p. 410,411; Cod. L. 1, Si min. se maj. dix. ; C. N. 1307. [I. 43.] 1004:i A minor is not re- lievable for cause of lesion, when it results only from a casual and unforeseen event. — ff. L. 11, § 4, De min. j Mes. 391, 14, n. 18 ; Dom. 1.'4, t. 6, s. 2, n. 15 ; C. N. 1306. [1. 43.] 1005« A minor who is a banker, trader or mechanic is not relievable for cause of lesion from contracts made for the purposes of his business or trade. — Mes. 14, n. 63i; Guy. Mineurs, 628 ; 0. 1673, t. 1, a. 6 ; C. N. 1308. [I. 43.] 1006. [A minor is not re- lievable from the stipulations contained in his marriage con- tract, when they have been made with the consent and assistance of those whose con- sent is required for the validity of his marriage.] — Mes. c. 14, n. 42; 7 Toul. n. 684; C.N. 1309. [I. 45.] 1007i A minor is not re- lievable from obligations re- sulting from his offences and quasi-offences. — ff. L. 37, § Erel. ; L. 9, § 2, De min. ; Cod. . 1, Si adv. del. ; Mes. o. 14, n. 54 ; Dom. 1. 4, t. 6, s. 2, n. 5,6; C.N. 1310. [1.45.] 1008. A pe>rson is not re- lievable from a contract made by him during minority, when OBLIGATIONS. 163 tie has ratified it since attain- ing the age of majority. — ^Mes. 14, n. 56 ; Dom. 1. 4, t. 6, s. 2, n. 31, 32 J C. N. 1311. [1.46.] I009t Contracts by minors for the alienation or incum- brance of their immoveable property made with or with- out the intervention of their tutors or curators, unattended with the formalities required by law, may be avoided with- out proof of lesion. — Cod. L. 11, de praed. & al. reb. ; Poth. Vente, n. 14, 168, 516 j Dom.l. 4, t.6, s. 2, n. 26. [1.45.] 1010. [When all the for- malities requiied with respect to minors or interdicted persons for the alienation of immove- able property, or the partition of a succession, have been ob- served, such contracts, and acts have the same force and effect as if they had been executed by persons of the age of majo- rity and free from interdiction.] — Cod. L. 2, Si tut. V. cur. interv. ; ff. L. 29, De min. ; L. 7, § 3, Pro emp.; Dom. 1. 2, 1. 1, s. 2, n. 10, Id. 1. 4, t. 6, s. 2, n. 23, 24; Mes. c. 14; 2 Hen. 257, n. 1,2 J C.N. 1314 j C. L. 1862 ; 4 Maro.on a. 1314. [1. 45] 1011. When minors, inter- dicted persons or married women are admitted in these qualities to be relieved from their contracts, the reimburse- ment of that which has been paid in consequence of these contracts, during the minority, interdiction or marriage, can- not be exacted, unless it is proved that what has been so paid has turned to their profit. —Mes. 14, n. 25 J 7 Toul. 580 ; C. N. 1312. [I. 45.] 15 1012. [Persons of the age of majority are not entitled to relief from their contracts for cause of lesion only.] — 0. N. 1313. [1.47.] SECTION III. Of the interpretation of contracts. 1013. When the meaning of the parties in a contract is doubtful, their common inten- tion must be determined by interpretation rather than by an adherence to the literal meaning of the words of the contract. — ff. L. 219, De verb, sig. J Poth. Ob. 91 ; Dom. 1. 1, t. 1, s. 2, n. 8: C. N. 1156. [I. 47.] 1014. When a clause is susceptible of two meanings, it must be understood in that in which it may have some effect rather than in that in which it can produce none.^ — ff. L. 86, De verb. ob. ; Poth. 92 j C. L. 1946} C.N. 1157. [1.47.] 1016. Expressions suscep- tible of two meanings must be taken in the sense which agrees best with the matter of the contract. — ff. L. 67, De reg. jur.j Poth. 93 J C. L. 1947 j C. N. 1158. [I. 47.] 1016. Whatever is doubt- ful must be determined accord- ing to the usage of the country where the contract is made. — ff. L. 34, De reg. jur. j Poth. 94; Dom. 1. 1, t. 1, s. 2, n. 9; C. L.1948; C.N. 1159. [1.47.] 1017. The customary clau- ses must be supplied in con- tracts, although they be not expressed.— ff. L. 31, § 20, Do 164 OBLIGATIONS. Aed. edict. J Poth. 95 j C. L. 1949 ; C. N. 1160. [I. 47.] 1018. All the clauses of a contract are interpreted the one by the other, giving to each the meaning derived from the entire act. — ff. L. 24, De leg.; L. 126. De verb. sig. ; Poth. 96 J Dom. 1. 1, t. 1, s. 2, n. 10; C. L. 1960, C. N. 1161. [I. 49.] 1019i In cases of doubt, the contract is interpreted against him who has stipulated and in favor of him who has contracted the obligation. — flf. L. 38, § 18, De verb. ob. L. 99 ; L. 26, De reb. dub. j Poth. 97 j Dom. 1. 1, t. 1, s. 2, n. 13; C. L. 1952 : C. N. 1162. [I. 49.] 1020. However general the terms may bo in which a con- tract is expressed, they extend only to the things concern- ing which it appears that the parties intended to contract. — ff. L. 3, § 2, L. 5, L. 9, §, 3, L. 12, De transao. j Poth- 98, 99 ; Dom. I. 1, t. 1, s. 2, n. 21 ; C. L. 1954: C. N. 1163. [I. 49.] 102ii When the parties in order to avoid a doubt whether a particular case comes with- in the scope of a contract, have made special provision for such ease, the general terms of the contract are not on this account restricted to the single case specified. — ff. L. 81, De reg. jur. L. 56, Mand. vel. cont. ; Poth. 100 J C. L. 1957: C. N. 1164. [I. 49. J SECTION IV. Of the effect of contracts. 1022. O/ntracts produce obligations, anci ometimes have the effect of discharg- ing or modifying other con- tracts. — They have also the effect in some cases of trans- ferring the right of property. — They can be set aside only by the mutual consent of the parties, or for causes estab- lished bylaw.— Poth. Ob. 85; ff. L. 1, 1. 1, s. 3, n. 12, s. 2, n. 7 ; 0. N. 1134. [I. 49.] 1023. Contracts have effect only between the contracting parties ; they cannot affect third persons, except in the cases provided in the articles of the fifth section of this chapter. — ^ff. De pact. L. 27, § 3 ; Poth. Ob. 85, 87-89 ; C. N. 1165. [I. 49.] 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 contract, according to its nature. — ff. L. 2, § 3, De ob. & act. ; ff. L. 36, De reg. jur. ; Cod. 1. 4, t. 10, 4, De ob. & act. ; Dom. 1. c. ; C. N. 1136. [I. 49.] 1025. [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. — Thu foregoing rule is subject to the spocial pro- visions containeu ^^ this code concerning the transfer and registry of vessels. The safe- keeping and risk of the thing before deliveiy are subject to the general rules contained in the chapters Of the effect of obligations and Of the extinction of obligations in this title.] — ff. 0BLI0ATI0K8. 165 L. 35, § 5, De cont. empt. ; Poth. Vente, 308, 309 j 6 Toul. n. 202, 204 J 7 Toul. n. 34, 231, 460 J 0. 0. a. 278; C. L. 1903 j C.N. 1583. [I. 51; III. 381.] 1026. If the thing to be deliyered 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. — Poth. Vento, 309, 310; 7 Toul. n. 460 ; 6 Toul. n. 202 w. ; C. L. 1903. [I. 51.] *1027. [The rules contained in the two last preceding arti- cles, apply as well to third persons as to the contracting parties, subject, in contracts for the transfer of immoveable property, to the special pro- visions 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 moveable pro- gerty, that one of the two who as been put in actual posses- sion is preferred and remains owner of the thing although his title be posterior in date ; provided, however, that his possession bo in good faith.] — Cod. L. 15, De rei vind. ; Poth. Ob. 151, 152; Vente, 318, 319; 6 Toul. n. 204, 205; C. L. 1914, 1916 ; C. N. 1141. [I. 51.] SECTION V. Of the effect of contracts with regard to third persons. 1028i A person cannot, by a contract in bis own name, bind any one but biiuse}f and his heirs and legal represent- atives ; 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. — Inst. 1. 3, t. 19, § 19, 20 ; ff. L. 73, § 4, De reg. jur. ; ff. L. 81, De verb, ob., L. 38, § 2 ; Poth. 53, 56 ; C. N. 1119, 1120. [I. 51.] 1029. A party in like man- ner may stipulate for the bene- fit 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. — ff. L. 38, § 20, 21, 23, De verb, ob.; Poth. 70, 73; C. N. 1121. [I. 51.] 1030* A person is deemed to have stipulated for himself, his heirs and legal representa- tives, unless the contrary is expressed, or result from the nature of the contract. — ff. L. 143, De reg. jur.; ff. L. 56, § 1, L. 38, § 14, De verb. ob. j Poth. 63-70 ; C. N. 1122. [I. 53.] 1031. Creditors may exer- cise the rights and actions of their debtor, when to their pre- judice he refuses or neglects to do so ; with the exception of those rights which are exclusi- vely attached to the person. — ff. L. 134, De reg. jur. L. 6, Q. in fraud. ; Lcb. Sue. 1. 2, c. 2, s. 2, n. 42, 43, p. 214 ; 6 Toul. n. 369, 370 ; Dom. 1. 2, t. 10, Intr. s. 1, n. 8 ; C. N. 11C6. [I. 63.] 106 OBLIGATIONS. SECTION VI. Of the avoidance of contracts and payments made in fraud of creditors. 1032. Creditors may in their own name impeach the acts of their debtors in fraud of their rights, according to the rules provided in this sec- tion.— ff". L. 1, § 1, 2, Q. in fraud, cred. j N. D. Fraude rel. auz or fanciers, § 2, n. 2; 6 Toul. n. 343--, 354, 366 j 0. C. 1673, t. 11, a. 4 J R. Lyon, 1667; Del. 1702 j 2 Bor. 698j B. 1609 J C.N. 1167. [I. 53.] 1033i A contract oaLuotbe avoided unless it is made by the debtor with intent to de- fraud, and will have the effect of injuring the creditor. — ff. L. 15, Q. in fraud, cred. ; Dom. I. 2, 1. 10, s. 1, n. 6 J N. D. v. c. § 2, n. 9 ; 6 Toul. n. 348-352 ; C. L. 1973. [I. 53.] 1034t A gratuitous con- tract is deemed to be made with intent to defraud, if the debtor be insolvent at the time of making it. — ff. L. 6, § 2, 1. c. j Dom. 1. c. n. 2 ; N. D. v. c, § 1, n. 10 J Poth. 153; 6 Toul. 353, 354 ; C. L. 1975. [I. 63.] 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. — ff. L. 1, L. 6, § 8, Q. in fraud, cred.; Dom. 1. c. n. 4; N.D.I, c. n. 12, 15 ; 6 Toul. n. 342-366. [I. 53.] 1036. Every payment by an insolvent debtor to a credi- tor knowing his insolvency, is deemed to be i)[iade 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 accord- ing to their respective rights. — ff. 1. c. L. 10, 1 12 ; N. D. 1. c; ff. L. 6, § 6, Q. in fraud, cred. ; Jou. 0. 1673, 1. 11, a. 4, n. 1 ; Savary, P. 39, p. 312, 319 & 310. ; 6 Toul. 1. c. ; Bor. 0. C. t. 11, a. 4, p. 698 (673 in later ed.) ; Toub. 1. 3, t. 12, c. 3, p. 730 i C. Co. a. 446, 447 & n. by De Vil. D. C. C. 744, 745 & Rog. 878 - ; C. L. 1983. [I. 55 ; III. 381.] * 1037. Further provisions c6ncerning the presumption of fraud and the nullity of acts done in contemplation of in'< solvency are contained in The Insolvent Act of 1864. [I, 55 : III. 381.] 1038. An onerous contract made with intent to defraud on the part of the debtor, but in good f. *th on the part of the person with whom he contracts i'! not voidable ; saving the ;*acial provisions appHcable in ■Tates of insolvency of traders. —L. 6, § 8, 1. 0. a. 1035 j Poth. 153; Dom. n. 3, 1. c. ; N. D. 1. c. n. 11 ; 6 Toul. n. 352 ; C. L. 1974. [I. 55 ; III. 381.] 1039. No contract or pay- ment can be avoided, by reason of any thing contained in this section, at the suit of a subse- quent creditor, unless he is subrogated in the rights of an anterior creditor; saving, nevertheless, the exception contained in The Insolvent Act of 1864.--ff. L. 10, § 1, Q. in fraud, cred. ; 9 N. D. v. c. § 3, n. 1-3, p. 84, 85 ; Dom. 1. c. OBLIGATIONS. ler n. 6 ; 6 Toul. n. 351 ; C. L. 1988. [I. 65 J III. 381.] *104:0i [No contract or pay- ment 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 from the time of hia 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.] — ff. L. 1, Q. in fraud, cred. L. 6, § 14 ; 6 Toul. n. 356 ; C. L. 1989. [I. 65 J III. 381.} CHAPTER SECOND. OP QUASI-CONTRACTS. 104:li A person capable of contracting may, by his lawful and voluntary act, oblige him- self toward another, and some- times oblige another toward him, without the intervention of any contract between them. —Inst. 1. 3, t. 27 J Poth. 113- 115? 6 Marc. 249; C. N. 1371. [I. 5?.] 1042t A person incapablo of contracting may, by the quasi-contract which results from the act of another, be obliged toward him. — Poth. Ob. 116, 128 i 6 Marc. 259. [I. 67.] SECTION I. Of the quasi-contract nego- tiorum gestio. . 1043. He who of his own accord assumes the manage- ment of any business of another, without the knowledge of the latter, is obliged to continue the management which he has begun, until the business is completed or the person for whom he acts is in a condition to provide for it himself: he must also take charge of the accessories of such business. — He subjects himself to all the obligations which result from an express mandate. — Inst. 1. 3, t. 27, § 1 J ff. 1. 3, t. 5, L. 2, 3, 6, 32 J Poth. Ob. 115; .Id. Mand. 29, 180, 201 j Dom. 1. 2, t. 4, 8. 1, n. 1, 2 J Tr. Mand. 70-72 J 6 Marc. 250, on a. 1372; 1 Toul. n. 25 - ; C. N. 1372. [I. 67.] 1044. He is obliged to continue his management al- though the person for whom ho acts die before the business is terminated, until such time as the heir or other legal representative is in a condition to take the management of it. — ff. 1. c. L. 21 J Poth. Mand. 201 ; C. N. 1373. [I. 57.] 104:5. He is bound to exercise in the management of the business all the care of a i>rudent administrator. — Nevertheless the court may moderate the damages arising from his negligence or fault, according to the circumstances under which the management of the business has been as- sumed. — £f, t. c. L. 11, L. 3, § 9; Poth. Mand. 208, 211; Dom. 1. 2, t. 4, 8. 1, n. 2, 12 ; C. N. 1374. [I. 67.] 104:6. 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 168 OBLIQATIONB. if I which he has assumed, and to reimburse him all neces- sary or useful expenses. — S. I. 0. L. 2, 21, 45 } Poth. Ob. 112, 116, 221, 223, 224, 228 j Dom. 1. 2, t. 4, s. 2, n. 2-4; G. N. 1375. [I. 67.] SECTION II. Of the qiiasuiontract result- ingfrom the reception of a thing not due. 1047. He who rooeives what is not due to him, through error of law or of ff-rt, is bound to restore it; or if it cannot be restored in kind, to give the value of it. — [If the perpon receiving be in good faith, he is not obliged to restcro the profits of the thing received.] — 13 Dur. 601-2-4 ; 11 Toul. 94 j Inst. 1. 3, t. 27, L. 6, § 7 J ff. § 3, L. 5, De ob. & act. j L. 1, 2, § 1 J L. 7, 37, 54, De cond. indeb. j L. 9, § 6, De ju. & fac. ignor. ; Cod. L. 10, e. t. j Poth. Pr6t C. 132, 140, 165, 168; Dom. 1. 2, t. 7, s. 1, n. 1, 6, s. 3, n. 3, 4, n.; C. N. 1376. [I. 59.] 1048* He who pays a debt believing himself by error to bo the debtor, has a right of recovery against the creditor. — Nevertheless that right ceases when the title .lasin good faith been cancelled or has beooiro ineffective in consequence of the payment ; saving the remedy of him who has paid against the true debtor. — ff. L. 65, § fin. Cond. indeb. ; Poth. Ob. 113 ; Id. Pr6t C. 153; Dom. 1. 2, t. 7, s. 1, n. 2; C. N. 1377. [I. 59.] 104:9i Ifthe person receiv- ing be in bad faith he is bound to restore the sum paid or thing received, with the interest and profits which it ought to have produced from the time of re- ceiving it, or from the time that his bad faith began. — ff. L. 65, § 5 ; L. 15, De cond. indeb. ; Poth. Pr6t 0. 168 ; Dom. 1. 3, t. 5, s. 3, n. 4, & 1. 2, t. 7, s. 3, n. 1; O.N. 1378, [1.69.] 1050. If the thing unduly received bo a thing certain, he who has received it is bound to rostoro its value, if through his fault and his bad faith it have perished or deteriorated, or can no longer be delivered in kind. — If he have received the thing in bad faith, or after having been put in default retain it in bad faith, he is answerable for its loss by a fortuitous event ; unless the thing would have equally perished or deteriorated in the possession of the owner. — ff. L. 62, i. p. § 1 ; L. 15, § 3, De rei vind. L. 31, § 3, De her. pet. ; Poth. Pr6t C. 172, 174; Dom.l. 2, t. 7, s. 3, n. 2; Marc. 258, 259; C. N. 1379. [I. 59/1 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.— ff. L. 26, § 12, De oond. indeb. ; Poth. 173 ; Dom. 1. 2, t. 7, s. 3, n. 5 ; C. N. 1380. [I. 61.] 1052. He to whom the thing is restored, is bound to repay to the possessor, although he were in bad faith, tho expenses which have been incurred for its preservation. — ff. L. 13, § 1, L. 14, De cond. indeb., L. 6, § OBLIGATIONS. 169 ) owner. 3, De neg. gest., L. 38, De hered. pet. ; Poth. Prop. 343- 345; Dom. 1. 2, t. 7, s. 4; 4 Marc. 262 ; C. N. 1381. [1. 61.] CHAPTER THIRD. OP OPFBNOES AND QUASI- OFFENCES. *1053i Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, im- prudence, neglect or want of skill — S. L. 1, De inj. L. 5, § 1, L. 9, § ult., L. 10, Ad. leg. Aq. ; Dom, 1. 3, t. 5, s. 2, n. 9, L. 2, t. 8, s. 4; 11 Toul. 319 - j 5 Marc. 264-266 ; 4 Zach. § 624, n. 2; § 625, n. 14, & § 626-628; C. N. 1382, 1383. [L 61.] ^1054:. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of persons under his control and by things which he has under his care ; — The father, or, after his decease, the mothei, is responsible for the damage caused by their minor children ; — Tutors are responsible in like manner for their pupils j — Curators or others having the legal custody of insane persons, for the damage done by the latter; — Schoolmasters and ar- tisans, 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. — ff. L. 1, § 1, Si fam. fur. fee. die. 6, 7, 1. 47, t. 6, L. 5 ; Poth. Ob. 121, 122 ; N. D. D61it, § 6, n. 5 ; 4 Zach. 24, n. 8 ; 11 Toul. 260- 278,282-; C.N. 1384. [1.61.] '''loss. 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 con- struction. — ff. L. 1, § 4, 7 ; L. 5 Si. quad. paup. L. 1, 2, 7, de dam. inf. ; Dom. 1. 2, t. 8, s. 2, i. p. & n. 4, 5, 8-12; Id. e. t. s. 3, n. 1 - ; C. N. 1385, 1386. ri. 61.] *10S6, In all cases where the person injured by the commission of an offence or a quasi-offence dies in conse- quence, without having ob- tained idemnity 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 170 OBLIGATIONS. I* 111 Hit in the duel, whether as seconds or as witnesses. — In all cases no more than one action can be brought in behalf of those who are entitled to the in- demnity and tho judgment determines the proportion of such indemnity which each is to receive. These actions are independent and do not preju- dice the criminal proceedings to which the parties may be subject. CHAPTER FOURTH. OP OBLIGATIONS WHICH RESULT PROM THK OPERATION OP LAW SOLELY. 1057* Obligations result in certain cases from tho sole and direct operation of law, with- out 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 ob- ligations of tutors and other administrators who cannot re- fuse the charge cast upon them ; — The obligation of children to furnish the necessaries of life to their indigent parents; — Certain obligations of owners of adjoining properties j — The obligations which in certain cases arise from fortuitous events ; — And others of a like nature. — Dom. 1. 2, t. 9 ; Poth. Ob. 123 J 6 Marc. 238 on a. 1370; 11 TduI. 308-310 : C.N. 1370. [I. 63.] CHAPTER FIFTH. OP THE OBJECT OP 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. — ff. L. 3, i. p. De ob. & act. ; Poth. Ob. 63, 129 j C. N. 1126. [I. 63J 10o9i Those things only which are objects of commerce can become the object of an obligation.— ff. L. 83, % 5, De verb. ob. j Poth. Ob. 136 j C. N.1128. [1.63.] 1060i An obligation must have for its object something determinate at least as to its kind. — The quantity of the thing may bo uncertain, pro- vided it be capable of being ascertained. — ff. I.e. L. 94,95; Poth. n. 131 J C. N. 1129. [I. 63J 1061. Future things may be the object of an obligatioo. — But a person cannot re- nounce a succession not yet de- volved, nor make any stipula- tion with regard to it, even with the consent of him whose succession is in question ; ex- cept by marriage contract. — Cod. L. 16, De pact.; ff. I. c. L. 61; Poth. 132; C. N. 1130. [I. 63.] 1062* The object of an ob- ligation must be something possible and not forbidden by law or good morals. — ff. L. 1, 85, De reg. jur.; Poth. 136, 137. [1.63.] , CHAPTER SIXTH. OP THE EFFECT OF OBLIGATIONS. SECTION I. General provisions. 1063. An obligation to give involves the obligation to de- liver the thing and to keep it OBLIGATIONS. 17t safo until delivery. — ff. L. 11, § 1, 2, De act. em. et ven. ; Poth. Ob. 142 J C. N. 1136. [1. 66.] 1064a [The obligation to keep the thing safely obliges the person charged therewith to keep it with all the care of a prudent administrator.] ff. L. 0, § 2, Commod. ; L. 17, De per. et com. r. vend.; Poth. Ob. 142 ; Dom. 1. 1, t. 1, s. 8, n. 8 : 0. N. 1137. [I. 66.] 1065> Every obligation renders the debtor liable in damages in case of a breach of it on his part. The creditor may* in oases which admit of it, demand also a specific per- formance of the obligation, and that he be authorized to ex- eout« 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. — ff. L. 76, § 7, De verb, ob.; L. 13, i. f. De re jud. J Poth. 148, 167, 168 j Dom. 1. 1, t. 2, s. 2, n. 19, 20; 0. N. 1142, 1144. [I. 66 j III. 381.] 1066. The creditor, with- out prejudice to his claim for damages, may require also, that any thing which has been done in breach of the obliga- tion shall be undone, if the nature of the case will permit ; and the court may order this to be effected by its officers, or auUiorize the iojured party to do it, at the expense of the other. — Author, under a. 1065; O.N. 1143. [1.66.] SECTION II. Of 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 per- forming it shall have that effect ; or by the sole operation of law ; or by the commence- ment of a suit, or a demand which must be in writing un- less the contract itself is verbal. — ff. L. 23, De verb. ob. j Cod. L. 12, De cent, et com. stip. ; Poth. Ob. 144, 145, 147 j 5 Guy. Demeuro, 396 ; 6 Toul. 248-263 ; 10 Dur. n. 441 '— ; Lac. Re- tardement, 124; G. N. 1139. [I. 66.] 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 wit ain a certain time which he has allowed to expire. — Poth. 143, 147, author. 8up. ; C. N. 1146. [I. 67.] 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 ,ach time.] — Cod. L. 12, De cont. et com. stip. ; 6 Toul. n. 246. [I. 67.] SECTION III. Of the damages resulting from the inexecution of obligations. 1070. Damages are not due for the inexecution of an obli- gation until the debtor is in default under some one of the provisions contained in th& 172 OBLIGATIONS. f i is articles of the preceding sec- tion ; except the obligation bo not to do, when he who con- travenes it is liable for damages by the fact of the contravention alone.— 0. N. 1146, 1146. [I. «7J 1071. The debtor is liable to pay damages in all oases in which he fails to establish that the inexeoutioQ of the obliga- tion proceeds from a cause which cannot bo imputed to him, although there bo no bad faith on his part. — ff. L. 6, De reb. cred. ; Cod. De act. em. et vend. L. 4j Poth. 159, 164, 169 J Dom. 1. 3, t. 5, s. 2, n. 10 ; Id.l. 1, t. 2, s. 2, n. 16,17^ 6 Toul. 280, 281: C. N. 1147. [I. 67J 1072. The /debtor is not liable to pay damages when the inexeoution of the obliga- tion is cai;sed 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. — flF. L. 23, De feg. jur. i. f. ; Poth. Ob. 142, 143, 149, 660-668 ; Dom. 1. 1, t. 1, fl. 3, n. 9 J 6 Toul. n. 227, 228, 282 ; C. N. 1148. [I. 67.] 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 j subject to the exceptions and modifications contained in the following articles of this sec- tion. — ff. L. 13, Rat. r. hab. j Poth. Ob. 159, 160, Vente, 74,; Dom. 1. 1, t, 1, s. 2, n. 17, 18 ; 6 Toul. 263 ; C. K . 1149. [I. 67.] 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 brofohof it is not ao- corapanlcvi by fraud. — Cod. L. 1, De sent. q.p. eo. } Poth. Ob. 161-5, Vente, 72, 73 j Dom. 1. o. j 6 Toul. 284 "J C. N. 1150. [I. 67J_ 1075. In the case even in which the inexecution of the obligation results from the fraud of the debtor, the dam- ages comprise only that which is an immediate and direct consequence of its inexecution. — ff. L. 13, De act. em. ; Cod. 1. 7, Leg. inex. ; Poth. Ob. 166, 177 J C.N. 1151. [1.69.] 1076. [When it is stipu- lated 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 tim' '•f its complete perform- ance oe not material, the stipu- lated sum may be reduced; unless there be a special agree- ment to the contrary.] — Poth. 345 J C. L. 1928 J 6 Toul. n. 809-813 J C. N. 1152, 1231. [I. 69 : III. 381.] 1077. Tho damages result- ing from delay in the payment of money, to which the debtcr is liable, consist only of interest at the rate legally agreed upon by the parties, or, in the ab- sence 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 OBLIGATIONS 173 the day of the default only, except in the cases where by law they are duo from the nature of the obligation. — This article does not affect the spe- cial rules applicable to bills of exchange and contracts of suretyship. — Poth. 170, 171 j Dom. 1. 3, t. 5, s. 1, n. 2, 14; C. N. 1163. [I. 69.] 1078i Ii'terest accrued from capital sums also bears in- terest : 1. When thero is a special agreement to that effect ; 2. When in any action brought such now 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 proscribed by law. — ff. L. 29, De u. et fruc.j 6 Toul. 271 J 10 Dur. 498-9; C.N. 1154. [1.69.] CHAPTER SEVENTH. OF DIFFERENT KINDS OF OBLIQA- TI0N3. SECTION I. Of conditional obligations. 1079. An obligation is con- ditional when it is made to de- pend upon an event future and uncertain, either by suspending it until the event happens, or by dissolving it accordingly 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 ef- fect or is defeated from the time at which it is contracted. — ff. L. 100, Deverb.ob. 37-39, Si. oer. pet.; Poth. 199, 202: C.N. 1168. [1.71.] 1080. Every condition con- trary 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 impos- sible i^ also void. — ff. L. 7, L. 137 De verb. sig. ; L. 1, § 9, 1 . u. 31, De ob. et. act. : Poth. 204 J 0. N. 1172. [1. 71. j 1081. An obligation condi- tional 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. — ff. L. 8, De ob. et act. ; L. 108, § 1, De verb, ob.; Poth. 47, 48, 206: C. N. 1174. [I. 71.] 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.— Poth. 209-211 ; 6 Toul. 623--; C.N. 1176. [I. 71.] 1083. When an obligation is contracted under the condi- tion that an event will not happen within a fixed time, such condition is fulfilled by the expiration of the time with- out 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 condition is not deemed fulfilled until it is IMAGE EVALUATION TEST TARGET (MT-3) A ^ .^\^ % i 1.0 I.I 1^ |2B |2.5 2.0 us IM 6" I L25 114 11.6 . ^'* ^ .^^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 'A & ^ 174 0BU0ATI0N8. oertiun that the evexi^ will not happen. — ^Author, under a. 1082 J C.N. 1177. [1.71.] 1084h A conditional obli- gation becomes absolute when the j^Ttj bound under the condition prevents the fulfil- ment of it.~ff. L. 81, § 1, De oond. & dem.; L. 85, 9 7, De ▼erb. ob. ; L. 24 & 39, De reg. jur.; Poth. 212 ; Dom. 1. 1, t. l,s.4,n. 17j C.N. 1178. [I. 7y 1085. The fulfilment of the condition has a retroactive eflfect from the day on which the obligation has been con- tracted. If the creditor be dead before the fulfilment of the condition, his rights pass to his heirs or legal represent- atives.— ff. L. 18, 144, De reg. jnr. ; Arg. ex L. 26, De cond. Inst. ; Poth. 220 ; Dom. 1. 1, t. 1, 8. 4, n. 7, 13: C. N. 1179. [I. 71.] 1086* The creditor may, before the fulfilment of the condition, do all acts conserva- tory of his rights.— Poth. 222 : C. N. 1180. [I. 71.] 1087. When the obligation has been contracted under a suspensive condition, the debt- or 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 deteri- orated by the fault of the debtor, the creditor mfty either exact the th^ng in the state in which it is, or demand the dis- solution of the contract, with damages in either case. — ^ff. L. 8, 10, De per. et com. r. ven.; Cod. 1. 4, t. 4,L. 5; Poth. 218, 219 : Dom. 1. 1, t. 1, s. 4, n. 10: C.N. 1282. [1.71.] 1088* A resolutive con- dition, when accomplished, effects of right the dissolu- ' tion 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 exist- ed ; subject nevertheless to the rules established in the last preceding article with respect to things which have perished or been deteriorated. — Cod. 1. 8. t. 38, L. 12 ; Arg. ex L. 1 & 4,ff. Da le. Com. j Poth. 224, 636 J 6 Toul. 650, 551 j C. N. 1183. [I. 73.] SECTION II. Of obligations with a term. 1089. A term differs from a suspensive condition inas- much as it does not suspend the obligation, but only delays the execution of it. — ff. L. 41, § 1, L. 46, De verb. ob. ; Poth. 230 J C.N. 1185. [1.73.] 1090. That which is due with a term of payment can- not be exacted before the ex- piration of the term ; but that which has been paid in ad- vance voluntarily and without error or fraud canii:t be re- covered. — ff. ^. 1, § 1, De cond. & dem. ; L. 46, 1. c. sup. ; Poth. 230, 231, 547 j Dom. 1. 1, t. 1, s. 3, n. 7, 1. 4. 1. 1, s. 1, n. OBLIOATIOMS. 175 5; 4 Maro. 572-4; 6 Id. 256 ; 11 Dur. 113 ; 3 Zaoh. 385, n. 6 ; 11 Toul. 59, 60 J C. N. 1186. [I. 73.] 1091a The term is always presumed to be stipulated in faror of the debtor, uAIess it results from the stipulation or the circumstances that it has also been agreed upon in favor of the oicditor.— fit. L. 41, § 1, de verb. ob. : Poth. 833: C. N.1187. [1.73.] 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.— Poth. 234, 235 : 0. N. 1188. [I. 73.] SECTION III. Of alternaUve obligations. 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 apart of one of these things and a part of the other. — ff. L. 78, § ult., De oond. & dem. I L. 8, § 1, De leg. 1^; Poth. 245-247; 0. N. 1189, 1191. [I. 73J 1094:* The option belongs to the debtor unless it has been expressly granted to the credi- tor. — ^fF. L. 2, § 3, De eo q. certo loco; L. 25, De cent, em; Poth. 247, 248, 283 ; Dom. 1. 1, t. 1, s. 2, n. 15; C. N. 1190. [I. 75.1 1095. An obligation is pure and simple although conlxact- ed in an alternative form, if one of the two things promised could not be the object of the obligation.— ff. L. 72, S 4, Do solut.: Poth. 249; C.N. 1192. [I. 75.1 109o. An alternative obliga- tion becomes pure and simple if one of the things promised {)erish, or can no longer be de- ivered, even through the fault of the debtor. The value of such thing cannot be oflfered in its place; — ^If both things have perished or can no longer be delivered, and the debtor be in fault with respect to one of them, he must pay the value of that which remained last. — ff. L. 34, § 6, De cent, em., L. 115, De verb, ob.; L. 2, §3, De eo q. certo loco; L. 95, De solut. ; Poth. Ob. 250-252, Vente, 312; ff. L. 47,.§ 3, De leg. 1^ ; Lac. Alternative, n. 2 ; C. N. 1193. [I. 75.] 1097. When, in the oases provided for in the last pre- ceding article, the option has been granted by the oontraet 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 remains, but if the debtor be in fault, the creditor may demand the thing which remains or the value of the other; — Or both things have perished or can no longer be delivered, 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 bis option. — ff. L. 95, De solut.; Poth. 253; C. N. 1194. [I. 75.] 178 OBLIGATIONS. 1098i If both things have perished, the obligation is ex- tinguished in the cases and eubject to the conditions pro- vided in article 1200.-0. N. 1196. [I. 76.] 1099i The rules contained in the articles of this section apply to cases where the aUer- native obligation comprises more than two things, or has for its object to do or not to do some thing.— C. N. 1196. [I. T6.] SECTION IV. Of joint and several obliga- tions, § 1. 0/ 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 performance of the whole obligation and there- upon of discharging the debtor. — God., De duo. reis stip. et prom.; ff. L. 2, De duo. reis const. J Poth. 258-260 j Dom. 1. 3, t. 3, s. 2, n. 1, 2, 6, & Intr. to t. 3, p. 247, fol. ed. j C. N. 1197. [I. 77.] 1101. The debtor has the option of paying to either of the joint and several creditors, 80 long as he is not prevented 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 cre- ditor. The same rule applies to all cases in which the debt is extinguished otherwise than by actual payment ; subject to the rules applicable to com- mercial partnerships.]— ff. L. 2, 16, De duo. reis ; Poth. 260 ; Dom. h c. & n. 3 ; C. N. 1198. [I. 77.] 1102. The rules concerning the interruption of prescription in relation to joiiat and several creditors are declared in the title Of Prescription, — Cod. L. 5, De duo. reis stip. ; Poth. 260; Dom. 1. o. n. 5; C.N. 1199. [I. 77.] § 2. Of debtors. 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 tibing, in such manner that each of them singly may be compelled to the performance of the whole obligation, and that the per- formance by one discharges the others toward the creditor. — ff. L. 2, L. 3, § 1, L. 11, § 1, De duo. reis const. ; Cod. L. 3, De duo. reis stip. ; Poth. 261, 263, 274 ; Dom. 1. 3, t. 3, s. 1, n. 1 ; C. L. 2086 ; C. N. 1200. [I. 77.] 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.— ff. L. 7, L. 9, § 2, De duo. reis const. ; Poth. 263 ; Dom. 1. 3, t. 3, 8. 1, n. 6 ; C. L. 2087; C.N. 1201. [1.77.] '^'IIOS. An obligation is not presumed to be joint and several; it mast be expressly OBLIGATIONS. 17T doolared to be so. — This rule does not prevail in cases where a joint and several obligation arises of right by virtue of some provision of law; — Nor is it applicable to commercial trftnsaotions, in which the ob- ligation is presumed to be joint and several, except in cases otherwise regulated by special laws.— Nov. 99, c. 1 j ff. L. 6, L. 8, L. 11, § 2, De duo. reis const. ; L. 43, De re jud. et eff. sent. ; Cod. L. 3, De duo. reis ; Poth. 265, 266; Bout. Inst. 444; 2 Bor. 491, 492, t. 4, a. 7y 0. 1673 ; Dom. 1. 3, t. 3, s. 1, n.2; O.N. 1202. [1.79.] 1106. The obligation aris- ing from the common offence or quasi-offence of two or more fersons is joint and several. — oth. Ob.264. [1.79.] 1107i The creditor of a joint and several obligation may apply for payment to any one of the codebtors at his op- tion, without such debtor hav- ing a right to plead the benefit of division.— ff. L. 3, § 1, De duo. reis; L. 47, Loc. cond., Nov. 99, 0.1; Poth. 270; 4 Bret. H. 419; Dom. 1.3, t. 3, 8. 1, n. 3; G. L. 2089; C. N. 1203. [1.79.] 1108. Legal proceedings taken against one of the co- debtors do not prevent the creditor from taking similar proceedings against the others. —Cod. L. 28, De fid. et mand. 8, 41 1 Poth. 271 ; Dom. 1. c. sup. n. 7; C. L. 2090; C. N. 1204. [1.79.] 1109. Ifthe thing due havo 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 aro not.liable for damages. — The creditor can recover damages only from the codebtors through whose fault the thing has perished or can no longer be delivered, and those in default.— ff. L. 18, De duo. reis const. ; L. 32, § 4, De u. et fruc. ; L. 173, § 2, De div. reg. jur. ; Dum. de div. et indiv., pt. 3, n. 126, 7 ; Poth. 273 ; C. L. 2091 ; C. N. 1206. [I. 79.i 1110. The rules concerning the interruption of prescription in relation to joint and several debtors are declared in the title Of Preadription. — Cod. L. 5, De duo. reis; Poth. 272^ Dum. 1. c. sup. n. 9 : C. L. 2092 : C. N. 1206. [I. 79.] lllli A demand of interest made against one of the joint and several debtors causes in- terest to run against them all. — Cod. Arg. ex. L. 5, De duob. reis ; Poth. 272; 6 Toul. n. 7'»9 ; 4 Marc= n. 611 ; C. L. 2093 : C. N. 1207. [I. 81.] lli.2. A joint and several debtor sued by the creditor may plead all the exceptions which aro personal to himself as well as such as are common to all the codebtors. — He can- not plead such exceptions as aro purely personal to one or more of the other codebtors. — ff. L. 10, 19, De duob. reis. ; Poth. 274; Dom. 1. c. n. 8; C. L. 2094 ; C. N. 1208. [I. 81.] 1113< When one of the oo- 178 OBLIQATIONS. debtors becomes heir or legal representative of the creditor, or when the creditor becomes heir or legal representative of one of the oodeotors, the con- fusion eztingnishes the Joint and several debt only for the Sart and portion of such co- ebtor.— ff. L. 50, L. 95, S 2, De solut. & lib.; Poth. 276; Dom. 1. 0. ; 0. L. 2005 ; C. N. 1209. [1.81.] 1114. The creditor who con- sents to the division of the debt with regard to one of the co- debtors, preserves his joint and several right against tiie others for the whole debt. — Poth. Ob. 277; Bente, 194, 195; C. L. 2096; O.N. 1210. [1.81.] 1115* A creditor who re- ceives separately the share of one of his codebtors, so specified in the receipt and without re- serve of his rights, renounces the joint and several obliga- tion with regard only to such codebtor. — The creditor is not deemed to discharge the debtor from his joint and several obli- fation when he receives from im 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 this c(v> debtors for his share, if the latter have not acquiesced in the demand, or if a judgment of condemnation have rot in- tervened. — Ood. L. 18, De pao. ; Poth. 277, 278, 611; Bac.D. J. o. 21, n. 245 ; 0. L. 2097 ; 0. N.1211. [1.81.] 1116* The creditor who re- oeives separately and without reserve the share of one of the codebtors in the arrears or in- terest of the debt, loses his joint and several right only fur the arrears and interests accrued and not for thopo which may in future aocrucj nor for the capital, unless the separate Sayment has been continued uring [ten] consecutive years. — Bao. D. J. n. 246 ; Poth. 279 ; 0. L. 2098; 0. N. 1212. [I. 810 1117. The obligation con- tracted jointly and severally toward the creditor is divided of right among the codebtors, who among themselves are obliged each for his own share and portion only. — Cod. L. 2, De duo. reis stip. et prom.; Poth. 264; Dom. 1. 3, t. 3, s. 1, n. 6 ; 0. L. 2099 ; 0. N. 1213. [I. 83.] 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 subro- gated in the rights of the creditor. — If one of the co- debtors be found insolvent, the loss occasioned by his insol- vency is divided by contribution among all the others, including him who has made the pay- ment.— ff. 4, L. 36, 39, Do fid. 8c mand. ; L. 46, De solut.; Poth. 264, 281, 282 ; Dom. 1. c. ; C.N. 1214. [1.83.] 1119. In case the creditor have renounced his joint and several action against one ol the debtors, if one or more of the remaining codebtors become insolvent, the shares of those who are insolvent are made up by contribution by all the other OBLIGATIONS. 179 codebtors, except the one so discharged whose part in the contribution is borne by the creditor.— Poth. 278, 281 ; 6 Toul. n. 739; 4 Maro. on. a. 1215; Dely. p. 144, n. 6; 11 Dur. n. 231 ; 3 Zach. 361, n. 21 ; C. N. 1216. [I. 83.] 1120. If the matter for which the debt has been con- tracted jointly and severally 3oncern only one of the co- debtors, he is liable for the whole toward his codebtors, who, with regard to him, are considered only as his sureties. -Poth. 264, 282, 495; C. N. 1216. [I. 83.] SECTION V. Of divisible and indivisible obligations. 1121. An obligation is di- visible when it has for its object a thing which in its delivery or performance is susceptible of division either materially or intellectually. — e. L. 2, § 1, De verb, ob; L. 9, § 1, De solut. ; Dum. de div. & indiv. pt. 1, n. 5, pt. 2, n. 200, 201; Poth. Ob. 288, 289, Sue. c. 5, a. 3, § 5 ; C. N. 1217. [I. 83.] 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 obli- gation, and, on the other, are not held for the performance of it, beyond their respective shares as representing the creditor or the debtor. — Cod. 16 L. 2, De hored. act. ; ff. L. 33, De leg. 2^ ; Poth. Ob. 299, 498, 311, 316, 317; Rente, o. 7, a. 3; C. N. 1220. [I. 83.] 1123. The rule established in the last preceding article is subject to exception with re- spect to the heirs and legal representatives of the debtor, and the obligation must be performed as if it were indivi- sible, in the three following cases : 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 obliga- tion ; 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 inten- tion of the contracting parties was that the obligation should not be performed in parts. — [In the first case, he who pos- sesses 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 duo ; saving in all cases the recourse of tho one sued against the others.] — ff. L. 85, De verb, ob., L. 80, § 1, Ad. L. Fal. ; Dum. de div. et indiv. pt. 2, n. 20, 30, 33; Poth. 302, 303, 307, 315; 4 Marc. n. 640-642 ; Rod. Ob. div. & indiv. n. 329-- ; C. N. 1221. [I. §5.] 1124L. An obligation is in- divisible : 1. When it has for its ob- 180 OBLIOATIOKS. jeot something which by its nature is not susceptible of division, either materially or intellectually ; 2. When although the ob- ject of the obligation is divisible by its nature, yet from the character given to it by the contract, this object becomes insusceptible not only of per- formance in parts but also of division. — Author, under a. 1122 J Poth. 241, 242, 293-295 j 4 Marc. 627-635; Rod. 1. c: C. N. 1217, 1218. [I. 85.] 1125. The stipulation of joint and several liability does not give to an obligation the character of indivisibility. — Dum. de div. et indiv. pt. 2, n. 222 ; Poth. 287, 323, 324 ; C. N. 1219 J C. L. 2106. [I. 85.] 1126. Each one of those who have contracted an indivi- sible obligation is held for the whole although the obligation have not been contracted joint- ly and severally. — ^ff. L. 2, § 1, 2, 4, De verb. ob. ; Poth. 322, 323 J C. N. 1222 J C. L. 2109. [I. 85.]^ 1127. The rule established in the last preceding article prevails also with regard to the heirs and legal represen- tatives of him who has cbn- tracted an indivisible obliga- tion. — fif. L. 192, De reg. jur. j L. 80, § 1, Ad L. Fal. J L. 2, § 2, De verb. ob. ; Poth. Ob. 322, Sue. c. 5, a. 3, § 5 ; C. N. 1223 : 0. L.2110. [1.87.] 1128i The obligation to pay damages resulting from the non-performance of an indi- visible obligation is divisible. — But if the non-performance have been caused by the fault of one of the oodebtors, or of one of the coheirs or legal representatives, the whole amount of damages may be demanded of such codebtor, heir or legal representative. — ff. L. 85, 9 5, L. 139, De verb, ob. ; Poth. Ob. 304, 305, 324, 334: Sue. c. 5, a. 3, § 5. [I. 87/1 1129i Each coheir or legal representative of the creditor may exact in full the execu- tion of an indivisible obliga- tion. — He cannot alone release the whole of the debt, or re- ceive the value instead of the thing itself; if one of the co- heirs or legal representatives have alone released the debt or received the value of the thing, the others cannot demand the indivisible thing without mak- ing allowance for the portion of him who has made the re- lease or who has received the value.— ff. L. 25, § 9, Fam. ercisc. ; L. 2, § 2, De verb. ob. ; L. 13, § 12, De acceptil. ; Poth. 326-329 ; 4 Marc. 497-8 ; C. N. 1224; C. L. 2111. [1.87.] llSOi The heir or legal re- presentative of the debtor sued for the whole of an indivisible obligation may demand delay to mako the coheirs or other legal representatives 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 bo condemned alone, saving his recourse for indemnity against the others.— ff. L. 11, § 23, De leg. 3° ; Dum. De div. & indiv. pt. 3, n. 90, J00,'l04, 107, pt. 2, n. 176, 469; Poth. 330, 331, 333-335; C. N. 1225. [I. 87.} OBLIGATIONS. 181 SECTION VI. Of obligations with a penal clause. 1131* A penal clause is a secondary obligation by which a person, to assure the perform- ance of the primary obligation, binds himself to a penalty in oaee of its inexeoution. — ff. L. 71 & 137, § 7, De verb. ob. ; L. 44, § 5, De ob. k- act., L. 13, § 2, De reb. dub., L. 41 k 42, Pro soc, L. 28, De act. em. & ven.j Poth. 184, 337, 342; Dom. 1. 1, t. 1, s. 4, n. 18; C. N. 1226. [I. 87.] 1132. The nullity of the primary obligation for any other cause than want of in- terest, carries with it that of the penal clause. The nullity of the latter does not carry with it that of the primary ob- ligation.— ff. L. 97, i. p. L.126, § 3, De verb. ob. ; Poth. 339, 340 J 6 Toul. 815 J C. N. 1227. [I. 87.] 1133. The creditor may enforce the performance of the primary obligation, if he elect so to do, instead of de- manding the stipulated pen- alty ; — But he cannot demand both, unless the penalty has been stipulated for a simple delay in the performance of the primary obligation. — ff. L. 10, § 1, De pac. j L. 132, § 2, De verb. ob. ; L. 28, De act. em. & ven. ; Poth. 343, 344; C. N. 1228, 1229. [I. 89.] 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.— C. N. 1230. [I. 89.] 1135. [The amount of pen- alty 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 bo not material, the penalty may be reduced; unless there is a special agree- ment to the contrary.] Poth. 345; Dom. 1. 1, 1. 1, s. 4, n. 18 ; 6 Toul. 809-813 ; 4 Marc. 654, 526, 527; 0. N. 1152, 1231; C. L. 2123. [I. 89.] 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 re- presentatives of the debtor; and it may be demanded in full against him who has contra- vened it, or against each one of them for his share and por- tion, and hypothecarily for the whole ; saving their recourse against him who has caused the penalty to ' '; so incurred. — ff. L. 5, § 1, h. 84, § 3, De verb, ob.; DUm. ^t. 3, n. 173, 174; Poth. 355, 366; C. N. 1232 ; Sedg. 421 -. [I. 89.] 1137. When the primary obligation contracted under a penalty is divisible, the pen- alty is incurred only by that one of the heirs or other legal representatives of the debtor who contravenes the obliga- tion, and for the part only for which he is held in the primary obligation, without there being any action against those who have executed it. — This rule suffers exception when, the 182 OBLIGATION!. penal clause having been added with the intention that the payment oould not be made in parts, one of the coheirs or other legal repre- sentatives has prevented the execution of the obligation for the whole ; in this case ho is liable for tho entire penalty and the others are liable for their rospeotivo shares only, saving their recourse against him.— flf. L. 2, 5 6, 6 ; L. 72, De verb. Ob. j Poth. 306, 359, 360, 361 ; Dum. pt. 3, n. 412 ; C Toul. n. 842-845 j C. N. 1218, 1233. [I. 89.] CHAPTER EIGHTH. OP THE EXTINCTION OP OBLIGA- TIONS. SECTION I. General provisions. 1138* An obligation be- comes extinct: — By payment; — ^By novation j — By release j — By compensation ; — By con- fusion J — By the performance of it becoming impossible; — By judgment of nullity or rescis- sion J — By the effect of the resolutive condition, which has been explained in the preced- ing 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 j — By special causes applicable to particular contractn which are explained under their respective heads. — C. N. 1234. (l. 91.] SECTION II. Of payment. 9 1. General provUiont, 1139i By payment is meant not only the delitery of a sum of money in satisfaction of an obligation, but the performance of any thing to which the par- ties are respectively obliged. — Dom. 1. 4, t. 1, s. 1, n. 1, 3; Poth. 494 } C. L. 2127. [1. 91.] 114:0. Every payment pre- supposes a debt; what has been paid whore there is no debt may be recovered. — There can be no recovery of what has been paid in volfintary discharge of a natural obliga- tion.— ff. L. 1, 10, 13, 14, 16, 17, 18, De oond. indeb. ; L. 176, De verb. sig. j Poth. 192, 196, 218 J Dom. 1. 2, t. 7, s. 1, n. 1, 4, 5 ; 1. 4, t. 1, 8. 1, n. 4, 5 ; C. L. 2129 i 0. N. 1236. [I. 91.] 1141t Payment may be made by any person, although he be a stranger to the obliga- tion, and the creditor may be put in default by the offer of a stranger to perform the obliga- tion on the part of the debtor without the knowledge of the latter, but it must be for the advantage of the debtor and not merely to change the cre- ditor that the performance of the obligation is so offered. — ff. L. 23, 31, 40, 63, De solut. ; Dom. 1. 4, t. 1, s. 1, n. 7, s. 3, n. 2, s. 2, n. 10 j Poth. 499, 500, 698 : C. N. 1200, 1237. [1. 91.] 1142. If the obligation be to do something which the creditor has an interest in having douQ. by the debtor himself, the obligation cannot be performed by a stranger to OBLIOATIOKS. 183 it without the consent of the creditor.— ff. L. 72, 5 2, De Bolut. } Poth. 600 ; 6 Toul. n. 11 ; 0. 1673, t. 5, a. 3 ; G. L. 2131. [I. 91.] 114:3* Payment to be valid must bo made by one having a legal right in the thing paid which entitles him to give it in payment. — Nevertheless if a sum of money or other thing of a nature to be consumed by use be given in payment, it cannot be reclaimed from the creditor who has consumed it in good faith, although the pay- ment have been made by one who was not the ownor nor capable of alienating it. — ff. L. 54, De reg. jur., L. 14, § fin. L. 94, De solut. ; Poth. 495-498, 540; 6 Toul. n. 6, p. 14; 4 Marc, on a. 1238; C.N. 1238. [I. 93.] Il Payment must be made to the creditor or to some one having his authority, or authorized by a court of justice or by law to receive it for him. — Payment made to a person who has no nv^hority to receive it is valid, if the creditor have ratified the payment or profited by it.— ff. L. 180, De reg. jur. ; L. 12, i. p. § 4, L. 49, L. 15, De solut. et lib. ; Poth. 242, 501, 606, 608 -- ; C. L. 2136 ; C. N. 1239. [I. 93.] 114:5. Payment made in good faith to the ostensible cre- ditor is valid, although it be afterwards established that he is not the rightful creditor. — Poth. 503 ; C. L. 2141 ; C. N. 1240. [I. 93.] 1146. Payment is not valid if made to a creditor who is in- capable by law of receiving it, unless the debtor proves that the thing paid has turned to the benefit of such creditor. — ff. L. 15, L. 47, Do solut. et lib.; Poth. 604-509; C. L. 2143 ; 0. N. 1241. [I. 93.] 1147. Payment made by a debtor to his creditor to the prejudice of a seizure or at- tachment is not valid against the seizing or attaching credi- tors, who may, according to their rights, constrain the debtor to pay a second time ; saving, in such case, only his remedy against the creditor so Said.—Poth. Ob. 505, C. R. 7; C. L. 2145; C. N. 1242. [I. 93.] 1148. A creditor cannot be compelled to receive any other thing than the one due co him, although the thing offered be of greater value than the thing due. — ff. L. 2, § 1, De reb. cred. ; Dom. 1. 4, 1. 1, 8. 2, n. 9 ; Poth. 243,530; C.N. 1243. [1.93.] 1149. A debtor cannot com- pel his creditor to receive pay- ment of his debt in parts, even if the debt be divisible. — [Nor can the court in any case by its judgment order a debt actually payable to be paid by instal- ments without the consent of the creditor.] — ff. 1, L. 21, De reb. cred.; L. 41, § 1, De us.; C. S. L. C. 0. 83, s. 199, c. 94, s. 37 ; C. N. 1244. [I. 93.] 1150i The debtor of a cer- tain specific thing is discharged by tho delivery of the thing in the condition in which it is at the time of delivery, provided that the deterioration in the thing has not been caused by any act or fault for which he is responsible, and that pre- OBLIGATIONS. viottsly to the deterioration ho was not in default. — ff. L. 23, 83, 37, 61, De verb. ob. ; L. 33, De Bolut.; Poth. 544; 0. L. 3161 ; C. N. 1245. [I. 95.] 1151. If the object of the obligation be a thing deter- mined in kind onlj, the debtor cannot be required to give a thing of the best quality, nor can ho offer In ditoharge one of the worst. — Tho thing must be of a merchantable quality. — £E: L. 33, De solut. & lib.; Poth. 283-4; C. L. 2152; C. N. 1246. [I. 95.] ^1152. Payment must be made in the place expressly or impliedly indicated by the obligation. — If no place be so indicated, tho payment, when it is of a certain specific thing, must be made at the place where the thing was at the time of contracting the obliga- tion. — In all other oases pay- ment must be made at the domicile of the debtor; subject, nevertheless, to the rules pro- vided under the titles relating to jpartioular contracts. — ff. L. 9, De eo. q. certo loco; L. 21, De ob. & act. ; Poth. 238-240, 648, 649; C. L. 2153; C. N. 1247. [1.95.] 1153. The expenses attend- ing payment are at the charge of the debtor.— Poth. 650 ; N. For. Paiement, n. 493; C. N. 1248. [1. 95.] 5 2. 0/" 2^^!/^^^ w*'^ subro- gation, 1154. Subrogation in tho rights of a creditor in favor of a third person who pays him, is either conventional or legal. — Ron. Subrogation, o. 2, xxii j C. N. 1249. [I. 95.] 1155. Subrogation is eon- ventional : 1. When the creditor, on receiving payment from a third Eerson, subrogates him in all is rights against the debtor. This subrogation must be express and made at the same time as the payment. 2. When the debtor borrows a sum for the purpose of paying his debt, and of subro- gating the lender in tho rights of the creditor. It is necessary to the validity of the subroga- tion in this case, that tho act of loan and the acquittance be notarial [or bo executed before two subscribing witnesses ;] that in the act of loan it be declared that the sum has been borrowed for the purpose of paying the debt, and that in tho acquittance it be declared that the payment has been made with the moneys fur- nished by the new creditor for that purpose. This subroga- tion takes effect without the consent of the creditor. — [If the act of loan and the acquittance be executed before witnesses, the subrogation takes effect against third persons from the date only of their registration, which is to be made in the manner and according to the rules provided by law for the registration of hypothecs.] — ff. L. 24, § 3, De rob. auc. jud. ; Poth. C. 0. t. 20, n. 78, 80, 81 ; Ren. c. 10, n. 5-7, 12-14, 22, 23; Dom. 1. 4, t. 1, s.'l, n. 9 ; Del May, 1609 ; Arr. 1690 ; C. N. 1250. [I. 97.] 1156. Subrogation takes 0BLI0ATI0X8. 185 takes J>laoe by the sole operation of aw and without demand : 1. In favor of a creditor who pays another creditor whose claim is preferable to his by reason of privilege or hypothec ; 2. [In favor of the purchaser of immoveable property who pu>ys a creditor to whom the property is hypothecated ; 3. In favor of a party who pays a debt for which he is held with others or for others, and has an interest in paying it;] 4. In favor of a beneficiary heir who pays a debt of the succession with his own moneys ; 5. When a rent or debt due by one consort alone has been redeemed or paid with the moneys of the community ; in this case the other consort is subrogated in the rights of the creditor according to the share of such consort in the ocmmu- nity.— C. P. 244, 245 j Ren. c. 4, i. f. ; c. 7, n. 68 & c. 9, n. 7 j Poth. C. 0. t. 20, n. 71-73, C. R. 176, Hyp. c. 2, s. 1, a. 2, § 6, Ob. 280, 281, 620-522 ; 6 J. A. Arr. 26 Aug. 1706 J 1 Dupl. C. P. a. 244, 245, 0. 2, s. 3, p. 450 ; Lem. 239-241, on a. 244, 245, C. P.; Leb. Com. 1. 3, c. 2, s. 1, n. 13 ", p. 409 ; 2 Lob. 46, n. 19, ed. 1775; 7 Toul. 142 - j 4 Marc. 710, 711 j 12 Dur. n. 146 - J C. N. 1251. [I. 99.] 1157* The subrogation de- clared in tho preceding articles takes effect as well against sureties as against principal debtors. It cannot prejudice the rights of the creditor when he has been paid in part only; in such case he may enforce his rights for whatever remains due, in preference to him from whom ho has received payment in part.— Poth. C. 0. t. 20, n. 83, 84, 87, Ob. 280, 550, Hyp. c. 2, s. 3 ; J. A. Arr. June, 1712; Ren. c. 15, 10; C. N. 1252. [I. 09.] i S. 0/ the imputation of pay- menta. 1108* A debtor of several debts has the right of declaring, when he pays, what debt he means to discharge. — ff. L. 1* De solut. et lib. ; Cod. L. 1, e. t. ; Poth. 539, 564 ; Dom. 1. 4, t. 1, 8. 4, n. 1; C. L. 2159; C. N. 1253. [I. 99.] 1159i A debtor of a debt which bears interest or pro- duces rent, cannot without the consent of the creditor impute any payment which he makes to the discharge of the capital, in preference to the arrears of interest or of rent. Any pay- ment made on the capital and interest, but which is not en- tire, is imputed first upon the interest. — ff. L. 5, 99, De solut. et lib.; Poth. 669 570 ; Dom. 1. 4, t. 1, s. 4, n. 7, 8 ; C. L. 2160; C.N. 1254. [1.99.] 1160. When a debtor of several debts has accepted a receipt by which the creditor has imputed what he has re- ceived in discharge specially of one of the debts, the debtor cannot afterwards require the imputation to be made upon a dinerent debt, except upon grounds for which contracts may be avoided. — ff. Arg. ex L. 1, 2, 3, De solut. et lib.; Poth. 566 ; C. L. 2161 ; C. N. 1255. [1. 99.] 188* OBLIGATIONS. I : h I 1161' When the receipt makes no special imputation, the payment must be imputed in discharge of the debt actual- ly payable which the debtor has at the time the greater interest in paying. If of several debts one alone be actually payable, the payment must be imputed in discharge of such debt although it be less burden- some 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. — flf. L. 1, 2, 3, 4, 5, 7, 8 & 103, De Bolut. & lib. J Poth. 630-532 J Dom. 1. 4, t. 1, s. 4, n. 3, 4, 7 j C.L.2162J C.N. 1266. [1.99.] § 4. Of tender and deposit. >kll62i When a creditor re- fuses to receive payment, the debtor may make an actual tender of the money or other thing duo ; and in any action afterwards brought for its re- covery he may plead and re- new 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 bo a sura of money, are equivalent with respect to the debtor to a payment made on the date of tho first tender j provided that from tho date of the first ten- der the debtor continue always ready and willing to deliver the thing or to pay the sum of money. —Poth. Ob. 672, 673, 680 J Id. C. R. n. 203 j Id. D<:'p. 199 ; Dom. 1. 4, t. 1, s. 2, n. 8 ; Lac. Consignation, Offres ; 1 Pi. 430-436 J C. N. 1257. fl. 101.] 'I'llGS. It is necessary to the validity of a tender : 1. That it be made to a cre- ditor legally capable of receiv- ing payment or to some one having authority to receive for him; 2. That it be made on the part of a person legally capa- ble of paying j 3. That it be of the whole sum of money or other thing pay- able, 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 bo made in coin declared by law to be current and a legal tender ; 6. That the term of payment have expired if stipulated in favor of the creditor j 6. That the condition under which the debt has been con- tracted 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 obligatiou or by law, payment should be made.— Poth. 674-580 j C. N. 1258. [I. 101.] 1164. [If, by the terms of the obligation or by law, pay- ment is to be made at the domi- cile of the debtor, a notifica.tion in writing by him to the creditor that ho is ready to make pay- ment has the saane effect as an actual tender, provided that in any action afterwards brought the debtor make proof that he OBLIGATIONS. 187 >a(i the money or thing due ready for the payment at the time and place when and where the same was payable.] [I. 101.] 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 transporta- tion, the debtor must indicate by his tender the place where it is and the day and hour when he is ready to deliver U 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 willing- ness to accept, the debtor may, if Le think fit, remove the thing to any other place for safe- keeping at the risk of the creditor. — Lac. Oflfres ; Poth. Ob. 677 J 2 Kt. 606-509; 2Sto. Con. n. 1006, a. j 2 Glf. Ev. n. 610 J 4 Marc. n. 742, 743 j C. N. 1264. [1. 101.] 1166. So long as the tender and deposit have not been ac- cepted by the creditor, the debtor may withdraw them by leave of the court, in the man- ner provided in the Code of Civil Procedure, and if he do so his codebtors or sureties are not discharged. — Poth. 680 ; C. N. 1261. [1. 103.] 1167. When the tender and deposit have been declared valid by the court, the debtor cannot, even with the consent of the creditor, withdraw them to the prejudice of his codebtors or sureties or otuer third per- sons. — Poth. 1. c. ; C. N. 1262> 1263. [I. 103.] 1168. The mode in which tenders and deposits must be made is provided in the Code of CivU Procedure. [I. 103.] SECTION III. Of novation. 1169. Novation is effected : 1. When the debtor contracts towards 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 credi- tor j 5. When by the effect of a new contract, a new creditor is substituted for a former one toward whom the debtor is discharged. — ff. L, 1, 2, 11, De nov. et del. j Cod. L. 1, 3, e. t. i Poth. 682-584, 697, 606 j Dom. 1. 4, t. 3, s. 1, n. 1, t. 4, s. 1, n. 1; 7 Toul. n. 274; a Zach, 448, n. 16 ; 2 Delv. 172, on a. 1271; C. N. 1271. [I. 103.] 1170. Novation can be ef- fected only between persons capable of contracting. — ff. L. 3, De nov. et del. L. 20, § 1, e. t.; Poth. 690-592; Dom. 1. 4, t. 3, 8. 2, n. 1 ; C. N. 1272. [1.103.] 1171. Novation is not pre- sumed. Tfao intention to effect it must be <>vident. — ff. L., 2, De nov. et del. ; Dom. 1. 4, t. 3,8. 1, n. 1; Poth. 694; C. N» 1273. [1.103.] 1172. Novation by the sub- stitution of a new debtor may be effected without the con- 188 OBLIGATIONS <5urrence of the former one. — Cod. L. 1, Do nov. et del.; ff. L. 8, § 6, De nov. j Poth. 698 ; Dom. 1. 4, t. 3, 8. 1, n. 2 : 0. N. 1274. [1.103.] 1173. The delegation by which a debtor gives to his creditor a new debtor who obliges himself towards the creditor does not effect nova- tion, unless it is evident that the creditor intends to dis- charge the debtor who makes the delegation. — ff. L. 11, De nov. et del. J Poth. 600, 603 j Dom. 1. o.j C. N. 1275. [I. 105.] 1174. The simple indica- tion by the debtor of a person who is to pay in his place, or the simple indication by the creditor of a person who is to receive in his place, or the transfer of a debt w ' ih or with- out the acceptance of the debt- or, does not effect novation. — ff. L. 20, 21, 25, De nov. et del. j Poth. Ob. 605, Vente, 551, 663 j 7 Toul. 274; 3 Zach. 448, n. 16 ; C. N. 1277. [1. 105.] 1175. A creditor who has diicharged his debtor by whom delegation has been made, has no remedy against such debtor, if the person delegated become insolvent, unless there is a^spe- K1209. Notifications, pro- tests and services may be made by one notary, at the request of a party whether such party has or has not ac- companied him or signed the act. — Such instruments are au- thentic and make proof of their contents until contradicted or disavowed. — But nothing in- serted 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. — C. S. L. C. c. 73, s. 27. [I. 117.] 1210. An authentic writing makes complete proof between the parties to it and their heirs and legal representatives : 1. Of the obligation express- ed 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 servo only as a commence- ment of proof. — Poth. Ob. 735- 737; Dum. C. P. 558, § 8, gl. I, n. 10 i C. N. 1319, 1320. [I. 117.1 1211. An authentic writing may be contradicted and set aside as false in whole or in part, upon an improbation in the manner provided in the Code of Civil Procedure and in no other manner.- -[I. 119.] 1212. Counter-letters have e£fect between the parties to them only j they do not make proof against third persons. — ff. L. 27, § 5, De pac. ; Cod. L. 2, Plus val. q. ag. j Dom. 1. 3, t. 6, s. 2, n. 14, 15 ; 8 Toul. 182 - : 2 Char. Dol, n. 51 ; C. N. 1321. [1. 119.] 1213. Acts of recognition do not make proof of the pri- mordial title, unless the sub- stance of the latter is specially set forth in the recognition. — Whatever the recognition con- tains over and above the pri- mordial title, or different from it, does not make proof against it.— Nov. 119, c. 3 ; Poth. Ob. 777, 779 J Id. Rente, 147-149» 153 J C.N. 1337. [1.119.] 1214. The act of ratifica- tion or confirmation of an obli- gation which is voidable docs not make proof unless it expresses the substance of the obligation, the cause of its being voidable and the inten- tion to cove? the nullity. — C. N. 1338. [1.119.] § 2. Q/" copies of authentic ■writings, 1215. Copies of notarial instruments, certified to be truA copies of the original, by tho notary or other public officer, who has the legal custody of such original, are authentic and make proof of what is con- tained in the original. — Poth. Ob. 755 — J C. S. L. C. c. 73, s. 31, n. 8; C. N. 1334. [1.119.] 1216. Extracts duly certi- fied and dljlivercd by nota- ries or by the pro thonoto tips of the Superior Court from the OBLIGATIONS. 195 originals of authentic instru- ments lawfully in their custody are authentic and make proof of their contents ; provided such extracts contain the date, place of execution and nature of the instrument, the names and description of the parties to it, the name of the notary before whom it was 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 the originals. — C. S. L. G. o. 73, s. 28 ; C. N. 1336. [I. 119.] 1217. When the original of any notarial instrument has been lost by unforeseen acci- dent, a copy of an authentic copy thereof makes proof of the contents of the original, provided that such copy be at- tested by the notary or other public officer with whom the authentic copy has been depo- sited by judicial authority for the purpose of granting copies thereof, as provided in the Code of Civil Procedure. — Poth. Ob. 766-775 J Imb. 1.1, c. 47, n. 4, p. 321 ; C. N. 1335. [1. 119.] 1218. Copies of notarial in- struments and of extracts therefrom, of all authentic do- cuments, whether judicial or not, of papers of record, and of all documents and instruments in writing, even those under private signature, or executed before witnesses, lawfully re- gistered at full length, when such copies bear the certificate of the registrar, are authentic evidence of such documents, if the originals have been de- 17 stroyed by fire or other acci- dent, or otherwise lost — Poth. Ob. 772-3 ; Boic. pt. 1, c. 11 1 C.N. 1336. [1. 121 J III. 381.] 1219. If in such cases the original document bo in the possession of an adverse party, or of a third party, without col- lusion on the part of the per- son who relies upon it, and it cannot be produced, the copy certified as in the preceding article makes proof in like manner. — C. S. L. C. o. 37, s. 20, p. 349 J Poth. Ob. 772, 773. [I. 121 ; III. 381.] 5 3. Of certain writinga exe- cuted out of Lower Canada. ^1220. The certificate of the secretary of any foreign state or of the executive government thereof, and the original docu- ments and copies of documents hereinafter enumerated, exe- cuted out of Lower Canada, make jprimd facie proof of the contents thereof without any evidence being necessary of the seal or signature affixed to such original or copy, or of the authority of the officer granting the same, namely : — C. S. L. C. c. 90, s. 4. 1. Exemplifications of any judgment or other judicial proceeding 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: — lb. s. 5. [L 121.] 2. Exemplifications of any will executed out of Lower Canada, under the seal of ■1 196 OBLIGATIONS. I i the court wherein the original will is of record, or under the signature of the judge or other officer haying the legal custody of such will, and the probate of such will under the seal of the court ; — lb. s. 6. 3. Copies of the exemplifica- tion of such win and of the probate thereof certified by the prothonotary of any court in Lower Canada, in whose office the exemplification and probate have been recorded, at the instance of an interested f>arty and by the order of a udge of such court ; such probate is also receired as proof of the death of the testator; — lb. s. 5. 4. Certificates of marriage, baptism or birth, and burial of persons out of Lower Canada, under the hand of the clergy- man or public officer who offi- ciated, and extracts from any register of such marriage, baptism or birth, and burial, certified by the clergyman or public officer having the legal custody thereof J — lb. s. 3. 5. Notarial copies of any power of attorney executed out of Lower Canada, in the presence of one or more wit- nesses and authenticated be- fore the mayor of the place or other public officer of the country where it bears date, the original whereof is depo- sited with the notary public in Lower Canada granting the copy ; — lb. s. 8. 6. The copy taken by a pro- thonotary or a clerk of a circuit court in Lower Canada of any power of attorney executed out of Lower Canada in the presence of one or more wit- nesses and authenticated be- fore any mayor or other publio officer of the country where it bears date, such copy being taken in a cause wherein the original is produced by a wit- ness who refuses to part with it, and being certified and deposited in the same cause; — lb. 8. 11. — The original powers of attorney mentioned in the preceding paragraphs numbers five and six, are held to be duly proved ; but the truth of the exemplifications, probates, certificates, or ex- tracts, and the original powers of attorney mentioned in this article, may be denied and proof thereof be required in the manner provided in the Code of Civil Procedure. — lb. s. 7, 9, 12. [1. 121 J III. 383.] § 4. Of private wrttinga, 1221. A writing which is not authentic by reason of any defect of form, or of the incom- petency of the officer, avails as a private writing, if it have been signed by all the parties; saving the provisions contained in article 895. [I. 123; IIL 383.] 1222. Private writings ac- knowledged by the party against whom they are set up, or legally held to be acknow- ledged or proved, have the same effect in making proof between the parties thereto, and between their heirs and legal representatives, as au- thentic writings. — Poth. Ob. 742, 3;C.'S. L. C. c. 83, §2, s. 86; C.N. 1322. [L 123.] 1223. If the party against OBLIGATIONS. 197 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 that they do not know his writing or signature. — C. S. L. C. o. 83, s. 86;0. N. 1324. [t. 123.] 1224. In the ease of formal denial by a party of his writ« ing or signature, or in the ease 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. —0. N. 1324. [I. 123.] 1225. Private writings have no date against third persons but from the time of their regis- tration, 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 au- thentic instrument. — The date nay nevertheless be establish- ed against third persons by egal proof.— Poth. Ob. 760 j 3. S. L. C. p. 349-50 ; 6 Marc. 56-58 J 10 P. Fr. 345 j C. N. 1328. [I. 123.] 1226. The rule declared in :he last preceding article does not apply to writings of a com- mercial nature. Such writings are presumed to have been made on the day they bear date, in the absence of proof to the contrary. — 1 Tay. 153, n. 137 ; 3 L. C. R. Hays & David; 1 Nou. 82. [I. 123 j III. 383.] 1227. Family registers and papers do not make proof in favor of him by whom they are written. They are proof against him : 1. In all oases in which they formally declare a payment re- ceived ; 2. When they contain express mention that a minute is made to supply a defect of title to a person in whoso favor an obli- gation is declared to exist. — Cod. L. 7, De prob. ; Poth. Ob. 758, 769 J Boic. pt. 2, c. 8, n. 14; 0. N. 1331. [1. 123.] 1228. What is written by the creditor on the back or upon any other part of the title wnioh has always remained in his possession, though the writing be neither signed nor dated, is proof against him when it tends to establish tho discharge 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 re- ceipt is proof, provided such duplicate be in the hands of the debtor. — Poth. Ob. 760, 761 ; C. N. 1332. [1. 125.] 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 payment is made, is received in proof of such payment so as to take the debt out of the operation of the law respecting the limitation of actions. — C. S. C. o. 67, s. 4. [I. 125.] SECTION III. Of testimony. 1230. The testimony of one witness is sufficient in all oases ii 198 OBLIOATIOXl. in which proof by tostimony is admitted. — C. S. L. C. o. 82, s. 16, p. 698. [1. 125.] ^ 1231* All persons are legal- ly competent to give testimony, except : 1. Persons deficient in under- standing, whether from imma- turity of age, insanity or other cause ; 2. Those insensible to the religious obligation of an oath ; 3. Those civilly dead ; 4. Those declared infamous by law ; 5. Husband and wife, for or against each other. — Poth. 823; C. S. L. C. lb. s. 14; 1 Glf. Ev. 366, 368, 672 j Tay. 1091. [I. 126.] ^ 1232 Testimony given by a party In a suit cannot avail in nis favor. — A witness is not rendered incompetent by reason of relationship or of being in- terested in the suit; but his credibility may be affected thereby.— Glf. Ev. n. 366 — , 0. 4, pt. 2, c. 2, pt. 3 ; 0. S. L. C. lb. s. 14, 16. [1. 126.] 1233. Proof may be made by testimony : 1. Of all facts concerning commercial matters ; 2. In all matters in which the principal sum of money or ralue 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 0/ Lease ana Hire ; 4. In cases of necessary deposits, or deposits made by travellers in an inn, and in other cases of a like nature; 6. In cases of obligations arising from quasi-contracts, offences, and quasi-offences, and all other cases in which the party claiming could not procure proof ip writing ; 6. In cases in which the Eroof in writing has been lost y unforeseen accident, or is in the possession of the adverse party or of a third person with- out collusion of the party claim- ing, 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, neverthe- less, subject to the exceptions and limitations specially de- clared in this section, and to the provisions contained in article 1690.— C. S. L. C. 698, 699, 400; 0. Moul. a. 64; 0. 1667, t. 20, a. 2, 3, 4; 9 Toul. n. 20, 26 ; 3 Zach. § 696, p. 617, n. 1 ; Bor. n. 99 ; 6 Marc. 1341, p. 100; Poth. Ob. 772, 801, 1 809-816 ; Mori. Preuve, s. 2, § 3, a. 1, n. 16 ; Serp. 0. 1667, p. 317, 318; Glf. Ev. s. 658, s. 84, n. 2; C. N. 1341. [I. 126 J III. 383.] ''^1234:. Testimony cannot in any case, be received to contra- dict or vary the terms of a valid written instrument. — God. L. 1, De test ; Dom. 1. 2, t. 6, s. 2, n. 7 ; Poth. Ob. 7^93 ; 0. 1667, t. 20, a. 2 ; 1 Glf. Ev. n. 276 -- ; C. N. 2341. [1. 127.] '''1235i In dtmmercial mat- ters in which the sum of money or value in question exceeds [fifty dollars,^ no action or ex- ception can be maintained against any party or his repre- sentatives unless there is a OBLIGATIONS. lot writ' Iff signed by the fofjfier, in tho following cases : 1. Upon any promit'' or ac- knowledgment whereby a debt is taken out of tho operation of the law respecting the limita- tion of actions ; 2. Upon any promise or rati- fication made by a person of tho age of majority, oi any obliga- tion contracted during his mi- nority J 3. Upon any representation, or assurance in favor of a per- son to enable him to obtain credit, money or goods there- upon; 4. Upon any contract for the sale of goods, unless the buyer has accepted or received part of the goods or given some- thing in earnest to bind the bargain; — The foregoing rule applies although the goods be intended to be delivered at some future time or be not at the time of the contract ready for delivery. — C. S, L. C. o. 67, 8. 2, 6-8 ; I. S. 29 Car. II, c. 3,8.17. [1.127.] 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.] — 0. N. 1344. [1.129.] 1237. [If in the same ac- tion several sums be demanded which united form a sum exceeding fifty dollars, proof 14* by iosUmony may be received if the debts have arisen from difforont causes or have been contracted at different times, and each were originally for a sum less than fifty dollars.] — 0. 1667, t.l7, a. 4; P. V. C. 217 J C.N. 1346. [1.129.] SECTION IV. Ofpresump Uona. 1238. Presumptions are either established by law or arise from facts which aro left to the discretion of the courts. —1 CuJ. in parat., ad t. 3, ff. L. 22, p. 678 ; Poth. Ob. 840 : C. N. 1349. [1. 129.] 1239. Legal presumptions 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 pre- sumptions juris et de Jure and cannot be contradicted. — Cuj. 1. 0., 6 Cuj. ad. t. 23, De prae- sumpt. 869 ; Men. 1. 1, q. 3, 1 ; Poth. Ob. 481-3; C. N. 1362. [1. 129.] 1240. No proof is admitted to contradict a legal presump- tion, when, on the ground of such presumption, the law an- nuls certain instruments or disallows a suit, unless the law has reserved the right of mak- ing proof to the contrary, and saving what is provided with respect to the oaths or judicial admissions of a party. — Men. 1. 1, q. 3, 18; Poth, Ob. 841-3, 886,8 : 10 Toul. 60 ; C. N. 1362. [1. 131.] 1241. The authority of a %w OBLIGATIONS. final judgment (rea judicata) is a presumption J ttrt««t dejure ; it applies only to that which has been the object of the judgment, and when the de- mand 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. — ff. De excep. rei jud. j Poth. Ob. 61, 888, 897 j 10 Toul. 88; C.N. 1361. [1. 131.] *1242. Presumptions not es- tablished by law are left to the discretion and judgment of the court. — Men. 1. 1, q. 44 ; Poth. Ob. 849 ; 10 Toul. 29 : 0. N. 1353. [I. 131.] SECTION V. Of admissions. 124:3. Admissions are extra- judicial or judicial. They can- not be divided against the party making them.— 9 Cuj. 0. 1013, Dj 10 Toul. 383: C. N. 1354. [1.131.1 12^4. An extra-judicial admission must be proved by writing or the oath of the party against whom it is set up, ex- cept in the cases in which, ac- cording to the rules declared in this chapter, proof by tes timony is admissible.— Poth. Ob. 834; 9 Toul. 396 J 10 Id. 406; C.N. 1355. [1. 131.] 1245. A judicial admission is complete proof against the party making it. — It cannot be revoked unless it is proved to have been made through an error of fact.— flf. L. 1, 2, 4, De conf., L. 25, De prob. ; Men. prees. 51, 1. 2, q. 39 ; Poth. Ob. 833; 10 Toul. 383, 11 Id. 79; C. N. 1356. fl. 131.] SECTION VI. Of the oaths of parties. 1246* A party may be ex- amined under oath in like man- ner as a witness, or upon inter- rogatories on articulated facts or by decisory oath. And the court may, in its discretion, examine the parties or either of them in order to complete imperfect proof — C. S. L. 0. c. 32, s. 15, 19, 20; ff. De jurej.; Cod. De reb. cred. ; Poth. Ob. 911,912; 10 Toul. 474; 0. N. 1357. [I. 131.] I 5 1. C|^ the deeiaory oath, ISAil, The decisory oath may be offered by either of the parties to the other, in any action in which the parties may legally bind themselves by ad- mission or compromise, and without any commencement of Sroof.— ff. L. 34, § 6, De jurej. ; bd. L. 12, De reb. cred. ; Cuj. obs. 22, n. 28, col. 607 ; 0. N. 1358, 1360. [I. 133.] 1248. It can only be offered upon a fact which is personal to the party to whom it is of- fered, or of which he has a per- sonal knowledge. — ff. L. 34, § 3, De jurej. ; Poth. Ob. 912, 914; C. N. 1359. [I. 133.] 1249. He to 'rhom the decisory oath is offered and who refuses to take it, and does not refer it to hia adver- sary, or the adversary who refuses to take it, when it is referred to him, fails in his demand or exception. — ^ff. L. 34, § 6, 7,- L. 38, De jurej.; Poth. Ob. 916; C. N. 1361. [1. 133.] OBLIGATIONS. 201 1850r The oath oannot be referred when the fact whioh is the object of it is not personal or personally known to both the parties, but to him alone to whom it has been offered. — S. L. 34, § 1 & 3, De jurejur. ; Poth. 916 J C. N. 1362. [I. 133.1 1251* When a party to whom the deoisory oath has been offered or referred hfs made his declaration under it, the adverse party is not ad- mitted to prove its falsity. — ff. L. 5, § 2, L. 9, § 1, De jurej.j ff. L. 15, De except. ; Poth. Ob. 915 J C. N. 1363. [I. 133.] *1252. A party who has offered or referred the decisory oath cannot retract after a declaration by the adverse party that he if • cady to take the oath. — Cod., Dq reb. cred., L. 11 i Poth. Ob. 915 J C. N. I3ft4. [1.133.] 1253i The decisory oath cannot affect the rights of third persons, and it extends only to the things with respect to which it has been offered or referred. — [If offered by one of joint and several creditors to the debtor, it avails the latter for the part only of such cre- ditor, suDJect, nevertheless, to the special rules applicable to commercial partnerships.] — If offered to the principal debtor it avails his sureties.— If offer- ed to one of joint and several debtors, it avails his codebtors. If >ff«red to a surety it avails the principal debtor.— In the last two oases the oath of the codebtor or of the surety avails the other codebtors or the principal debtor only when it has been offered upon tho fact of the debt and not solely upon the fact of the joint and several liability or of the sure- tyship.— ff. L. 10, De jurej., ff. L. 27, L. 28, De jurej. ; Poth. Ob. 917, 918 J 10 Toul. 504, 5 j C. N. 133, 1198, 1366. [I. 133.] §2. 0/ the oath put officially, 125^ The court may, in its discretion, examine either of the parties on oath, in order to complete the proof necessary for the decision of the cause, or for determining the amount for which judgment ought to be given; but only in cases where some proof has been made of the demand or ex- ception. — ff. L. 1, De jurej.; Cod. L. 3, De reb. cred. j Vin. Q. S. 1. 1, c. 44; Poth. Ob. 922; C. N. 1367. [I. 135.] 1255. The oath put by the court officiallv to one of the parties cannot be referred by him to the other party. — ^Vin. 1. 1, c. 43 ; Poth. Ob. 929 ; C. N. 1368. [I. 135.] 1256. The oath, upon the value of the thing demanded can only be put by the court officially to the party claiming when it is impossible to estab- lish such value otherwise. — 0. N. 1369. [I. 136.] m TITLE FOURTH. OF MARRIAGE COVENANTS AND OF THE EFFECT OF MARRIAGE UPON THE PROPERTY OF THE CONSORTS. ■ !) CHAPTER FIRST. OENEBAL PBOYISIONS. 1257. AH kinds of agree- ments, may be lawfully made in contracts of marriage, even those which, in any other act inter vivos, would be voidj such as the renunciation of jBUCcessions which have not yet devolved, the gift of future property, the conventional ap- S ointment of an heir, and other ispositions in contemplation of death. — ^Leb. Com. 1. 1, c. 3, n. 4 ; Ren. Com. pt. 1, o. 4, n. 1 J Poth. Com. intr. n. 1, 4, 6, C. 0. t. 10, n. 34 J 11 P. Fr. 222 -- 5 C. N. 1387. [II. 399.] 1258* All covenants con- trary to public order or to good morals, or forbidden by any prohibitory law, are, however, excepted from the above rule. — Author, under a. 1257 j 11 P. Fr. 224 -J C.N. 1387. [II. 399.] 1259. Thus the consorts cannot derogate from the 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 asso- ciation, nor from the rights conferred upon the consorts by the title Of Paternal Authority and the title 0/ Minority, Tu- toraJnp and Emancipation in the present code. — ^ff. L. 28, L. 38, De pact., L. 5, § 7, De admin, et peric. tut., L. 5, L. 6, De pact. dot. ; Poth. Com. n. 4-7, C. 0. t. 10, n. 34; Merl. Renonoiation, § 1, n. 3, Separa- tion de biens, s. 2, § 5, n. 8 ; 11 P. Fr. 225-; C. N. 1388. [II. 399.] 1260. If no covenai)ts have been made, or if the contrary have not been stipulated, the consorts are presumed to have intended to subject themselves to the general laws and cus- toms of the country, and parti- cularly to the legal community of property, and to the custom- ary 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. — Poth. Com. intr. n. 18, al. 2, Com. n. 4, 6, 7, 10, 21, Ob. n. 844, Mar. n. 47, 393, CO. t. 10, n. 32; C, N. 1393. [II. 401.J 1261. In the case of the preceding article, the commu- nity is established and govern- ed in accordance with the rules set forth in the second chapter, and those relfiting to dower are laid down in the third chapter in the present title. [II. 401.] VABBIAOE COVENANTS, ETC. 203 1262* Community of pro- perty, which the consorts are f^ee 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. [II. 401.] 1263i 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, ahd is called in such case, prefixed or conventional dower, the most ordinary rules concerning which are contain- ed in the first section of the third chapter of this title. [II. 401.1 1264. All marriage cove- nants must be made in notarial form, and before the solemniz- ing of marriage, upon which they are conditional. — Con- tracts of marriage made in certain localities, for which an exception has been created by special laws, are exempted from the necessity of being in notarial form. — C. 0. 202 j Poth. Mar. n. 48, 396, Com. intr. n. 11, 12, C. 0. t. 10, n. 32, 33 J Mori. Don. s. 2, § 8, Test. s. 2, § 1, a. 4; C. N. 1394; C. S. L. C. c. 38, s. 13. [II. 401.] ^ 1265. After marriage, the marriage covenants contained in the contract cannot be alter- ed [even by the mutual dona- tion of usufruct, which is abolished;] nor can the con- sorts in any other manner confer benefits inter vivos upon each other, except in con- formity with the provisions of the act 29th Vict., ch. 17, under which a husband may, subject to the restrictions and condi- tions therein mentioned, insure his life for the benefit of his wife and children. — Lepr. cent» 1, c. 98 ; L. & B. let. M. c. 4 ; 4 J. A. 1. 8, c. 30 ; Lam. Arr. t. 32, a. 5; Poth. Mar. n. 48, Com. intr. n. 18, 19 j C. N. 1395. [II. 401 } III. 383.] 1266. Alterations made in marriage -covenants, before the celebration of the marriage, must, 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 contract as are in- terested in such alterations.—- C. P. 268 J C. 0. 223 J L. & B. let. C. c. 28 ; Poth. Com. intr. n. 13, 14, 16, Lam. arr. t. 32, a. 5, 6 J C.N. 1396, 1397. [11.401.] 1267. [Minors capable of contracting marriage, may validly make, in favor of their future consorts or child- ren, 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 whoso 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.] — ff. L. 8, de pao. dot. ; L. 61, L. 73, de ju. dot. L. & B. let. M, c. 9 ; Bac. D. J. c. 21, n. 390 ; Poth. Com. n. 103,306, CO. 10, n. 61; C.N. 3398. [II. 403.] 204 JIABBIAOE OOYEKAirrS, ETC CHAPTER SECOND. OF GOMMUNITT OF PBOPEBTT. 1268. There are two kinds of oommunity of property : legal community, the rules governing which are contain- ed 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. — Poth. Com. 4, 9, 10 -. [11- 403.] 1269. [Community, whether legal or conventional, com- mences from the day the mar- riage is solemnized ; the parties cannot stipulate that it shall commence at any other period.] —0. P. 220 J Dum. M. on 508 j Poth. Com. 4, 22, 23, 276, 1. 10, n. 32 J Merl. Com. § 4, n. 1 j C. N. 1399. [II. 403.] SECTION I. Of legal community. 1270. Legal community is that which the law, in the absence of stipulation to the contrary, establishes between consorts, by the mere fact of their marriage, in respect of certain descriptions of pro- perty, which they are pre- sumed to have intended to sub- ject to it. — Poth. Com. 10. [II. 403.] 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 madi of it, when it is not expressly nor impliedly excluded, and also when there is no marriage ooctract. In all cases it is governed by the rules set forth in the following articles.— Poth. 279; 3 Delv. 9 J C.N. 1400. [IL 403.] § 1. What things compose the assets and liabilities of the community. 1272. The assets of the community consist : 1. Of all the moveable pro- perty 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 what- soever 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 marriage, or from pro- perty which has accrued to them during marriage, by any title whatever J 3. Of all the immoveables they acquire during the marri- age.— C. P. 220 J Leb. Com. 1. 1, 0. 5, dist. 1, n. 1, 2, 3 ; Poth. Com. 25, 26, 100, 102, 185, 182, 204, 206, 208, 232, 264, 265, 268, C. 0. t..lO, n. 6 - 8, 23, P. mar. 90 ) Merl. Com. § 1, n. 4, § 4, n. 2 J 11 P. Fr. 263 -j Fen. Poth. 227-8 j Tr. Mar. n. 605 J C.N. 1401. [11.403.] 1273. All immoveables are deemed to be joint acquests of the community, if they be not proved to have belonged to one MABBIAOB OOVENANTS, ETC. 205 of the consorts, or to have been in his legal possession, pre- viously to the marriage, or to have fallen to him subsequently by succession or other equiva- lent title. — ff. L. 61, De don. int. V. et uxj C. P. 278 j Leb. Com. 1. 1, 0. 5, dist. 3, n. 2 ; Bour. 1. 3, t. 10, pt. 2, o. 10 ; Poth. Com. 106, 107, 113, 121, 122, 123, 130, 203; 11 P. Fr. 289 J C.N. 1402. [11.405.] 1274:i Mines and quarries are subject as regards com- munity, to the rules laid down concerning them, in the title Of Usufruct, Uae and Habita- tion. — The product of such mines and quarries as are open- ed during the marriage, upon the private property of one of the consorts, does not fall into the community; but such as were opened and worked pre- viously to the marriage, may continue to be worked for the benefit of the community. — ff. L. 9, De u. et quem.j L. 7 do sol. matr. ; L. 18, De f. dot. ; Leb. Com. 1. 1, c. 5, s. 2, dist. 2; Poth. Com. 97, 98, 204, 207, 210,640, C. 0. 100, 123 J 11 P. Fr. 290 - ; C. 460 j C. N. 1403. [II. 406.] 1275. The immoveables which the consorts possess on the day when the marriage is solemnized, or which fall to them during its continuance, by succession or an equivalent title, do not enter into the com- munity. — Nevertheless, if, after the contract of marriage in which community is stipulated, and before the marriage is solemnized, one of the consorts purchase an immoveable, the immoveable purchased in such interval, falls into the commu- nity ; unless the purchase has been made in execution of some clause of the contract, in whioh case it is regulated according to the agreement. — ff. L.. 9, L. 73, pro soc. I L. 45, de adq. vel om. her; C. P. 246 ; Leb. 1. 1, c. 4, n. 9 ; 2 Lau. C. P. 247 — ; Poth. Com. 140, 141, 157, 186, 197, 281, 603, 604, C. 0. 1. 10, n. 9, 112 ; Ren. c. 3, n. 2 ; 3 Mai. 191; 11 P. Fr. 240--; C. N. 1404. [II. 405.] 1276. Gifts by contract of marriage, those which are in contemplation of death includ- ed, gifts during marriage, and legacies, made by ascendants of one of the consorts, either to the consort entitled to inherit from them or to the other, are deemed, as regards immove- ables, unless there is an ex- press declaration to the con- trary, to be made to the consort entitled to inherit, and are his private property, as being ac- quired under a title equivalent to succession. — The same rule applies even when the gift or the legacy, in its terms, is made to both consorts jointly. — All gifts and legacies thus made to the consorts jointly, or to one of them, by others than ascendants, come under the contrary rule, and fall into the community, unless they have been expressly excluded. — C. P. 246 ; C. 0. 211 ; Poth. Com. 137, 149, 158, 168, 169, 170; 3 Mai. 192; 11 P. Fr. 314 -; Tr. Mar. 602-3; C. N. 1406. [II. 406.] 1277. Immoveables aban- doned or ceded to one of tho consorts, by his father oi S06 MABRIAOE COVENANTS, ETC. I I mother, or any other ascendant, either in satisfaction of debts due him by the latter, or subject to the payment of the debts due by the donor to strangers, do not fall into the community ; saving compensa- tion or indemnity. — Poth. Com. 130-132, 134, 136, 139, 168, 171, 172, 627; 11 P. Fr. 324; C. N. 1406. [11.407.] 1278* Immoveables ac- quired during marriage, in exchange for others which belong to one of the consorts, do not enter into the commu- nity, and are substituted in the place and stead of the immoveables thus alienated; saving compensation if a dif- ference have been paid. — ff. L. 26, L. 27, De ju. dot.j Leb. Com. 1. 2, c. 5, dist. 2, n. 12 ; Poth. Com. 197 j Darg. 0. Br. 418 : 2 Mai. 193 j 11 P. Fr. 326} C.N. 1407. [11.407.] 1279. A purchase made during marriage, under title of licitation, or otherwise, of a portion of an immoveable, in which one of the consorts owned an undivided share, does not constitute a joint acquest; saving the right of the community to be indemni- fied for the amount withdrawn from it, to make such purchase. — Where the husband, alone and in his own individual name, acquires by purchase or by adjudication, part or the whole of an immoveable, in which the wife owned an undi- vided share, she has the option, at the dissolution of the com- munity, either of abandoning the immoveable to the commu- nity, which then becomes her debtor for her share in the price, or of taking back the immoveable and refunding to the community the price of the purchase.--th Com. 198; 11 P. Fr. 387, 388; 11 Toul. 616 ; C. N. 1434. [II. 416.1 1306. The declaration of the husband, that the purchase is made with moneys arising from an immoveable sold by his wife and for the purpose of replacing it, is not suttioient, if such replacement have not been formally accepted by the wife, either by the deed of purchase itself, or by some other subsequent act made before the dissolution of the community. — Cod. L. 12, De ju. dot. ; Leb. Com. 1. 1, c. 5, dist. 3, n. 8, 1. 3, s. 1, dist. 2, n. 72 ; Poth. Com. 199, 200 ; 3 Mai. 208 ; 11 P. Fr. 389 - ; 3 Delv. 17 ; 12 Toul. 616-636 ; C. N. 1435. [II. 415.] 130*7* The compensation for the price of an immoveable belonging to the husband can be claimed only out of the mass of the community; that for the price of an immoveable belonging to the wife, may be claimed out of the private pro- perty of the husband, if the property of the community prove insufficient. — ^In all cases, such compensation consists in the price brought by the sale and not in the real or con- ventional value of the immove- able sold.— C. P. 232 ; Leb. Com. 1. 3, c. 2, s. 1, dist. 2 ; Poth. Com. 586, 588, 610, C. 0. t. 10, n. 100, 101 ; 11 P. Fr. 393 ; C. N. 1436. [II. 416.] 1308. If the consorts have jointly benefited their common child, without mentioning the proportion in which they each intended to contribute, they 212 MARRIAGE COVENANTS, BTO. are deemed to have intended to cootribute equally, whether Buch benefit has been furnished or promised out of the effects of the oommunity, or out of the private property of one of the consorts ; in the latter case, Buoh consort has a right to be indemnified out of the property of the other, for one half of what he has so furnished, re- gard being had to the value which the object given had at the timo of the gift. — Lob. Com. 1. 3, c. 2, 8. 1, dist. 6; Hen. Com. pt. 2, c. 3, n. 15 ; Poth. Com. 649-655, Sue. c. 4, a. 2, S 6, 0. O.t. 10, n. 85, 86, 131 j 11 P. Fr. 401, 402 J 12 Toul. 486-497 J C. N. 1438. [II. 417.1 1309t Any benefit conferred by the husband alone upon a common child is chargeaole to the community, and if the wife accept the community she bears one half, unless the hus- band has declared expressly that he charged himself with the whole or with more than the half of such benefit. — Ren. Com. pt. 1, c. 6, n. 12, c. 13, n. 15 J 2 Arg. 1. 3, c. 8j Poth. Com. 647, 648, 656, 657, Sue. 0. 4, a. 2, § 6, C. 0. 1. 10, n. 87 j 3 Mai. 212 J IIP. Fr. 402 j C. N. 1439. [II. 417.] 5 3. Of the diaaolution of the community and of its con- tinuation in certain caaea, 1. Of the dissolution of the commu- nity. 1310. The community is dissolved : 1. By natural death ; 2. By civil death j 3. By sepa- ration from bed and board; t C. [II. 4. By separation of property ; 5. By the absence of one of thtt consorts, in the cases and with- in the restrictions sot forth in articles 109 and llO.^ff. L. 59, L. 63, Prosoo. 9 inhered; Poc. Com. r.40,p. 382; Poth. Com. 503-6, Mar. 522, C. 0. t. 10, n. 87, 88; 3 Toul. 23, 24 109, 110; 0. N. 1441. 417.J loll. Separation of proper- ty can only be obtainedjudici- ally, before the court of the do- micile, when the interests of the wife are imperiled and the disordered state of the hus- band's afTairs gives reason to fear that his property will not be sufficient to satisfy what the wife has a right to receive or to get back. — All voluntary separations are null. — Cod. L. 29, L. 50, de jur.' dot. ; "^^ — Nov. 97, c. 6 ; Lam. t. 32, a. 85 ; Poth. Com. 510-2-4-7, C. 0. t. 17, n. 89 J 3 Mai. 214; 11 P. Fr. 212 ; Merl. Separation de biens, s. 2, § 2, n. 8 ; C. N. 1443. [II. 417.] 1312. Separation of proper- ty, although judicially ordered, has no effect, so long as it has not been carried into execu- tion, either by the actual pay- ment, established by an authen- tic act, of what the wife has a right to receive or to get back, or at least by proceedings in- stituted for the purpose of ob- taining such payment. — Poth. Com. 518, 523, P. mar. 18; C. 0. a. 198, n. 5 ; Lac. Separa- tion, n. 6, p. 639 ; Lam. t. 32, a. 85 ; 2 Pi. 195 - ; Mori. Sepa- ration de biens, s. 2, § 3, a. 2, n.6; C.N. 1444. [II. 417.] 1313. [Every judgment MABBUOB OOYENAXTS, KTO. 21t 5rderin{f separation of pro- perty must be inscribed, with- out delay, by the prothonotary of the court which rendered the Jnd;^ment, upon a list kept for that purpose and posted in his office ; and such inscription and the date thereof must be mentioned at the end of such judgment, in the register in which it is recorded. — The separation affects third parties, from the day only when these formalities have been complied with.] — Special formalities are necessary in order to obtain judgments of separation of property against traders, as rrovided in The Insolvent Act, 864.— C. 0. 198 J 0. 1673, t. 8, a. 1, 2; Poth. Com. 517, 521 ; 2 Pi. 195 ; G. 333 ; 2 Mai. 215 : 11 P. Fr. 415 j C. N. 1445. [II. 417 J III. 383.] 1314, The judgment which declares the separation of pro- perty* has a retroactive effect to the day of the institution of the action. — Poth. Com. 521 ; Lao. 639: 11 P. Fr. 415; C. N. 1445. [II. 419.] 1315* The separation can be demanded only by the wife herself; her creditors cannot demand it, even with her con- sent. — Nevertheless, in the case of insolvency of the husband, they may exercise the rights of their debtor, to the extent of the amounts due them. — Lam. t. 32, a. 87 J 3Delv. 25; IIP. Fr.416; C. N. 1446. [11.419.] 1316i The creditors of the husband may adopt proceed- ings against a separation of property which has been pro- nounced, or oven executed in fraud of their rights; they may even intervene in the suit in which it is demanded, in order to contest it. — ff. t. t. a. in firaud. ored.; 3 Dolv. 26; 3 Mai. 216; 11 P. Fr. 417; 0. N. 1447. til- 419.] 1317. The wife who has obtained a separation of pro- perty must contribute in pro- portion to her moans and to those of her husband, to tho expenses of tho household as well as to those of the educa- tion of their common children. She must bear those expenses alone if nothing remain to the husband. — Cod. L. 29, do ju. dot; Poth. Com. n. 464, 522; 11 P. Fr. 419 ; Merl. Separa- tion de biens, s. 2, § 5, n. 8 ; C. N.1448. [11.419.] 1318* The wife, when sepa- rated either from bed an i board or as to property only, re- gains the uncontrolled admini- stration of her property. She may dispose of and alienate her moveable property. She cannot alienate her immove- ables without the consent of her husband or, upon his re- fusal, without being judicially authorized. — Cod. L. 29, de jur. dot.; Leb. Com. 1. 3, c. 2, 8. 1 ; Bour. 1. 1, pt. 4, c. 4, s. 4, a. 15, 17 ; Poth. Com. 464, 522 ; C. 177, 178, 206 - ; 11 P. Fr. 420; C. N. 217, 219, 1449. [IL 419.] 1319. The husband is not responsible for the omission to invest the price of, or to roplaca the immoveable alienated by his wife under judicial author- ization unless he has been a party to the contract, or unless the moneys are proved to have been received by him, or te '■il 214 MARRIAGE COVENANTS, ETC. have accrued to his benefit. — He is answerable for the omis- sion to invest or to replace, if the sale have been made in his presence and with his consent. — Leb. Cora. 1. 3, c. 2, s. 1, dist. 2, n. 34 J 3 Mai. 218 J 11 P. Fr. 421 J 3 Delv. 26 j C. S. L. C. c. 37, e. 61 J C. N. 1460. [II. 419.] 1320i Community dissolved by separation from bed and board, or by separation of pro- {)erty only, may be re-estab- ished, with the consent of the parties. In the first case, the return of the wife into the house of the husband legally effects such re-establishment; in the second case, it can only be efiected by an act passed before notaries as an original, a copy of which is deposited in the office of the prothonotary of the court which rendered the judgment 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. — Leb. Com. 1. 3, o. 1, n. 26 - J Poth. Com. 623-529, C. 0. t. 10, a. 199, Mar. 664 j C. 217 J 3 Mai. 219 J 11 P. Fr. 423 J Tr. Mar. 1466 j C. N. 1461. [11. 419.] 1321. In the case of the preceding article, the commu- nity 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 euch acts as the wife may have done in the interval, ia conformity with article 1318. — Every agreement by which the consorts re-establish their communi^ upon conditions different nrom those by which it was previously governed, is void. — Leb. Com. 1. 3, c. 11, n. 26 ; Poth. Com. 466, 623, 626- 629 J 11 P. Fr. 423 r- J C. N. 1451. [II. 41.9.] 1322i The dissolution of the community effected by separation, either from bed and board or as to property 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. — L. & B. let. C, n. 26, D, n. 36; Ren. pt. 1, 0. 9, n. 23 ; Poth. Com. 619 J C. 36, 208 ; C. N. 1462. [IL421.] II. Of the continuation of the com- munity. * 1323. If at the time of the natural or civil death of one of the consorts there be minor children issue of their marri- age, and the surviving consort fail to have an inventory made of the common property, the community continues in favor of such children, if they think proper.— C. P. 240, 241 ; L. & B. let. C, 0. 30 ; Poo^ Com. r. 1, p. 391 J Poth. Com. 769, 770, 786; Lam. t. 3?, a. 1 ; 3 Mai. 213, 214; 11 P. Pi'. 407; C. N. 1442. [II. 421.] 1324. The inventory re- quired to prevent the continu- ation of tne community must be authentic, it must be made in presence of a person quali- fied to contest/ within three MARBIAGE COVENANTS, ETC 216 months from the dissolution, and must be judicially closed within three mouths from its completion.— C. P. 240, 241; Poth. Com. 771 ~ ; 2 Pr. de la Jan. 105: Lam. t. 33, a. 1, 2. [II. 421.] 1325* The continuation of the community, when it is de- manded by the minor children, avails also those of the same marriage who are of age, if they choose to take advantage of it. — Ren. Com. o. 2, n. 36, 37 ; Lao. Com. 116 ; Poc. Com. a. 5 ; Poth. Com. 800, 813 — ; Lam. t. 33, a. 22. [II. 421.] 1326> The surviving con- sort does not succeed to his children who die during the continuation of the community, as regards property belonging to it; the shares of such child- ren accrue to the others who survive. — C. P. 243 ; 2 Lau. 235 — ; Lam. t. 33, a. 30, 31. [II. 421.] 1327> The continued com- munity is shared in halves between the survivor and his children. — If the survivor re- marry, it is shared in thirds ; the husband and wife having each one third, and the child- ren of the first marriage the other third."If each of the consorts have minor child- ren of a previous marriage, the community continues in fourths, and is thus subdivided according to the number of marriages; the children of each marriage forming but one head. — C. P. 242 ; Poo. Com. a. 9 ; Lam. t. 33, a. 36-39 ; 2 Lau. 234, 5 ; 2 Pr. de la Jan. 109. [IL 421.V 1328. The continued com- munity cannot be divided, that is, accepted for a portion of the time that it has lasted, atad rejected for the remainder; it must be accepted or rejected in its entirety. — 2 Pr. de la Jan. p. 115 ; 2 Arg. 47 ; Poc. Com. r. 10 ; Lam. L 33, a. 40* [II. 421.] 1329. AH the moveable pro- perty as well as the fruits of the immoveables which formed part of the first community re- main in the continuation; but the immoveables which formed part of the first community are excluded from the second, and become the private pro- perty of the survivor for one half, and of the children fox the other half. — Leb. Com. 1. 3, c. 3, § 2, n. 1 — ; 2 Arg. 53 ; 2 Pr. de la Jan. 106; Lac. Com. p. 116; Ben. Com. c. 3, n. 8, 10 ; Poth. Com. 818 — ; Lam. t. 33, a. 32, 33. [II. 423.] 1330. All property accru- ing to the surviving consort after the dissolution of the mar- riage and which would have fallen into the community, if it still existed, falls likewise into the continuation. — Leb. Com. 1. 3, c. 3, s. 2, n. 10 — ; 2 Pr. de la Jan. 106 ; Poc. r. 11.; Ren. Com. 1. 3, o. 3, 8. 3, dist. 1, n. 7; Poth. Com. 824 — ; Lac. Com. 116, n. 9. [II. 423.] 1331. A different rule ap- plies to the children ; what- ever they acquire during the continuation from other sources than the first community, by whatsoever title it may be, does not fall into the continua- tion, either as regards the pro- perty itself or as regards itg 218 MARRIAGE COVENANTS, XTO- revenues. — ^Leb. Com. c. 3, 8. 3, dist. 1, n. 7 ; Pr. de la Jan. 106-7; Poo. r. 11-12, p. 397-8 j Ren. Com. o. 3, n. 21, 33 ; Lac. 116, 117; Poth. Com. 829-. [II. 423.] 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 con- tinuation 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. — Leb. Com. I. 3, c. 3, s. 4; Ren. pt. 4, 0. 1; Pr. de la Jan. 107, 108 ; Poc. r. 13, p. 399; Lao. 117; Poth. Com. 837 — . [11.423.] 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. — C. P. 225 ; 2 Pr. de la Jan. 109, 111 ; 2 Arg. 56; Poc. r. 13, p. 399; Lac. Com. n. 12, p. 117 ; Poth. Com. 859; Lam. t. 33, a. 4. [II. 423.] 1334u The survivor and the children take their food and maintenance out of the con- tinuation of the community, without compensation being due from either side, although their expenses be not equal. — Poo. 400; Ren. Com. pt. 3, c. 3, 6 ; Bao. D. J. c. 15, n. 26. [II. 423.] 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 with- out issue. — It may also be dis- solved at any time upon the demand of either of the parties, although some of the cliildren should still be under age. — C. P. 242; 2 Arg. 62-4; Leb. Com. c. 3, 8. 3, n. 1 ; Ren. pt. 2, n. 18; 2 Pr. de la Jan. 112-3 ; Lao. 118, n. 17 ; Poth. Com. 854-. [11.423.] ^^1336. If the dissolution bo demanded by the survivor and some of the children be still minors, his demand must be preceded by an inventory which he must make accord- ing to the form of that required to prevent the continuation; and for such purpose, a tutor ad hoo is named in order to represent the minors and to stand as an adverse party. — 2 Pr. de la Jan. 113 ; Poth. Com. 854 - . [II. 423.] 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 in- ventory and to render them an account.— 0. P. 2'42 ; 2 Pr. de la Jan. 113; Poth. Com. 854, 855-. [II. 425.] §. 4. Of the acceptance of the community and of the re- nunciation that may be made Jhefeof, with the conditiont relative thereto, 1338. After the dissolution of the community, the wife or UARRIAOE COVENANTS, ETO. 217 her heira or legal representa- tives, have a right either to ac- cept or renounce it j any agree- ment to the contrary is void. — C. P. 257 J Bour. 1. 3, pt. 4, o. 5, s. 1, n. 2 J C. 0. 204; Poth. Com. Intr. n. 9, Com. 243, 531, 535, 647, 549, 550, 551 ; 3 Mai. 220 J 11 P. Fr. 425; C.N. 1453. [II. 425.] 1339. A wife who has in- termeddled with the property, cannot renounce the commu- nity. — Acts of mere admini- stration or of a conservatory nature do not constitute inter- meddling. — Cod. L. 1, De rep. vel. abst. hered., L. 2, Deju. del.; C. P. 237 J C. 0. 204 j Poth. Com. 638, 539, 540, C. 0. t. 10, n. 91 ; Ken. Com. pt. 2. c. 1, n. 9 ; C. N. 1454. [11. 425.1 1340. A wife of full age who has once assumed the quality of common as to pro- perty^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. — Bour. 1. 3, pt. 4, c. 6, dist. 3, n. 93 ; Coq. q 115 J 3 Mai. 221 j 11 P. Fr. 426 J Poth. Com. 532, 536, 558, C. 0. t. 10, n. 93 J Merl. Re- nonciation d. Com. n. 6 ; C. N. 1455. [II. 425.] 1341. [If the wife be under age, she cannot accept the com- munity without the assistance of her curator, and the author- ization of a judge, upon the advice of a family council j when made with these forma- lities, the acceptance is irre- vocable, and lias the same effect as if the wife had been of age. — Coq. q. 115 j Poth. Com. 532, 558, C. 0. 1. 10 n. 93 j C. 182, 301, 1001 -. [II. 425.] 1342. The wife surviving her husband must, within three months from his death, cause a faithful and correct inventory of all the property of the com- munity to be made in the pre- sence of the heirs of the nus- band, or after having duly sum- moned 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 pre- vent the continuation of the community.] — C. P. 237 j Bour. I. 3, pt. 4, c. 5, dist. 2, n. 28; Poo. Com. r. 48, p. 337; Poth- Com. 560, 561, 563-566, 681-7, C. 0. a. 204, n. 6, 7; 0. 1667, t. 7, a. 6; Merl. Inventaire, § 5, n. 3 ; C. N. 1456. [II. 425.] 1343. The wife may how- ever renounce the community, without making an inventory, in the following cases : when the dissolution takes place dur- ing the lifetime of the husband ; when the heirs of the latter are in possession of all the pro" perty ; when an inventory has been made at their instance, or one has been made shortly before the death of the hus- band; when a general seizure and sale of the property of the community have been recently made, or when it has been es- tablished by an official return that none existed. — Poth. Cora. 561, 563, 664, 565, C. 0. 204, n. 6, 7. [II. 427.] 1344. Besides the three months allowed the wife to make tho inventory, she has, in order to deliberate upon her 218 ICABBIAGE COYEXAKTS, ETC. acceptance or repudiation, a delay of forty days, which com- mence to run from the expira- tion of the three months, or from the closing of the inven- tory, if it have been completed within the three months. — 0. 1667, t. 7, a. 1, 2 } Poth. Com. 552-3, C. 0. t. 10, n. 92; C. 664 ; C. N. 795, 1457. [II. 427.] 1345* Within these delays of three months and forty days, the wife must make her renun- ciation, by means of an act in notarial form, or of a judicial declaration, which the court orders to be recorded. — Poth. Com. 652, 553, C. 0. t. 10, n. 92 : C. 661 j C. N. 1457. [II. 427.] 1346. The wife who is sued as being in community, may nevertheless, according to cir- cumstances, obtain from the court an extension of the de- lays established by the fore- going articles. — 0. 1667, t. 7, a. 4, 5 : C. 667 : C. N. 1468. [II. 427.] 1347. The wife who has neither made an inventory nor renounced within the delays above prescribed or granted, is not therefor precluded from doing so; she is on the con- trary, allowed to do so, so long as she has not intermeddled or has not acted as being in community ; but she can be aued 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. — Poth. Com. 634, 644, 656, 667, C. 0. pt. 2, c t. 10, 1, n. n. 93 28; 3 Ben. Com. Mai. 222; C. 656; C. N. 1469. [11.427.] 1348. The widow who has abstracted or concealed any of the effects of the community is declared to be in community, notwithstanding her renuncia- tion ; the same rule applies to her heirs.T— Leb. Com. 1. 3, o. 2, dist. 2 ; Poc. 389 ; Ren. Com. 8t. 2, 0. 2 ; Poth. Com. 690 ; C. I. a. 204; 11 P. Fr. 429; C. N. 1460. ril. 427.] 1349. If the widow die be- fore the expiration of the three months, without having made or completed the inventory, 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 delibe- rate. — If the widow die after completing the inventory, her heirs have, in order to delibe- rate, a fresh delay of forty days from her death. — They may moreover in all oases re- nounce the community, ac- cording to the forms establish- ed with regard to the wife, and articles 1346 and 1347 are applicable to them. — 3 Delv. 30 ; Fav. Reg. dot. § 2, n. 10 ; 6 Mar. 601; C.N. 1461. [II. 427.] 1350. The provisions of article 1342 and of those which follow it apply to the wives of individuals who arc civilly dead, commedCing from the moment at which civil death took place.— C. 36, § 7, 8 : 11 P. Fr.430; C..N. 1462. [II. 429.1 . ^ 1351. The creditors of the wife may impugn the renuncia- tion which she or her heirs may HABBIAOE COVENANTS, ETC. 21» have mado in fraud of their claims and may accept the community in their own right. —In such case, the renuncia- tion is annulled only in favor of the creditors and to the ex- tent of the amount of their claims. It is not annulled in favor of the wife r r of her heirs who have renoun'pd. — ff. arg. ez tit. : Quae in t''aud. cred. ; Foth. Com. 533, d59; C. 655, 1031; 11 P. Fr. 432: 0. N. 1464. [11. 429.] 1352. The widow, whether she accepts or renounces, has a right, during the delays which are prescribed or allowed 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 condition of making a moderate use there- of. — She owes no rent for her occupation, during these de- lays, of the house in which she remains after the death of her husband, whether such house belongs to the commu- nity or to the heirs of the hus- band, or is held under lease; in the last case the wife does not contribute to ^e payment of the rent during these delays but it is taken out of the mass. — Poth. Com. 642, 770, 771 ; 3 Mai. 224, 5 J 11 P. Fr. 433 ; 3 Delv. 31 ; 6 Proud. Usufruit, n. 2799; C.N. 1466. [11.429.] 1363. When the commu- nity is dissolved by the pre- vious 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 ob" llged for that purpose to make an inventory. — Poth. Com. 659, 562, ; 11 P. Fr. 433, 4: C. N. 1466. [11.429.] § 5. CJ/" 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 herein- after determined. — Poth. Com, 548, 682 ; G. 0. a. 186 ; C. N. 1467. [II. 429.] I. Of the partition of the assets. 1355. The consorts or their heirs return into the mass of the community all that they owe it by way of compensation or indemnity, according to the rules above prescribed in the second paragraph of this sec- tion.— Poth. Com. 582, 583» 612 ; 3 Mai. 225 ; 11 P. Fr. 436; C.N. 1468. [11.429.] 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. Ron. Com. pt. 2, o. 3, n. 16; Poth. Com. 641, C. 0. 1. 10, n. 130, Ij C.N. 1469. [11.429.] 13o7. Out of the mass oi the community each consort or his heirs pro take : 1. Such of his private pro- perty as did not enter into the community, if it exist in kind» 220 MARRIAGE OOVBNAMTS, ETC. or Buoli property as has been acquired in replacement of it; 2. The price of such of his immoveables as have been alienated during the communi- ty and have not been replacea; 3. The indemnities due him by the community. — C. P. 232 j €. 0. 192 ; L. & B. let. B. c. 30 ; Leb. Com. 1. 3, o. 2, s. 6 ; Poth. Com. 9, 100, 112, 116, 684, 607, 609, 701, C. 0. t. 10, n. 99, 112 j C.N. 1470. [11.429.] 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 com- munity; in the last case, the choice of the immoveables is loft to the wife and to her heirs.— Poth. Com. 701, C. 0. n. 98, 117 J 3 Mai. 226 j IIP. Fr. 437 J 12 Toul. 613: 0. N. 1471. [11.431.] 1359. The husband takes his reprises only upon the pro- perty of the community. — The wife and her heirs, in case the community proves insufficient, may exercise theirs upon the private property of tho hus- band.— Poth. Com, 610, C. 0. t. 10, n. 117 5 11 P. Fr. 437 ; SDelv. 36; C. N. 1472. [II. 431.] 1360. The replacements and compensations due by the community to the consorts, and the compensations and indem- nities duo by them to the com- munity, boar interest, by law, from the day of its dissolution. —Poth. Com. 689, 702, C. 0. t. 10, n. 134; 3 Mai. 227; 11 p. Fr. 438; C. N. 1473. [II. 431.] 1361. After the pretakings have been effected and tho debts have been jfiaid out of the mass, the remainder is divided equally between the consorts or their representatives. — Poth. Com. 630, 577, 701, 702 ; 11 p. Fr. 438; 3 Delv. 36; C. N. 1474. [II. 431.] 1362. If the heirs of the wife be divided, so that some have accepted and others have renounced the community, those who have accepted can- not take out of the {Property falling to the wife's share any more than they would have re- ceived if ail had accepted. — The residue remains with the husband, who is liable toward the heirs who have renounced for such rights as the wife might have exercised in case of renunciation, but only to the extent of the hereditary share of each heir who has thus re- nounced. — Poth. Com. 678, 679, C. 0. t. 10, n. 96; 11 P. Fr. 439; C.N. 1476. [11.431.] 1363. The partition of the community, in all that regards its forms, the licitation of im- moveables when there is occa- sion for it, the effects of the partition, the warranty which results from it; and the pay- ment of differences, is subject to all the rules established in the title Of Succeaaiona for the partition among coheirs. — C. 689 - ; 3 Delv. 36 ; C. N. 1476. [11.431.] 1364.. Th^ consort who has abstracted or concealed effects belonging to the community, forfeits his share of such effects. MARRIAGE COVENANTS, ETC. 231 Leb. Com. 1. 3, c. 2, s. 2, n. 31; L. & B. let. B. n. 1 ; Poth. Com. 690, 691 ; 3 Mai. 227, 228 ; 11 P. Fr. 440, 441 j C. N. 1477. [II. 431.] 1365* After the partition has been effected, if one of the consorts be the personal credit- or of the other, as when the price of a property of the fcr- mer 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 personal property of such debtor. — Poth. Com. 676, 680 ; 11 P.Fr. 441 J C. N. 1478. [II. 431.] 1366i The personal claims which the consorts may have to enforce against each other bear interest only according to the ordinary rules. — ff. Arg. ex L. 17, § 3, de lis., L. 127, de verb, ob^; Merl. Gains nup- tiaux, 5 5, n. 3j 11 P. Fr. 441, 442 ; C. N. 1479. [II. 433.] 1367* Gifts made by one consort to the other are not taken out of the community, but only from the share of the donor therein, or from his private property. — Poth. Com. 679: 11 P. Fr. 442; 3 Delv. 38: C. N. 1480. [II. 433.] 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. — God. L. 22, § 9, de jur. delib. ; L. 13, de neg. gost. ; Ren. Com. pt. 2, c. 3, n. 28 ; Poth. Com. 275, 678 ; 11 P. Fr. 243 ; 3 Delv. 31 ; C. N. 1481. [11. 433.] II. Of the liabilities of the commu- nity and of the contribution to the debts. 1369. The debts of the community are chargeable one half to each of the consorts or his heirs. — The expenses of seals, inventories, sales of moveable property, liquida- tion, licitation and partition, are included in such debts. — Poth. Com. 274, 276, 498, 548, 676, 726, 733 ; Bour. 1. 3, pt. 6, o. 6, 8. 4, a. 19 ; Poth. C. 0. t. 10, n. 135 ; C. N. 1482. [II. 433.1 1370. The wif 3 even though she 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 made a good and faithful inventory and has rendered an acrount both of what is contained in such inventory and of what has fallen to her in the partition.-— C. P. 221, 228 ; Ren. Com. pt. 2, c. 6, n. 6 ; Poth. Com. 727, 729, 759, 703, 726, 733, 735 -, 740, 745, Ob. 84, C. 0. t. 10, n. 187; 3 Mai. 230; 11 P. Fr. 445 ; C. N. 1483. [II. 433.] 1371. The husband is liable toward the creditors for the whole of the debts of the com- munity which were contracted by himself; saving his re- course against his wife or her heirs, if they accept, for the half of such debts, or for an amount equivalent to the bene- fit which they have derived 222 3CARBIAO0 OOYBKANTS, ETC. from the community. — Leb. Com. 1. 2, 0. 3 ; Ben. Com. pt. 2, 6, n. 5 J Poth. Com. 727, 729, V69j C. 0. t. 10, n. 136, 136 j 3 Mai. 230: IIP. Fr. 455; C. N. 1484. [11.433.] 1372. Ho is liable only for half of Buoh personal debts of his wife as were chargeable to the community, unless the share coming to the wife E roves insufficient to pay her alf. — Leb. Com. 1. 2, c. 3, s. 1, n. 18; Poth. Com. 730, C. 0. 1. 10, n. 137, 138 ; 3 Mai. 230 231; 11 P. Fr. 456--; C. N. 1486. [11. 433.1 1073. The wife may be sued for the whole of the debts which are attributable to her- self and have fallen into the community; saying her re- course against the husband or his heirs, forhalf of such debts, if she accept, and for the whole, if she renounce. — ^Bon. Com. pt. 2, 0. 6, n. 12, 13; Poth. Com. 731, 739, 769, C. 0. 1. 10, n. 138; 11 P. Fr. 466; C. N. 1486. [11. 433.] 1374. The wife who, during the community, binds herself for or together with her hus- band, even jointly and sever- ally, is held to have done so only in 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. — C. S. L. 0. c. 37, s. 65; C. N. 1487. [11.433.] 1375. The wife who has paid more than her hal^ of a debt of the community, cannot get back what she has over- >fud» unless the receipt ex- presses that what she paid was for her half. — But she retains her recourse against her husband or his heirs.— ff, L. 19, L. 44, L. 65, de cond. indeb.; Poth. Com. 736, 738, C. 0. 1. 10, a. 187, n. 4; 3 MaL 231 ; 11 P. Fr. 467 ; 3 Delv. 37 ; C. N. 1488. [II. 435.] 1376. The consort who, by reason of the enforcing of a hypothec upon the immoveable which has fallen to his 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 his heirs^ — Poth. Com. 761, 769, C. 0. t. 10, n. 104,140; 11 P. Fr. 457, 458 1 0. N. 1489. [II. 435.] 1377. Notwithstanding the foregoing provisions, either of the oopartitioners may, by the partition, be charged with the payment of a proportion of the debts, other than naif, or even with the payment of the whole. —Poth. Com. 759, C. 0. 1. 10, n. 140 ; 11 P. Fr. 458, 469 ; C. N. 1490. [II. 435.] 1378. All that has been declared above in respect of the husband or of the wife applies to the heirs of either, and such heirs exercise the same rights and aro subject to the same actions as the consort whom they re|)resent. — ^ff. L. 24, De verb, sig., L. 119, Be adq. V. om. hered. ; Poth. Com. 730, 733, 737, 741, 744, 750; 0. N. 1491. [II. 435.] § 6. Of renunciation of the eommumty and of ita effects. 1379. The wife who re- nounces, cannot claim any UABRIAGB COVENANTS, ETO. 223 «hare in the property of the community, not even in the moveahle property she herself brought into it.— C. N. 1492. [II. 436.] 1380i [She may, however, ^tain the wearing apparel and linen in use for her own person, exclusive of all other jewelry 'han her wedding presents.] — Poth. Com. 549, 668, 569, 572 ; 3 Mai. 232 ; 11 P. Fr. 460 ; 3 Delv. 39 ; Merl. Acoroissement; C. N. 1492. [II. 436.] 1381. The wife who re- nounces has a right to take back: 1. The immoveables belong- ing to her, if they exist in kind, or those which have been acquired to replace them ; 2. The price of her immove- abJies which have been alien- ftled, and the replacement of which has not been made and accepted as mentioned above in article 1306 ; 3. The indemnities which may be due to her from the community.— C. P. 232 ; C. 0. 192 ; Leb. Com. 1. 3, o. 2, s. 6, diet. 1, n. 1 ; Poth. Com. 99, 100, 686, 696, 602-609, C. 0. t. 10, n. 99, 100, 112, 116 j 11 P. Fr. 461 J C. N. 1493. [II. 435.1 1382. The wife who re- nounces is freed from all con- tribution to the debts of the community, both as regards her husband and as regards creditors, even those towards whom she bound herself jointly and severally with her hus- band. — She remains liable however for debts which are attributable to herself and have fallen into the commu- nity, saving in such case, her recourse ag.i 'tast her husband or his heirs. — Ren. Com. pt. 2, o. 6, n. 15 ; Poth. Com. 673-675, 731, 732, C. 0. 1. 10, n.l4j 0. 0. 205 J C. S. L. C. c. 37, s. 56 : 3 Mai. 233 : 11 P. Fr. 462: C. N. 1494. [11.436.] 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. — ^Her heirs may do the same, except as regards the pretaking of linen and wear- ing apparel, and as regards lodging and maintenance dur- ing the delays allowed for the inventory and for 'leliberating ; which rights are purely per- sonal to the surviving wiie. — Poth. Com. 572, 583, 680; 11 P. Ft. m-, 3 Delv. 21,40 : 0. N. 1496. [II. 437.] SECTION II. Of conventional community and of the most ordinary conditions 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 modifica- tions are those which result from stipulating : 1. By way of realization, that the moveable propeity either present or future, shall not enter into the community or shall only enter for part j 2. By way of mobilization, that the whole or a portion of IM IIARRIAOB OOVEKANTS ETC. ! the immoveables present or future shall be included in it ; 3. That the consorts shall be separately liable for their debts contracted before marriage ; 4. That in case of renuncia- tion, the wife may take back from tho community, free and clear from all claims, whatever she brought into it; 5. That the survivor shall have a preciput ; 6. That the consorts shall have unequal shares ; 7. That universal commu- nity, or a communi\ y by gene- ral title, shall exist between them.— Poth. Com. 272, 466 j 12 P. Fr. 6 - ; 2 Rog. 1819 : 0. N. 1497. [11.437.] ^1,0/ the tlauae of realization, 1386. 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 com- munity moveable property to the extent of a certain sum or of a determinate value, they are, by such stipulation alone, presumed to have reserved the remainder. — Poth. Com. 287, 301, 315-318, 331; 11 P. Fr. 15--; 2 Rog. 1829; C. N. 1600. [II. 437.] 1386. This clause renders the consort debtor to the com- munity for the amount which he promised to contribute, and obliges him to substantiate such contribution. — Poth. Com. 287-290, 296, 302, C. 0. t. 10, n. 40,45; 3 Mai 238--; IIP. Fr. 26 - ; 2 Rog. 1830; 0. N. 1601. ril. 437.] 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 contribu- tion be not claimed within ten years the wife is presumed to havo made it ; saving the right of proving the contrary* — Poth. Com. 297, 298, 300, 0. 0. 1. 10, n. 46 ; Leb. Com. 1. 3, t. 2, s. 1, dist. 3, n. 42 ; 1 Bour. 650 ; 3 Mai. 239, 240 ; 11 P. Fr. 33 -; 2Rog. 1830; C.N. 1502. [II. 437.] 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. — Poth. Com. 319,325; 3 Mai. 239, 240 ; 12 P. Fr. 36 ; 3 Delv. 43 ; 2 Rog. 1830; O.N. 1603. [11.439.] 1389. [In the case of the preceding article, the moveable property which accrues to either consort during marriage must bo established by an inventory or some other equi- valent title.-^As regards the husband,* in default of such inventory or title, he forfeits his right to take back the UABBIAGB COVENANTS, ETC. 22» moveable property which has fallen to him during the mar- riage. — As regards the wife, on the contrary, she or her heirs are, in such case, admit- ted to make proof either by titles or by witnesses, or even by common rumor, of the moveable property, thus ac- crued to her.] — Poth. Com. 300; 3 Mai. 240 ; 12 P. Fr. 39, 40 ; 2 Rog. 1832 j C. N. 1604. [II. 439.] 5 2. Of the clause of mobiliza- tion. 1390> The clause of mobi- lization is that by which the consorts, or either of them, bring into the community the who:<) or a portion of their immcreables, whether present or future. — Ren. Propres, c. 6, s. 1, 3, 8 J Poth. Com. 303, C. 0. 1. 10, n. 63, 66 j C. N. 1606. [II. 439.] 1391i Mobilization is either general or special. — It is gene- ral when the consorts declare their intention of being in com- munity as to all their property, or that all successions falling to them shall belong to the com- munity. — It is particular when they have only undertaken to bring into the community some determinate immoveables. — Poth. Com. 304, 306, C. 0. t. 10, n. 62, 63. [II. 439.] 1392. Mobilization may be either determinate or indeter- minate. — It is determinate, when the consort declares that he brings as moveable into the Gommunity, a certain immove- able, either wholly or to the extent of a certain sum. It is indeterminate when the consort simply declares that he brings into the community his im- moveables to the extent of a certain sum. — Poth. Com. 305, C. 0. t. 10, n. 63, 65 J Leb. Com. 1. 1, c. 5, dist. 2, n. 7 ; C. N. 1606. [II. 439.] 1393. The effect of determi- nate mobilization is to convert the immoveable or immoveables affected by it into community property, as moveables them- selves would be. — When the immoveable or immoveables of the wife are contributed as moveable in whole, the husband may dispose of them as of the other effects of the community and alienate them entirely. — If the immoveable be contri- buted as moveable only to the extent of a certain sum, the husband cannot alienate it without the consent of his wife ; he may however hypothecate it without such consent, but only to the extent of the portion so contributed. — Leb. Com. 1. 1, 0. 6, dist. 7 J Poth. Com. 307, 309, 311, C. 0. t. 10, n. 53, 65 j 11 P. Fr. 44, 6; C N. 1507. [II. 439.] 1394:* Indeterminate mobi- lization does not confer upon the community the ownership of the immoveables affected by it, its effect is merely to oblige the consort who has under- taken 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 mo- 229 MABBIAGB OOVEVAMTB, ETC. bilization, but he may hypo- theoate them to the extent of such mobilization. — Poth. Com. 313, C. 0. t. 10« n. 65 ; 3 Mai. 242, 3 : 11 P. Fr. 49 j 3 Delv. 45 : 2 Rog. 1834 - ; 0. N. 1608. [11.441.] 139o* 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. — Poth. Com. 310, 712} 12P. Fr. 62j 3 Mai. 243 j 5 Proud. Usuf. n. 2664 j C. N. 1609. [11.441.] § 3 0/ the clauae of teparation of debts, 1396. The clause by which the consorts stipulate that they will separately pay their per- sonal debts, obliges them to account to each other respect- ively, at the time of the disso- lution of the community, for auch debts as are established to have been paid by the com- munity 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 by the consorts have not been determined by an inven- tory or an authentic statement anterior to the marriage, the creditors ofeither consort with- out 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 com- muoity. — The creditors have the same right with regard to such moveable property as may have fallen to tne consorts dur- ing the community, if likewise it have not been determined by an inventory or authontio statement.~C. P. 222; C. 0. 212 ; Leb. Com. 1. 2, c. 3, s. 4; Ren. Com. pt. 1, c. 11 ; Poth. Com. 351, 363, 361, 363, 370, 371, 616, C. 0. a. 212; 3 Mai. 244; 12 P. Fr. 63-; 3 Delv. 46 : C. N. 1610. [II. 441.] 1397. When either of the consorts brings into the com- munity a certain sum or a determinate object, vsuoh a contribution implies a tacit agreement that it is not encum- bered with debts anterior to the marriage, and he must ac- count to the other for all such incumbrances as lessen its value.— Poth. Com. 352, C. 0. t. 10, n. 66 ; 3 Mai. 246 ; 12 P. Fr. 61; 3 Delv. 46; C. N. 1511. [II. 441.] 1398. The clause of sepa- ration of debts does not pro- vent interest and arrears which have accrued since the mar- riage from being chargeable to the community. — Leb. Com. 1. 2, c. 3, s. 4, n. 10 ; Poth. Com. 360, 375; 3 Mai. 246, 247; 12 P. Fr. 62; 0. N. 1512, [II. 441.] 1399. When the communi- ty is sued for the debts of one of the consorts, who is declared by the contract to be free and clear from all debts anterior to the marriage, the other con- sort has a right to an indem- nity, to be taken from the share in the coinmunity which be- longs to the indebted consort, or from his private property ; VARRIAOE 0OTEKANT8, BTO. SIT And In case of insnffloienoj, sttoh indemnity may be prose- oatedf by way of warranty, against the parties who made the declaration that such con- sort was free and clear. — This right of warranty may even be exercised by the husband dur- ing the community, if the debt have originated with the wife ; saving, in such case, the right of the warrantor to be reim- bursed by the wife or her heirs, after the dissolution of the community. — Leb. Com. 1. 2, c. 3, 8. 3, n. 41, 42 ; Ben. Com. pt. 1, 0. 2, n. 36 ; Pui h. Com. 365-378, C. 0. t. 10, n. 84-6; Lao. Com. pt. 2, s. 7 1 3 Mai. 247; 12 P. Fr. 64-72; 0. N. ms. [11.441.] i 4. 0/ the right given to the wife of taking back free and clear v»i^t the brought into the cvmmunity, 1400. The wife may stipu- late, thut in case of renuncia- tion of the community, she shall take back the whole or a part of what she brought into It either before or since the marriage ; but such stipulation cannot extend beyond things formally specified, nor to other Sersons than those who are esignated. — Thus, the right of taking back the moveable property brought in by the wife at the time of the marri- age, does not extend to similar property accrued to her during the marriage. — Thus, the right given to the wife does not ex- tend to the children ; and that given to the wife and to the children, does not extend to her 29 ascendant or collateral heirs.— In all oases, the wife can only take back her contributions after deduction has been mad« of such of her private debts as have been paid out of the com- munity. —Poth. Ob. 63, Com. 379-391, 393-396, 399, 401, 2, 407-411, C. 0. 1. 10, n. 68, 70, 71,76; 3 Mai. 260; 12 P. Fr. 73 — } Merl. Renonciation k la com. n. 14; C. N. 1614. [II. 443.] ^ 5, Of conventional preciput, 1401. The clause by which the surviving consort is author- ized 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 con- tract 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 ol the predeceased consort. — • Poth. Com. 413, 440-442, 447, 448, 668, C. 0. t. 10, n. 77, 79 ; 3 Mai. 261-2; 12 P. Fr. 94; 3 Delv. 48, 49 ; 2 Rog. 1839 ; D. 366, n. (a) ; C. N. 1616. [II. 443.1 1402. Preciput is not re- garded as a benefit subject to the formalities of gifts, but as a marriage covenant. — Del. 26 June, 1727 ; 0. 1731, a. 21 ; Poth. Com. 442 ; 12 P. Fr. 106 ; 2 Rog. 1840 ; 0. N. 1516. [II. 443.1 1403. Natural death opens 228 lUBBIAOE OOYByANTS, ETC. the right to preoiput by the I sole 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 sus- pended in the hands of the re- presentatives of the person civilly dead.— Poth. Com. 443 j C. 0. t. 10, n. 78 J C. 36, § 8j 3 Mai. 262 J 12 P. Fr. 106 -j 3 Delv. 48; C. N. 1617. [II. 443.1 l404< When the commu- nity is dissolved during the lifetime of the consorts in con- sequence of separation from bed and board or of separation of property only, such dissolu- tion does not, unless the con- trary be stipulated, open the right to preoiput in favor of either of the consorts. The right remains suspended untU the death of the consort who dies first. — In the interval, the sum or the thing which consti- tutes the preoiput remains pro- visionally wiw the husband, from whose succession the wife may claim it, if she have sur- vived him. — Poth. Com. 446, 619 J 12 P. Fr. 108 - j 3 Delv. 48 ; Merl. Pr6ciput conven- tionnel, § 1, n. 1 ; 2 Bog. 1841; C.N. 1518. [11.443.] 1405. The creditors of the community have always a right to cause the effects comprised in the preoiput to be sold ; saving the recourse of the con- sort, conformably to article 1401.— 3 Mai. 262, 3 ; 12 P. Fr. 113; 3 Delv. 49; C. N. 1619. [II. 445.] § 6. Of the clauset hy vihieh tmequal tharea in the com- munity are ataigned to the conaort».. 1406* The loonsorts may depart from the equal division established by law, either by giving to the surviving consort or his heirs, only a share in the community less than half, or by giving him only a fixed Eum in lieu of all rights in the commu- nity, or by stipulating that the ontire oommunily, in certain cases, shall belong to the sur- viving consort, or to one of the consorts solely. — Poth. Com. 449, 450, 460, C. 0. t.' 10, n. 80; 3 Mai. 263; 12 P. Fr. 114, 116; 3 Delv. 49; 2 Rog. 1843; C.N. 1520. [11.446.] 1407* When it is stipu- lated that the consort or his heirs shall have only a certain share in the community, as a third, a fourth, the consort whose share is so reduced or his heirs bear the debts of the community only in proportion to the share they take in the assets. — Tbo 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. — Poth. Com. 449; 3 Mai. 254; 12 P. Fr. 116-; 3 Delv. 60; C.N. 1621. [11.446.] 14:08. When it is stipu- lated 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 MABbiAQE GOYENAMTS, ETC. 229 eonsort ot bis heirs to pay the sum agreed upon, whether the community be good or bad, or sufficient or not to pay suoh sum. — ff. arg. ex L. 10, de reg. ju. ; L. & B. let. M, c. 4 ; Darg. C. Br. a. 22, gl. 4; Poth. Com. 450-452, C. 0. t. 10, n. 80; Merl. Communaut^, § 4, n. 7 ; Bour. Com. 513; 3 Mai. 254; 2 Rog. 1844; C. N. 1522. [11.445.] 1409> If the clause estab- lishes this definitive agreement with regard to the heirs only of one of the consorts, suoh consort, if he survive, has a right to the legal partition by h^ves. — Poth. Com. 453 ; 3 Mai. 254; 3 Delv. 50; 12 P. Pr. 119 - ; 2 Rog. 1844 ; C. N. 1523. [11.445.] 14:10. 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 survi- ving 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 the option of either praying such sum and remaining liable for all the debts, or of renouncing the community and abandon- ing to the heirs of the husband both the property and the debts. —Poth. Com. 55, 57, 58, 60, C. 0. t. 10, n. 82 ; 3 Delv. 50 ; 3 Mai. 265 ; 12 P. Fr. 119-127 ; 2 Rog. 1844; C. N. 1524. [II. 445.1 l4lli 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 cove- nant, and is not subject to the rules and formalities applicable to gifts.— 3 Mai. 256; 12 P. Fr. 128-131; 2 Rog. 1845-1847; C. N. 1525. [II. 445.] § 7. Of community hy general title. 14:12. The consorts may establish by their contract of marriage a general community of their property both move- able and immoveable, *^resent and future, or of all their present property only, or of their future property only. — ff. L. 3, L. 7, pro socio. ; 3 Mai. 256 ; 12 P. Fr. 132-139 ; 2 Rog. 1848; C.N. 1526. [11.447.] Provisions common to the arti- cles of this section, 14:13. The above articles do not confine to their precise provisions the stipulations of which conventional community is susceptible. — The consorts may make any other covenants, as mentioned in articles 1257 and 1384.— 12 P. Fr. 140, 141; Merl. Noces (Secondos), § 7, a. 2, n. 4; C.N. 1527. [11.447.] 1414. Conventional com- munity remains subject to the rules of legal community in all cases where they have not been implicitly or explicitly departed from by the contract. —5 Toul. 817 ; 12 P. Fr. 141 ; I 230 3 Delv. 9, 40 J [II. 447.] 8 8. UABBIAGE COVENANTS, XTO. C. N. 1628. Of covenants excluding community, 1415. When the consorts stipulate that there shall be no community, or that they shall be separate as to property the effects of such stipulations are as follows. — Poth. Com. 461, 464, C. 0. 1. 10, n. 83 J 3 Mai. 268: 12 P. Fr. 142, 3 J 3 Delv. 61 i C. N. 1529. [II. 447.] I, Of the clause simply excluding community. 1416. The clause which declares that the consorts marry without community does not give the wife the right 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. — Ren. Com. pt. 1, c. 4, n. 6 J Poth. Com. 461, 462, C. 0. 1. 10, n. 83, P. Mar. 87 j 3 Mai. 258, 259 j 12 P. Fr. 144 -: 3 Delv. 52 j 2 Rog. 1849 J C. N. 1530. [11^ 447.] 1417> The husband retains the administration of the move- able and immoveable property of his wife, and as a conse- quence the right to receive all tiie moveable property she brings with her, or which accrues to her during the mar- riage; saving the restitution he is bound to make after its dissolution, or after a separa- tion of property judicially pro- nounced. — Poth. Com. 463, P. Mar. 97 ; 12 P. Fr. 147; 3 Delv. 82 : C. N. 1531. [II. 447.] 14:18. If> amongst the moveable property brought by the wife or which accrues to her during marriage, there be things which cannot be used without being consumed, an appreciatory 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 gi^e back their value ac- cording to the valuation. — ff. L. 42, de ju. dot.; 12 Toul. 663 ~ ; 3 Mai. 259 ; 12 P. Fr. 147; 3 Delv. 62; 2 Rog. 1850; C. N. 1632. [II. 447.1 1419. The husband, with regard to such property, has all the rights and is subject to all the obligations of a usu- fructuary.— ff. L. 13, L. 15, L. 16, de imp. in res dot., L. 28, § 1, de don. int. vir. ; 3 Mai. 260; 12 P. Fr. 148; 3 Delv. 62; 12 Toul. 663 — ; 2 Rog. 1861; C. N. 1633. [II. 449.J 1420. The clause which declares that the consorts mar- ry without community, does not prevent its being agreed that the wife, for her support and personal wants, shall re- ceive her revenues in whole or in part, upon her own acquit- tances. — Bour. Com. pt. 1, c. 2, s. 1, dist. 1, n. 2 ; Poth. Com. n.466; 3 Mai. 260; 12 P. Fr. 149 -; C. N. 16^4. [II. 449.] 1421. The immoveables of the wife which are excluded from the community in the cases of the preceding articles are not inalienable. — Never- theless they oannot be alien- ated without the consent of the husband, or, upon his refusal without judicial authorization. MABEIAGB COVENANTS, ETC. 231 —3 Mai. 260 ; 12 P. Fr. 160, 1 . 3 Delv. 52; 2 Rog. 1821; C. N. 1536. [II. 449 j III. 383.] II. Of the clause of separation of property. *14k22. When the consorts have stipulated by their con- tract of marriage that they shall be separate as to proper- ty, the wife retains the entire acbuinistration of her property moveable and immoveable and the free .enjoyment of her reve- nues. — Leb. Com. 1. 3, c. 2, s. 1, dist. 2, n. 30 ; Bour. 1. 1, pt. 4, c. 4, s. 4, a. 16, 16; Poth. Com.464, 466, P. Mar. 15, 98 ; 3 al. 260,1} 12 P. Fr. 152,3; H 'y. 63 ; 2 Rog. ;i862 ; C. N. ..M. [II. 449.] ^423i Each of the consorts contributes to the expenses of marriage according to the covenants contained in their contract, and if there be nonO) and the parties cannot come to an understanding upon the subject, the court determines the contributory portion of each consort according to their re- spective means and circum- stances. — Poth. Com. 464; 12 P.Fr. 168,9; 3 Delv. 63 j C. N. 1637. [11.449.] 1424bi The wife cannot in any case, nor by virtue of any stipulation, alienate her im- moveables without the special consent of her husband, or, on his refusal, without being judi- cially authorized. — Every gen- eral authorization to alienate immoveables, which is given to the wife either by the con- tract of marriage or subse- quently, is void. — C. P. 223 ; 1 goef. cent. 4, c. 6 ; Lap. cent. 16 I, 0. 67 ; Leb. Com. 1. 2, c. 1, s. 4, n. 8 ; Poth. Com. 464, P. Mar. n. 98; 3 Mai. 262-4 ; 12 P. Fr. 166; C. N. 1638. [IL 449.] 1425. When the wife who is separated as to property has left we enjoyment of her pro- perty to her husband, the lat- ter upon the demand which his wife may make, or upon the dissolution of the marriage, is bound to give up only the fruits which are then existing, and is not accountable for those which, up to such time, have been consumed. — Cod. L. II, de pact. conv. ; 3 Mai. 264; 12 P. Fr. 165 ~ ; 2 Rog. 1853 : C.N.1,539. flL 449.] CHAPTER THIRD. OP DOWER SECTION I. General x^ovisions. 1426. There are two kinds of dower, that of the wife and that of the children. — These dowers are either legal or cus- tomary, or prefixed or conven- tional.— 2 Lau. C. P. 251 — ; 2 Arg. 126 ; Poth. Douaire, 1, 2. [II. 451.] 1427. Legal or customary dower is that which the law, independently of any agree- ment, and as resulting from the mere act of marriage, es- tablishes upon the property of the husband, in favor of the wife as usufructuary, and of the children as owners. — C. P. 247, 263; 2 Arg. 129; Poth. Douaire, 2, 291 ; 12 P. Fr. 165, 166. [II. 451.] 1428. Prefixed or conven*- 'il. i 232 IrARRIAOE OOVENANTS, ETC. tional dower is that which the parties hare agreed upon, by the contract of marriage. — 0. P. 255 i 2 Lau. 272 -- ; 2 Pr. de la Jan. 134 ; Poth. Douaire, 2. [II. 451.] 1429< Conventional dower excludes customary j it is how- ever lawful to stipulate that the wife and the children shall have the right to take either the one or the other, at their op- tion.— C. P. 261 J 2 Lau. 285 ; 2 Pr. de la Jan. 126 j 2 Arg. 128, 142; Poth. Douaire, 138. [II. 451.] 14:30. The option made by the wife, after the opening of the dower, binds the children, who must remain satisfied with whichever dower she has chosen. — If she die without having made the choice, the right of making it passes ;© the children. — C. P. 261 j 2 Lau. 286 J 2 Arg. 142; Poth. Douaire, 321. [II. 451.] 1431. If there be no con- tract of marriage, or if in that which has been made the par- ties have not explained their intentions on the subject, cus- tomary dower accrues by the sole operation of law. — But it is lawful to stipulate that there shall be no dower, and such a stipulation binds the children as well as the mother. — C. P. 247 J 2 Pr. de la Jan. 127 j Ren. Douaire, c. 4, n. 12 j Poth. Douaire, n. 3, 5, 151. [II. 451.] 1432. Dower whether con- ventional or customary is not regarded as a benefit subject to the formalities of gifts, but as a simple marriage covenant. —Poth. Douaire 292 — : 12 P. Fr. 163. [II. 451.] 1433. The right to conven- tional dower accrues from the date of the contract of marri- age, and the right to custo- mary dow(&r from the date of the celebration, or from the date of the contract if there be one in which it is stipulated. — Loi. Douaire, r. 20; 2 Lau. 256; Ren. Douaire; Poc. 224; Poth. Douaire, 147 ; 12 P. Fr. 164. [11.451.] 1434* Customary dower consists in the usufruct for the wife, and the ownership for the children, of one half of the immoveables which belong to the husband at the time of the marriage, and of one half of those which accrue to him dur- ing marriage from his father or mother or other ascendants. — 0. P. 248 ; 2 Pr. de la Jan. 122-3; 2 Lau. 255-; 2 Arg. 130 ; Poth. Douaire, 12. [II. 451.1 1435. Immoveables which the husband has contributed as moveable under a clause of mobilization, in order to bring them into the community, are not subject to customary dower; — Neither are immove- ables by fiction, composed of moveable objects which the husband has reserved to him- self by the clause of realiza- tion in order to exclude them from the community. — 2 Pr. de la Jan. 127 ; Poc. r. 18, p. 223 ; Ren. Douaire. c. 3, n. 9, 106; Lac. Douaire, s. 2, n. 7, 22; Leb. Sue. 1. 2, c. 5, dist. 1, n. 21 ; 6 L. C. R..325. [IL 451.] 1436. The customary dower resulting from a second marri- age, when there are children born of the first, consists in ^ MABBIAQE COVENANTS, ETC. 233 half of the immoyeables, not affected by the previous dower, which belong to the husband at he time of the second marri- age, or which accrue to him luring such marriage from his father or mother or other as- cendants. — The rule is the same for all subsequent mar- riages which the husband may contract, when there are child- ren of the previous marriages. —0. P. 253, 254 J 2 Arg. 136 j Ben. Douaire, o. 11, n. 1 — ; Poth. Douaire, 4, 6. [II. 453.] 14:37« Conventional dower, when there is no agreement to the contrary, also consists in the usufruct for the wife, and the ownership for the children, of the portion of the moveable or immoveable property which constitutes it according to the contract of marriage. — The par- ties may, however, modify this dower at will ; they may stipu- late, for example, that it shall belong to the wife in full owner- ship, to the exclusion of the children, and without return, or that the dower of the latter shall be different from that of their mother. — 2 Pr. de la Jan. 134; 2 Arg 127, 128; Ren. Douaire, c. 4, n. 1 — ; 12 P. Fr. 166, 166. [II. 453.] 1438* Dower, whether cus- tomary or conventional, is a right of survivorship which opens by the natural death of tie husband. — It may however be opened and become exigible by the civil death of the hus- band, or by separation from bed and board, or separation of property only, if such effect result from the terms of the contract of marriage. — It may likewise be demanded in the case of the absence of the hus- band, under the circumstances and conditions expressed ii;i articles 109 and 110.— C. P. 163 i 2 Pr. de la Jan. 124 ; L. & B. let. D, c. 35 ; Month. Arr. 63 ; 1 Desp. pt. 1, t. 13, s. 5 ; 2 Bret. H. 1. 4, q. 1 ; Ren. Douaire c. 5, n. 40 -- ; 2 Arg. 129, 130 ; Lac. Douaire, a. 9. n. 1, 2; Lam. t. 34, a. 4; 12 P. Fr. 167; C. 36, 1403. [II. 453.] l439. If the wife be alive at the time of the opening of the dower, she enters im- mediately upon the enjoyment of her usufruct; the children cannot take possession of the property until after her death. — If the wife die first, the children enjoy the dower as owners from the moment of its opening. — Where the wife dies first, if at the death of the hus- band no children or grandchild- ren issue of the marriage be living, the dower is extinguish- ed and the property remains in the succession of the husband. C. P. 263, 265; 2 Lau. 272, 287 Poc. Douaire, r. 8, p. 219 ; Loi. Douaire, r. 6 ; 2 Arg. 130, 142, 145, 146 ; Lam. Douaire, a. 32, 34 ; 12 P. Fr. 174. [11.453.] 1440* Conventional dower is taken from the private pro- perty of the husband. — C. P. 257, 260 ; 2 Lau. 281 ; 2 Pr. de la Jan. 135; 2 Arg. 140; Lam. Douaire, a. 35. [II. 453.] 1441. The wife and the children are seized of their re- spective rights in the dower from the time it opens, with- out the necessity of a judicial 234 ICABBIAGE OOTENANTS, ETC. demand; snoli a demand is however necessary against sub- sequent purchasers, in order to give rise, as regards them, to the fruits of the immoveables and the interest of the capital sums, which they have ac- quired in good faith, and which are subject to or charged with dower. — C. P. 251, 252, 256; 2 Lau. 280; Poc. r. 10, 6. 220; 2 Arg. 132, 3; Loi. ouaire, r. 10; Poth. Douaire, 189, 332 ; Lam. Douaire, a. 9. [11.453.] 14:42. Customary dower, and conventional dower when it consists of immoveables, is a real right, and is governed by the law of the place where the immoveables subject to it are situated.— 0. P. 249 ; 2 Pr. de la Jan. 128, 129; 2 Lau. 260: 2 Arjf. 133. [II. 453] 1443. Neither the aliena- tion by the husband of im- moveables subject to or charged with dower, nor the charges or hypothecs which he may have imposed upon them, either with or without the consent of his wife, affect in any manner the rights of the latter or of the children, unless she has ex- pressly renounced in confor- mity with the following article. —-Such alienation and charges are equally without effect, as regards both the wife and the children, even when made in the name and with the consent of the wife, although she be authorized by her husband; subject to the same exception. G. P. 249, 250; 2 Lau. 260; 2 Pr. de la Jan. 130 ; 2 Arg 145 ; Poc. 225 ; Lam. Douaire, a. 5; C. 1301. [II. 465.J The wife who is of age may however renounce her right of dower, whether cus- tomary or conventional, upon such immoveable! as her hus- band sells, alienates or hy- pothecates. — This renunciation may be made either in the act by which the husband sells, alienates or hypothecates the immoveable, or by a separate and subsequent act. — C. S. L. C. c. 37, s. 52, § 1, s. 54; 25 V. 0. ll,s. 8. [11.455.] 1445« Such renunciation has the effect of discl^arging the immoveable affected by dower from any claim which the wife may have upon it under that title, and neither she nor her heirs can exercise against any other property of the husband any recourse to be indemnified or compensated for the right thus abandoned; notwithstanding the provisions of this title or any other pro- visions of this code respecting the replacements, indemnities or compensations which con- sorts or other parties owe to each other in cases of partition. —C. S. L. C. c. 37, s. 52, § 2; C. 1303. [II. 455.] 1446. As to the dower of the children, it can be exercised only upon immoveables subject to the dower of their motiier which have not been alienated or hypothecated by their father during the continuance of -the marriage with her renunciation made in the manner prescribed in article 1444. — Children who have attained the age of majo- rity may^after the death of their mother, renounce their dower in all cases in which the latter MABSIAOE OOTEKANTS, ETC. 23» oould have done so herself, and in the same manner and with the same effect. — 0. S. L. 0. o. 37, s. 53. [II. 455.] 1447* Sales under execu- tion, judgments in confirmation of title, and adjudications in forced licitations, when they take place before the opening of the customary dower, whether such dower results from the law alone, or has been stipu- lated, do not affect immove- ables subject to dower. — Never- theless if the sale under execu- tion take place at the suit of a creditor whose claim is an- terior and preferable to the dower, or if such creditor be collocated upon any of the said proceedings, the alienation or the confirmation is valid and the immoveable is discharged. The creditors whose claims rank subsequently, who in such case receive the surplus of the price, are bound to bring it back if the dower accrues, and cannot receive the moneys with- out giving security if the dower be apparent upon the proceed- ings. — When, as in the first case mentioned in this article, the dower is not extinguished by the sale or the judgement of confirmation, the party to whom the property has been adjudi- cated or who has obtained the judgment may likewise, when he has been evicted, oblige the creditors who have received the price to bring it back, and if the dower appear upon the proceedings, the credi- tors are not collocated unless they give security to bring back whatever portion of the dower they may teoeive. If the credi- tors refuse to give security th» person to whom the property IS adjudicated keeps or takes back the amount subject to dower, upon giving security himself that he will repay.— Customary dower when open does not fall under the rules of this article. — C. S. L. C. o. 37, s. 1 -J C. S. C. 25 V. 0. 11, s. 2,3,4; 10 L. 0. R. 301, Sims vs. Evans ; Loi. Douaire, a. 7, 8 J 2 Arg. 146, 147; L. & B. let. D, n. 20; Ren. c. 10, n* 1~; Bac. D. J. c. 15» n. 72j Lac. D^cret, 153, 154; Lam.^ Douaire, a. 20-23. [II. 455.] 1448. If the dower which is not yet open be the conven- tional dower, whether if. con- sists in an immoveable or i< «• hypothecary claim, it Ifl sub- ject to the effect of the registry laws, and is extinguished by the sale under execution and the other proceedings mention- ed in the preceding articles as in ordinary oases ; saving to the parties interested their rights and recourse and the securities to which they may bo entitled. — Conventional dower when open is subject to the or- dinary rules, — C. S. L. C. c. 37,. s. 1~; 25 V. 0. 11, s. 2-4; 6 L. C. R. 100, Forbes vs. Le- gault; 3 Rev. 478, ex parte Gibb, hfort, [II. 457.1 1449. The purchaser of an immoveable which is subject to or hypothecated for dower, cannot prescribe against either the wife or the children so long as such dower is not open. — Prescription runs against chil- dren of full age, during the life -time of their mother, from the period when the dower 'I- 236 MABBIAGB COVENANTS, ETC. opens. — Ren. Douaire, o. 15; 2 Arg. 148, 149 ; Lao. Douaire, 244; Poth. Douaire, n. 86, ; 0. P. 117 ; Lam. Douaire, a. 16. [IL 467.] SECTION II. Particular provisions as to the dower of the wife. 14:60i The oonyentional dower of the wife is not incom- patible with a gift of usufruct made to her by the husband ; she enjoys under such gifts the property comprised in them, and takes her dower from the remainder, wHhout diminution or confusion. — C. P. 267 ; 1 Lau. 192 j 2 Id. 281 j Loy. Douaire, 15 j Poo. 221; Bio. on. a. 261 0. P. ; 2 Arg. 140; Poth. Douaire, 264—; Lam. Douaire, a. 35. [II. 457.] 1451. If the dower of the wife consist in money or rents, the wife, in order to obtain payment of it from the heirs and representatiyes of her hus- band, has all the rights and actions which belong to the other creditors of the succes- sion. — Poth. Douaire, 194; Lam. Douaire, a. 15. [II. 457.] 1452. If the dower consist in the enjoyment of a certain portion of the property of the husband, a partition must be effected between the wife and the heirs of the husband, by which she receives the portion which she has a right to enjoy. — The widow and the heirs have reciprocally an action to obtain this partition, in the case of refusal on the part of either. — Loi. Douaire, r. 21 ; Poo. r. 20, p. 224 ; Poth. Dou- aire, 174--; 12 P. Fr. 169. [II. 457.] 1453. The dowager, like other usufructuaries, has a right to tiie natdiral and indus- trial fruits attached by branch or root to the immoveable sub- ject to dower when such dower opens, without being obliged to refund the expenses incurred by the husband in order to produce them. — The same rule applies to those who enter into the enjoyment of the owner- ship of such immoveable, after the extinction of the usufruct. —Poth. Douaire, 201, 272, 273; Lam. Douaire, a. 14 ; C. 450. £11. 457.] 1454. The dowager, as long as she remains a widow, enjoys the dower, whether cus- tomary or conventional, upon giving the security of her oath to restore it; but, if she re- marry, she is bound to give the same security as any other usufructuary C. P. 264 ; 2 Arg. 132; Poth. Douaire, 221; Lam. Douaire, a. 36. [II. 457.] 1455. If the wife who has remarried cannot give the necessary security, her usu- fruct becomes subject to the provisions of articles 465, 466 and 467.— Poth. Douaire, 227; Lam. a. 36-38. [II. 459.] 1456. The doWager is bound to maintain the leases made by her husband subject to her dower, provided there has been no fraud nor excessive anticipa- tion — Poc. r. 25, p. 227 ; Ren. Douaire, o. 14; Coq. q. 156; Poth. Douaire^^ 229; Lam. 45; C. 457. [il. 459.] 1457. Leases made by her during the term of her enjoy- IfABBIAQB OOVENANTSi F'*'0. 237 ment expire with her usu- fruct ; nevertheless, the farmer or lessee has a right, and may be obliged, to continue in oc- cupation during the remainder of the year which had begun when the usufruct expired, subject to the payment of the rent to the owner. — Ben. Dou- aire, c. 14 ; Poc. 227 ; Coq. q. 156; Poth. Douaire, 929,279; Lam. a. 45 ; 0. 457. [II. 459.] 1458. The dowager, lilce any other usufructuary, is liable for all the ordinary or extraordinary charges which affect the immoveable subject to dower, or which may be im- posed upon it during the term of her enjoyment, as set forth in the title Of Uaufructt of Use and Habitation. — Ben. Douaire, c. 8, n. 8 ; Loi. r. 18 ; 2 Pr. de la Jan. 136 ; Poo. r. 26, p. 227 ; Lao. Douaire, 244 ; Poth. Douaire, 230 — ; Lam. Douaire, a. 42. [II. 459.] 1459. She is liable only for the lesser repairs ; for the greater repairs, the owner re- mains liable, unless they have been necessitated by the fault or negligence of the dowager. — C. P. 262; Poc. r. 28, p. 228 ; Loi. Douaire, r. 18; 2 Pr. de la Jan. 136, 138 ; Lac< Douaire, n. 45; Poth. Dou. 237; Lam. a. 45; C. 468, 469. [11.459.] 1460. The dowager, like every other usufructuary, takes the things which are subject to the dower in the condition in which they are at the time of the opening. — The same rule applies to the dowable child- ren, as regards the property itself, in cases whore the usu- fruct of the wife does not take place. — If they do not take the property until after the ex- piration of the usufruct, or if at that time there be no dowable children, the succession of ttie wife is answerable, in the first case to such children, and in the second case to the heirs ' the husband, according to the rules which relate to the enjoy- ment and the obligations of the usufructuary under particular title.— ff. L. 66, do usuf. L. 12, de u. et usuf. ; 2 Pr. de la Jan. 138; 2Arg.202; Lao. Douaire, s. 5, p. 239, 244; Guy. XJsu- fruit 393 ; Merl. Dou. § 2, n. 2 ; 0. 455-476. [II. 459.] 1461. If nevertheless, dur- ing the marriage, considerable additions have been made to the thing, the wife cannot enjoy them without paying the excess of value, if her dower consist in ownership, or the interest of such e j:cess, if it be in usufruct. — She may however demand the removal of such additions if it can be effected with advantage and without deteriorating the thing. — If? they cannot be re- moved, the wife may, for the purpose of paying the excess of tne value, obtain a licita- tion. — Dowable children who take the property without their mother having had the usu- fruct of it, fall under the same rules with regard to such ad- ditions. — If during the marri- age, the thing subject to dower have suffered deterioration, to the benefit of the husband or of the community, the wife and the children wlio claim dower are entitled to compensation. — Leb. Sue. 383; Ben. Dou- aire, 30-1; 3 ar.C.906; Dupl. i I 238 MABBIAGK OOYBKANTS, ETC. Douaire, 249; Lem. Douaire,'| S07; Poth. 238-9; 7 N. D. 199; Lam. Douc^re, a. 11-13; 0. 417, 682. [II. 459.] 1462. The dower of the wife is terminated like any other usufruct by the causes enumerated in article 479.-^2 Pr. de la Jan. 140 : Poth. Dou- aire, 247-249,253-255. [11.461.] 14c63. The wife may be de- >rived of her dower by reason of adultery or of desertion. — ^In either case, an action must have been instituted by the husband, and a subsequent reconciliation must not nave taken place ; the heirs, in such case, can only continue the action commenced, if it have not been abandoned. — 2 Pr. de la Jan. 141 ; Poc. r. 29-31 ; Loi. Douaire, r. 39 j Coq. q. 147 ; Poth. Douaire, 256 — ; Lam. Dou. a. 47-49; 0. 187, 211; 1 Rev. 450. [11.461.] 1464. The wife may also be declared to have forfeited her dower by reason of the abuse she has made of her en- joyment, under the circum- stancefi and modifications set forth in article 480»— Ren. Dou- aire, c. 12, n. 21, 22 ; Poc. r. 28, p. 228 ; Poth. Douaire, 262,263; C.480. [11.461.] 1465. If the wife be de- clared to have forfeited her usufruct for any of the causes above mentioned, or if, after the opening of the dower, she renounce it simply and ab- solutely, the dowable children take the property from the time of the renunciation, or of the forfeiture, if it take place after the opening. — Lam. Dou- aire, a. 65. [II. 461.] SECTION III. Particular provisions as to the dower of children, 1466. The Mldren entitled to dower are those who are born of the marriage for which it was constituted. — Children of the consorts who were born before the marriage, but are legitimated by it, are deemed to be children of the marriage; so are those who were con- ceived at the time of their father's death and are born afterwards; and so are also the grandchildren whose father being a child of the marriage, died before the opening of the dower. — Those children only can claim dower who were ca- pable of succeeding to their father at the time of his death. —Poth. Douaire, 344 — , 392; Lam. Dou. a. 56, 63; 12 P. Fr. 374. [11.461.] 1467. A child who assumes the quality of heir to his father, even under benefit of invento- ry, can have no share in the dower.— G. P. 250, 251, 254; 2 Lau. 266 — ; Poth. Douaire, 350, 351 ; 2 Arg. 143 ; 2 Pr. de la Jan. 143. [II. 461.] 1468. In order to be en- titled to dower, the child is bound to return into the suc- cession of his father all such benefits as he has received from him, in marriage or other- wise, or to take less in the dower.— C. P. 252; 2 Lau. 269 ; 2 Pr. de la Jan. l44 ; 2 Arg. 145, 146 ; Poth. Douaire, 352—; Lam. Douaire, a. 62. [II. 461.] ' 1469. The dowered child- ren are not bound to pay the BALK. 239 debts which have been con- tracted by their father since the marriage ; as to those which were contracted previously, they are only liable hypothe- oarily for them, with a re- course against the other pro- perty of their father. — C. P. 250; 2Lau. 262; 2 Arg. 255; Lam. Douaire, a. 62. [II. 463.1 X470. When a conven- tional dower consists in a sum of money to be paid once for all, it is to all intents deemed moveable. — C. P. 259 ; 2 Lau. 284. [II. 463.] 1471. After the opening of the dower and the termination of the usufruct of the wife, the property composing such dower IS divided amongst the ohild- ren and grandchildren entitled to it, in the same manner as if it had fallen to them by succes- sion. — The shares of those who renounce remain in the succes- sion, and do not inoreaso the shares of the other children who take dower. — C. P. 250 ; 2 Pr. de la Jan. 143 ; 2 Arg. 141, 143, 144; Poth. Douuire, 393-395; Lam. a. 61; 12 P. Fr. 176. [II. 463] TITLE FIFTH. OF SALE. CHAPTER FIRST. OENEBAL PBOYISIONS. 1472. [Sale is a contract by which one party gives a thing to the other for a price in money which the latter ob- liges himself to pay for it. — It is perfected by the consent alone of the parties, although the thing sold be not then delivered ; subject neverthe- less to the provisions contain- ed in article 1027 and to the special rules concerning the transfer of registered vessels.] — Dom. 1. 1, t. 2, s. 1, n. 1, 2 ; Tr. Vente, n. 4, 37 -- ; 6 Marc. 142 -; C. 1022, 1025-1027; C. N. 1682, 1683. [IL 39; III, 383.] 1473. The contract of sale is subject to the general rules relating to contracts and to the effects and extinction of obli- gations declared in the title Of Ohligationa, unless it is other- wise specially provided in this code.— C. N. 1684. [II. 39.] 1474. When things move- able are sold by weight, num- ber or measure, and not in the lump, the sale is not perfect until they have been weighed, counted or measured; but the buyer may demand the delivery of them 0. damages according to circumstances — ff. L. 8, De per. et com. rei vend. ; L. 35, § 5, De contr. empt. ; Poth. Vente, n. 308; 6 Marc. 149; Tr. Vente, n. 86, 87; 14 Fen. 4, 21, 85, 153, 182, 183; C. N. 1585. [II. 39.] 240 MALM, 1476. The sale of a thing upon trial is presumed to be made under a suspensive con- dition, when the intention of Uie parties to the contrary is not ajpparent. — ff. L. 3, L. 34; 9 6, De oontr. empt., L. 31, fi 82, De sed. ed. ; Dom. 1. 1, t. 2, a. 4, n. 8; Poth. Vente, n. 264-6 ; 6 Marc. 166 ; Tr. Vente, n. 106, 107j C. N. 1688. [11.39.] 1476. A simple promise of sale is not equivalent to a sale, but the oreditor may demand tiiat the debtor shall execute a deed of sale in his favor ac- cording to the terms of the Sromise, and, in default of so oing, that the judgment shall be equivalent to such deed and have all its legal effects ; or he may recover damages accord- ing to the rules contained in the title 0/ Obligations, — Poth. Vente, 479 j Bard. Arr. 2 Mar. 1627 J J. A. Arr. 28 May 1668; Perrault vs. Arcand, 4 L. C. B. 449; C.N. 1689. [11.39.] 1477. If a promise of sale be accompanied by the giving of earnest, each of the contract- ing parties may recede from it; he who has given the earnest, by forfeiting it, and he who re- ceived it, by returning double the amount. — Poth. Vente, 600 -; C. L. 2438: C. C. V. 1122; C.N. 1690. [11.39.] 1478. A promise of sale with tradition and actual pos- session is equivalent to sale. — Kerr & Livingston, 1 L. C. R. 276 ; Gosselin & G. T. R., 9 L. C. R. 316 Patton & Gosselin, 1856; C. N. 1589. 23rd May, [II. 41.] ^ 1479. The expense of the title deed and other accessories to a sale is borne by the buyer, unless it is otherwise stipu- lated.— 0. L. 2441 ; C. 0. V. 1123; C.N. 1603. [11.41.1 1480. The articles of this title, in so far as they affect the rights of third persons, are sub- ject to the special modifications and restrictions contained in the title 0/ Begittration of Jfeal Rights. [II. 41.] '''1481. Tavern-keepers, or others, selling to persons other than travellers, intoxicating liquors to be drunk on the spot, have no action for the recovery of the price of such liquors.— C. P. 128 ; Guy. Ca- baretier, 676 ; C. 0. 267 ; N. D. Cabaret, n. 16, Aubergiste, n. 4. [II. 41.] CHAPTER SECOND. OF THE APAOITT TO BUT OR BELL. * 1482. The capacity to buy or sell is governed by the general rules, relating to the capacity to contract, contained in chapter first, of the title Of Obligations.-^C. N. 1 594. [II. 41J 1483. Husband and wife cannot enter into a contract of sale with each other. — Poth. Don. M. n. 78; Dum. on 156 C. P. n. 6 ; 12 Toul. 62 ; 6 Marc. 186;C. C. V. 1125; C. P. 282; 2 Pi. 197; C.N. 15^5. [11.41.] :i(1484. The following per- sons cannot become buyers, either by themselves or by parties interposed, that is to say : — Tutors or curators, of the property of those over whom they are appointed, except in sales by judicial authority;— Agents, of the property which tAI.II. 241 ihey are charged with the gale of J — Administrators or trustees, of the property in their charge, whether of piiblio bodies or of private persons ; — Public officers, of national pro- perty, the sale of whiolt is made through their ministry. — ^The incapacity declared in this article cannot bo set up ]by the buyer ; it exists only in favor of the owner and others having an interest in the thing sold.— if. L. 34, 9 7, L. 46, De contr. empt. ; Ood. L. 5, De oonir. empt. ; Lam. arr. t. 4, a. 90, t. 22, a. 27 ; Ord. 1524, a. 23 ; 0. 0. 54 ; 0. 1629, a. 94 ; Dom. 1. 1, t. 2, s. 8, intr. 9, & n. 1, 2 ; Poth. Vente, 13 ; 6 Marc. 190-193 ; 1 Tr. Vente, n. 187 " J 0. L. 2421, 2422 j C. 0. V. 1126, 1127 J 0. N. 1696. [II. 41.1 148Bi Judges, advocates, attorneys, clerks, sheriffs, bail- iffs and other officers connect- ed with courts of justice, can- not become buyers of litigious rights which fall under the jurisdiction of the court in which they exercise their func- tions.— 0. N. 1697. [II. 41.] CHAPTER THIRD. OF THINGS WHICH MAT BE SOLD. 1486. Every thing may be sold which is not excluded from being an object of com- merce by its nature or destina- tion or by special provision of law. — C. 1069-1061 j Poth. Vente, 10, 11 j C. N. 1598. [11.41.] 1487. [The sale of a thing which does not belong to the wller is null, subject to the exceptions declared in the three next following articles. The buyer may recover damages of the seller* if he were Ignorant that the thing did not belong to tho Inttor.] — Poth. Vente, 7 j 1 Tr. Vente, n. 230, 231, 236 ; 6 Mptc. 208 J Cad. 196, 7 : 0. L. 2427 ; 0. C. V. 1130 j 0. N. 1699. [II. 43.] He 1488. [The sale is valfd if it be a coirmercial matter, or if the seller afterwards bee; me owner of the thing.! — Tr. Vente, n. 236 ; 6 Marc, 208 : Cad. 1.0. [II. 4:.] *1489. If a thir, lost cr stolen be bought in good fai.>> in a fair or marlcet, or k": a Sublic sale, or from a truder ealing in similar - !' les, the owner cannot reclaim ]>, with- out reimbursing to ihe purcha- ser the price he has paid for it. — Lam. arr. t. 21, a. 96 ; Poth. Chop. n. 46, 48, 50; Tr. Vente, n. 42 ; Merl. Vol. s. 4, S 1, n. 2 ! C. 0. V . 1682 j 0, 2268: C. N. 2280. [II. 43.] 1490. If the thing lost or stolen be sold under the au- thority of law, it cannot be re- claimed.— C. S. L. C. c. 66 ; C. L. 3474 ril. 43.] CHAPTER FOURTH. OF THE OBLIGATIONS OF THE SECTION I. General provisions. 1491. The principal obli- gations of the seller are : 1. The delivery, and, 2. The warranty of the thing sold. — Poth. Vente, 41,42} C.N. 1603. [11.43.] ' Ml I 'i. it ii 2ti SALE. SECTION II. Of delivery. 1492. Delivery is the trans- fer of a thing sold into the power and possession of the buyer. — Dom. 1. 1, t. 2, s. 2, n. 6; C.N. 1604. [11.43.] 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 remov- ed.]— ff. L. 9, § 6, De acq. rer. j L. 21 ; L. 25, § 1, De acq. poss. ; L. 47, De oontr. empt. ', L. 1, De per. rei vend. ; Cod. L. 1, L. 28, De don.; Poth. Vente, 313-315; Dom. I. 1, t. 2, s. 2, n. 7; 6 Marc. 221-2: 6 Boi. «43; 1 Tr. Vente, n. 675-8; C. L. 2455; C. C. V. 1136; 0. N. 1605. [II. 45.] 1494. The delivery of in- oorporeal 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. — Dom. 1. c. ; Poth. Vente, n. 316 ; C. L. 2547 ; C. N. 1607 ; C. 1570. [II. 45.] 1495. The expenses of the delivery are at the charge of the seller, and those of remov- ing the thing are at the charge of the buyer, unless it is other- wise stipulated. — Poth. Vente, n. 42 ~; C. L. 2459; C. N. 1608. [II. 45.] 1496. The seller is not ob- liged to deliver the thing if the buyer do not pay the price, un- less a term has been granted for the payment of it. — flF. L. 13, § 8, De act. empti.; Dom. 1. 1, t. 2, s. 3, n. 8; Poth. Vente, 50, 63, 65; 0. L. 2463; C. N. 1612. [II. 45.] 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 in- solvent, 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. — Poth. Vente, 67, Dom. 1. 1, 1. 1, s. 2, n. 22; C. L. 2464; C. N. 1613. [II. 45.] 1498. The thing must be delivered in the state it which it was at the time of the sale, subject to the rules relating to deterioration contained in the title 0/ Obligations. — From the time of sale all the profits of the thing belong to the buyer. — Author, under a. 1150 ; Poth. Vente, n. 47, B. R. n. 48 ; G. L. 2465; C. C. V.1145; C. N. 1614. [II. 45.] 1499. The obligation to de- liver the thing comprises its accessories and all that has been designed for its perpetual use. — ff. L. 17, 5 7, De act. emp.; Poth. Vente, 47, Intr. 47, 48; C. 1024; C. L. 2466; C. N. 1615. [II. 45.] H(1500. The seller is obliged to deliver the full quantity sold as it is specified in the contract, subject to modifications herein- after specified. — ff. L. 61, De oontr. empt. L. 7, § 1, De per. etcom. rei vend. ; Poth. Vente, 260-2 ; C. N. 1616. [II. 45.] 1501. [If an immoveablo be sold with a statement, in whatever terms expressed, of its superficial contents, either at a certain rate by measure- BALK. 24» ment, 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 dimi- nution 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.] — Dom. 1. 1, il. 2, s. 11, n. 15 J Poth. Vente, 250-8 J Vo6t, ad pand. De contr. empt. n. 7 ; Merl. Vente, § 1, n. 10 ; 6 Marc. 235 j 1 Tr. Vente, n. 336, n. 2, n. 338 -j 1 Bour. 482 j 2 Hen. 648, 1. 4, o. 6, q. 86, n. 1, 2 ; 1 Desp. 46, n. 16 ; Lap. let. a n. 6 J 13 P. Fr. 81 ; 5 Boi. 655, n. 2 ; C. N. 1617, 1618, 1619. [II. 47.] ^1502. [In either of the cases stated in the last pre- ceding 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 ex- penses of the contract, without prejudice in any case to his claim for damages.] — 16 Dur. n. 223 J 3 Delv. 138, n. j 1 Duv. n. 286 ; 4 Zach. 289, n. 29, 30 ; 6 Marc. 236 J Title Of Ohliga- tiong, c. 6j C. N. 1618, 1619, 1620 J Tr. Vente, n. 330, 331. [II. 47.] 1503i [The rules contained in the last two preceding ar- ticles do not apply, when it clearly appears from the de- 20 scription of the immoveable and the terms of the contract that the sale is of a certain determinate thing, without re- gard to its quantity by mea- surement, whether such quan- tity is mentioned or not.] [II. 47.1 lo04i The action for supple- ment of price on the part of the seller, or for diminution of price, or for vacating the contract, on the part of the buyer, is sub- ject to the general rules of pre- scription.— 0. N. 1622. til. 1505. If two immoveable properties be sold by the same contract, at a single price for the whole, with a declaration 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 com- pensated by the excess of the other so far as it goes, and the action of the buyer or seller is modified accordingly. — fF. L. 42, De contr. empt. ; Poth. Vente, 256 j C. N. 1623. [II. 49.] SECTION III. Of warranty. OEXEBAL 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 j 2. The latent defects of the thing. — S. L. 3, De act. empt., L. 21, L. 38, De oed. ed. ; Poth. Vente, 81, 82, 181, 202 j C. L. .."vfl 244 SALK. 2450, 2451 ; 0. N. 1625. [II. 49J X507i Legal warranty is implied by law in the con- tract of sale without stipula- tion. Nevertheless the parties may, by special agreement, add to the obligations of legal war- ranty, or diminish its effect, or exclude it altogether. — ff. L. 21, De aed. ed. ; Poth. Vente, n. 202, 210, 229, 230; Dom. 1. 1, t. 2, 8. 10, n. 6, 7; 0. N. 1627. [11.49.] § 1. Of warranty against evic- tion, 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 exist- ing at the time of the sale, and against incumbrances not de- clared and not apparent at the time of the sale. — ff. L. 1, De evio. L. 11, § 8, 11, De act. empti J Cod. L. 6, De evio.j Poth. Vente, n. 86, 200 j Dom. 1. c. n. 2, 3, 5 ; Guy. Garantie, 726 J 6 Marc. 262, s. 2j C. N. 1626. [II. 49.] 1509< Although it be stipu- lated that the seller is i 4 ob- liged to any warranty, he is nevertl ^less obliged to a war- ranty against his personal acts. Any agreement to the contrary is null.— Poth. Vente, 183, 4 j Dom. 1. c. n. 8: C. N. 1628. [II.49J 1510* In like manner, when there is a stipulation exclud- ing warranty, the seller in case of eviction is obliged to return the price of the thing sold. nnless the buyer knew at the time of the sale the danger of eviction or had bought at his own risk.— ff. L. 11, § 18, De act. empt. ; Poth. Vente, 185, 6 : O.N. 1629. [11.49.] ^1511. Whether the war< ranty 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 warranty 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. — ff. L. 60, L. 70, De evict, j Poth. Vente, 118, 123, 128, 130 J Dom. 1. 0. n. 12, 13 J C. N. 1630. [H. 49.] 1512. If in the case of war- ranty the causes of 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.— Poth. Vente, n. 187-190: 2Delv. 154. [11.49.] 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 deteriorated, either by the neglcQt of the buyer, or by a fortuitous event ; unless the buyer has derived a profit from the deterioration caused BALE. 245 by him, in r.aich case the seller may deduct from the price a sum equal to such profit. — ff. L. 43, De act. empt. ; Dum. De eo q. int. n. 68, 69 ; Poth. Vente, 69, 118 j 1 Tr. Vente, n. 488 j C. N. 1631, 1632 ; Dom. I. c. n. 14; Poth. n. 69. [II. 61.] 1514. If the thing sold be fouod, 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 increased value over the price at which the sale was made. — ff. L. 66, § 3, De evic.j Cod. L. 9, L. 16, L. 45, De evio. ; Dom. 1. o. n. 16, 16 } Poth Vente, 71, 132 j 0. N. 1633. [II. 61.] 1515. The seller is obliged to indemnify the buyer, or to cause him to be indemnified, for all repairs and useful ezpendi" tures made by him upon the property sold, according to their value. — Poth, Vente. 134 ; Tr. Vente, 610 j C. N. 1634; Dom. 1. c. n. 17, 18. [II. 61.] 1516. If the seller have sold the property of another, in bad faith, he is obliged to reimburse the buyer for all expenditures laid out by him upon it. — ff. L. 45, § 1, i. f., De act. empt. ; Dom. 1. c, n. 19 ; Poth. Vente, 137 j C. N. 1635 j C. 417. [II. 61.] 1517. 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. — ff. L. 1, De evic. ; Poth. Vente, 144 J C. L. 2487j C. N. 1636. [II. 61.] 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 ac- cording to the increased value of the thing at the time of evic- tion. — ff. L. 13, De evic. ; Dum. De eo q. int. n. 67-69 j Poth. Vente, 142, 143 j 1 Tr. Vente, n. 617 J 16 Dur. n. 300 ; 3 Delv. 149, n. ; C. N. 1637. [II. 61.] 1519. [If the property sold be charged with a servitude not apparent and not declared, of such importance that it may be presumed th« buyer would not nave 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 exist- ence of the servitude.] — ff. L. 1, § 2, De 83d. ed. ; Poth. Vente, 239 ; C. N. 1638. [II. 61.] 1^20. 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 de- fence to the action of eviction. —Dom. 1. 1, t. 2, s. 10, n. 21 ; Poth. Vente, n. 108,9; C.N. 1640. [II. 53.] 1521. The buyer may en- force the obligation of warran- ty when, without the interven- tion of a judgment, he aban- dons the thiug sold or admits m ^1 846 SALB. the incumbrance upon it> if he prove that such abandonment or admission is made by reason of a right \7hich existed at the time of sale. — Poth. Vente, 94, 95. [II. 63.] § 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 accesso- ries, 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. — flf. L. 1, § 1, De sed. ed. ; Dom. 1. 1, t. 2, s. 11, n. 1, 3 J Poth. Vente, n. 202, 203, 232 J Merl. Garantie, §8, n. 2j C.N. 1641. [11.63.] 1523. The seller is not bound for defects which are apparent and which the buyer might have known of himself. — ff. L. 48, § 4, De sed. ed. j Dom. 1. c. & n. 10, 11 j Poth. Vente, 207-9 j C. N. 1642. [II. 63.] 1524. The seller is bound for latent defects even when they were not"" known to him, unless it is stipulated that he shall not be obliged to any warranty. — fF. L. 1, § 2, De sed. ed. ; Dom. 1. c. n. 6 ; Poth. Vente, n. 210 j C. N. 1643. [II. 63.] 1525. When several prin- cipal 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 entitles him to vacate the sale for the whole.— flf. L. 34, § 1, L. 35, L. 38, De sed. ed. j Poth. Vente, 227, 8 J Dom. 1. c. n. 16 j C. L. 2518. [II. 63.J 1526. The buyer has the option of returning the thing and recovering the price of it, or of keeping the thing and re* covering apart of the price ac- cording to an estimation of its value.— flf. L. 21, L. 23, §7,1. c. ; Dom. 1. c. n. 2 ; Poth. Vente, 202, 217, 232; C. N. 1644. [II. 63.] 1527. If the seller knew the defect of the thing, he is obliged not only to restore the price of it, but to pay all dam- ages sufiTered by the buyer.— He is obliged in like manner in all cases in which he is legal- ly presumed to know the de- fects. — flf. L. 13, De act. empti ; Dom. 1. c. n. 7j Poth. Vente, 212-3, Ob. 163 J C. N. 1645. [II. 63.] 1528. If the seller did not know the defects, or is not le- gally presumed to have known them, he is obliged only to re- store the price and to reimburse to the buyer the expenses caused by the sale. — flf. L. 1, § 1, De act. empti ; Dom. 1. o. n. 6 J Poth. 1. 0. J C. N. 1646. [II. 63.] 1529. If the, thing perish by reason of any latent defect which it had at the time of the sale, the loss falls upon the sel- ler, who is obliged to restore the price of it to the buyer, and otherwise to indemnify him, as provided in the two last pre- ceding afticles. — If it perish by the fault of the buyer or by a fortuitous event, the value SALE. 247 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. — ff. L. 31,811} L. 47, 8 1, De aed. ed. j Poth. Vente, 220-1 j Dom. 1. 0. n. 9 ; 3 Delv. 152, n. 9; 16 Dur. n. 326; 1 Duy. n. 414; 4 Zach. 304, n. 11; 6 Marc. 285; 2 Tr. Vente, n. 668, V. 30 ; C. N. 1647. [II. 63.] *X530* The redhibitory ac- tion, resulting from the obliga- tion of warranty against latent defects, must be brought with reasonable diligence, accord- ing to the nature of the defect and the usage of the place where the sale is made. — Foth. Vente, 231; Dom. 1. o. n. 18; C. N. 1648. [II. 65.] 1531* In sales made under process of execution there is no obligation of warranty against latent defects.— ff. L. 1, 8 3, De sed. ed.; Dom. 1. c. n. 17; C.N. 1649. [11.65.] CHAPTER FIFTH. OF THE OBLIGATIONS OF THE BUTEB. 1532. The principal obli- gation of the buyer is to pay the price of the thing sold. — Dom. 1. 1, t. 2, 8. 3, n. 1 ; Poth. Vente, 278; C. N. 1660. [II. 66.] 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. — ff. L. 41, § 1, De verb. ob. | L. 14, De reg. jur. ; Dom. 1. c. n. 2 ; Poth. Vente, 279; C. N. 1651. [II. 65.J i|.534. The buyer is obliged to pay interest on the price in the cases following : 1. In case of a special agree- ment, 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 possession 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 ; 3. In case the thing be not of a nature to produce fruits or revenues, from the time of the buyer being put in default. — ff. L. 13, 8 20, 21, De act. empt ; Poth. Vente, 283-6 ; Dom. 1. c. n. 8; C. 1067, 1070, 1077; C. N. 1652. [II. 55.] * 1S35. If the buyer be dis- turbed in his possession or hare just cause to fear that he will be disturbed by any action, hy- pothecary or in revendication, he may delay the payment of the price until the seller causes Buch disturbance to cease or gives security, unless there is a stipulation to the contrary.— C. S. L. C. c. 36, s. 31 ; C. C. V. 1186; C. li. 2636; C. N. 1653. [II. 55.] ^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.]— ff. 1. 18, t. 3, de lege com. ; Cod. L. 8, de contr. empt. et vend. L. 1, L. 3, de pact, in empt. et vend. ; Poth. Vente, n. 458 ; 1 Desp. 48, n. 19; 2 Tr. Vente, n. 621, p. 9Q ; Dom. 1. 0. n. 8, s. 12, n. 1 ; Poth. Vente, n. 475, § 4; C. L. I m *Sf m. 248 SALI. 2539; C. N. 1654; C. 1065. [II. 67J iii 1537. [The stipulation and right of dissolution of the sale of an imniov«able» by reason of non-payment of the price, are subject to the rules relating to the right of redemption con- tained in articles 1547, 1548, 1549, 1550, 1551, 1652.--The right can in no case be exer- cised after the expiration of ten years from the time of sale. "l-Loy. D6guerpissement, 1. 6, 0. 3, n. 90 ; 2 Tr. Vente, n. 651 ; 2 Tr. HypothSques, n. 466, p. 160. [II. 57.] 1538. [The judgment of dissolution by reason of non- payment of the price is pro- nounced at once, without any delay being granted by it for the payment of the price ; nevertheless the buyer may pay the price with interest and costs of suit at any time before the rendering of the judgment.] — Poth. Vente, n. 459, al. 3, n. 461, al. 2. [II. •>7.] 1539. The seller cannot have possession of the thing sold, upon the dissolution of the sale by reason of non-pay- ment 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 improve- ments as have increased the value of the thing, to the amount of sunh increased value. If these improve- ments be of a nature to be removed, ho has the option of permitting the buyer to remove them. — Poth. Vente, n. 469, 470. [II. 67.] 1540. The buyer is ob- liged to rJBstore the thing with the fruits and profits received by him, or such portion thereof as corresponds with the part of the T^ aCO remaining unpaid. — He is also answerable to the seller for the deteriorations of the property which have been caused by his fault. — Poth. Vente, 465, 466, 468. [II. 57.] 1541. The seller is held to ' have abandoned his right to recover the price when he has brought an action for the dis- solution of the sale by reason of the non-payment of it. — ff. L. 4, § 2, De leg. com. ; Poth. Vente, n. 461 ; 1 Desp. 73. [II. 57.] 1542. [A demand of the price by action or other legal proceeding does not deprive the seller of his right to obtain the dissolution of the sale by reason of non-payment.] -1 Tr. P. & H. n. 224 bis; 1 Duv. n. 444 — ; Merl. Q., Optioti, § 1, n. 10; Id. Rep. Resolution; 16 Dur. n. 239; S. L. 7, e. t. ; 1 Desp. 73, n. 3, 4 ; Poth. Vente, n. 462. [II. 67.] 1543. In the sale of move- able things the right of disso- lution by reason of non-pay- ment of the price can only be exercised while the thing sold remains in the possession of the buyer; without prejudice to the seller's right of re- vendication as provided in the title Of Privileges and Hif- potheca. — C. P. 170; 1 Bour, 145, s. 1, 2 ;^ Tr. Vente, 631, Ad. to a. 1054 ; Tr. P. & H. n. 395; C. C.*V.1187; C. N. 1654. [II. 69.1 1544. In the sale of move- BALK. 20 able things the buyer is ob- liged to take them away at the time and place at which they are deliverable. [If the price have not been paid the disso- lution of the sale takes place, in favor of the seller, of right and without the intervention of a suit, after the expiration of the delay agreed upon for taking them away, or if there be no such agreement, after the buyer has been put in de- fault in the manner provided in the title 0/ Obligationa ;"] without prejudice to the seller's claim for damages. — Poth. Vente, 290, 1 j 2 Tr. Vente, m-'i 1 Duv. 474; 4 Zach. 305, n. 1, 2, p. 306, n. 3, 4 ; 0. N. 1657 J 6 Marc. 296 ; 16 Dur. 87 J 0. 1067-1069, 1152. [II. 69.] CHAPTER SIXTH. OF THB DISSOLUTION AND OP THE ANNULLING OF THE GONTBACT OF SALE. 1545* 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 be dissolved by the exer- cise of the right of redemption. — Dom. 1. 1, t. 2, s. 12, Intr. a. & n. 6; Poth. Vente, n. 330, 385; C.N. 1658. [11.69.] SECTION I. Of the right of redemption, 1646i The right of redemp- tion 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 sale and the costs of all neces- sary repairs, and of such im- provements as have increased the value of the thing, to the amount of such increased value. — The seller cannot have pos- session of the thing until he has satisfied all these obligations.-^ Dom. 1. c. n. 6; Poth. Vente, 385, 411, 421-3-4-6 j 2 Tr. Vente, 762; 6 Marc. 307-8; C. N. 1659, 1673. [IT. 59.] 154:7i When the seller takes back the property under his right of redemption, he receives it free from all incumbrances with which the buyer may have charged it. — Dom. 1. c. n. 7; Poth. Vente, 430 ; C. N. 1673. [II. 61.1 1548. [The right of re- demption 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.] — Dom. 1. c. n. 9 ; Poth. Vente, 433 --, C. 0. 1. 14, B.2; C. L. 2546; 0. N. 1660. [II. 61.] 1549. [The stipulated term is to be strictly observed. It cannot be extended by the court.]— C. L. 2547 ; C. N. 1661. [II. 61.] *1550. [If the seller fail to bring a suit for the enforce- ment of his right of redemption within the stipulated term, the buyer remains absolute owner of the thing sold.]— C. L. 2548; C.N. 1662. [11.61.] 1551. [The term runs against all persons, including minors and those otherwise incapable in law, reserving to the latter such recourse as they 250 SILB. may be entitled to.] — 0. L. 2649 ; C. N. 1663. [II. 61.] 1552. The seller of im- moveable property may ex- ercise his right of redemp- tion against a second buyer, although the right be not de- clared in the second sale. — Imh. Vente, 396-8, 428; Tr. Vente, 728-9; C. N. 1664. [11 61.] 1553. The buyer of a thing subject to a right of 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 haying claims and hypothecs on the thing. —Poth. Vento, 385, 402, i. f.j C. L. 2551j C. N. 1666. [II. 61.] 1554. He may set up the benefit of discussion against the creditors of the seUer. — C.L. 2562; 0. N. 1666. [II. 61.] 1555. If the buyer of an undivided part of an immove- able subject to the right of re- demption becomo afterwards the buyer of the whole pro- perty, 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. — 2 Tr. Vente, 744-6 ; 6 Marc. 304 ; 16 Dur. n. 413 ; C. S. L. C. c. 48, s. 6; C.N. 1667. [11.61.] 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 whiolx belonged to him. — Bum. de divid. et indiv. n. 682 — ; Poth. Vente 397; 2 Tr. Vente, 746 -; C. title Of Obligationt, o. 7, s. 6 C.N. 1668. [IL61.] 1557. The rule declared in the last preceding article applies also if one seller of an immovea|)le 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 thi. seller. — Dum. Poth. Tr. 1. c.t O.N. 1669. [11.63.] 1558 In the case stated in the two last preceding articles the buyer may, if he think fit, compel the co-vendor or the coheir to take back the whole of the property sold with the right 01 redemption, and in de- fault of his so doing, he may ct iSe the suit of such co- vendor or coheir for a part of the property to be dismissed. —Dum. Poth. Tr. 1. c; C.N. 1670. [11.63.] 1559. If the sale of an im- moveable belonging to several owners be made not conjointly of the whole property together, but by each of them of his part only, they may exercise their right of redemption separately, each for the portion which be- longed to him, and the buyer cannot oblige him to take back the whole.— Poth; Vente, 396 j Tr. Vente, 754, 755; 6 Marc. 306; C.N. 1671. [11.63.] 1560. If an immoveable have been sold to several buyers, or to one buyer who leaves several ^eirs, the right of redemption cli,n be exercised against each of the buyers or coheirs for hie part only ; but SALE. 25t if there have been a partition of the property among the co- heirs, the right may bo exer- cised for the whole property against any one of them to whom it has fallen. — Dam. Poth. 1. O.J 2 Tr. Vente, 766-- J C.N. 1672. [11.63.] SECTION II. Of the annulling of sale for cause of lesion. 1561i The rales relating to the avoiding of contracts for cause of lesion are declared in the title Of Obligations. — 0.1021} O.N. 1674. [11.63.] CHAPTER SE"^ENTH. OF SALE BY LICITATION. 1562. If a thing, either moveable or immoveable, held in common by several proprie- tors cannot be partitioned con- veniently and withoat loss, or if in a voluntary partition of a property held in common there be a part which none of the co- proprietors is able or willing to take, a publio sale of it is made to the highest bidder, and the price is divided among them. —Strangers are admitted to bid at such sale. — Poth. Vente, 615 ; C. S. L. C. c. 48, s. 3, 6 ; C. 300 J C. N. 1686. [II. 63.] 1563. The manner and formalities of proceeding lii sales by licitation are declared in the Code of Civil Proce- dure.~C. N. 1688. [II. 63.] CHAPTER EIGHTH. OP SALE BY AUCTION. 1564. Sales by auction or public outcry are cither forced or voluntary. — The rules re- lating to forced sales are de- clared in chapters seven and eleven of this title, and in th» Code of Civil Procedure.~[H. 63.] *1565. The voluntary sal» by auction of goods, wares, merchandise or effects, cannot be made by any person other than a licensed auctioneer, subject to the following ezoep' tions : 1. The sale of goods or ef- fects belonging to the crown, or seized by a publio oflSicer under judgment or process of any court or as being forfeited ; 2. The sale of goods and effects of deceased persons or belonging to any dissolution of community of property or to any church ; 3. Sales by the inhabitants' in the rural districts, not for trading purposes, of their fur- niture, grain, cattle, and other property not being merchan- dise and stock in trade, when changing their residence or finally disposing of the same ; 4. Sales by auction for mu- nicipal taxes under the act respecting municipalities. — C. S. L. C. c. 6, s. 1, 2, 7. [II. 63. J 1566. A sale by auction contrary to the provisions con- tained in the last preceding article, is not null j it merely subjects the contravening par- ties to the penalties imposed by law.— [II. 65.] 1567. The adjudication of 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 aale to him. and he beoomes^ 252 BALM, owner of the thing, subject to the oonditioni of sale announ- ced by the auctioneer, not- withstanding the rule contained in article 1235. The contract from that time is governed by the rules applicable to the contract of sale. — Sm. M. L. 496, b'^'^ ! Chit. Con. 308, n. 2, g. 389, n. 1; Et. 539, 540; 1 ug. V. P. 0. 3, s. 3, p. 130 i C. L. 2586, 2587. [II. 65.] 1568* If the purchaser do not pay the price at which the thing was adjudged to him, in conformity with the conditions 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 obtained 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 resale a greater price be obtained for the thing, the first purchaser is not entitled to the benefit thereof, beyond the expenses of the resale, and he is not al- lowed to bid at such resale. — €hit. Con. 430 & n. 2, 4 ; 2 Et. £04; Maxham & al, vs. Staf- ford, 5 L. C. J. 105 ; Ruston vs. Perry, n. 2155, 24th July, 1848, Montreal; C. L. 2589, 2590; A. D. FoUe EnchSre, n. 3 ; 1 Par. n. 131, p. 258 ; Poth. P. C. 264. [II. 65.] CHAPTER NINTH. OF THE SALE OF BEGISTEBBD VESSELS. 1569> Special provisions concerning the sale of regis- tered ships or vessels are con- tained in the fourth book of this code in the title Of Merchant Shipping. — [II. 65 : III. 383.] CHAPTER TENTH. OF THE SALE OF DEBTS AND OTHER INOOBFOBEAL THIKOS. SECTION I. Of the sale of debts and rights of action. 1570. [The sale of debts and rights of action against third persons, is perfected be- tween the seller and buyer by the completion of tho title, if authentic, or the delivery of it, if under private signature.]— C. 1494 : C. N. 1689. [II. 67.] *1571. The buyer has no possession available against third persons until significa- tion of the act of sale has been made, and a copy of it delivered to the debtor. He may, how- ever, be put in possession by the acceptance of the transfer by the debtor, subject to the special provisions coiltained in article 2127 C. P. 108 ; Poth. Ob. 602, Vente, 554 ; Lac. Transport, n. 17 ; 3 Mai. 366; C.N. 1690. [11.67.] 1572. If before the signifi- cation of the act by one of the parties to the debtor ho have paid to the seller, he is dis- charged. — Poth. Vente, 655 ; 2 Tr. Vente, 901; C. N. 1691. [II. 67.] 1573> -The two last preced- ing articles do not apply to bills, notes or bank checks BALK. 2M signifi- e of the ho have is dis- 555; 2 K. 1691. payable to order or to bearer, no signifioation of the transfer of them being necessary ; nor to debentures for the payment of money, nor to transfers of shares in the capital stock of incorporated companies, which are regulated by the respective acts of incorporation or the by-laws of such companies. — Notes for the delivery of grain or other things, or for the pay- ment of money, and payable to order or to bearer, may be transferred by endorsement or delivery, without notice, whether they are payable absolutely or subject to a condition.— [II. 67.] 1574. The sale of a debt or other right includes its accessories, such as securities, privileges and hypothecs. — C. 1024, 1499: C. N. 1692, 1616. [II. 67J 167o. Arrears of interest accrued before the sale are not included in it as an accessory of the debt. — A. D. Accessoires, n. 4; Guy. Accessoires, 108; Tr. Vente, n. 915 j 6 Dur. n. 507; Duv. n. 221 ; 6 Marc. 634. [II. 67.] 1576. The seller of a debt or other right is bound by law to the warranty that it exists and is due to him, although the sale be without warranty. Subject nevertheless to the exception declared in article 1510.— flF. L. 6, De ovic; Poth. Vente, 659 ; Tr. Vente, 931, 6, 6; Loy. Garantie des rentes, c. 3, n. 11, i. f. ; 1 Bour. 467, n. 19, 20 ; C. N. 1693. [H. 67.] 1577. When the seller by a simple clause of warranty obliges himself for the solvency of the debtor, the warranty applies only to hi:^ solvency at the time of sale, and is limited in amount to the price paid by the buyer. — ff. L. 74, De evic. j Loy. ib. 0. 7, n. 7, 8 ; Poth. Vente, 670 ; 1 Bour. 467, n, 21 — ; Lam. t. 22, a. 10 — ; 2 Tr. Vente, 938 --, 948 ; C. N. 1694, 1695. [II. 69.] 1578. The preceding arti- cles of this chapter apply equally to transfers of aobts and rights of action against third persons by contracts other than sales, except gifts to which article 1576 does not apply.— Lac. Eviction, n. 26; Loy. Kentes, o. 1, n. 14 ; Bic. Donations, pt. 1, n. 954. [II. 69.] SECTION II. Of tJw sale of successions. 1579. [He who sells a right of succession without specify- ing in detail the property of which it consists is bound by law to warrant only his right as heir.]— C. N. 1696. [II. 69.] 1580. 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 reimburse the same to the buyer, unless they have been expressly reserved. —flF. L. 2, § 1, 3, De her. vend.; Cod. L. 6, De her. vend. ; Poth, Vente, n. 530-532, 534, 636. 537 ; 2 Tr. 963 ; C. N. 1697. [II. 69.] 1581. The buyer, besides I his obligations common to the I contract of sale, is obliged to I reimburse the seller for all SM BALI. debts and expenses of the suo- oession paid by him, to pay him the debts which the suc- cession may owe him, and to discharge all debts and obliga- tions of the succession for which ho is liable ; unless there is a stipulation to the contrary. —if. L. 2, S 16-18 De her. vend. } Poth. Vente, 640-2, Suo. 0. 5, a. 2, 9 2 ; 2 Tr. Vente, 976, 977 j 0. N. 1698. [II. 69.] SECTION III. Of the sale of litigious rights. 1582. When a litigious right is sold, ho against whom it is claimed is wholly dis- charged by paying to the buy- er the price and incidental expenses of the sale, with interest on the price from the day that the buyer has paid it. —Cod. L. 22, L. 23, L. 24, mand. vel cont. ; Poth. Vente, 590; N. D. Cession de dr. lit.; 2Tr. Vente, 985: C. N. 1699. [II. 69.] 1583. A right is held to be litigious when it is uncertain, and disputed or disputable by the debtor, whether an action for its recovery is actually pending or is likely to become necessary,— Cod. L. l,Inauth. de litig. ; Poth. Vente, £83 ; N. D. 1. c. J 2 Tr. Vente, n. 986; 6 Marc. 351; 2 Dur. n. 369, p, 444, 6; C. N. 1700. [II. 71 J 1584. The provisions con- tained in article 1582 do not apply : 1. When the sale has been made to a coheir or coproprietor 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 nght; 4. When the judgment of a court has been rendered affirm- ing the right, or when it has been made clear by evidence and is ready for judgment.— Cod. L. 22, L. 23, L. 24, 1. c; Poth. Vente, 693-7 ; Leb. Sue. I. 4, c. 2, s. 5, n. 68 ; X. D. 1. c. 8 2, n. 4; 2 Tr. Vente, 998, 9, 1005 — ; 6 Marc. 355, 6, n. 3 ; 2 Duv. 377, 8 ; C. N. 1701. [II. 71.] CHAPTER ELEVENTH. OF FOBCED SALES AND TBANS- FEBS RESEMBLING SALE. SECTION I. Of forced sales. 1585. The creditor who has a judgment against his debtor may take in execution and cause to be sold, in satis- faction of such judgment, the property moveable or immove- able of his debtor, except only the articles specially exempted by law ; subject to the rules and formalities provided in the Code of Civil Procedure. — C. S. L. C. c. 85, s. 1-3. [II. 71.] 1586. In judicial sales nnder execution, the buyer, in case of eviction, may re- cover from tho debtor the price paid with interest and the in- cidental expenses of the title ; he may alsa recover, from the creditors who have received it, the price with interest ; saving BALI. 9M to the latter their exception of iiscuision of the property of the debtor.— ff. L. 74, 9 1* De eTic. ; 2 Pi. 254 ; 13 Dur. n. 686; 16 Id. n. 265; Voet, P. De evic. n. 5 j Poth. P. C. 254 j Tr. Yente, 432, 522; 6 Marc. 256 ; 0. L. 2599 ; Dosjardins vs. Banque du Pouple, 10 L. C. R. 325. [II. 71.] 1587* The last preceding article is without prejudice to the recourne which the buyer has against the prosecuting credi- tor, by reason of informalities in the proceedings, or of the seizure of property not osten- sibly belonging to the debtor. [II. 71.J 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 0/ Privileges and Hifpothect, and in the Code of Civil Procedure. [II. 71] 1589. In eases in which immoveable property is re- quired for purposes of public utility, the owner may be forced to sell it or be expro- priated by the authority of law m the manner and according to the rules proscribed by special laws. — Poth. Vente, 611-4; 0. 1303 ; L. & B. let. E, o. a. 1, 2 ; C. L. 2604 — ; C. S. L. C. c. 70, 8. 26 — , s. 42, 43, c. 24, s. 50. [11.71.] 1590. In the case of sales and expropriations for purposes of public utility, the party ac- quiring the property cannot be evicted. The nypothecs and other charges are extinguish- ed, saving to the creditors their recourse upon the price and subject to the special laws re- lating to the matter. — Poth. Vente, 513 ; C. S. L. C. ib. s. 43. [11.73.] 1591. The rules concerning the formalities and proceeding! in judicial and other forced sales and expropriations are contained in the Code of Civil Procedure and in the acts re- lating to municipal and other incorporated bodies ; such sales and expropriations are subject to the rules generally applic- able to the contract or sale, when these are not inconsistent with special laws or any article of this code. [II. 73.] SECTION II. Of the giving inpayment. 1592. The giving of a thing in payment is equivalent to a sale of it, and makes the party giving liable to the same war- ranty. — The giving in payment, nevertheless, is perfected only by the actual delivery of the thing. It is subject to the provisions relating to the avoid- ance of contracts and payments contained in the title Of Obli- gations.— C. 1032 — ; Cod. L. 4, De evic. ; Poth. Vente. 600 -, 604, 605 ; 1 Tr. Vente, n. 7; 1 Duv. n. 45; Champ. et Itig Droits d'Enreg. v. Dation. ; 1 Par. 203; C. L. 2625 —. [II. 73.] 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 250 EXCHANGE. the contract of sale in so far as they can be made to apply. — Poth. B. R. c. 1. [II. 73.] 1594:. The rent may be payable either in money or in kind. Its nature and the rules to which it is subject are deolared in the articles relating to rents contained in the second chapter of the first title of the second book. — Poth.B.B. n. 13 ; C. S. L. C. c. 61, s. 5. [II. 73.] 1595. The obligation to pay the rent is a personal liability ; the purchaser is not discharged from it by abandon- ment of the property, nor is he discharged by reason of the destruction of the property by a fortuitous event or oy irre- sistible force.— 0. S. L. C. c. 51. [II. 73.] TITLE SIXTH. OF EXCHANGE. \' 1596. Exchange is a con- tract by which the parties respectively give to each other one thing for another. — [It is effected by consent, in the same manner as sale.] — ff. L. 1, De contr. empt., L. 1, § 1, 2, De rer. permut. j Poth. Vonte, 617, 621; C. N. 1702, 1703. [II. 73.] 1597. 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 compelled to deliver that which he has promised in counter-exchange, but only to return the thing which he has received. — ff. L. 1, § 1, 2, De rer. permut. ; Poth. Vente, 621 j C. N. 1704. [II. 76.] 1598. The party who is evicted of the thing he has received in exchange has the option of demanding damages or of recovering the thing given by him.— ff. 1. o. § 3, 4 j Poth. Vente, 623 j C. N. 1705. [II. 76.] 1599. The rules contained in the title Of Sale apply equally to exchange, when not incoiioistent with any article of this title.— Poth. Vente, 624 ; C. N. 1707. [II. 76.] TITLE SEVENTH. OF LEASE AND HIRE. CHAPTER FIRST OENEBAL PROVISIOXS. 1600. The contract of lease or hire has for .its object either things or work, or both com- bined. — ff. L. 22, § 1, loc. cond. Voet, ad inst. 1. 3, t. 25, § 1; > \ LEASB AND HIRE. 257 Cuj. Parat. ine. t. j Poth. Lou- age, n. 1 J C. N. 1708. [II. 75.] 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 enjoy- ment of a thing, during a certain time, for a rent or Erice which the latter obliges imself to pay — Cuj. 1. o. j Dom. 1. 1, t. 4, s. 1, n. 1, 2; Poth. Louage, n. 1, 27, 39, 40 ; 0. N. 1709. [II. 76.] 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, for a price which the latter obliges him- self to pay. — ff. 1. 0. J Cuj. 1. C.J Lao. V. Louage, § Ij Tr. Louage, n. 64 j 6 Marc. 419- 424,670; C.N. 1710. [11.75.] 1603. The letting out of cattle on shares is a contract of lease or hire combined with a contract of partnership. — Dom. 1. 1, t. 4, s. 1, n. 6 ; Poth. Chep. n. 2-4 j Guy. Chep. 374 j 0. N. 1804, 1818. [II. 75.] 1604. The capacity to enter into a contract of lease or hire is governed by the general rules relating to the capacity to con- tract, contained in chapter one of the title Of Obligationa. — [II. 75.] CHAPTER SECOND. OF THE LEASE OR HIKE OF THINGS. SECTION I General Provisions. 1605. All corporeal things may be leased or hired, except such as are excluded by their special destination, and those which are necessarily consum- ed by the use made of them. — ff. L. 34, § 1, de cent. emp. ; Dom. 1. 1, t. 4, s. 1, n.4j Poth. Louage, n. 9 — j Tr. Louage, n.81,n. 1, 83 J C. 1060 — j C. L. 2648; C. N. 1713. [II. 77.] 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 servitude, they can only be leased with such thing. — ff. L. 44, loc. cond. ; Poth. Louage, n. 18, 19 ; Tr. Louage n. 88, 89 ; C. 1060 - ; C. L. 2649, 2650 : C. N. 631, 634. [II. 77.] 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 applic- able only to the one or the other of them.— Dom. 1. 1, t. 4, i. p. [11.77.] 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 re- garded as an annual lease or hire terminating on the first day t)f 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 applic- able to leases. — Persons so holding are liable to ejectment for non-payment of rent for a period exceeding three months. 258 LEASE! AND HIRE. I and for any other causes for which a lease may be rescinded. --€. S. L. C. c. 40, s. 16. [II. 77.] 1609. If the lessee remain in possession more than eight days after the expiration of the lease, without any opposition or notice on the part of the lessor, a tacit renewal of the lease takes place for another year, or the term for which «uch 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 required by law.— flf. L. 13, § 11, L. 14, loc. cond. ; Dom. 1. 1, t. 4, s. 4, n. 7 ; Poth. Louage, u, 40, 342, 344 : C. N. 1738, 1759. [11. 77.] 1610. When notice ha3 been given the lessee cannot claim the tacit renewal, although he has continued in possession. — ff. L. 14, loc. cond. ; Dom. 1. 1, t. 4, s. 4, n. 8 J Poth. Louage, n. 344 J C. N. 1739. [II. 79.] 1611i The surety given for the lease does not extend ^o the obligations arising from the prolongation of it by tacit renewal. — ff. L. 13, § 11, loc. cond. ; Cod. L. 7, De loo. ot cond. ; L'om. 1. 1, t. \ s. 4, n. 9 J Poth. Louage, n. 366-7 : C. N. 1740. [II. 79.] SECTION IT. Of the ohligations and rights of the lessor. 1612. The lessor is obliged by the nature of the contract : 1. To deliver ^^ 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 enjoy- ment of the thing during the continuance of the lease. — ff. L. 15, § 1, L. 25, § 1, 2, loc. cond. ; Dom. 1. 1, t. 4, s. 3, n. 1 ; Poth. Louage, n. 53, 54, 80, 106; C.N. 1719. [11.79.] 1613. The thing must bo delivered in a good state of re- pair 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. — flf. L. 19, § 2, loc. cond.; Dom. ). o. ; Poth. Louage, n. 106, 107; C. N. 1720. [II. 79.] 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. — ff. L. 19, § 1, L. 60, § 7, loc. cond.; Dom. 1. 1, t. 4, s. 3, n. 8, 10 ; Poth. Louage, n. 109 — j C. N. 1721. [II. 79.] 1615. The lessor cannot, during the lease, change the form of the thing leased. — Poth. Louage, ^a. 75 ; Guy. Bail, 18 ; C. N. 1723. [II. 79.] 1616. The lessor is not ob- liged to warrant the lessee against distu'-ban^'j by the mere trespass ot 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 ex- ceptions declared in the fol- lowing article. — ff. L. 55, loc. cond. ; Cod. L. 1, L. 12, de loc. LEASE AKD HIBE. 259 cond.j 8, 10 ; C.N. canrotj i,ngo the jascd. — Guy. I. 79.] not ob- lessoi) )y tho party vo any eased; right tres- ,ho ex- he fol- 55, loc. de loc. «t cond. ; Poth. Louage, n. 81, i 287 ; Tr. Louage, n. 257 ; C. L. 2673: C. N. 1725. [II. 79.] 1617. If the lessee's right of action for damages against the trespasser be ineffectual, hy reason of the insolvency of the latter, or of his being un- known, his rights against the lessor are regulated according to article 1660.— Poth. 1. o. ; Tr. 1. c. ; Duv. Louage, n. 316. £11. 79.] 1618* If the disturbance be in consequence of a claim con- cerning tho right of property, or other right in and upon the thing leased, the lessor is ob- liged to suffer a reduction in the rent, proportional to the diminution in the enjoyment of the thing, and to pay dama- ges according to circumstances, provided the lessor be duly no- tified of the disturbance by the lessee; and upon any action brought by reason of such claim, the lessee is entitled to be dismissed from the cause, upon declaring to the plaintiff the name of the lessor. — ff. L. 9. loc. cond. ; Dom. 1. 1, t. 4, 8. 3, n. 2; Poth. Louage, n. 82 -, 86, 88, 91, 286, 287 ; C. L. 2674; C. N. 1726, 1727. [IL 79.] 1619* The lessor has, for the payment of his rent and other obligations of the lease, a privileged right upon the move- able effects which are found upon the property leased. — ff. li. 7, L. 3, L. 4, i. p. & § 1, in q. caus. pign. v. hyp., L. 4, De pac. ; C. P. 161, 171 ; Dom. 1. 1, t, 4, s. 2, n. 12 ; Poth. Lou- age, n. 228, 233, 234; Jones 4& Lemesuriar, 2 Rev. 317 ; 21 Jones & Anderson, 2 L. C. R. 154 ; Aylwin et al. & Gilloran, 4 L. C. R. 360 ; C. L. 2675 : C.N. 2102. [11.81.] 1620. In the lease of houses the privileged right includes the furniture and moveable ef- fects of the lessee, and, if the lease be of a store, shop or manufactory, the merehandise 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 moveable effects in the house and dependencies, and the fruits produced during the lease. — ff. I. c. ; Dom. 1. c. ; Poth. Louage, n. 228, 233, 234, 249, 252, 253; C. N. 2102. [II. 81.] ^1621. The right includes also the effects of tho under- tenant, in so far as he is in- debted to the lessee. — ff. L. 11, § 5, de pign. act. ; C. P. 162 j Poth. Louage, n. 235 ; 2 Arg. 288; C. L. 2676; C.N. 1753; F. C. P. 820. [IL 81.] ^ 1622. It includes also move- able effects belonging to third persons, and being on the pre- mises by their consent, express or implied, but not if such moveable effects be only tran- siently or accidentally on the premises, as the baggage of a traveller in an inn, or articles sent to a workman to be re- paired, or to an auctioneer to DO sold. — ff. L. 7, § 1, in q. caus. pign. ; C. P. 161 ; Poth. Louage, n. 241,5; C. L. 2677, 2678. [IL 81.] *1623. In the exercise of the privileged right the lessor may seize the things which are sub- \ II t f j iii 260 lease: and BIR2. joot to it, upon the premises, or within eight days after they are taken away. If the things consist of merchandise, they can bo seized only while they continue to be the property of the lessee. — C. P. 171 j L. & B. a. 161, n. 1 J Poth. Louage, n. 257, 261, P. C. 193 ; Ins. sur Conv.203,4j C.L.2679j C.N. 2102. [11.81.] * 1624;i ^-i-he lessor has a< right of action in the ordinary course of law, or by summary proceed- ing, as prescribed in the Code of Civil Procedure : 1. To rescind the lease : First, When the lessee fails to furnish tbo premises leased, if a house, with sufficient furniture or moveable eflfocts, and, if a farm, with sufficient stock to secure the rent as required by iaw, — unless other security be given ; Secondly, When the lessee commits waste upon the premises leased j Thirdly, When the lessee uses the pro- mises leased for illegal pur- poses, or contrary to the evi- dent intent for which they - ^ leased ; 2. To recover possession of the premises leased in all cases where there is a causo for re- scission, and where the lessee continues in possession, against tlie will of the lessor, more than three days after the ex- piration of the lease, or without paying the rent according to the stipulations of the lease, if there be one, or according to article 1 608, when there is no lease ; 3. To recover damages for violation of the obligations arising from the lease or from the relation of lessor andlessee. — He has also a right to join with any action for the pur- poses above specified, a demand fov rent, with or without attach- ment, and attachment in re- caption when necessary. — ff.L. 61, L. 54, § 1, loo. cond. ; Cod. L. 3, do loo. et oond.j Dom. 1. 1, t. 4, s» 2, n. 15, 16 ; Poth. Lou- age, n. 318, 322, 323 ; 2 Bour. 54, n. 16, 18 J 65, n. 26; 56. n. 17 - ; C. N. 1752, 1766, 1729. [11. 81.] 1625. The judgment res- cinding 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. [11.83.] SECTION III. Of v/ie oUigations and rights of the lessee. 1626. The principal obli- gations of the lessee are : 1. To use the thing leased as a prudent administrator, for the purposes only for which it is designed and according to the terms and intention of the lease ; 2. To pay the rent or hire of the thing leased. — ff.. L. 25, § 3, L. 11, § 1, loc. cond. ; Cod. L. 17, do loc. et cond. ; Dom. 1. 1, t. 4, 8. 2, n. 1 J Poth. Lou- age, n. 22-24; 2 Bour. 43, n. 1, 2, 46, n. 2^; C. N. 1728. [11.83.] . 1627. The lessee is re- sponsible for injnries and loss LEASE AND HIBE. 261 which happen to the thing leased during his enjoyment of it, unless he proves that he is without fault.— flf. L. 11, § 2, 3, loc. cond., L. 23, de reg. juris. J Cod. L. 28, De loc. et cond. ; Dom. 1. 1, t. 4, s. 2, n. 4; Poth. Louage, n. 195, 197, 199, 200 ; C. N. 1732. [II. 83.] 1628. He is answerable also for the injuries and losses which happen from the acts of persons of nis family or of his subtenants. — fif. L. 11, L. 25, § 7, L. 60, § 7, L. 30, § 4, loc. cond. ; Dom. 1. 1, t. 4, s. 2, n. 5 J Poth. Louage, n. 193, 194 ; 2 Bour. 46, n. 31 ; C. N. 1736. £11. 83.] *1629. 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 parsons for whom he is responsible ; and unless he proves the contrary he is answerable to the lessor for such loss. — ft". L. 9, § 3, loc. cond. ; Poth. Louage, n. 194 j 2 Bour. 47, n. 33-37 ; Gny. InccTvdie, 122 j Arg. I. 3, o. 27, p. !;si ; C. N. 1733. [II. 83.] 1630* The presumption 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 property who suflFera loss by fire which has originated in the premises occupied by such lessee. — Guy. 1. c. ; 11 Toul. 172 ; 6 Marc. 468. [II. 83.] 1631> If there be two or more lessees of separate parts of the same property, caoh is answerable for loss by tiro, according to the proportion of his rent to the rent cf 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 an- swerable. — Guy. Incendie, 125 j 11 Toul. n. 170 J Tr. Louage, n. 376 J Poth. Louage, n. 194 j C. N. 1734. [II. 83.] 1632. If a statement have been made between the lessor and lessee, of the condition of the premises, the latter is ob- liged 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. — fi". L. 30, § 4, loc. cond. ; 2 Bour. 46, n. 30, p. 48, n. 42, 43 ; Tr. Louage, n. 341 ; C. N. 1730. [II. 83.] 1633. If no such statement as is mentioned in the preceding 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 con- dition J saving his right to prove the contrary. — £f. L. 11, § 2, loc. cond. ; Poth. Louage, 197, 22i; Bour. 1. c. j C. N. 1731. [IT. 85.] 163^« If during the lease the thing leased bo in urgent want of repairs, which cannot be deferred, the lessee is obliged to suffer them to bo made, whatever inconvenienco they may cause him, and although ho may be The contract of lease or hire of things is not dis- solved by the death of the lessor or lessee. — flF. L. 60, § 1, L. 19, § 8, loo. cond. ; Cod. L. 10, De loc. et cond. j Poth. Louage, n. 59 ; 2 Bour. 41, n. 16 ; C. N. 1742. [II. 93.] 1662> The lessor cannot put an end to the lease, for the purpose of occupying him- self the premises leased, unless the right to do so has been expressly stipulated, [and in such case the lessor must give notice to the lessee according to the rulo3 contained in article 1657 and th^ articles therein referred to ; unless it is other- wise stipulated.] — C. S. L. C. c. 52 J C.N. 1761. [11.93.] 1663i [The lessee cannot, by reason of the alienation of the thing leased, be expelled before the expiration of the lease, by a person who bo- comes owner of the thing leased under a title derived from the lessor; unless the lease contains a special stipu- lation to that efifect and be re- gistered. — In such case liotice must be given 'to the lessee ac- cording to the rules contained in article 1657 and the articles therein referred to; unless it is otherwise specially agreed.] — ff. L. 25, § 1, loc. cond. ; Cod. L. 9, de loc. et cond. ; Dom. 1. 1, t. 4, s. 3, n. 4 ; Poth. Lou- age, n. 62, 101, 288, 289, 292, 293; C. N. 1743; C. 2128. [II. 93.1 !'"64. [The lessee who is exi ixcd under a stipulation to that effect is not entitled to re- cover damages, unless the right to do so is expressly reserved in the lease.] [II. 93.] 1665* When property sold subject to the right of redemp- tion is taken back by the seller, in the exercise of such right, the lease made by the buyer is thereby terminated and the lessee has his recourse for damages upon the buyer only. — Tr. Louage, n. 776, 777, & cit. [II. 93.] LEASE AND HIBK. iflf CHAPTER THIRD. or THE LEA8B AND HIRE OF WOBK. SECTION I. General provisions. 1666* Tho principal kinds of work -which may do loased or hired aro : 1. Tho personal sorvloos of workmen, servants and others ; 2. Tho work of carriers, by land and by water, who un- dertake tho conveyance of per- sons or things ; 3. That of builders and others, who undertake works by estimate or contract. — C. N. 1779. [II. 95.] SECTION II. Of the lease and hire of the personal service of work- men, servants and others, 1667* The contract of lease or hire of personal service can only be for a limited term, or for a determinate undertaking. — It may bo prolonged by tacit renewal. — fF. L. 71, § 1, 2, do cond. et dem. ; Desp. Louage, s. 2, n. 6 ; Poth. Louage, 372 ; Tr. 881 ; C. N. 1780. [II. 95.] 1668. It is terminated by the death of the party hired or his becoming, withput fault, unable to perform the services agreed upon. — It is also termi- nated by the death of the party hiring, in some cases, according to circumstances. — 2 Ort. Inst. 271 ; Poth. Louage, K. 165-8, 171-6 J C. N. 1795. [IL 95.] '*^1669* In any action for ^ages by domestics or farm 18 servants, in the absence of written proof, the master may offer his oath, as to tho condi- tions of the engagement and as to the fact of the payment, ao- companiod by a detailed state- ment. — If the oath bo not of- fered by the master it may be deferred to him, and is of a docisory nature, as regards the subjects to which it is limited. — C. P. 127 ; Poth. Louago, n. 17' Quy. Domestique, 102;. K Oages, §3, p. 143: C. N. 17hi. [11. 95.] 1670. Tho rights and obli- gations arising from the lease or hire of personal sorvico are subject to the rules common ta contracts. They are also regu- lated in certain respects in the country parts by a special law, and in the towns and villages by by-laws of the respective municipal councils. — C. S. L. C. c. 27: 0.24,8.28, §20. [II. 95.] *1671. The hiring of seamen is subject to certain special rules provided in the act of the imperial parliament. Intituled : The Merchant Shipping Act,. 1854, and by an act of the par- liament of Canada, intituled r An Act respecting the Shipping of Seamen, and the hiring of boat-men, commonly called voi/ageura, by certain rules provided in an act intituled : An act respecting Voyagours. — C. S. L. C. c. 55 ; c. 58 ; I. S. 17,18 v., c. 104 J 18, 19 v., c. 91 J 25, 26 v., c. 63. [11.95.] SECTION III. ^ Of carriers. 1672< Carriers by land anu. ^W^ ^V'- ^.T- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Ui 1^ |2.5 S?||4 i- 12.2 us 140 H^ m |l.25 1 1.4 ||||L6 ^ 6" ► Mm o: '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)873-4503 % 268 LEASE AND BIBE. "by water are subject, with re- spect to the safe-keeping of things entrusted to them, to the same obligations and duties as innkeepers, declared under the title Of J)epo»it.^fS. L. 1, i. £. & § 1-4, naut. oaup. stab. ; om. 1. 1, t. 4, s. 8, n. 5 ; C. N. 1782. [II. 96.] ^1673. They are obliged to receive and convey, at the times fixed by public notice, all persons applying for passage, if the conveyance of passengers be a part of their accustomed business, and all goods oflfered for transportation; unless, in «ither case, there is a reason- able and sufficient cause of refusal. — C. S. C. c. 66, s. «6-98, 119, 120 J Guy. Voitu- rier, 634 j De Vil. D. C. C. Voiture, n. 3 ; Sm. M. L. 288 j Sto. Bts. § 508; Ba. Ab. Car- riers, B. [II. 97.] 1674. They are liable, not only for what has been received in the carriage or vessel, but also for what has been deliver- ■ed to them at the port or place of deposit, to be put in their carriage or vessel. — ff. L. 1, § 8, naut. caup. ; Dom. 1. c. ; C. N. 1''83. [II. 97.] 1675. They are liable for the loss or damage of things entrusted to them, unless they can prove that such loss or damage was caused by a for- tuitous event or irresistible force, or has arisen from a defect in the thing itself. — Merl. Messageries, § 11, n. 2, for arrets j C. 1071, 1072 j Hustou vs. G. T. Railway, 3 L. C. J. 269 ; C. N. 1784 j C. Co. 103. [II. 97.] * 1676. Notice by carriers, of special conditions limiting their liability, is binding only upon persons to whom it is made known; and notwithstanding such notice and the know- ledge thereof, carriers are liable whenever it is proved that the damage is caused by their fault or the fault of those for whom they are responsible. —2 Tr. Louage, n. 942; 2 Par. n. 642, p. 449 ; Sto. Bts. § 664 & n. 3; 1 Bell, Com. § 104, 4th ed.; Sm. M. L. 489, 490; Huston vs. G. T. B. Co. oit. sup. [II. 97.] *1677. They are not liable for large sums of money or of bills or other securities, or for gold, or silver, or precious stones, or other articles of an extraordinary value, contained in any package received for transportation, unless it is declared that the package contains such money or other articles. — The foregoing rule nevertheless does not apply to the personal baggage of travel- lers when the money or the value of the articles lost is only of a moderate amount and suit- able to the circumstances of the traveller, and the traveller is entitled to be examined upon oath in proof of the value of the things composing such bag- gage. — Fer. Df. Aubergiste, 144 ; 1 Aug. 562 ; N. D. Aubergiste, § 3, n. 3 ; 6 Marc. 632 ; 6 Boi. 173-6 ; 11 Toul. n. 265; 2 Duv. 329; Sto. Bts, § 630; Sm. M. L. 489, 490; McDougal vs. Allan et al, 12 L. C. R. 321 ; tiadwallader vs. G. T. R. Co., 9 L. C. R. 169 j McDougal vs. Torrance, 4 L< C. J. 132. [II. 97.] r \ LEASE AND HIBE. 269 1678. If by reason of afor- tuitous event, or irresistible force, the transportation and delivery of the thing be not made within the stipulated term, the carrier is not liable in damages for the delay. — flF. L. 58, § 1, loc. cond. ; Dom. 1. 1, t. 4, s. 9, n. 5; C. Co. 104. [II. 97 J 1679. The carrier has a right to retain the thing trans- ported until he is paid for the carriage or freight of it. — £f. L. 6, § 1, 2, q. pot. ; Dom. 1. 3, t. 1, 8. 5, n. 11 ; Sm. M. L. 568-9 ; Brewster ct al. vs. Hooker et al, IL. C. J. 90; C.N. 2102. [II. 97J 1680. The reception of the thing transported and payment of the carriage or freight, with- out protest, extinguish all right of action against the carrier; unless the loss or damage is such that it could not then be known, in which case the claim must be made without delay after the loss or damage be- comes known to the claimant. —2 Par. n. 547, 554 j C. Co. 106. [11.97.] ^^1681. The conveyance of persons and things by railway is subject to certain special rules, provided in the Act res- pecting Railways. — C. S. C. c. 66, 8. 68, 96-102, 119, 120 j C. N. 1786. [II. 99.] 1682. Speoial rules relat- ing to the contract of affreight- ment and the conveyance of passengers in merchant vessels are contained in the fourth book.— C. N, 1786. [II. 99 j III. 383.] SECTION IV. OfworJc hy estimate and ciyn^ tract, 1683. When a party under- takes the construction of a building or other work by esti- mate and contract, it may be agreed, either that ho shall furnish labor and skill only, or that he shall also furnish ma- terials. — Dom. 1. 1, t. 4, 8. 7, n. 2; Poth. Lotiago, n. 393,304; C. L. 2728 ; C. N. 1787. [II. 99/1 1684. If the workman fur- nish the materials, and the work is to be perfected and delivered as a whole, at a fixed price, the loss of the thing, in any manner whatsoever before delivery, falls upon himself, unless the loss is caused by the fault of the owner or he is in default of receiving the thing. — ff. L. 2, § 1 ; L. 36, loc. cond. ; L. 20 ; L. 65, de cont. empt. ; Dom. 1. 1, t. 4, 8. 8, n. 8-10 ; Poth. Louage, n. 425, 426, 436, 394, & pt. 7, c. 3, al. 4, 5; Guy. Louage, 47 ; 6 Marc. 355, 356 ; Tr. Louage, n. 976 — ; 19 Duv. 336, 337 ; C. N. 1788. [II. 99.] 1685. If the workman fur- nish only labor and skill, the loss of the thing before delivery does not fall upon him, unless it is caused by his fault. — ff. L. 13, § 5; L. 62, loc. cond.; Dom. 1. 1, t. 4, s. 8, n. 4; Poth. Louage, n. 428, 434, 435, 500 ;• C. L. 2730; C.N. 1789. [II. 99.] 1686. In the case of the last preceding article, if the work IS to be perfected and delivered as a whole, and the thing perish before the work has been re- 270 LEASE AMD HIRE. oeirod, and without the owner being in default of receiving it, the workman cannot claim his wages, although he be without fault; unless the thing has perished by reason of defect in the materials, or by the fault of the owner.— ff. L. 61, § 1 ; L. 38, i. p. & § 1, loo. oond. ; Dom. 1. 1, t. 4, 8. 9, n. 4 ; Foth. Louage, n. 433, 434 ; Tr. Louage, n. 971-978; 6 Marc. 637 j C. C. V. 1275: C. N. 1790. III. 99.] 1687. If the work be com- posed of several parts, or done at a certain rate by measure- ment, it may be received in parts. It is presumed to have been so received, for all the parts paid for, if the owner pays the workman in propor- tion to the work done. — Poth. Lou. n. 436, 437 ; C. L. 2732 j C. N. 1791 J C. C. V. 1276 j Auth. under three pre. arts. [II. 99.] 1688. If a building perish in whole or in part Within ten years, from a defect in con- struction, or even from the un- favorable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss. — Cod. L. 8, de op. Sub. ; Poth. Louage, n. 425. 26, Ob. n. 163 j Fer. on 113, 0. P. J Bour. 1. 6, t. 2, c.j9, n. 8 } C. 2259 J Brown «fe Laurie, 5 L. 0. R. 65, and oit. ; C. N. 1792, 2270. [11.99.] 1689. If» in the case stated in^ the last preceding article, the architect do not superin- tend the work, he is liable for the loss only which is ooca- Bioned by defector error in the plan furnished by him. — 19 Dw-r. 1. 354. [II. 99,] ^ 1690. [When an -architect or builder undertakes the con- struction of a building or other works by contract, upon a plan and specification?, at a fixed price, he cannot claim any ad- ditional sum upon the ground of a change from the plan and specifications, or of an increase in the labor and materials, un- less such change or increase is authorized in writing, and the price of them is agreed upon with the proprietor. — Poth. Lou. n. 407, 408 j N. D. D6vis et Marchd, 364 ; Tr. Louage ; n. 1016-1019; 6 Marc. 642; 6 Boi. 193 & arr. cit. ; 19 Duv. 366; C. N. 1793. [11.101.] 1691. The owner may can- cel the contract for the con- struction of a building or other works at a fixed price, although the work Lave been begun, on indemnifying the workman for all his actual expenses and labor, and paying damages ac- cording to the circumstances of the case. — Poth. Lou. n. 440- 2-4 ; Guy. Lou. 48 ; C. L. 2736 ; C.N. 1794. [11.101.] 1692. The contract of lease or hire of work by estimate and contract is not terminated by the death of the workman ; his legal representatives are bound to perform it. — But in cases wherein the skill and ability of the w6rkman were an inducement for making the contract, it may be cancelled at his death by the party hir- ing him. — Poth. Louage, n. 423, 463-465 ; Guy. Louago, 48 ; C.L,2737; C,N.1796. [11.101.] 1693> In the latter case stated in the last preceding ar- ticle the owner is bound to pay ]CAirx>ATK. 271 to the legal representatives of the workman, in proportion to the price agreed upon in the contract, the value of the work done and materials furnished, in case, such work and mate- rials are useful to him. — Poth. Lou. n. 456 j C. N. 1796. [II. 101.] 1694. The contract is not terminated by the death of the party hiring the work, unless the performance of it becomes thereby impossible. — Poth. Lou. n. 444 ; G. N. 1742. [II. 101.1 1695. Architects, builders and other workmen, have a privilege upon the buildings, or other works constructed by them, for the payment of their work and materials, subject to the rules contained in the title Of Privilegea and Hypothecs, andthe title Of Registration of Meal Bights.^C. S. L. C. c. 37, a. 26. § 4 J C. N. 2103. [11.101.] 1696* Masons, carpenters, and other workmen, who un- dertake work by contract, for a fixed price, are subject to the rules prescribed in this section. They are regarded as con- tractors with respect to such work. — Tr. Louage, n. 1053 ; 4 Fen. 212 J C.L. 2742; C. C. V. 1283; C.N. 1799. [11.101.] 1697. The workmen who are employed by the contractor in the construction of a build* ing or other works have no direct action against the owner. — Guy. Ouvrier, 470 ; Bridgman vs. Ostoll, 9 L. C. R. 445 : G. N. 1798. [II. 101.] CHAPTER FOURTH. OF THE LEASK OF CATTLE 05 SHARES. 1698. The letting out of cattle on shares 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 conditions as to the division of profits between them. — Cod. L. 8, De pac. ; Poth. Chop. n. 6 ; 2 Arg. 296 ; C. N. 1800. [II. 103.] 1699. Every kind of animal wh'ch is susceptible of increase or profit, in agriculture or commerce, may be the object of this contract. — Dom. 1. 1, t. 4, 8. 1, n. 2; Poth. Chep. n. 21-23 : C. N. 1802. [II. 103.] 1700. If there be no special agreement the contracc is regu- lated by the usage of the place where the cattle are kept. — G. N. 1803. [II. 103.] TITLE EIGHTH. OF MANDATE. CHAPTER FIRST. GENERAL PROVISIONS. 1701. Mandate is a contract by which 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 372 MANDATB. aoeeptanoe maj be implied from the acts of the mandatary, and in some cases from his tilence. — ff. L. 1, De proc, L. i, Mand. ; Poth. Mand. 1, 31- .33; Dom. 1. 1, 1. 15, s. 1, § 1-3; Ir. Mand. n. 6 ~, 146, 148, 149 j Halifax, A. C. L. 70 ; Sto. Bts. 137 : C. L. 2958 j C. X. 1794, 1795. jrill. 81.] 1702. Mandate is gratu- itous unless there is an agree- ment or an established usage to the contrary. — flf. L. 1, § 4, L. 6, mand. ; Inst. 13, de mand. ; Poth. Mand. n. 22, 23, 26 ; Dom. 1. 0. § 9, and s. 3, § 8, 9 ; Tr. Mand. 249-251 ; C. N. 1986. [III. 81.] 1703. The mandate may be either special, for a parti- cular business, or general, for all the affairs of the mandator. — When general it includes only acts of administration. — For the purpose of alienation and hypothecation, and for all actA of ownership other than acts of administration, the mandate must be express. — ff. L, 1, § 1, de proc. L. 16, L. 60, L. 63, e. t.; Poth. Mand. n. 123, 144, 159, 160 j Dom. 1. c. s. 1, § 6-8, s. 3, § 3, 10 J Tr. Mand. n. 276, 278, 286 j C. N. 1987, 1988. [III. 81.] * 1704:. The mandatary can do nothing beyond the autho- rity given or implied by the mandate. He may do all acts which are incidental to such authority* and necessary for the execution of the mandate. — ff. L. 66, de proc. ; Dom. 1. 0. 8. 3, § 3, 10 ; Tr. Mand. 285, 319: C.N. 1989. [III. 81.] 1705< Powers granted to persons of a certain profession or calling to do any thing in the ordinary course of the business which they follow, need not be specified ; they are inferred firom the nature of such profes- sion or calling. -- Sto. Ag. § 127-133, 228 ; Pa. P. & A. 194, 200, 201 J C. L. 2969. [III. 810 1706> An agent employed to buy or sella thing cannot be the buyer or seller of it on his own account. — ff. L. 34, § 7, de oontr. emp.; Sto. Ag. n. 213: Sm. M. L. 121 ', C. 1484: C.N. 1596. [III. 81.] 1707* Emancipated minors may be mandataries, but in such cases the action tif the mandator against the minor is subject to the general rules relating to the obligations of minors. — ^ff. L. 3, § 11, L. 4, de min. ; Tr. Mand. n. 330, 332- 335 } C. N. 1990. [III. 81.] 1708* A married woman, who executes a mandate given to her, binds the mandator, but no action can be brought against her otherwise than as provided in the title Of Mar- riage. — Poth. P. Mar. n. 49; Tr. Mand. n. 330, 332-335; C. 183; C.N. 1990. [III. 81,] CHAPTER SECOND. OF THE OBLIGATIONS OF THE MANDATARY. SECTIOlf I. Of the obligations of the mandatary toward the mandator. 1709. The mandatary is obliged to execute tho mandate which ho has aceeptcd, and ho is liable for damages resulting MANDATE. 27a from his non-ezeoution of it while hia authority continues. — He is obliged, after the ex- tinction of the mandate, to do whatever is a necessary con- sequence of acts done before, and if the extinction be by the death of the mandator, he is obliged to complete business which is urgent and cannot be delayed without risk of loss or injury.— fF. L. 22, § 11, L. 6, L. 8, § 10, mand. ; Inst. § 11, de mand. ; Poth. Mand. n. 38, 107 ; Ersk. Inst. b. 3, t. 3, n. 41, p. 704; Sto. Bts. n. 204; Tr. Mand. n. 382, 383 ; C. L. 2971: C. N. 1991. [III. 83.] 1710. The mandatary is bound to exercise, in the exe- cution of the mandate, reason- able skill and all the care of a prudent administrator. — Ne- vertheless, if the mandate be gratuitous, the court may mo- derate the rigor of the liabili- ty arising from his negligence or fault, according to the cir- cumstances. — ff. L. 10, L. 12, § 10, mand. ; C;d. L. 13, mand. ; Poth. Mand. n. 46; C. 1045; Dom. 1. 1, 1. 15, s. 3, § 4, 5 ; Tr. Mand. n. 393 ; Jones, Bts. 61, 62, 114; Pa. P. & A. 6; Ersk. Inst. b. 3, t. 3, § 36, p. 699; C. L. 2972; C.N. 1992.1111. 83.] 1711* The mandatary is answerable for the person whom he substitutes in the execution of 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 sub- atitttte, witUout designation of the person to be substituted, and he appoints one who is notoriously unfit. — In all these cases the mandator has a di- rect action against the person substituted by the mandatary. — fiF. L. 8, § 3, mand. L. 21, § 3, de neg. gest ; Poth. Mand. n. 99; Lac. Procureur, 521; Tr. Mand. n. 447-449; 0. L. 2296, 2979,2978; C.N. 1994. [III. 83J x712i When several man- dataries are appointed together for the same business, they are jointly and severally liable for each other's acts of administra- tion, unless it is otherwise sti- Eulated. — ^ff. L. 60, § 2, mand. ; ►om. 1. 1, t. 15, s. 3, n. 13; Poth. Mand. n. 63 ; Ersk. Inst. b. 3, t. 3, § 34; Sto. Ag. § 44, Bts. § 195 ; Jones, Bts., 51, 62 ; C. N. 1996; Tr. n. 489-7. [III. 83.] *1713. The mandatary is bound to render an account of his administration, and to do- liver and pay over all that he has received under the autho- rity of the mandate, even if it were not due; subject neverthe- less to his right to deduct there- from the amount of his dis- bursements and charges in the execution of the mandate. — If he have received a determinate thing he is entitled to retain it until such disbursements and charges are paid. — ff. L. 20, L. 10, § 8, mand. ; Poth. Mand. n. 51, 68, 59; Dom. 1. c. n. 8; Tr. Mand. n. 698, 699 - ; Pa. P. & A. 124, 125, 127; Sto. Bts., § 173; C. N. 1993; C. 1723. [III. 83.] 1714. He is bound to pay interest upon the money of th» 274 MANDATB. mandator which he employs for his own use, from the day of so employing it, and upon any remainder due to the man- dator, from the time of being put In default.-~ff. L. 10, § 3, mand. ; Poth. Mand. n. 51, 56 ; O. N. 1996. [III. 86.] SECTION II. Of tlic ohligations of the mandatary toioard third persons, 1715i The mandatary act- ing in the name of the manda- tor and within the bounds of the mandate is not personally liable to third persons with whom he contracts, except in the case of factors hereinafter specified in article 1738, and in the oases of contracts made by the master of a ship for her use. — ff. L. 20, de inst. act.; Poth. Mand. n. 87; Dom. 1. 1, t. 16, 8. 3, n. 8 ; Tr. Mand. n. 510; Sto. Ag. 263; Pa. P. & A. 368 ; C. N. 1997. [III. 85.] 1716i A mandatary who acts in his own name is liable to the third party with whom he contracts, without prejudice to the rights of the latter against the mandator also. — Poth. Mand. n. 88 ; Pa. P. & A. 361, 372 ; Sto. Ag. 163, 266, 269 ; Tr. Mand. n. 522 — . £111. 85.] 1717. He is liable in like manner when he exceeds his powers under the mandate, unless he has given the party with whom he contracts suffi- cient communication of such powers. — C. L. 2981 ; Sto. Ag. 264, 265; Tr. Mand. 591, 592; C.N. 1997. [III. 85.] 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 speci- fied by the latter. — ff. L. 5, § 5, mand.; Poth. Mand. n. 92; Tr. Mand. n. 403 ; C. L. 2980. [III. 85.] 1719. He is held to have ex- ceeded his powers, when he does alone any thing which, by the mandate, he is charged with doing conjointly with another. — ff. L. 5, mand. L. 11, 8 5, de inst. act.; Poth. Mand. n. 99 ; Dom. 1. 1, t. 15, s. 3, ». 14 ; Sto. Ag. § 42, 43. [III. 85.] CHAPTER THIRD. OF THE OBLIGATIONS OF THE MANDATOR. SECTION I. Of the ohligations of the mandator toward the mandatary. 1720. The mandator is bound to indemnify the man- datary for all obligations con- tracted 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. — ff. L. 45, i. p., § 5, mand. ; Dom. 1. 5, 1. 15, s. 2, n. 1 ; Poth. Mand. n. 80- 82 ; Sto. Bts. § 196, 198; C. N. 1998. [III. 85.] 1721. The mandator or his legal representative is bound to indemnify the mandatary for all acts d6ne by him with- in the limit of his powers, after the extinction of the f ', UJLITDATS. 27S mandate by death or other cause, when ho is ignorant of such extinction. — Poth. Mand. n. 106 } C. 1728, 1670. [III. 85.] 1722. The mandator is bound to reimburse the ex- penses and charges which the mandatary has incurred in the execution of the mandate, and to pay him the salary or other compensation to which he may be entitled. — ^When there is no fault imputable to the manda- tary, the mandator is not re- Leased from such reimburse- ment and payment, although the business has not been suc- cessfully accomplished ; nor can he reduce the amount of the reimbursement upon the ground that the expenses and charges might have been made less by himself.— fif. L. 12, § 9, L. 27, S 4; L. 56, § 4, mand.; Poth. Mand. n. 68, 69, 78, 79 ; Dom. 1. 1, 1. 15, s. 2,n. 2, 3 ; 2 Par. n. 489, 571; C. Co. 93, 94 j C.N. 1999. [III. 87.] 1723< The mandatary har. a privilege and right of pre- ference for the payment of^the expenses and charges mention- ed in the last preceding article, upon the things placed in his hands and upon the proceeds of the sale or disposal thereof. — C. 1713 J C. Co. 93, 94. [III. 87.] 1724:. The mandator is ob- liged to pay interest upon money advanced by the man- datary in the execution of the mandate. The interest is com- puted from the day on which the money is advanced. — ff. L. 12, § 9, mand. ; Dom. 1. c. n. 4 ; Tr. Mand. n. 274, 275 -: C. N. 2001. [III. 87.] 22 1725. The mandator is ob- liged to indemnify the manda- tary who is not in fault, for losses caused to him by th« execution of the mandate. — ff. L. 20, L. 29, § 6, mand. ; Poth. Mand. 75, 76 ; Dom. 1. 1, t. 15, 8. 2, n. 6 ; Sto. Bts., $ 200, 201, Ag. 341 ; Tr. Mand. n. 655 - : C.N. 2000. [III. 87.] 1726. If a mandate bo given by several persons, their obligations toward the manda- tary are joint and several. — ff. L. 59, § 3, mand. ; Poth. Mand. n. 82 ; Dom. 1. c. n. 5 ; Ersk. Inst. b. 3, t. 3, § 38: C. N. 2002. [III. 87.] SECTION n. Of tlie obligations of the man- dator totoard third persons. *1727. The mandator is bound in favor of tliird persons for all the acts of his manda- tary, done in execution and within the powers of the man- date, 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 answer- able for acts which exceed such power, if he have ratified them either expressly or tacitly. — Poth. Ob. n. 75, 77 - , 447, 448, Mand. n. 87, 88, 89 j Dom. 1. 1, t. 15, s. 2, n. 1 J 18 Dur. 260, 261 J Tr. Mand. n. 511 — , 516, 517 J 522, 535,536; Sto. Ag. § 442, 444,445, 446, 448; 1 Bell, Com. § 418, p. 396, 399 ; Pa. P. & A. 247, 248; C. N. 1998. [III. 87.] 1728. The mandator or his legal representative is bound 276 MANDATE. toward third persons for all aots of the mandatary, done in execution and within the powers of the mandate after it oas been extinguished, if its extinction be not known to such third persons. — Poth. Mand. 106; Dom. I. 1, t. 15, s. 4, n. 1, 7 ; Ersk. Inst. b. 3, t. 3,5 41} O.K. 2009. [III. 87.] 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 oonsequenco of a business already begun. — He is also bound for acts of the mandatary done after the ex- tinction of the mandate by death or cessation of authority in the mandator, for the com- {)letion of a business, where OSS or injury might have been caused by delay. — Poth. Mand. 106, 107, 111, 121 J Dom. 1. c. n. 7 ; Ersk. Inst. 1. c. ; 1 Bell. Com. § 413, p. 396 J C. 1709, [III. 89.] 1730« The mandator is liable to third parties who in good faith contract with a per- son not his mandatary, under the belief that he is so, when the mandator has given reason- able cause for such belief. — 1 Bell, Com. 411, 412 j Pa. P. A. 162 -J Sto. Ag. 443. [III. 89.] 1731> He is liable for dam- ages caused by the fault of the mandatary, according to the rules declared in article 1054. —Poth. Ob. n. 453; 1 Bell, Com. § 418, p. 400 : Sto. Ag. § 462. [III. 89.] CHAPTER FOURTH. OF ADVOCATES, ATTORNEYS AKD NOTARIES. *1732t 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 re- gulated by the provisions con- tained in an act intituled : An Act respecting the Bar of Lower Canada, and that of notary by an act intituled : An Act res- pecting the Notarial Profeaeion. — C. S. L. C. 0. 72 ; lb. o. 73; C. S. C. c. 76. [III. 80.] 1733. The rules concerning the duties and rights of advo- cates and attorneys, in the exercise of their functions be- fore the several courts of Lower Canada, are contained in the Codo of Civil Procedure, and in the rules of practice of such courts respectively. — [III. 89.] 173^ The rules of pres-. cription relating to advocates, attorneys and notaries are con- tained in article 2260. [III. 89.] CHAPTER FIFTH. OF BROKERS, FACTORS AND OTHER COMMERCIAL AOENTS. *1735. A broker is one who exercises the trade and calling of negotiating between parties the business of buying and sell- ing or any other lawful trangac- tions. — He may be the manda- tary of both parties and bind both by his acts in the business for which he is engaged by them. — ff. Xt. 3i do prox. ; Dom. 1. 1, t. 17, s. 1, n. 1 ; C. Co. 74; C. L.2985; Sto. Ag. § 28; MANDATE. 3T7 6m. M. L. 507, 608 ; gymo ot al. vs. Howard, 1 L. C. R. 10. [III. 89.] ^ 1736. A factor or oommia- slon-merohant is an agent who is employed to buy or sell goods for another, either in his own name or in the name of his principal, for which he receives a compensation commonly call- ed a commission. — 3 Chit. Co. L. 193, 194 ; Sto. Ag. S 33 ; 2 Par. 404-413; 1 Boll, Com., 408, 409 ; Ersk. Inst. b. 3, t. 3, $ 34. [III. 89.] 1737* Brokers and factors are subject to the general rules declared in this title, when these are not inconsistent with the articles of this chapter. [III. 91.] ^1738* A factor whose prin- cipal resides in another country is personally liable to third persons with whom he con- tracts, whether the name of the {Hrincipal be known or not. The principal is not liable on such contracts to the third parties, unless it is proved that the credit Waa .i^iven to both principal and jfactor, or to the principal alone.—Pa. P. & A. 248, 273, 282 ; Sto. Ag. § 268, 290, 448 ; 2 Par. 404 J Sm. M. L. 66. [III. 91.] 1739. Any person may con- tract for the purchase of goods with any agent entrusted with their possession or to whom the same nave been consigned, and may receive the same from such agent and pay him the price thereof, and such contract and payment is binding upon the owner of the goods, notwith- standing the purchaser has notice that he is contracting only with an agont.— C. S. C. 0.69,8.1. [III. 91.] 17^0* Any agont entrusted with the possession of goods, or of the documents of title there- to, is deemed the owner thereof for the following purposes, that is to say : 1. To make a sale or contract, as mentioned in the last preced- ing article ; 2. To entitle the consignee of goods consigned by such agent, to a lien thereon for any money or negotiable secu- rity advanced or given by him to or for tho use of such agent, or received for him by such agent for tho use of tho con- signee, in like manner as if such agent were the true owner of the goods ; 3. To give validity to any contract or agreement, by way of pledge, lienor security, made in good faith with such agont, 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 tho goods and on all other per- sons interested therein, not- withstanding the person claim- ing such pledge or lien had notice that he was contracting only with an agent. — C. S. C. c. 69, 8. 2. [III. 91.] 174:1. In case any person having a valid lien and secu- rity on any goods or documents of title or negotiable security, in respect of a previous advance upon a contract with an agent. 278 MANDATE. gives up tho same to such agent, upon a contract for tho pledge, lien or security of other goods, or of another document or secu- rity, by such agent delivered to him in exchange, to be held upon the same Hen as tho goods, document or security so given up, then, such new contract, if in good faith, is deemed a valid contract, made in con- sideration of a present advance in money, within the provisions of this chapter, but the lien acquired under such now con- tract, on the goods, document or security, deposited in ex- ohange, cannot exceed the value of the goods, document or security, so delivered up and exchanged, — C. S. 0. o. 69, 8. 3. [III. 01.] 174i2t Such contracts only are valid as are mentioned 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 against the owner of the goods. — C. S. C. 0. 59, 8. 4. [III. 91.] 174:3. Loans, advances and exchanges in good faith, though made with notice of the agent not being the owner, but with- out notice of his acting without authority, bind the owner and all other persons interested in the goods, documents or securi- ty, as the case may be. — C. S. C. e. 69, 8. 6. [III. 91.] 1744:. No antecedent debt owed by an agent entrusted with the possession of goods or the documents of title thereto, can be the subject of any lien or pledge of such soods or do- cuments, nor can the agent for any purpose relating to such goods deviate from tho orders or authority received from his principal.— 0. S. 0. o. 69, s. 6. [III. 93.] 1745. Bills of lading, ware- house-keeper's or wharflngor'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 con- trol of goods, or purporting to authorize, either by endorse- ment or by delivery, the posses- sor of any such document to transfer or receive goods there- by represented, are deemed documents of title within the § revisions of this chapter.— C. . C. 0. 69, 8. 7. [III. 93.] 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 entrusted with the possession 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.— 0. S. C. c. 69, s. 8. [III. 93.] 1747. Any contract pledg- ing or giving a lien upon any document of title, is deemed a pledge of and lien upon the goods to which it relates, and the agent is deemed the posses- sor of the goods or documents of title, whetl\,erthe same be in his actual custody or be held by any other person for him or subject to his control.— MANDATX. 279 0. S. C. 0. 59, 8. 9. [III. 93.] 1748t When a loan or ad- yanoo is made in good faith, to an agent entrusted with and in possession of goods or docu- ments of title, on the faith of any contract in writing to con- sign, deposit, transfer or deli- ver such goods, or documents of title, and the same are actually received by the person malting the loan or advance, either at the time of the contract or at a time Bubseouent thereto, with- out notice tnat the agent is not authorized to make the pledge or security, such loan or ad- vance is deemed a loan or ad- vance upon the security of the goods or documents of title within the provisions of this chapter. — C. S. C. o. 59, s. 10. [III. 93.] 1749. Every contract, whe- ther made directly with the agent or with a clerk or other person on his behalf, is deemed a contract with such agent. — C. S. 0. c. 69, B. 11. [III. 93.] 1750. Every payment, whe- ther made by money, bill of exchange or other negotiable security, is deemed an advance within the provisions of this chapter. — C. S. C. c. 59, s. 12. [lit. 93.] 1761. Every agent in pos- session of goods or documents as aforesaid is for the purposes of this chapter taken to be en- trusted ther ith by the owner, unless the contrary is shewn in evidence. — C. S. 0. o. 59, s. 13. [III. 93.] 1752. Nothing contained in this chapter lessens or affects the civil responsibility of the agent for the breach of any ob- 19 ligation, or the non-fulfilment of his orders or authority. — 0. S. 0. 0. 59, s. 14. [III. 93.] 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 hare 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 lion against such owner; or he may recover from the person with whom any goods or docu- ments have been pledged, or who has any lien thereon, any balance or sum of money re- maining in his hands as the produce of the sale of the goods, after deducting the amount of the lien under the contract. — C. S. C. c. 59, i. 20. [III. 95.] 1754. In case of the bank- ruptcy 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 aciount of the agent for such redemption, to have paid the same for the use of such agent before his bank- ruptcy, or in case the goods have not been so redeemed, the owner is deemed a creditor of the agent for the value of the 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' 280 MANDATE, be.— C. S. C. 69, s. 21. fill. 96.] CHAPTER SIXTH. OF THE TERMIKATIOX OF MANDATE. 1755. Mandate terminates : 1. By revocation; 2. By the renunciation of the mandatary ; 3. By the natural or civil death of the mandator or man- datary j 4. By interdiction, bank- ruptcy, or other change in the condition of either party by which his civil capacity is affected ; 5. By the cessation of au- thority in the mandator; 6. By the accomplishment of the business or the expiration of the time for whieh the mandate is given; 7. By other causes of ex- tinction common to obligations. — ff. L. 12. § 16, L. 22, § 11, L. 27, § 3, jj, 26, i. p. mand. ; Cod. L. 15, mand. ; Poth. Hand, n. 38 -, 101, 103, 111-113, 120; Dom. 1. 1, 1. 15, s. 4 ; Tr. Mand. 744-; Sto. Bts. §§ 202-211; Clam. 300 -, 332 - ; C. 1138 ; C. N. 2003. [III. 95.] 1756* The mandator may at any time revoke the man- date, and oblige the mandatary to return to him the procura- tion, if it be an original instru- ment. — ff. L. 12, § 16, mand. ; Poth. Mand. 1. c. ; Tr. Mand. 764- ; C. L. 2997; C. N. 2004. [III. 96.] 1757. The appointment of a new mandatary for the same business haa the effect of a Tevocation of the first appoint- »osited until such expenses and osses are paid to him. — ff. L. 8, § 23, depos. ; Dom. 1. o. n. 1, 2, 3 ; Poth. D<5p. 69, 69, 70, 74 ; C.N. 1947, 1948. [III. 109.] SECTION V. Of necessary 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. — ff. L. 1, § 1, 12, dep. ; Dom. 1. c. s. 7, n. 1, 2 ; Poth. D€p. 75 ; Sto. Bts. § 44, 69, 60; C. 1233; C. N. 1949, 1950. [III. 109.] *1814. Keepers of inns, of boarding-houses and of taverns, are responsible as depositaries for the things brought by tra- vellers who lodge in their houses. — The deposit of such things is considered a neces- sary deposit. — ff. L. 1, i. p. § 1, 2, L. 3, § 1, L. 5, naut. caup. stab.; Danty, on c. 3. n. 21, p. 112; Poth. DC'p. 79, 80 j Tr. D^p.217, 218, 228, 229; C. N. 1952. [III. 111.] *1815> The persons men- tioned in the last preceding article are responsible if the things be stolen or damaged by their servants or a&rents. ox 288 OBPOSZT. by strangers coming and going \a the house. — But they are not responsible if the theft be oommitted by force of arms or the damage be caused by irre- sistible force ; nor are they re- sponsible if it be prored that the loss or damage is caused by a stranger and has arisen from neglect or carelessness on the part of the person claiming it.— ff. L. 1, 8 8, L. 2, L. 3, naut. caup. stab. L. 1, furti adv. naut. etc. ; Danty, 1. c. n. 26, p. 1 14 ; Lepr. cent. 1. c. 19 ; Poth. D€p. 78 J C. L. 2938 ; 0. N. 1953, 1954. [III. 111.] ^1816i The rules declared in article 1677 apply also to the liability of keepers of inns, boarding-houses and taverns, and as regards the oath to be be offered. — Author, under a. 1677. [III. 111.] CHAPTER SECOND. OF SEQUESTBATIOX. 1817. Sequestration is either conventional or judicial.— Poth. D«p. 84 : C. N. 1955. [III. 111.] SECTION I. Of conventional sequestration. 1818. Conventional seques- tration is the deposit made by two or more persons of a thing in dispute, in the hands of a third person who obliges him- self to restore it after the ter- mination of the contest, to the person to whom it may be ad- judged.— ff. L. 6, L. 77, depos. j Dom. 1. c. 8. 4, n. Ij Poth. D«p. 1, 84j C.N. 1956. [III. 111.1 I8l9i Sequestration is not essentially gratuitous. It is in other respects subject to the rules generally applicable to simple deposit, when these are not inconsistent with the ar- ticles of this chapter.— Dom. 1. c. n. 3j Poth. 89, 90 j C. N. 1957, 1958. [III. 111.] 1820.. Sequestration may have for its object immoveable as well as moveable property. — Dom. 1. c. n. 1 J Poth. D6p. 87: C.N. 1959. [III. 111.] 1821. The sequestrator can- not be discharged until the ter- mination of the contestation, unless it is by the consent of all the parties interested, or by the court for sufficient caiise. — ff. L. 5, § 2, dep. ; Dom. 1. c. n. 6 ; Poth. D^p. 88 : C. N. 1960. [III. 111.] 1822. When the sequestra- tion is net 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. — Dom. 1. c. n. 3 J Poth. D6p. 90. [III. 111.] SECTION II. Ofjttdicial sequestratior 1823. Sequestration or de- posit may takQ place by judi- cial authority : 1. Of moveable property seized under process of attach- ment, or taken in execution of a judgment; 2. Of money op other things tendered and deposited by a debtor in a suit pending; 3. The court upon applica- tion by the interested party may, according to circum- DEPOSIT. 28» itanoes, order the sequestration of a thing, moveable or immo- veable, concerning the property or possession of which two or more persons are in litigation. —1 Cou. 123 ; 0. 1667, 1. 19, a. 12 ; Guy. Revendication, 621 ; Imb. Enchiridion, 195-6 ; Poth. D6p. a. 2, c. 4, n. 91, 92, 95, 98, 99, P. 0. c. 3, a. 2 ; 1 Pi. 114, 115, 117, 170, 172, 387, 388 ; Tr. D6p. n. 287 ~ 293 j 0. N. 1961. [III. 113.] 1824b The sequestration may also talce place by judi- cial authority in the following oases specified in this code : 1. When the usufructuary cannot give security as speci- fied in article 465 ; 2. When the substitute is put in possession under article 955. fill. 113.] 1825* The guardian or se- questrator appointed by judi- cial authority is bound to ap- ply to the safe-keeping of the things seized the care of a prudent administrator. — ^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 the judgment of the court. — ^He is also bound to render an account of his ad- ministratiOO when judgment is rendered in the cause, and as often as is ordered by the court during its pendency. — He is entitled to be paid, by the party seizing, such compensation as is fixed by law or by the court : unless he has been presented by the party on whom the seizure is made. — ^Poth. D^p. 91, 92, 95, 96 : G. N. 1962. [III. 113.] 1826. The thing sequester- ed cannot be leased directly nor indirectly to any of the parties in the contest concerning it.— 0. 1667, 1. 19, a. 18. [HI. 113.] 1827. The sequestrator ap- pointed by judinial authority, to whom the thing has been delivered, is subject to all the obligations which attach to conventional sequestration. — Poth. D^p. 98: G. N. 1963. [III. 113.] 1828* The judicial seques- trator may obtain his discharge after the lapse of three years, unless, for special reasons, the court has continued his func- tions beyond that period. — ^He may also be discharged by the court within tiiat time upon cause shewn. — 0. 1667, 1. 19, a. 21. [III. 113.] 1829. The special rules concerning judicial sequestra- tion or deposit are contained in the Gode of Givil Procedure. [III. 113.] 200 TITLE ELEVENTH. OF PARTNERSHIP. CHAPTER FIRST. OENEBAL PBOYISIOKS. 1830. It is essential to the contract of partnership that it should be for the common profit of the partners, each of whom must contribute to it Sroperty, credit, skill, or in- ustry.— flf. L. 6, L. 29, L. 62, pro. soc. ; Vin. Com. L. 3, t. 26, s. 1 ; Dom. 1. 1, t. 8, s. 1, n. 1 - ; Poth. Soc. n. 8, 11, 12 j Tr. Soc. n. 318 j Coll. Part. 2 ; €. N. 1832, 1833. [III. 116.] 1831* Participation in the profits of a partnership carries with it an obligation to con- tribute to the losses. — Anj agreement by which one of the partners is excluded from par- ticipation in the profits is null. —An agreement oy which one partner is exempt from liability for the losses of the partnership is null only as to third persons, ff. L. 29, § 2, L. 30, pro. soc. ; Dom. 1. 0. n. 10; Poth. Soc. n. 20, 21, 25, 76 J Tr. Soc. n. 664 - ; C. L. 2784, 2786 j Gow, 9, 153, 154 J K. Com. 24-29 ; Coll. Part. 9; C.N. 1855. [111.116.] 1832. If no time for the commencement of the partnor- fihip be designated, it takes effect from the date of the contract. — Poth. Soc. n. 64 ; Coll. Part. 113 J C. N. 1843. [III. 115.] 1833. If the term of the partnership be not designated, it is considered to be for the life of the partners ; subject to the provisions contained in the fifth chapter of this title.— ff. L. 65, 9 10, pro. soc. j Poth. Soc. n. 66 ; 2 Bell, Com. 640, § 1227 J Sto. Part. § 84j C. N. 1844 J C. 1892, 1896. [III. 116.1 H(1834. In partnerships for trading, manufacturing or me- chanical purposes, or fojr the construction of roads, damfi and bridges, or for the purpose of colonization, or of settlement, or of land traffic, the partners must deliver to the protho- notary of the Superior Court in each district, and to the registrar of eaoh county, in which they carry on business, a declaration in writing, in the form and subject to the rules provided in the statute inti- tuled : An Act respecting Part' nerahipa. — The omission to deliver such declaration does not render the partnership null J it subjects the contra- vening parties to the penalties aiid liabilities imposed by the statute. — C. S. L. C. c. 66, s. 1,3. [III. 115.] 1835. The allegations con- tained in the declaration men- tioned in the last preceding article cannot be controverted by any person who has signed the same, nor can they be controverted, as against any party not bein'g a partner, by a person who has not signed but was really a member of the PARTITSBSBIP. 201 Sartnership at the time the eolaration was made ; and no partner, whether he has signed or not, is deemed to have ceased to be a partner until a new declaration has been made and filed as aforesaid, stating the alteration in the partnership, lb. 8. 2. [III. 115.] 1836* Any partner, al- though not mentioned in the declaration, 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 part- ner or partners may be sued on the original cause of action on which such judgment was rendered. — lb. s. 2, S 2. [III. J 15.1 *1837. When persons are associated as partners in Lower Canada for any of the purposes mentioned in article 1834, and no declaration has been filed as aforesaid, any action which might be brought against all the members of the partnership, may also be brought against any one or more of them, as carrying on or as having carri- ed on trade jointly with others, without naming such others in the writ or declaration, under the name and style of their partnership firm ; and if judg- ment be recovered against him or them, any other partner or partners may be sued jointly or severally on the original cause of action on which such judgment has been rendered ; but when any such action is founded on an obligation or instrument in writing in which all or any of the {fturtners bound 2Z by it are named, then all the Partners named therein must e made parties to such action. —lb. 8. 4, § 1, 2. [III. 117.] 1838. The service of sum- mons or process, for any claim or demand founded upon any liability of an existing partner- ship, at the office or place of business of such partnership within the province of Canada, has the same effect as a service made upon the members of such partnership personally, and any judgment rendered against any member of such existing partnership, for a partnership aebt or liability, may be en- forced by process of execution against the partnership pro- perty in the same manner as if the judgment had been ren- dered against the partnership. —lb. 8. 4, § 3 ; C. S. L. C, o. 83, s. 63. [III. 117.] CHAPTER SECOND. OF THE OBLIOATIOKS AND RIGHTS OF PARTNERS AMONG THEIC- SELVES. 1839. Each partner is a debtor to the partnership for all that he has agreed to con- tribute to it. — When such con- tribution consists of a certain thing and' the partnership is evicted of it, the partner is sub- ject to warranty in the same manner as a seller is in favor of the buyer. — Poth. Soc. n. 109, 110, 113: C. N. 1845. [III. 117.] 1840. A partner who fails to pay any sum of money which he nas agreed to contribute to the partnership is liable for interest on such sum from the 202 PAHTNBBSHIF. day of his default. — He is alto liable for interest upon any ■am taken by him from the partnership funds for his par- tioalar benefit, Arom the day that he has withdrawn it. — ff. L. 60, pro 800. ; L. 1, 9 1 ) L. 3,. 9 9, de usuris ) Poth. Soc. n. 116: Sto. Fart. 9 173; C. N. 1846. rill. 117.] 1841* The provisions con- tained in the last two preced- ing articles are without preju- dice to tho 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. —0. title Of Obligationef c. 6. [III. 117.] 1842* A partner cannot carry on privately any business or adventure which deprives the partnership of a portion of the sliill, industry, or capital which he is bound to employ therein. If he do so, he is ob- liged to account to the partner- ship for the profits of such busi- ness.— Poth. Soo. n. 59, 32, 120 ; 2 Bou.-Pat. 94} Sto, Part. 9 177, 178; 0. N. 2847. [III. 117.1 1843. When a partner is oreditor individually of a per- son who is also indebted to the partnership, and both debts are actually payable, the imputa- tion of any payment received Iby him from tne debtor, is made upon both debts in proportion to their respective amounts, although by the receipt, he may have imputed it upon his private debt only; but if by the receipt he impute the pay- ment wholly upon the partner- ship debt, suon imputation is to be maintained. — Poth. Soo. n. 121 ; Coll. Part. 381 ; 0. N. 1848. [111.117.] 1844t« When a partner has been paid his full share of a debt due to the partnership, 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 discharge specially for his part. — ff. L. 63, 9 6, pro soo. ; Poth. Soc. n. 122; Coll. Part. 380; 0. N. 1849. [111.119.] 184o« Each partner is liable to the partnership for daoiages caused by his fault. He can- not set up in compensation of such damages the profits which the partnership has derived from his industry in other affairs.— ff. L. 23, 9 h L. 25, L. 26, pro. soc. ; Poth. Soo. n. 124, 125 ; Dom. 1. c. s. 4, 9 7, 8; Sto. Part. 9 170, 171; C. N. 1850. [III. 119.] 1846. A certain and de- terminate 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 de- teriorate by keeping, or which are intended to b6 sold, or are oontributed to the partnership at a fixed valuation, are at the risk of the partnership. — ff. L. 58, pro soc. ; Poth. Soc. n. 54, 125, 126; 2 Bell, Com. 615; C. N. 1851. [III. 119.] 184:7. A partner has aright against the partnership not only to recover money disbursed by PABTNEBSHIP. 293 him fbr it, but also to be 'ndem- nified for obligations ooutracted by him in good faith in tho bnsiness of the partnership, and for the rislcs inseparable from his management. — ff. L. 62, S 15, L. 60, L. 67, pro soc; Poth. Soo. n. 127, 128; Dom.l. 0. 9 11, 12 ; C. N. 1862. [III. 119.1 1648. [When there is no agreement concerning the shares of the partners in the profits and losses of the part- nership, they share equally.] — Quy. Soo. 331 ; Inst, do soc. S 1 ; ff. L. 29, mo soo. ; Poth. Soc. n. 73, 16 ; Dom. 1. o. s. 1, n. 3-6 J Tr. Soo. 614, 616 j 13 Toul. 409; Coll. 106, 106 ; Sto. Part. S 24-26 ; C. L. 2836 ; C. N.1863. [III. 119.] 184:9i A partner charged with the management of the business of the partnership by a special clause in the contract, may perform all acts connected with his management, notwith- standing the opposition of the other partners, provided he act without fraud. — Such power of management oannot be revoked without sufficient cause while the partnership continues ; but if the power be given by an instrument posterior to the contract of partnership, it is revokable in the same manner as a simple mandate. — Poth. Soc. n. 71; 1 Stair. Inst. 167; Coll. Part. 753-769 ; Sto. Part. §204 J C.L. 2838; C. N. 1866. [III. 119.] 1850. When several of the partners are charged with the management of the business of the partnership generally, and without a provision that one of them shall not act without the others, each of them iray act separately ; but if thord be such a provision, one of them cannot act in tho absenco of the others, although it be impossible for the latter to Join in the act.— ff. Arg. ex L. 1, 8 13, 14, De exero. act.; Poth. Soo. n. 72 ; Wat. Part. 81 - ; 2 Bell, Com. 615 ; 3 Kt. Com. 44; 0. N. 1857, 1868. [III. 121.1 1851. If there be no special stipulation as to tho raana^^e- ment of the business of tuu partnership, the following rules apply : 1. The partners are pre- sumed to have mutually given to each other a mandate for the management, and whatever is done by one of them binds the others ; saving the right of the latter, together or sepa- rately, 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 he do not use them against the interest of the partnership, or in a manner to prevent his copartners from making use of them according to their right ; 3. Each partner may compel his copartners to bear with him the expenses which are necessary for the preservation of the property of the partner- ship; 4. One of the paHners cannot make alterations in the immo- veable property of the partner- ship without the consent of the others, although he should 294 PARTNERSHIP. establish that such alterations are advantageous. — ff. L. 12, L. 28, De com. divid., L. 27, § 1, De serv. urb. prsed., L. 11, Si serv. vind. j Poth. Soo. n. 84, 86, 87, 90 ; 3 Kt. Com. 45 ; 4 Par. n. 1021 j Coll. Part. 128, 129, 259, 282 j Sto. Part. § 102, p. 150, 151, n. 1, § 123, 125 j C. N. 1859. [III. 121.] 1852i A partner who has no right of management cannot alienate or otherwise dispose of anything which belongs to the partnership ; saving the rights of third persons as here- inafter declared. — flF. L. 68, pro soc. J Poth. Soc. n. 89 j C. N. 1860. [III. 121.] 1853. Each partner may, without the consent of his co- partners, associate with himself a third person in the share he has in the partnership. He cannot without such consent associate him in the partner- ship. — ff. L. 19, pro. soc, L. 21, L. 22, L. 47, § ult., De reg. jur. J Poth. Soc. n. 91 j Coll. Part. p. 103 J 2 Bell, Com. p. 636 i C. N. 1861. [III. 121.] CHAPTER THIRD. OF THE OBLIGATIOX OF PARTNERS TOWARD THIRD PERSONS. 1854:. Partners are not jointly and severally liable for the debts of the partnership. They are liable to the creditor in equal shares, although their shares in the partnership may be unequal. — This article does not apply in commercial part- nerships. — Po*b. Soc. n. 98, 103, 104, 106 ; C. N. 1862, 1863. [III. 121.] 1855. A stipulation that the obligation is contracted for the partnership binds only the partner contracting, when he acts without the authority, express or implied,, of his co- partners ; unless the partner- ship is benefited by his act, in which case all the partners are bound. — Poth. Soc. 105 ; C. 1866 J C. N. 1864. [III. 121.] 1856. The liabilities of partners for the acts of each other are subject to the rules contained in the title 0/ Man- date, when not regulated by any article of this title. — C. title Of Mandate, c. 3, s. 2. [Ill, 123.] I CHAPTER FOURTH. OP THE DIFFERENT KINDS OP PARTNERSHIPS. 1857. Partnerships are ei- ther universal or particular. They are also either civil or commercial. — ff. L. 5, i. p. pro soc. J Poth. Soc. c. 2, 1. p. J Dom. 1. 1, t. 8, 8. 3 J Tr. Soc. 317 -J Sto. Part. § 72 ~j C. N. 1835. [III. 123.] SECTION I. Of universal partnerships. 1858. Universal partner- ship may be either or all the property or of all the gains of the partners. — ff. L. 3, § 1, pro soc. ; Poth. Soc. n. 28 ; C. K. 1836. [III. 123.] 1859. In universal part- nership of property, all the property of the partners, move- able and immoveable, and all their gains, as well present as future, are put in common. — ff. L. 1, L. 3, pro soo. ; Poth. Soc. n. 29, 43; Dom. 1. 1, t. 8, FARTNEB8HIP. 295 28 : C. N. I. 3, n. 4 ; Sto. Part. § 72, 73 j O.N. 1837. [III. 123.] I860* Parties contracting a universal partnership are presumed to intend only a partnership of gains, unless the contrary is expressly sti- ?nlated. — ff. L. 7, pro soc. ; oth. ?. c; a N. 1839, [III. 123.] 1861. In a universal part- nership of gains is included all that the partners acquire by their industry in whatever em- ployment they are engaged during the continuance of the partnership. The moveable property and the enjoyment of the immoveables possessed by the partners at the date of the contract are also included ; but the immoveables themselves are not included. — ff. L. 7, pro 800. ; Vinn., ad inst. 1. 3, t. 20, intr. J Poth. Soc. n. 43-45 j Dom. 1. c. n. 3 ; Sto. Part. §73 J C. N. 1838. [III. 123.] SECTION II. Of particular partnerslnps. 1862> Particular partner- ships are those which apply only to certain determinate ob- jects. A partnership contracted for a single enterprise or for the exercise of any art or pro- fession is also a particular partnership. — ff. L. 5, i. p., L. 71, pro soc. ; Poth. Soc, n. 54- 56 ; Dom. 1. c. § 1 ; C. N. 1841, 1842. [III. 123.] SECTION III. Of commercial partnersliips. 1863> Commercial partner- ships are those which are con- tracted for carrying on any trade, manufacture or other business of a commercial na- ture, whether general or limit- ed to a special branch or ad- venture. All other partner- ships are civil partnerships. — Tr. Soc. 317} Sto. Part. § 76; C. L. 2795-2797. [III. 123.] 1864. Oomu ercial partner- ships are dividec into : 1. General pa iinerships ; 2. Anonymous partnerships ; 3. Partnerships en comman- dite, or limited partnerships ; 4. Joint-stock companies. They are governed by the rules common to other partner- ships, when these are not in- consistent with the rules con- tained in this section, and with the laws and usages specially applicable in commercial mat- ters.— Poth. Soc. n. 56, 57, 60, 61, 82 ; 0. 1673, t. 4, a. 1 ; C. Co. 19 J Tr. Soc. on a. 1841, 1842, n. 317, 358, 359, 444; Sto. Part. § 78, 79 j 2 Bell, Com. b. 7, c. 2j C. N. 187?. [III. 125.] § 1. Of general partneraMpa, 1865. General partnerships 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 oi one or more of them, all of whom are jointly and severally liable for the obligations of the part- nership. — Poth. 1. c. ; C. Co. 20, 21, 22 ; Tr. Soc. 359, 360 ; Sto. Part. I. c. ; B6o. Q. p. 50, n. on def. of a. 20, C. Co. j Boll, 1. o. [III. 125.] 1866. The partners may 296 PABTNEBSHIF. make such stipulations among themselves concerning their respective powers in its man- agement of the partnership business as they see fit, but •with respect to third persons dealing with them in good faith, each partner has an implied f»ower to bind he partnership or all obligations contracted in its name and in its usual course of dealing and business. — Poth. Ob. n. 83, 89, Soc. n. 90-100 J 4 Par. 1024 j Sto. Part. § 109, n. 2 J 2 Bell, Com. 615, 616 ; author, under a. 1851. [III. 125.] 1867. The partners are lia- ble for obligations contracted by one of them, in his own name, only when the obligation is for objects which are in the usual course of dealing and business of the partnership, or are applied to its use. — Ma- guire & Scott, 7 L. C. R. 451 ; 3 Kt. Com. 41 ; 4 Par. 1025, 1049. [III. 125.] 1868* Dormant or unknown partners are, during the con- tinuance of the partnership, subject to the same liabilities toward third persons as ordi- nary partners under a collec- tive name. — C. S. L. C, c. 65, 8. 3, 4 ; Maguire & Scott, 7 L. C. R. 451 J 3 Par. 1049; Sto. Part. § 80 J 3 Kt. Com. 31, 32} Coll. Part. 212, 221 - . [III. 125.] 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. — 4 Par. 1009, p. 83, 84; Coll. Part. p. 50 ; 2 Bell, Com. 626 ; Pairs. M L. p. 167 & n. 3; Kt. 1. o., Symes Sc Sutherland, St. Rep p. 49. [III. 125.] § 2. Of anonymous partner- ahipa. 1870. In partnerships hav- ing no name or firm, whethei they are general or confined to a single object or adventure, the partners are subject to the same liabilities in favor of third persons as in ordinary partnerships under a collective name. — Maguire & Scott, 1. c. ; 2 Bell, Com. 630; Coll. Part. 26, 221 ; Poth. Soc. 61, 62, 63. [III. 127.] § 3. Of partnerships en com- mandite or limited part' nerships. 1871. Partnerships en com,' mandite, or limited partner- ships, for the transaction of any mercantile, mechanical, or manufacturing business, other than the business of banking and of insurance, may be form- ed under the statute intituled. An act respecting limited part- nerships. — C. S. C. c. 60, s. 1. [III. 127.] 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 capital to the common stock and who are called special partners. — lb. s. 2. [III. 127.] 1873. The ^neral partners are jointly and severally re- I sponsible in the same manner ' as ordinary partners under a PARTNEB8HIP. 207 collective name; but special partners are not liable for the debts of the partnership be- yond the amounts contributed by them to the capital. — lb. 8. 3. [III. 127.] 1874* The general partners only can be authorized to transact business and sign for the partnership, and to bind the same. — lb. s. 4. [III. 127.] 1875i 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 business to be caried on ; 3. The names of all the general and special partners, distinguishing which are gen- eral and which special, and their usual place of residence ; 4. The amount of capital stock contributed by each spe- cial 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 sta- tute specified in article 1871. —lb. s. 6-7. [III. 127.] 1876. The partnership is not deemed to be formed until the certificate is made, filed and recorded, as indicated in the last preceding article. — lb. s. 8. [III. 127.] 1877. If any false state- ment 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. — lb. s. 8. [III. 127.] 1878. In case of any re- newal 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 part- nership otherwise renewed or continued is deemed a general partnership. — lb. s. 9. Fill. 127.] 1879. Every alteration in the names of the [general] 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 origi- nal certificate, is deemed a dis- solution of the partnership; And if it be carried on after such alteration, it is deemed a general partnership, unless re- newed as a limited partnership in the manner provided in the last preceding article. — lb. s. 10. [III. 129.] 1880. The business of the partnership is to be conducted under a partnership name or firm, in which the name of the general partners only, or of one or more of them, is used ; and if the name of a special part- ner be used in the firm with his privity, he is deemed a general partner. — lb. s. 11. [III. 129.] 1881. Suits in relation to the business of the partnership may be brought and conducted by and against the general part- ners, in the same manner as if there were no special partners, —lb. s. 12. [III. 129.] i 298 PAfiTNERSHIP. 1882* No part of the sum which any special partner has contributed to the capital stock can be withdrawn by him, or Said or transferred to him in le form of dividends, profits or otherwise, during the con- tinuance of the partnership; but he may annually receive lawful interest on the sum so contributed by him, if the pay- ment of such interest do not reduce the original amount of the capital, and he may also receive his portion of the profits, —lb. s. 13. [III. 129. J 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. — lb. s. 14. [III. 129.] 1884:^ A special partner may, from time to time, ex- amine into the ^tate and pro- gress of the affairs of the partnership, and may advise as to its management ; l^ui he cannot transact any business on account of the partnership, nor be employed by it as agent, attorney or otherwise. If he act in contravention of the pro- visions of this article, he is deemed a general partner. — lb. s. 15. [III. 129.] 1885. The general part- ners are liable to account to each other and to the special partners for the management of the business of the partner- ship, in the same manner as ordinary partners under a col- lective name. — lb. s. 16. [III. 129.] 1886* In case of the insol- vency or bankruptcy of the partnership, no special part- ner is allowed, under any oir- onmstanoes, to claim as a credi- tor, until the claims of all the other creditors of the partner- ship have been satisfied. — ^Ib. B. 17. [111.129.] 1887. No dissolution of the partnership by the acts of the parties can take place previous- ly 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 provided in the act specified in article 1871 — lb. s. 18. [III. 129.] ^^1888. Partnerships for the business of banking are regu- lated by special acts of incor- poration, and by the acts inti- tuled. An act respecting incor- porated hanks, and An act respecting hanks and freedom of hanking. — C. S. C. c. 64, 65, 21, 66. [III. 131.] § 4. Q^ joint-stock companies, 1889. Joint-stock compa- nies are formed either under the authority of a royal charter, or of an act of the legislature, and are governed by its provi- sions ; or they are formed with- out such authority, and in the latter case, are subject to the same general rules as partner- ships under a collective name. —2 Bell, Com. 622 j Coll. Part. 401-402; Gow, 237, 238; 3 Kt. Com. 26; Sto. Part. § 164. [III. 131.] , 1890. The names of the partners or stockholders do PASTNEBSHIF. 29» not appear in joint-stock com- panies, which are generally known under an appellation indicating the object of their formation. The business is carried on by directors or other mandataries, who are appoint- ed from time to time, accord- ing to the rules established for the governance of such compa- nies respectively.— Bell, 1. c. [III. 13i.] ^1891. 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 business of banking or insurance, in conformity with the provisions of the act of 1865, intituled An act to authorize the formation of companies or co-operative aasociationa for the purpose of carrying on, in common, any trade or business. — The forma- tion and governance of joint- stock companies and corpora- tions for particular objects are provided for by special statutes. — C. S. C. c. 63-70. [III. 131, 383.] CHAPTER FIFTH. OF THE DISSOLUTION OF FABT- NEBSHIP. *1892. Partnership is dis- solved : 1. By the efflux of time ; 2. By the extinction or loss of the partnership property j 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 in- terdiction, or bankruptcy of one of the partners j 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 deter- mined by the causes declared in article 1879, to which article the causes of dissolution de- clared in the above paragraphs 5 and 6 are subjected. — The causes of dissolution declared in paragraphs 5, 6, 7, do not apply to joint-stock companies formed under the authority of a royal charter or of an act of the legislature. — ff. L. 4, § 1, L. 63, § 10, L. 65, § 1, 3, 9, 10, 12, L. 25, L. 52, § 9, pro soc. ; Dom. 1. 1, t. 8, s. 5 ; Poth. Soc. n. 138 —J 2 Bell, Com. c. 3, p. 639-; Sto. Part. § 2€7, 269, 274; Coll. Part. b. 1, c. 2, s. 2 j 4 Par. t. 3. c. 1-3, n. 1051 - ; Sto.. Part. § 290 & n. 4 ; 3 Kt. Com. 54; C.N. 1865. [III. 131.] 1893. When one of the part- ners 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 the 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. 300 PABTNBBSmP. 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 car- ried on without it. — flf. L. 63, § 10, pro soo. ; Dom. I. 1, t. 8, s. 3, n. 11, 12 ; Poth. Soc. n. 141 ; Tr. Soo. 925 "j C. N. 1867. [III. 133.] 1894. It may be stipulated that in case of the death of one of the partners, the partnership shall continue with his legal representative, or only between the surviving partners. In the latter case, the representative of the deceased pa tner is en- titled to a division of the part- nership property, only as it exists at the time of the part- ner's death. He cannot claim the benefit of any transaction subsequent thereto, unless such transaction is a necessary con- sequence ofsomething done be- fore the death occurred. — Dom. 1. 1, t. 8, s. 5, n. 14 & s. 6, n. 2; Poth. Soo. n. 144, 145 j Tr. Soc. 949 -J C. N. 1868 J ff. L. 35, L. 50, L. 52, § 9, L. 59, pro. soc. [III. 133.] 1895. Those partnerships only which are not limited as to duration can be dissolved at the will of any one of the part- ners, by a notice to all the others of his renunciation. Such renunciation must be in good faith, and not made at a time unfavorable for the part- nership. — ff. L. 63, § 3, 4, 5, 6, pro. soc. J Poth. Soc. n. 149, 150, 151; Tr. Soc. 965, 977; Coll. c. 2, s. 2, 58, 59 ; 2 Bell, Com. 641, 642; C. L. 2855, 2866,2867; C.N. 1869. [III. 133.1 1896. The dissolution of a partnership limited as to dura- tion, may be demanded by one of the partners before the ex- piration of the stipulated term, upon just cause shewn, or when another partner fails to fulfil his engagement, or is guilty of gross misconduct, or from habi- tual infirmity or physical im- possibility is unaole to attend to the business of the partner- ship, or when his condition and status are essentially changed, and in other oases of a like nature. — ff. L. 14; L. 15, pro soc; Poth. Soc. n. 152; Tr* Soo. 983 - , 992 - ; Coll. 1. c. ; 2 Bell, Com. 642, 644; Sto. Part. § 288, 294; C. N. 1871. [III. 133.] CHAPTER SIXTH. OF THE EFFECTS OF DISSOLUTION. 1897. The mandate and powers of the partners to act for the partnership cease with its dissolution, except for such acts as are a necessary con- sequence of business already begun ; nevertheless whatever is done in the usual course of dealing and business of the partnership, by a partner act- ing in good faith and in igno- rance of the dissolution, binds the other partners, in the same manner as if the partnership still subsisted.— ff. L. 65, § 10, pro. soc. ; Poth. Soc. n. 155 156; 2 Bell, Com. 646, 653; 4 Par. 1070; Tr. Soc. 996; 3 Kt. Com. 6^ 63 ; Sto. Part. 332, 333 ; C. 1720, 1728, 1729 ; Coll PAKTNBB8HIP. am Part. 76 J aow, 227, 228. [III. 133.1 1898. ITpon the dissolntion of the partnership, each part- ner or his legal representative may demand of his copartners an account and partition of the property of the partnership; such partition to be made ac- cording to the rules relating to the partition of successions, in 80 far as they can be made to apply. — Nevertheless, in com- mercial partnerships these rules are to be applied only when they are consistent with the laws and usages specially applicable in commercial mat- ters. — Dom. 1. 1, t. 8, s. 5, n. 19 j Poth. Soo. 161 — J 4 Par. 1071 j Tr. Soc. 996, 998, 1057 — j C. N. 1872. [III. 135.] 189 it becomes extinct there- after as provided in article 390. —Poth. C. B. n. 215, 223, 225 ; C. S. L. C. c. 50, 8. 6 ; C. N. 1972. [III. 135.] 190^1 It may be constituted for the benefit of a person other than the one who gives the consideration. — Poth. G. R. n. 241; C. 1029; 0. N. 1973. [III. 187.] 1905. A life-rent oonsti- tuted 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. — Poth. C. B. n. 224 ; C. N. 1974. [III. 137.] 1906. [The rule declared in the last preceding artioU applies equally when the per- son upon wbose life the rent is constituted is, without the knowledge of the parties, dan- gerously ill of a malady of which he dies within twenty days after the date of the contract.] — Poth. 0. B. n. 225 ; Tr. Cont. al^at. n. 262, 263; A Boi. 536 ; C. N. 1975. [Ill 137.] \, CHAPTER SECOND. OF THE EFFECTS OF THE COK- TBACT. 1907* Non-payment of ar- rears of a life-rent is not a cause for recovering back the money or other consideration given for its constitution. — Poth. B. 227, 231; C. N. 1978. [III. 137.] 1908. The creditor of a life-rent secured by the privi- lege and hypothec of a vendor upon immoveable property, afterwards seized to be sold under execution, has a right to demand that the property shall be sold subject to the life-rent as a charge upon it.— C. S. L. C. 0. 50, 8. 7. [III. 137.] 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 paytbents made. — Poth. G. B. n. 233, 255 ; C. N. 1979. [111.137.] LIPE-RENTS. 303 1910i The rent is due only for the number of days that the person upon ^hose life it is constituted lives; unless it is made payable in advance. — Poth. C. R. n. 248, 255; Tr. Cont. al^at. 330-332, 334; C. N. 1980. [III. 137.] 1911. A stipulation that the life-rent cannot be seized or taken in execution is without effect, unless it is constituted by a gratuitous title. — Poth, C.R.n. 252; C.N. 1981. [III. 137.] 1912. The obligation to nay a life -rent is not extinguished by the civil death of the per- son upon whose life it is con- stituted. It continues during his natural life. — Po.th. C. R. 256; C. N. 1982. [III. 137.] 1913. The creditor of a life- rent on demanding payment of it must establish the exist- ence of the person on whose life it is constituted, up to the time for which the arrears are claimed.— Poth. C. R. 257 ; C. N. 1983. [III. 137.] 1914e. [When an immove- able hypothecated for the pay- ment of a life-rent is sold by a forced sale or other proceeding having the same effect, or by a voluntary sale followed by confirmation of title, the poste- rior creditors are entitled to re- ceive the proceeds of the sale on giving suflBoient security for the continued payment of the rent, and in default of snoh security being given, the cre- ditor of the rent is collocated, according to the order of his hypothec, for a sum equal to the value of the rout at the time of collocation.] — Poth. C. R. 231 ; Tr. Hyp. 959 ; Hou. 0. C. 205, 296. [III. 139.] 1915. [The value of a life- rent is estimated at the sum which, at the time of colloca- tion, would be sufficient to pur- chase from a life-assurance company a life-annuity of like amount.] — Author, under a. 1914. [III. 139.] 1916. If the price of the immoveable be less than the estimated value of the lifo-rent the creditor of it is entitled to receive such price, according to the order of his hypothec, or security from the posterior creditors for the payment of the rent until the price received by them and the interest is ex- hausted by such payments. — Dal. Hyp. 29, 2, 258, 259, 7; 3 Delv. 419; 2 Rog. 2552; 5 Bio. 313, n. 275; Tr. Hyp. n. 959. p. 205; 1 Gren. n. 185. [III. 139.] ^ 1917. The estimation of the life-rent and its payment, in all cases in which the creditor is entitled to claim the value of it, are subject to the rules contained in the foregoing ar- ticles in so far as they can be made to apply.— [III. 139.] 804 TITLE THIRTEENTH. OP TRANSACTION. , Dur. C. V. 1918i Transaction is a oon- traot by which the parties terminate a lawsuit already begun, or prevent future liti- gation by means of concessions ojr resenrations made by one or both of them. — ff. L. 1, de trans. ; Cod. L. 2, L. ult. e. t. ; Dom. 1. 1, t. 13, s. 1, n. 1 ; 1 Pi. 8 J Tr. Trans, n. 4 391; 5 Zach. 83; C. 1525; C. L. 3038; C. N. 2944. [III. 139.] 1919* Those persons only can enter into the contract of transaction who have legal ca- pacity to dispose of the things which are the object of it. — flf. L. 9, § 3, de trans; Cod. L. 36, e. t. ; Guy. Trans. § 1 ; L. & B. let. 0. n. 4 ; 18 Dur. 407 — ; C. L. 3039 ; C. N. 2045. [III. 139.] 1920. Transaction has be- tween the parties to it the authority of a final judgment, (rea judicata). — Cod. L. 2, L. 20, De trans. ; Dom. 1. o. n. 9 ; C. N. 2052. [III. 141.] 1921* Error of law is not a cause for annulling transaction. With this exception, it may be annulled for the same causes as contracts generally ; subject nevertheless to the provisions of the articles following. — ff. L. 9, § 2, De trans. ; Cod. L. 19, e. t. ; Dom. 1. c. s. 2, n. 1 — ; Guy. 1. c. 243, 244; C. N. 2053. [III. 141.] 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 cover- ed the nullity. — Lac. Transac- tion, n. 7 ; Car. 1. 10, r^p. 32 ; C. 1214 ; 6 Toul. 71-73 ; 0. N. 2054. [III. 141.] 1923. [Transaction upon a writing which has since been found to be false, is altogether null.] — Cod. L. pen., De trans. ; Lac. 1. c. ; Dom. 1. c. n. 4 ; 3 Delv. 137; 18Dur. n. 42^; C. N. 2055. [III. 141.] 1924;. Transaction upon a suit terminated by a judgment having the authority of a final judgment, and not known to either of the parties, is null. But if the judgment be appeal- able the transaction is '. Jid. — ff. L. 7, L. 11, De trans. ; Cod. L. 32, e. t. ; Dom. 1. c. n. 7; Guy. 1. c. 8 2, 236, 237 ; C. N. 2056. [III. 141.] 1925. When parties have transacted generally upon all the matters between them, the subsequent discovery of docu- ments of which they were then in ignorance does not furnish a cause for annulling the trans- action ; unless such documents have been kept back by one of the parties. — But transaction is null when it relates only to an object respecting which the newly discovered documenta Erove that one of the parties ad no right whatever. — Cod. L. 19, L. 29,'De trans. ; Dom. 1. c. n. 3 ; Lac. 1. c. n. 3 ; 18 Dur. 433; C. N.2067. [III.141.] OAHZNO 00NTBAGT8 AND BBT8. S0» 1926i Errors of oalonlation l — Cod. L. nnio., Do err. oale. ; in transaction may be reformed. I 0. N. 2058. [III. 141.] TITLE FOURTEENT^. OP GAMING CONTRACTS AND BETS. *1927> There is no right of action for the recovery of money or any other thing elaimed nnder a gaming contract or a bet. But if the money or thing have been paid by the losing party he cannot recoyer it back, unless fraud be proved. — ^ff. L. 2, fin., De aleat. ; Poth. Jeu, n. 49, 50, 53 ; Tr. Cont. al^at. on a. 1065, 1966; Sm. Con. 188; Oli. 212 ; McKenna vs. Robin- son, 3 M. & W. 441 ; C. N. 1966,1967. [III. 141.1 1928. l!he denial of the right of action declared in the preceding article is subject to exception in favor of exercises 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 re- ject the action when the sum demanded appears to be ex- cessive. — Author, under a. 1927} C. N. 1966. [IH. 143.] TITLE FIFTEENTH. OF SURETYSHIP. CHAPTER FIRST. OF THE NATURE, DIVISION, AND EXTENT OF SURETYSHIP. 1929. Suretyship is the act by which a perscfn engages to fulfil the obligation of another ill case of its non-f ulfilmdnt by the lattec. — The person who contracts this engagement is called surety. — Poth. Ob. n. 565; 18 Dur. n. 295, p. 289 j 2 Guy. Caution, 764; 4 N. D. Cautionnement, 318. [III. 143.] 1930. Suretyship is either conventional, legal, or judicial. The first is the result of agree- ment between the parties, the second is required by law, and the third is ordered by judicial authority. — Poth. Oblig. n. 386; 3 Dem. n. 763, p. 364. [III. 143.] 1931. The surety is not bound to fulfil the obligation of the debtor unless the latter fails to do so.— C. N. 2011 ; Inst. 1. 13, t. 22, fif. L. 1, § 8, de ob. ei Z09 SURBTTIBIP, «oti Poth. Ob. n. 360, 368, 887 1 14 P. Fr. 269 --. [Ill 14dJ ld32* Suretyship can only be for the fnlfilment of a valid obligation. — It may however be for ttie fulfilment of an obliga- tion which is purely natural or from which the principal debt- or may tree himself by means of an exception which is purely personal to himself; for example, in the case of minority. — ff. L. 78, Do reg. jur. L. 29, De fid. ; Poth. Ob. 194, 367, 377, 396 : 0. L. 3005; O.X.2012. [III. 143.J 1933. Suretyship cannot be contracted for a greater sum nor under more onerous condi- tions than the principal obli- gation. — It may be contracted for a part only of the debt or under conditions less onerous. — The suretyship which ex- ceeds the debt, or is contracted under more onerous conditions, is not null ; it is only reducible to the measure of the principal obligation. — ff. L. 8, De fid. et mand. ; Cod. L. 22, 70, e. t. ; Poth. Ob. 369, 371, 374-376 j C. L. 3006: 0. N. 2013. [III. 143.J 1934. A person may be- come surety without the request and even without the know- ledge 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. — ff. L. SO, Do fid. et mand. ; Arr. Lam. t. 23, a. 8; 2 Bog. 2622 ; Poth. Oblig. 366,394, 399,404; 4 Bous. 678-9; C. L. 2015. [III. 143.] 1935i Suretyship is not presumed; it must be express- ed, and cannot be extended beyond the limits within which it is contracted. — Poth. Ob. 401-3-6; Cod. L. 6, de fid. et tnand.; 4 Bous. 679; 2 Rog. 2623; C. L. 3008; C. N. 2015. [III. 146.1 , 1936. Indefinite suretyship extends to all the accessories of the principal obligation, even to the costs of the princi- pal action, and to all costs subsequent to notice of such action given to the surety.— Poth. Ob. n. 404-6 ; Merl. Cau- tion, S 1, n* 3; ff. L. 62, 6$, de fid. et mand. ; Ser. Inst. 465 i. f. ; 2 Rog. 2624; 4 Mai. 93, 4; 4 Bous. 680; 0. 1667, t. des garants, a. 14; 0. L. 3009; C. N. 2016. [III. 146.] 1937. The obligations of the surety pass to his heirs, except the liability to coercive imprisonment when the obliga- tion of the surety was such that he would have been subject to it.— Inst. 1. 3, t. 21, § 2 ; ff. L. 4, 6, de fid. et mand. ; Cod. e. t. ; 2 Rog. 2624; 4 Mai. 94; 4 Bous. 581 ; C. N. 2017. [III. 145.1 1938. The debtor who is bound to find a surety must offer one who has the capacity of contracting, who has suffi- 'oient property in Lower Canada to answer the obligation, and whose domicile is within the limits of Canada.— ff. L. 3, De fid. et mand.; 2 Rog. 2625; Arr. Lam. t. 23, a. 5; Poth. Ob. n. 388, 391 ; 4 Bous. 681-3 ; 4 Mai. 94; 14 P: Fr. 281-; Rod. on 0. 1667. p. 678 ; Bor. on do. t. 28, a. 3 ; C. L. 3011 ; C. N. 2018. [III. 145.] SURXTY8HIP. 307 1939i The solvency of a inrety is estimatotl only ^ith regard to his real property; except in commercial matters, or when the debt is small, and in eases otherwise provided ftu by some special law. — Litigious immoveables are not taken into aooount.— ff. L. 25, Do reg. jur.j Poth. Ob. 388, 391 ; 4 Bous. 583; Fen. Poth. 630; 8er. Inst. 484 : 4 Mai. 94, 95-; 0. N. 2019. [III. 145.] 1940. When the surety, in conventional or judicial sure- tyship, becomes insolvent, an- other must be found. — This rule admits of exception in the case only in which the surety was solely given in virtue of an agreement by which the cre- ditor has required that a cer- tain person should be the surety. — ff. L. 3, de fid. et mand, L. 10, qui satisdare co- gantur ; Poth. Ob. 392 ; 14 P. Fr. 285 " ; 4 Mai. 96 -- ; 4 Bons. 684— ; 2 Rog. 2626 - ; C. L. 3012 ; C. N. 2020. [III. 145.] CHAPTER SECOND. OP THE EFFECT OF SUEETTSHIP. SECTION I. Of the effect of suretyship between the creditor and the surety. 1941. The surety is liable only upon the default of the debtor, who must previously bo discussed, unless the surety has renounced the benefit of discussion, or has bound him- self jointly and severally with the debtor,, in which case his 24 liability is governed by the rules established with respect to joint and several obligations. —Nov. 4. 0. 1, 2 ; 1 Coch. 649--; Arr. Lam. t. 23, a. 17j 4 Bous. 685 -; Poth. Ob. 407-9, 413, 417; C. L. 3014; C. N. 2021. rill. 147.] 1942. The creditor is not bound to discuss the principal debtor unless the surety de- mands it when he is first sued. — D'Ol. 1. 4, 0. 22; Sor. 483; Poth. Ob. 411 ; Merl. Caution, 8 4, n. 1 ; 2 Rog. 2628 - ; Dard, 457, on a. 2022; C. L. 3015; C. N. 2022. [III. 147.] 1943. The surety who de- mands the discussion must point out to the creditor the property of the principal debtor and advance the money neces- sary to obtain the discussion.— Ue must not indicate property situated out of Lower Canada, nor litigious property, nor pro- perty hypothecated for the debt and no longer in the hands of the debtor. — Nov. 4, c. 2 ; Poth. Ob. 412-4, Hyp. c. 2, s. 1, a. 2, § 3 ; Arr. Lam. t. 24, a. 9 ; 2 Rog. p. 2630 ; 4 Bous. 688 - ; C. L. 3016; C.N. 2023. [III. 147.] 1944. Whenever the surety has indicated property in the manner prescribed by the pro- ceding article, and has ad- vanced sufficient money for the discussion, the creditor is, to the extent of the value of the property indicated, responsible as regards the surety, for the insolvency of the principal debtor which occurs after nis default to proceed against him. —C. Br. a. 192 ; 2 Hon. c. 4, I q. 34 ; Poth. Ob. 415 ; 2 Rog. I Hi I 808 8UBET7SHIP. 2630 - ; 4 Mai. 99, 100 ; 4 Bous. 591, 2 ; Fen. Potb. 632, 3 ; 14 P. Fr. 289 J Dard, 458, on a. 2026 ; C. L. 3017: C. N. 2024. [III. 147.] 1945. When several per- sons become sureties of the same debtor for the same debt, each of them is bound for the whole debt. — ^ff. L. 11, De duo- bus reis const. ; Cod. L. 3, De fid. et mand. ; Inst. I. 3, t. 21, § 4 J Vin. 1. 11, 0. 40 J Ser. 483j Poth. Ob. 416, 535; 4 Bous. 592; C. L. 3018: C. N. 2025. [III. 147.] 194:6. Nevertheless each of them may, unless ke has re- nounced the benefit of division, require the creditor to divide his action and reduce it to the share and proportion of each 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 cannot be made liable for insolvencies happening after the division. — ff. L. 10, de fid. j Inst. 1. 3, t. 21 J Poth. Ob. 416, 417, 425, 426, 535; 2 Bog. 2631 ; 4 Mai. 101 ; 4 Bous. 593 -; G. L. 3018, 3019 ; C. N. 2026. [III. 147.] 1947. If the creditor have himself voluntarily divided his action, he can no longer recede from such division, although at the time some of the sureties had become insolvent. — Cod. L. 16, De fid. ; Poth. Ob. 421, 427; 4 Mai. 101, 2; 4 Bous. 596 ; 14 P. Fr. 294, n. 1 ; C. L. 3019 ; C. N. 2027. [III. 147.] SECTION 11. Of the effect of suretyship between the dehtor and the surety, 1948. The surety, who has bound himself with the con- sent of the debtor, may recover from him iall that he has paid for him in principal, interest and costs, together with the costs incurred against him and those legally incurred by him in notifying the debtor and subsequently to such notifica- tion. He has also a claim for damages, if there be ground forit.— ff. L. 10, L. 11, mand.{ Cod. L. 18, mand. ; Poth. Ob. 365,429-433.437,440-3; Merl. Int^rdt, § 2, n. 10; 4 Mai. 102; 4 Bous. 597; C. L. 3021; C.N. 2028. [III. 147.] 1949. The surety, who has bound himself w;ithout the con- sent of the debtor, has no re- medy 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 subse- quent to the notice of payment by the surety, which are borne by the debtor. — The surety has also his recourse for such dam- ages as the debtor would ha7e been liable for in the absence of such suretyship! [III. 149.] 1950. The surety who has paid the debt is subrogated in all the rights which the credi- tor had against the debtor.— ff. L. 17, de fid., L. 95, de solut., ff. L. 39, de fid. ; Poth. Ob. 428, 430 ; May. 1. 2, ^. 49 ; D'Ol. 1. 4, c. 31; Cat. 1. 5, c. 49; 2 Yin. Inst. 733 ; Lar. Arr. 1. 6, t. 20, a. 4, 333 ; Merl. Subro- BUBETTSHIP. 309 gation de personnes, 8. 2, § 5, n. Ij 14P. Fr. 295j Fen.Poth. 634 ; 2 Rog. 2632 ; 4 Mai. 102, X03 ; 4 Bous. 598 - ; C. 1156 ; C. L. 3022 ; C. N. 2029. [III. 149.1 1951. When there are seve- ral principal debtors jointly and severallj bound to the same obligation, the surety who has become answerable for all of them, has his remedy against each of them for the recovery of all that he has paid. — Poth. Ob. 441; 4 Bous. 599 -; 3 Delv. 144 J 14 P. Fr. 296 j Dard, 459, on a. 2030, n. a. ; 0. L. 3023 J 0. N. 2030. [III. 149.] 1952* The surety who has paid first has no remedy against the principal debtor who has Eaid a second time without eing notified of the first pay- ment; saving his right to re- cover back from the creditor. — When the surety has paid be- fore 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.— ff. L. 29, § 3, L. 10, § 2, Mand. ; Poth. Ob. 433-439 ; 4 Mai. 103 ; 4 Bous. 602 ; 3 Delv. 145 J C. L. 3024, 3025; C. N. 2031. [III. 149.] 1953. The surety who has bound himself with the consent 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 ob- liged himself to o£fect his dis- ohargt> 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 with- out the consent of the surety ; 5. After ten years, when the term of the principal obligation is not fixed, unless the prin- cipal obligation, such as that of a tutor, is of a nature not to be discharged before a de- terminate period. — ff. L. 18, Mand. ; Bas. pt. 2, o. 5 ; Poth. Ob. 429, 442; 4 Bous. 602 - ; 4 Mai. 104, 105; 3 Delv. 145; Ser. 482; C. L. 4026; C. N. 2032. [111.149.] *1954, The rule contained in the last paragraph of the preceding article does not a]^- ply to sureties given by public officers, or other employees, in order to secure the fulfilment of the duties of their office; such sureties have a right at all times to free themselves from future liability under their suretyship by giving sufficient notice unless it has been otherwise agreed. [III. 151.] SECTION III. Of the effect of suretyship between co-sureties. 1955. When several per- sons become surDties 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 310 SURBTTSHIP. Vv payment has been made in one of the cases specified in article 1953.— Darg. on a. 203 ; G. Br. a. 194; Ser. 484; Poth. Ob. 446; 3 Delv. 139, 146; 4 Mai. 105, 6:4 Sous. 605, 6; 14 P. Fr. 297, 8 ; 2 Bog. 2635 ; Dard, on a. 2033 ; C. L. 3027 ; C. N. 2033. [III. 151.] CHAPTER THIRD. OP THE EXTINCTION OP SUBETT- SHIP. 1956- Suretyship becomes extinct by the same causes as other obligations. — Cod. L. 4, de fid. ; Poth. Ob. 378-380, 407 ; 4 Mai. 106 ; 4 Bous. 607, 8 ; 3 Delv. 146; 2 Rog. 2635; C. L. 3028 ; C. N. 2034. [III. 151.] 1957. The confusion which takes place in the person of the principal debtor or of his sure- ty when one of them becomes heir of the other, does not de- stroy the action of the creditor against the surety of such surety.— ff. L. 38, L. 93, de solut. et liber. ; Cod. L. 28, e. t. ; Poth. Ob. 384, 407 ; 4 Bous. 608 -; 3 Delv. 146; C. L. 3028 ; C. N. 2035. [III. 151.] 1958. The surety may set up against the creditor all the exceptions which belong to tho principal debtor and are inhe- rent to the debt ; but ho cannot set up exceptions that are purely personal to the debtor. — flf. L. 32, de fid,, L. 7, L. 19, de excep. ; Cod. L. 11, e. t. ; Inst. 1. 4, t. 14, § 4 ; Poth. Ob. 381-3 ; Mcrl. Autorisation ma- ritale, s. 3, § 2, Caution, § 4, n. 3 ; 4 Mai. 106, 7 ; Fer. Poth. 637, 8; 4 Bous. 608-9 ; 14 P, Fr. 299; C. L. 3029; C. N. 2036. [III. 151.] 1959. The suretyship is at an end when by the act of the credi- tor the (lurety can no longer be subrogated in the rights, hy- pothecs and privileges of such creditor. — S. Arg. ex lege 95, § 11, de solut. et liber. ; Poth. Ob. 407, 657; 4 Mai. 107; 4 Bous. 612 ; 3 Delv. 146 ; 14 P. Fr. 300; 0. L. 3030; C. N. 2037. [111.151.] I960 When the creditor voluntarily accepts an immove- able or any object whatever in payment of the principal debt, the surety is discnarged, though such creditor should afterwards be evicted of it. — S. Ar^. ex lege 54, de solut., L. 54, e. t., L. 47, de verb, sig., L. 62, de pact; Poth. Ob. 407; 4 Mai. 107, 8 ; 4 Bous. 613 ; 3 Delv. 147 ; 14 P. Fr. 300, n. 2 ; 2 Rog. 2648 ~; Dard. 462, n. a. ; C. L. 3031; C.N. 2038. [III. 151.] 1961. The surety who has become bound with the consent 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. — ^Vin. q. 11, 42; Poth. Ob. 407; Arr. Lam. t. 23, a. 13 ; Merl. Nova- tion, § 6 ; 1 Desp. 608, n. 8 ; 4 Mai. 108; 4 Bous. fil3; 3 Delv. 145, 7 ; Dard, p. 462, n. b. ; 3 Rev. 296; C. L. 3032; 0. N. 2039. [III. 153.] CHAPTER FOURTH. OP LEGAL ANP JtDICIAL SURE- TYSHIP. 1962. Whenever a person is required by law or by ordev t \ PLEDOK. 811 of a court to find a surety, he must conform to the conditions Jresoribed by articles 1938, 939 and 1940.— In the case of judicial suretyship, the person offered must moreover not be exempt from civil imprison- ment. — L. & B. let. F. 0. 23; Ser. 483} Poth. Ob. 377, 387, 391, 403 J Bor. 0. 1667, t. 28, a. 4 j Id. 0. 1669, t. 6, a. 11 ; Rod. 271 J Merl. Caution, § 1, n. 8 ; 4 Mai. 108 ; Ser. 483 } 4 Bous. 614, 6 J 3 Delv. 141 j 14 P. Fr. 301 ; C. L. 3033 j C. N. 2040. [III. 153.] 1963i When a person can- not find surety he may in lieu thereof deposit some sufficient pledge. — ff. Arg. ex lege 68, § 6, mand. vel contrar. L. 25, De reg. jur. ; Arr. Lam. t. 23, a. 17 J Poth. Ob. 393 j 2 Proud, n. 848 J 4 Bous. 141 j 3 Delv. 141 j C. L. 3034; C. N. 2041. [III. 153.] 1964i A judicial surety cannot demand the discussion of the principal debtor. — ff. L. 1, judicatum solvi ; God. L. 3, de usuris rei judic. j Lobret, plaid. 42 j Bas. Hyp. c. 4, a. 17 j Ser. 83 ; Lap. let. D. n. 38 ; Lac. Caution, s. 2, n. 1 ; Poth. Ob. 409, 417 i 4 Bous. 615, 6 ; 4 Mai. 109 J 3 Delv. 143 j Arr. Lam. t. 23, a. 17 ; C. L. 3035 ; C. N. 2042. [III. 153.] 1965. He who is simply surety of a judicial surety can- not demand the discussion of the principal debtor nor of the surety. — Ser. 83 j Lap. let. D. n. 38 ; Lac. Caution, s. 2, n. 1 ; 4 Mai. 109; 4 Bous. 616; 0. 1667, t. 17; 2 Rog. 2653; C. L. 3036; C. N. 2043. [III. 153.] TITLE SIXTEENTH OF PLEDGE. 1966a Pledge is a contract < by which a thing is placed in the hands of 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. — Domat, 1. 3, t. 1, s. 1, n. 1 ; Pothier, Nantissement, a. prd- lim. Story, Bailments ; n. 286 ; C. N. 2071, 2077. [III. 153.] CHAPTER FIRST. OF THE PLEDGE OF DIMOYEABLES. 1967. Immoveables may be pledged upon such terms and conditions as may be agreed upon between the parties. If no special agreement be made* the fruits are imputed first in payment of interest upon th© debt and afterwards upon tuj principal. If no interest be payable the imputation is made wholly upon the principal. — 31i PLEDGE. The pledge of immoveables is subject to the rules contained ill the following chapter, in so far as they can be made to apply.— ff. L. 33, L. 39, De pig. act., L. 11, § 1, De pig. et hyp., L. 50, § 1, De jur. dot. et pass. ; Cod. L. 2, L. 3, De pig. act.; Poth. Nan. c. 1, a. 1, § 1 j Tr. Nan. 497, 613 j 4 Champ. & Rig. 3120. [III. 153.] CHAPTER SECOND. OF FAWNING. *1968. The pledging of mo- veable 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. — Poth. Nantiss, n. 26 ; C. N. 2073. [III. 155.] 1970. The privilege subsists only while the thing pawned remains in the h^nds of the creditor or of the person ap- pointed by the parties to hold it. — Poth. Nantiss., n. 17, 26: C.N. 2076. [III..155.] *1971. The creditor cannot, 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 autho- rity of a competent court and obtain payment by preference out of the proceeds. — This pro- vision, however, does not apply to banks as regards timber given to them in security under the provisions of the statute 29th Vict. cap. 19.— [The cre- ditor may also stipulate that in default of payment he shall be entitled to retain the thing.] - De pact. pig. ; ": C. N. 24 Cod. L. ult, Poth. Nan. n. 19, 2078. [III. 165.] 1972. The debtor is owner of the thing pledged until it is sold or otherwise disposed of. It remains in the hands of the creditor only as a deposit to secure his debt. — S. L. 35, § 1, de pig. act. ; Cod. L. 9 de pig. ethyp. ; C. N. 2079. [III.165.] 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.— fiF. L. 13, § 1, L. 8, L. 25, De pig. act. ; Cod. L. 5, L. 6, L. 8, L. 9, L.-27, Do pig. et hyp. J C. 1063, 1064, 1160, 1200 J C. N. 2080. [III. 155.] 1974h 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. — fiF. L. 1, L. 2, L. 3, Do ig. act., L. 6, § 2, 3, de sol. et Fi ib. ; Poth. Nan.' o. 1, a. 1, §l,n.; C.N. 2081. [III. 155.] 1975. The debtor cannot claim the restitution of the thing given in pledge, until he has wholly paid the debt in principal, interest and costs; unless the thi^g Is abused by the creditor. — If another debt be contracted after the pledg- ing of the thing and become 1 \ V PRIVILEGES AND HYPOTHECS. 313 '* due before that for which the pledge was given, the creditor is not obliged to restore the thing until both debts are paid. — Cod. L. 1, etiam ob chir. J Poth. Nan. n. 47} Tr. Nan. 462, 463; C. N. 2082. [III. 167.] 1976. The pledge is indi- visible 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 re- ceives his portion of the debt restore the thing pledged to the injury of those of his coheirs who are not paid. — flf. L. 8, § 2, L. 9, § .3, L. 11, § 4, do pig. act. -J Poth. Nan. n. 43-45 : C. N. 2083. [III. 157.] *1977. The rights of the creditor in the thing pledged to him are subject to those of third parties upon it, accord- ing to the provisions concained in the title Of Privileges and Hypotlieca.—illl. 167.] 1978. The rules contained in this chapter, are subject in commercial matters to the laws and usages of commerce.— rill. 167.] *1979. The special rules re- lating to the trade of pawn- broking are contained in an act intitutled : An act respect- ing jxiwnbrokera andpawnbrok- ing. — Special provision is made in chapter 54 of the Consoli- dated Statutes of Canada for the transfer by endorsement of bills of lading, specifications of timber and receipts given by warehousemen, millers, whar- fingers, masters of vessels or carriers, to incorporated or chartered banks, or to private persons, as collateral security, and for the sale of the mer- chandise and effects represent- ed by such instruments. — C. S. C.c. 61. [III. 157.1 TITLE SEVENTEENTH. OP PRIVILEGES AND HYPOTHECS. CHAPTER FIRST. PRELIMINART PROVISIONS. 1980. Whoever incurs a f)ersonal obligation, renders iable for its fulfilment all his property, moveable and im- moveable, present and future, except such property as is specially declared to be exempt from seirore. — Poth. P. C. 174 j 1 Pi. 597 J 1 Tr. Priv. /; 1 Pont, Priv. 2, 3j C. N. 2092 j [III. 157.] 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. — ff. L. 28, De reb. auct. jud., L. 1, de jur. fisci, L. 314 PRITILBGES AND HTPOTHEOO. 23, § 1, de verb. sig. ; 1 Cou. 133,4; Poth. P. C. 179, 234 j Bowie & MoKenzie, judgt. in Appeal, 11 July, 1851 ; C. 1031- 1040 ; C. N. 2093. [III. 157.] 1982. The legal causes of preference are privileges and hypothecs.— Poth. P. C. 234 j 1. Pi. 681, 809: C. N. 2094. [III. 157.] CHAPTER SECOND. OF PBIVILEOE8. 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 the law and is indivisible of its nature. — ff. L. 32, de reb. auct. jud. ; Loy. Of. I. 3, c. 8, n. 87 j Guy. Privilege, 689; 1 P. 681 ; Dom. 1. 3, 1. 1, 8. 1, 30 ; Poth. Hyp. 451, P. C. 234 ; Pont, Priv. n. 24; C. N. 2095. [III. 159, 383.] 1984. Among privileged creditors preference is regulat- ed by the different qualities of the privileges, or the origin of the claims. — u. L. 32, de reb. auct. jud.; Poth. P. C. 178, 234, 262 ; 1 Pi. 681 ; Guy. Pri- vilege, 689; 1 Tr. Priv. 26; 1 Pont, n. 175 ; C. N. 2096. [III. 159.] 1985. Privileged claims of equal rank are paid rateably. — ff. I.e.; 1 P. 685, 686, 813 ; Guy. Privilege, 692 ; Poth. P. C. 262 ; Dom. 1. 3, t. 1, s. 5, n. 2; C. N. 2097. [III. 159.] 1986i Persons who are sub- rogated in the rights of a pri- vileged creditor tnay exercise his right of preference. — Such creditor has however a prefer- ence, for any remainder due him, over subrogated parties to whom he has not guaranteed the payment of the amount for which they hav j obtained sub- rogation. — C. S. L. C. c. 37, 8. 26, §2, 5; C. 1157. [III. 169.] 1987* Persons who are merely subrogated by law in the rights of one and the same pri- vileged creditor are paid rate- ably. — Ren. Subr. o. 15, n. 9, 14, 15; 2Bour. 740, n. 190; Poth. P. C. 234 ; Arr. Lam. t. 21, a. 60 ; K6r. c. 11, s. 1, n. 16 ; Gren. Hyp. n. 93,394 ; Tr. Priv. n. 379 ; C. N. 2097. [III. 1^9.] 1988. The transferees of different portions of a privi- leged claim are also paid rate- ably, if their respective trans- fers have been made without warranty of payment. — Those whose transfers were made with warranty of payment, are pre- ferred to the others ; as between themselves, however, regard is had to the date of the notice given of their respective trans- fers.— 9 Cuj. 1137 ; Ren. Subr. 0. 13, n. 30-32 ; c. 16, n. 6, 15; 2 Fer. C. P. a. 108, § 6 n. 30—, A p. 1213, n. 4, 5, 6; Lem. U: C. P. p. 149 ; N. D. Cession, § 2, n. 10, 12 ; 1 Lam. t. 21, a. 59, 2 Id. p. 130 ; Poth. P. C. 234 ; Tr. Priv. 86, 87, 366, 367, 379, 608 ; Gren. Hyp., n. 93, 2 Id. 227; Dal. R. J. 1858, pt. 2, 108, n. ; 26 J. P. 403; C. 1160 ; 7 Toul. n. 171 ; 6 Zach. 169; 2 Delv. 564; 2 Duv. n. 204, 227, 287. [III. 159.] 1989. The orofrn has cer- tain rights and privileges re- sulting from the laws relating to customs, and from other pro- PRITILEOES AND HTPOTHECS. 315 I visions contained in special statutes concerning matters of public administration. — C. S. b. c. 17, s. 10, 11, 14, 41, § 3, 80, 84, 0. 19, 23 j C. N. 2098. [III. 169.] 1990. The creditors and legatees of a deceased person vrho are entitled to separation of property, retain, against the creditors of his heirs and lega- tees, a right of preference and all their privileges upon such property of the succession as may be subject to their claims. — The same right of preference exists in the cases specified in articles 802 and 966.— Dom. 1. 1, 1. 11 ; Poth. Hyp. 454-456 j 2 Bour. 675; Merl. Privilege, 8. 4, §6, n. 2 J C. S. L.C. c.37, 8. 27, § 3j C. 743j C. N. 878, 2111. [III. 159.] ^1991. The rule as regards tlie creditors of a partnership and those of the partners in- dividually, is declared in ar- ticle 1899 and in The Insolvent Act of 1864.— [III. 161.] 1992. Privileges may be upon moveable or upon im- moveable property or upon both together. — Dom. 1. c. n. 31 J 1 Pi. 681-685, 810-814; Poth. P. C. 191, 260; C. N. 2099.— fill. 161.1 SECTION I Of privileges upon moveable 'property, 1993. Privileges may be upon the whole of the move- able property, or upon certain moveable property only. — 1 Pi. 181--} Poth. P. . C 192 J C.N. nOO. [III. 161.] 4^1994, The claims which carry a privilege upon move- able property are the following, and when several of them come together they take precedence in the following order, and ac- cording to the rules hereinafter declared, unless some special law derogates therefrom : 1. Law costs, and all ex- penses incurred in the interest of the mass of the creditors ; 2. Tithes; 3. The claim of the vendor ; 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 ; 9. Servants' wages,and sums due for supplies of provisions ; 10. The claims of the crown against persons accountable 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.— [III. 161.] 1995. Law costs are all those incurred for the seizure and sale of "the moveable pro- perty and those of judicial pro- ceedings for enabling the credi- tors generally to obtain pay- ment of their claims. — Cod. L. 10, de bon. auct. jud. ; Poth. P. C. 170 ; 1 Pi. 682 ; 2 Bour. 684 ; Dom. 1. 3, t. 1, c. 5, n. 25; Bac. D.J. 292, 293; 2Fer. 1367, 1368 ; Guy. Privilege 689; Cou. 134; C. N. 2101. [III. 161.] 1996. The expenses incur- red in the interest of the mass 316 PBITILEGES AND HTP0THE08. of the creditors, include such as have served for tlie preserva- tion of their common pledge. — 1 Pi. 683, 684} Poth. P. C. 193; 1 Dur. 40; C. N. 2102. [III. 161.] 1997. Tithes carry with them a privilege upon such crops as are subject to them. — 1 Drapier, 35-37 ; Jouy, Pr. des dixmes, 158-161, 172 j 1 Sal. C. des cur^s, 55 ; 2 Dur. de Mail. 356; 1 Pr. de la Jan. 225. fill. 161.] *1998. The unpaid vendor of a thing has two privileged rights : 1. A right to revendioate it ; 2. A right of preference upon its price. — In the case of in- solvent traders, these rights must be exercised within fifteen days after the sale. — ff. L. 19, de contrah. empt. ; Inst. § 41, de rer. divis. ; C. P. 176, 177 ; 2 Bour. 688, 669; Tr. Priv. n. 180. [III. 163.] ^1999. The right to revendi- oate 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 condi- tion ; . . 3. The thing must not have passed into the hands of a third party who has paid for it; 4. It must be exercised with- in eight days after the de- livery; saving the provision concerning insolvent traders contained in the last preced- ing article. — Fer. C. P. 176, n. 19; 2 Bour. 689; 4 A. D. 377, 378; Tr. Priv. n. 194-197; 2 Tr. Vente, 531 ; C.1623. [III. 163.] 2000. If the thing be sold pending the proceedings in re- vendication, or if, when th« thing is seized at the suit of a third party, the vendor be with- in the delay and the thing in the conditions prescribed for revendication, tne vendor has a privilege upon the proceeds in preference to all other privi- leged creditors hereinafter mentioned. — If the thing be still in the same condition, but the vendor be no longer within the delay, or have given credit, he has a like privilege upon the proceeds, except as regards the lessor or the pledgee. — 2 Fer. 1325, 1326, 1343, 1367; Poth. Louage, 241-244, Vente, 322 — ; 1 Pr. de la Jan. 226; 2 Bour. 688-9; 2 Lam. 151; 2 Rev. 74; Tr. Priv. 159; C. N. 2102. [III. 163.] 2001. Creditors having a right of pledge or of retention rank according to the nature of their pledge or of their claim. This privilege cannot however be exercised, unless the right is still su1)sisting, or could have been claimed at the time of the seizure, if the thing have been sold.— Poth. Prop. 343, D6p. 74, Vente, 323, 426, Pr^t U. 43, L. Mar. 90. Louage, 406, Mand. 69, P. C. 192; C. P. 181, 182; Fer. C. P. 181, n. 1 ; 2 Gren. Hyp. 298; 18 Dur. 509; Tr. Nantis. 97, 100, 297, 451 ; C. S. C. 0. 28, s. 90, § 3, s. 91; Den. Ac. de I^^otor. 108, 1Q9; 2 Bour. 691 j C. N. 2102. [III. 163.1 2002. Priyil^ed funeral expenses include only what is suitable to the station and means of the deceased, and PBIVILEOES AND HTPOTHRCS. air tre payable out of all his moreable property. — They in- clude the mourning of the widow, within the same re- striction. — flf. L. 14, 5 1, L. 46, do relig., L. 17, de reb. auct. jud.; Bac. D. J. o. 21, n. 273; 2 Fer. 1367, 1369, 1370 j 1 Pi. 682-686; N. D. Frais fun6- raires ; Guy. Privildge, 689 ; Poth. P. 0. 170 ; 2 Bour. 687 ; Lao. Frais fun^raires ; Loy. Off. 1. .% 0. 8, n. 23, 60; Tr. Priv. n. 76, 134, 136; 18 R. Wol. 213; C.N. 2101. [III. 163.] 2003. The expenses of the last illness include the charges of the physicians, apothecaries and nurses during the illness of which the debtor died, and are taken out of all the move- able property of the deceased. — [In oases of chronio disease, the privilege avails only for the expenses during the last six months before the decease.] —Poth. P. C. 170; 1 Pi. 646 ; 2 Bour. 688 ; Lac. Pr6f6rence, 66 ; Bac. D. J. o. 21, n. 274, & p. 294, 295 ; Tr. Priv. n. 167 ~ ; 18 R. Wol. 214 ; C. R. S. 66 ; C. L. 3167 ; C. N. 2101. [III. 163.] 2004:. The municipal taxes which rank before all other privileged claims hereinafter mentioned, are limited to taxes ] on persons and personal pro- perty imposed by certain muni- cipalities, and taxes to which a like privilege is attached by spe- cial statutes. — 14, 16 V. c. 123, I. 77, e. 130, i. 1. [III. 166.] 2005. The privilege of the lessor extends to all rent that Is due or to become due under ft lease in authentic form; if the lease be not in authentic lDrm> the privilege can only be claimed for throe overdue in- stalments and for the remain- der of the current year. — 2 For. 1367-8, 1323-4, 1384-5 : 2 Bour. 685 ; Poth. C. P. 170, 171, 194; 1 Cou. 134; Guy. Privilege, 689 ; Actos de No- toridtd, 15 & 24 Mar. 1702, 20 Isam. 407 ; 4 L. C. R. 30, 466; C. S. L. C. c. 40, s. 16: 0. N. 2102. [III. 166.] *2006. Domestic servants and hired persons are next en- titled to be collocated by pre- ference upon all the moveable property of the debtor for what- ever wages may be due to them, for a period not exceed- ing [one year previous to the time of the seizure or of the death.] — Clerks, apprentices and journeymen are entitled to the same preference, but only upon the merchandise and ef- fects contained in the store, shop or workshop in which their services were required, [for a period of arrears not ex- ceeding three months.] — Those who have supplied provisions have likewise a privilege, con- currently with domestic ser- vants and hired persons, for the supplies furnished during the last twelve months. — Dom. 1. 3, t. 1, 8. 6; 2 Bour. 688; Guy. Priv. 689 ; Poth. P. C. 172, 3 ; 1 Pi. 686; Poutr6 vs. Poutr^, Montreal, 31 Mar. 1856; Tr. Priv. 142-4; Pont, Priv.n.79;C. N. 2101. [III. 165.] 2007. The privileges upon ships, unon their cargo and their freight, are declared in the title 0/ Merchant Skipping, 2008. Other rules concern- ing the collocation of certain 818 PBIVILEOES AND HYPOTHECS. {>riviloged claims, are to bo bund in the Code of Civil Procedure. SECTION II. Of privileges upon immovC' ahles. * 2009. The privileged claims upon immoveables, are herein- after enumerated and rank in tiie following order : 1. Law costs and the ex- penses incurred for the common uitereat of the creditors ; 2. Funeral expenses, such as declared in article 2002, when the proceeds of the moveable property have proved insuffi- cient to pay them ; 3. The expenses of the last illness, such as declared in article 2003, and subject to tho same restriction as funeral expenses * 4. The expenses of tilling and sowing; 5. Assessments and rates ; 6. Seignioral dues ; 7. The claim of the builder, subject to the provisions of article 2013; 8. The claim of the vendor ; 9. Servants' wages, under the same restriction as funeral expenses. — 1 Cou. 152,3; Poth. Hyp. 451 - ; P. C. 231 - ; 1 Pi. 810, 814, 685 ; H€r. o. 11, s. 1, n. 3-5 ; Gren. on E. 1771, p. 371, 375 ; C. S. L. C. c. 15, s. 76, c. 18, s. 32, c. 24, s. 56, § 15, c. 37, 8. 8, c. 41, 8. 50 ; C. N. 2103,2104. [III. 165.] 2010* The privilege for expenses of tilling and sowing attaches upon the price of im- moveables sold before tho har- vest is gathered, to the extent only of the additional value given by such tilling and sowing. — H(5r. 1. c. n. 8 ; 1 Pi. 685, 810, 814; Poth. P. C. 261. rill. 167.] ^2011* The assessments and rates which are privileged upon immoveables are : 1. Assessments for building or repairing churches, parson- ages or church-yards ; but in cases where an immoveable haa been purchased from a person who does not profess the Eoman Catholic religion, before it was assessed for such purposes, the privilege for such assessment must rank after tho vendbr's claim, and all privileges and hypothecs anterior to such pur- cha5"< ; 2. School rates; 3. Municipal rates, of which however only five years of arrears, besides the current year, can be claimed, without prejudice to cases under special statutes establishing a shorter prescription. — These claims are privileged only upon the im- moveable specially assessed, and the last two rank con- currently after those meution- od in paragraph 1. — 1 Pi. 810; C. S. L. C. c. 18, s. 32, 0. 15, s. 76, 0. 24, 8. 56, § 15, s. 61. [III. 167.] *2012. The privilege for seigniorial dues applies to all arrears of such dues,, and extends equally to arrears of rents constituted in commuta* tion of seigniorial dues, for five years only, besides the current year.— 1 Pi. 813 ; Poth. P. C. 261; ICou. 153;C. S. L. Co. 41, 8. 50. [III. 167.] 2013. Builders, or other I \ PBIVILEOES AXD BTPOTHEOg. 819 workmen, and arohitoots, havo a right of jpreferenco over tho vendor and all other creditors, only upon the additional value given to the immoveable by their works, provided an official statement establishing the state of tho premises on which the works are to be made, have been previously made by an expert appointed by a Judge of the Superior Court in the district, and that within six months from their completion such works have been accepted and received by an expert ap- pointed in the same manner, which acceptance and recep- tion must be established by another official statement con- taining also a valuation of the work done ; and in no case does the privilege extend be- yond the value ascertained by such second statement, and it is reducible to the amount of the additional value which the immoveable has at the time of the sale. — In case the proceeds are insufficient to pay the builder and the vendor, or in ca«e3 of contestation, the ad- ditional value given by the buildings is established by a relative valuation effected in the manner prescribed in the Code of Civil Procedure. — 1 Pi. 810, 811 J Poth. P. C. 261 ; ICou. 153; C. S. L. C. c. 37, B. 26, § 4; C. N. 2103. [III. 167.] 2014i The vendor has a privilege upon the immoveable sold for ail the price due to him. — If there have been seve- ral successive sales, the prices of which are wholly or partly due, the first vendor is pre- ferred to tho second, the second to tho third, and so on. — The same right extends : — To donors, for the payments and charges stipulated in their favor; — To copartitioners, co- heirs and oolegatees upon the immoveables which they owned in common, for the warranty of the partitions made between them and of the differences to be paid. — ff. L. 22, do hered. vel, L. 6, qui. pot., L. 24, § 1, de reb. auct. jud. ; Inst. 1. 2, t. 1, § 41 ; Cod. L. 7, qui pot., L. 7, oommunia utri. ; £>om. 1. 3, t. 1, t. 5, n. 4, 6 — , Sue. 1. 1, t. 4, s. 3; H6r. 203, 204; Poth. Hyp. 454, P. C. 262 ; 1 Pi. 813 j ICou. 153; C.N. 2103. [III. 167.] SECTION III. Haw privileges upon immovB' ables are retained. ^2015. With regard to im- moveables, privileges produce no effect among creditors, un- less they are made public in the manner determined in the title Of Begiatration of Beal Eights, saving the exceptions therein mentioned. — C. S. L. C. c. 37, s. 26, 27, § 1 ; Tr. Priv. n. 266-; C. N. 2106. [III. 167.] CHAPTER THIRD. OP HYPOTHECS. SECTION I. General provisions. 2016i Hypothec is a real right upon immoveables made liable for the fulfilment of an obligation, in virtue of I'hich 320 PBIVILKOKS AND HYPOTHECS. the creditor may cause thorn to be sold in the hands of whomsoovor they may bo, and have a preference upon the Sroceeds of the sale in order of ate as fixed by this code. — £f. L. 17, do pig. } Poth. Hyp. 417, 427, 433 J N. D. Hyp. 741 ; 16 Lo. 96 J Tr. Priv. 388-390 j Pont, Priv. 321 j 0. L. 3246 j C. N. 2114, 2118. [III. 169, 385.] *2017. Hypothec is indivi- sible and subsists in entirety upon all tho immoveables mado liable, upon each of them and upon every portion thereof. — Hypothec extends over all sub- sequent improvements or in- crease by alluvion of the property hypothecated. — It secures besides the principal, whateverinterest accrues there- from, under the restrictions stated in tho title Of Begiatra- tion of Real Eights, and all costs incurred. — It is merely an accessory and subsists no longer than the claim or obli- gation which it secures. — ff. L. 16, de pig. ; Dom. 1. 3, t. 1, s. 1, n. 7-11, 18, s. 2, n. 4, 6 J Poth. Hyp. 431-3 ; N. D. Hyp. 745- 748, 774 J C. S. L. C. c. 37, s. 37, 38, 47 J C. N. 2111, 2133. [III. 169.] 2018. Hypothec can take place only in the cases and ac- cording to the formalities au- thorized by law. — C. S. L. C. 0. 37 ; C. N. 2115. [III. 169.] 2019. Hypothec may be either legal, judicial, or con- ventional. — Poth. Hyp. 418 J C. S. L. C. c. 37, s. 46-47 j C. N. 2116. [III. 169.] 2020. Legal hypothec is that which results from the law alone. — Judicial hypothec is that which results from Judg- ments or judicial acts.— 'Con- ventional hypothec results from an agreement. — Poth. Hyp. 418, 420, 423, 424; Dom. 1. 3, t. 1, s. 2, n. 47 J C. N. 2117. [111.169.] 2021. Hypothec upon an undivided portion of an im- moveable can only subsist in so far as the debtor, by means of a partition or other equiva- lent act, remains proprietor of some portion of such immove- able, saving the provisions of article 731. — Author, under a. 731. [III. 169.] 2022. Moveables are ' not susceptible of hypothecation ; except as provided in tho titles Of Merchant Shipping and Of Bottomry and Beapondentia. — Poth. Hyp. 426 j 0. S. 0. o. 41, s. 24 ; M. S. A. 1854 ; C. N. 2119, 2120. [III. 169.] 2023. Hypothec cannot be acquired, to the prejudice of existing creditors, upon tho immoveables of persons noto- riously insolvent, or of traders within the thirty days previous to their bankruptcy. — C. P. 180 J N. D. Hyp. 747, Faillite, 401-6, Fraude, 76, 7 j Del. 18 Nov. 1702 J A. D. Hyp. n. 46, 46 J Tr. Priv. 459 j Gren. on E. 1771, 383 ; Lao. Hyp. n. 4, n.j C. S. L. C. c. 37,8. 7j 2L. C. J. 253 ; 27, 28 V. c. 17, s. 8 j C. Co. 446. [III. 169.] SECTION II. Of legal hypotJiec. 2024. The only rights and claims to which legal hypotheo is attached, under the restric- tions hereinafter mentioned. PBIVILEOES AMi) HYPOTHECS. 831 are declared in paragraphs one, two, three and four of this Bection.— [III. 171.] 8025. Legal hypothec ei- ther affects all the immove- ables generally, or is limited to some of thom only. — Poth. Hyp. p. 418 ; C. S. L. C. o. 37, 8. 45, 46. [III. 171.] %2026. Legal hypothec af- fects such immoveables only as belong to the debtor and are described in a notice filed and registered, as prescribed in the title Of Begittration of Beat Bights.— Q. S. L. 0. c. 37, s. 46-48. [III. 171,385.] 2027. Oreditors who ac- quired a legal hypothec before the thirty-flrstday of December, one thousand eight hundred and forty one, may nevertheless exercise it upon all the immo- veable property held by the debtor at or since the time of the acquisition of such hypo- thec— [III. 171.] 2028. Legal hypothecs an- terior to the first day of Sep- tember, one thousand eight hundred and sixty, are govern- ed by the laws in force when they were created. — [III. 171.] § 1. Legal hypothec of married women* 2029. Married women have a legal hypothec for all claims or demands which they may have against their husbands on account of whatever they may have received or acquired dur- ing marriage by succession, in- heritance or gift. — Poth. Hyp. 424, C. 0. t. 20, n. 18 j C. S. L. C. c. 37, B. 46,48, § 5j C.N. 2121, 2135. [III. 171, 385.] § 2. Legal hypothec of minora and interdicted persona. '''2030. Minors and inter- dicted persons have a legal hypothec upon the immoveables of theli* tutors or curators for the balance of the tutorship or curatorship account. — C. S. L. 0. 0. 37, s. 46 J C. N. 2121. [III. 171.] 2031. This hypothec takes place only in the case of tutor- ships or ouratorships conferred in Lower Canada. — Poth. Hyp. 426 ; N. D. Hyp. 749 j 1 For. D. 824 J C. 265, 6. [III. 171.] § 3. Legal hypothec of the crown, 2032. The legal hypothec of the crown in cases where it exists, is, like legal hypothec in general, subject to the pre- liminary provisions of this section. — ff. L. 8, qui pot., L. 28, De jur. fisci, L. 38, § 1, Do reb. auct. ; Del. Oct. 1648 ; Dom. 1. 3, t. 1, s. 5, n. 19, 20, 22, 23 J Guy. Privilege, p. 691, 10® J 0. Aug. 1669; Bosq. Pr<5- f^rence; H^r. c. 11, s. 1, n. 11 j Poth. Hyp. 425, C. 0. t. 20, n. 18 ; C. S. L. C. 0. 37, s. 46, 115 : C. N. 2121 J C. 2033. mi, 173.] § 4. Legal hypothec of mutual inaurance companies. 2033. Thero is likewise a legal hypothec in favor of mu- tual insurance companies upon all the immoveables of each party insured, for the payment of the amounts whica he is liable to contribute. — This hy- pothec is not subject to the restrictions contained in article 322 PBIVILBOES AND BTFOTHEOS. 2026, but its conditions are regulated by the provisions contained in section 12 of chapter 68 of the Consolidated Statutes for Lower Canada. — [III. 173.] SECTION III. Of judicial hypothec. '''2034. Judicial hypothec results from judgments render- ed by the courts of Lower Canada, either in contested or uncontested cases, and which order the payment of a specific sum of money. Such judgments likewise carry hypothec for interest and costs without specifying the amount thereof, subject to the restrictions con- tained in the title Of Registra- tion of Real Rights. — It also results from any act of surety- ship judicially entered into, and from any other judicial act creating an obligation to pay a specific sum of money. — It is subject to the rules contained in article 2026.— 0. 1566, a. 63 J 0. 1667, t. 35, a. 11 j Del. 16 July 1566, a. 211; Guen. 729 j H^r. 238, 9 J 2 Tr. Priv. 134, 146, 7 J C. S. L. C. c. 37, s. 47 j C. N. 2123. [III. 173, 385.] 2035. Judicial hypothecs acquired before the thirty-first day of December, one thousand eight hundred and forty-one, affect all the property held by the debtor at or since the time at which they were acquired. — Poth. Hyp. 423 J Author, under a. 2034. [III. 173.] 2036* Judicial hypothecs acquired between the thirty- first day of December, one thousand eight hundred and forty-one, and the first day of September, one thousand eight hundred and sixty, affect only such property as t^e debtor possessed at the time when the judgment was rendered or the judicial act performed. — C. S. L. C. c. 37, 8. 47 J C. N. 2123. [III. 173.] SECTION IV. Of conventional hypothec, *2037, Conventional hypo- thec can only be granted by those who are capable of alien- ating the immoveables wnioh they subject to it ; saving the provisions of special enact- ments concerning Fahriquea.—' Poth. Hyp. 427 j H^r. 221, 2 ; 1 Fer. D. 820 j N. D. Hyp. § 2, n. 8 J Tr. Priv. n. 460 - j Pont, Priv. n. 609 ; C. N. 2124. [III. 173.] 2038, Persons whose right to an immoveable is suspend- ed by a condition, or is deter- minable in certain cases, or is subject to rescission, can only grant hypothecs upon it which are subject to the same condi- tions or to the same rescission. — ff. L. 11, § 2,de pig. et hyp., L.31,depig.j Poth. Hyp. 427 ; H6r. 222, 3j A. D. Hyp. 827 j C. N. 2125. [III. 173.] 2039. The property of minors and interdicted per- sons, and that of absentees so long as it is only provisionally held, cannot be hypothecated otherwise than in virtue of judgments, or foiv the causes and subject to' the formalities established by law. — C. N. 2126. [III. 173.] 2040> Conventional hy- f \ PBIVILGOKS AND HYPOTBKOB. sn h7- potheo cannot be granted otherwise than by acts in authentic form ; except in the cases specified in the follow- ing article. — 2 Lam. 122; N. D. Hyp. 5 3, 8. 4 J C. S. L. C. Ib. s. 39. [III. 199, 387.] *2152. The consent to the cancelling and the acquittance or certificate of discharge, 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 establishing the creation or existence of the right so cancelled. — The con- sent to the cancelling, the acquittance or the certificate 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, regis- tered in conformity with the present article and the suc- ceeding articles of this chapter must remain deposited in the office where such registration takes place. — lb. s. 39 ; 25 V* 0. 11, 8. 1. [III. 201, 387.] ^2153. The judgment de- claring the nullity, extinction or dissolution of the right registered cannot however be registered, unless it is acoom- 840 BEGISTBATION OF BEAL BIGHTS. Sanied by a certificate that the elays allowed to appeal from such judgment hare expired, without such appeal having taJcenplace.— C. S. L. C. o. 37, S.43. [III. 201.] ^2154« Such judgment must have been served upon the de- fendant in the usual manner, —lb. 8. 42. [III. 201.] 2155. 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. — 25 V. c. 11, B.2. [III. 201.] 2156i 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 judg- ments of confirmation of title and all decrees of adjudication upon forced licitatien, before delivering copies thereof to any person whatever — 25 V. c. 11, 8. 2. [III. 201.] 2157* The registration at length of confirmations of title, forced licitations, sheriff's sales, sales in bankruptcy, and other sales having the effect of dis- charging property from hypo- thecs, whether made before or after the ninth day of June, one thousand eight hundred and sixty-two, is equivalent to the registration of a certifi- cate of the discharge or of the extinction of all rights which are discharged by such sales, forced licitations or confirma- tions of title, even of hypothecs for conventional dower ; and it is tb<; duty of the registrar iq such case to make mention thereof in the margin of each entry establishing a previous right extinguished by such sale, confirmation of title, or decree of adjudication. — 25 V. o. 11, s. 3.— [III. 201.] CHAPTER SIXTH. OF THE OBGANIZATION OF BE- GISTBT OFFICES. SECTION I. Of registry offices and Jtlie registers. \ ' 2158. At tho chief-place of each county, or in each regis- tration division set apart by law or by proclamation of the governor, a registry ofioe is establish <^d for the registration of all real rights affecting im- moveables situate within such county or registration division, and of all other acts requiring registration. — C. S. L. C. o. 37, s. 81, 83 J C. N. 2146. [III. 201.1 2159. A public officer called a registrar is appointed by the governor to keep such registry office, who is charged to ex- ecute the duties prescribed by this title J 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 dam- ages with costs, besides loss of office, and other penalties im- posed by law.-r-Ib* s. 83, 108. [Ill, 201.] 2160. Registry offices must be kept open every day. Sun- in af 2( * REQI8TBATI0N OF BEAL BIOHTS. 341 days and holidays excepted, from nine o'clock in the morn- ing until three o'clock in the afternoon.— lb. s. 107. [III. 203.1 ^2l61. Every registrar shall keep: 1. An alphabetical index or repertory of the names of all persons mentioned in the acts or documents registered as ac- quiring or conveying any right affected by such registration, with a reference to the number of the document, and the page of the register in which it is entered, and, when immove- ables are concerned, the name of the place where they are situated ; 2. An alphabetical list of all parishes, townships, seignio- ries, cities, towns, villages, and extra-parochial places within his registry division, contain- ing a reference under the head of each local division to all entries of documents concern- ing immoveables comprised within such division, or giving the number and other referen- ces mentioned in the preceding paragraph, so as to serve as an index to immoveables, and such list must be made in conformi- ty with the provisions of article 2171 J 3. An entry-book in which are entered the year, month, day and hour when each docu- ment is brought for registra- tion, the names of the parties to the same and of the person by whom the same is brought, the nature of the right of which registration is required, and a general description of the im- moveable affected thereby; 4. A register in which all documents presented for regis- tration are transcribed ; 5. A book in which are re- gistered the notices required by articles 2116, 2116, 2120, 2121, with an index to be made in the same manner as the index prescribed in article 2131.— lb. s. 59, 61-63 J C.N. 2202. [III. 203.] 2162. In the registration divisions of Quebec and Mon- treal the register mentioned in paragraph 4 of the preceding article may be kept in several parts in separate books, ac- cording to the following classi- fication : 1. Bonds, recognizances and other securities and obligations in favor of the crown j wills, and the probates thereof; 2. Marriage contracts and gifts J 3. Appointments of tutors and curators; judgments and judicial acts and proceed- ings; 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 ;] 5. Deeds, instruments and writings creating hypothecs, privileges or charges, and not comprised in any of the pre- ceding classes ; 6. AH other acts of which re- gistration may be required in the interest of any party what- ever. — [The foregoing provi- sions may be extended by a proclamation of the governor to any registry division th« population of which exceed! 342 REGISTRATION OF REAL RIGHTS. fifty thousand souls.] — lb. s. 64. [III. 203, 72.] 2163. The governor may also by proclamation direct that tho registrars for the re- gistration divisions of Quebec and Montreal, or either of them, shall keep separate registers and books for the immoveables situate within, and for those situate without the limits of the said cities respectively. — lb. s. 65. [III. 203.] 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 officialplans and tooks of reference and of mat- ters connected there' with. ^^2166. The Commissioner of Crown Lands furnishes each registry office with a copy of a correct plan, made in confor- mity with the 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, comprised with- in the division to which such office belongs. — C. S. L. 0. o. 37, s. 69, 70. [III. 205.] *2167. Such plan must be accompanied by a copy of a book of reference in wblcl' are set forth : 1. A general description of each lot of land shewn upon tho plan; 2. The name of the owner of each lot, so far as it can be as- certained ; 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, whicl^ is one of a single series, and is entered in the book of reference to designate the same lot. — lb. 8. 69. [III. 205.] ^2168. When a copy of the ^ans and books of reference or the whole of a registration division has been deposited in the office for such division, and notice has been given by proc- lamation in the manner men- tioned in article 2169, the num- ber given to a lot upon the plan and in the book of refer- ence is the true description of such lot, and is sufficient as such in any document what- ever ; and any part of such lot is sufficiently designated by stating that it is a p^rt of such lot and mentioning who is the owner thereof and the proper- ties conterminous thereto ; and any piece of land composed of parts of more than one number- ed lot is sufficiently designated by stating that it- is so com*- posed and meYitioning what part of each numbered lot it contains. — No description of an Fc imi app title by. tati the in jud be is BEOISTBATION OF SEAL RIGHTS. 848 immoveable in the notice of application for confirmation of title, or in the notice of a sale by the sheriff or by forced lici- tation, 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 deposit- ed and notice thereof has been given, notaries passing acts concerning immoveables indi- cated 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 designation the registra- tion 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 af- fected by sufth registration. — lb. s. 74, § 1-4. [III. 205.] *2169. The deposit of the original plans and books of reference in any registration division is declared by a proc- lamation from the Governor in Council, fixing at the same time the day on which the provisions of article 2168 shall come into force therein. — lb. s. 75. [III. 207.] * 2170* The registrar so soon as such deposit has been made, must prepare the index to im- moveables mentioned in the second place in article 2161. * 2171. From and after the day appointed by &uch procla- 22* mation the registrar must, from day to day, make up and con- tinue the index to immoveables by entering under the number of each lot separately designat- ed upon the plan and book of reference a reference to each entry thereafter made in the other books and registers af- fecting such lot, so as to enable any person easily to ascertain all the entries concerning it made after that time.— lb. s. 76. [III. 207.] *2172. Within eighteen months after the governor's proclamation bringing ithe pro- visions of article 21C8 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 registry at length, in the book kept for that purpose, of a notice des- cribing the immoveable affect- ed, in the manner 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 registration of the notices men- tioned in this article, in the same manner as the index men- tioned in article 2131. — lb. s. 49, 79, § 1, 78. [III. 207.] *2173. If such renewal be iiot effected, the real rights preserved by the first registra- tion have no effect against other creditors and subsequent purchasers whose claims have been regularly registered. — lb. s. 77, §2. [III. 207.] * 2174. The registrar cannot in any way correct or alter the il 1 1 ill 844 BEQISTRATION OF BEAL BIGHTS. plans or books of reference; and at any time if he find there- in 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 Com- missioner of Crown Lands, who may when the case requires it correct the original and the copy likewise and certify such correction. — 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 in- serted by distinguishing it by characters or letters, so as not to interfere with the original numbering.— No right of owner- ship 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 gl/e any per- son any better right to the land than his title gives him. — lb. s. 71. [III. 206.] * 2175* Whenever the owner of a property designated upon the plan or book of reference, subdivides the same into town or village lots [exceeding the number of six,] he must depo- sit in the office of the Commis- sioner of Crown Lands a plan and book of reference certided 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 cor- rect, he shall transmit a copy certified by himself to the registrar of the division. — lb. 8. 80. [III. 205, 72.] *2176* When by reason of the subdivibion of the lota in any locality it is deemed neces- sary, 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 deposited with the registrar of such locality ; but such amended plan and book of reference must be 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. — lb. s. 79. [in. 207.] SECTION III. Of the publicity of the registers. * 2177. The registrar is bound to deliver to any person de- manding the same a statement certified by himself of all the real rights affecting any parti- cular immoveable, or which may affect the whole of any person's property, or of all hy- pothecs created and registered during a stated period or only against certain pro^^rietors of the immoveable designated in a written requisition to that effect, containing a sufficient description of the owners, in which case the requisition is mentioned in the certificate and the registrar is not respon- sible for any omission in the certificoice resulting from errors or omissions of names in the BE0I8TBATZ0N OV BEAL BIOHTS. 34« requisition ; and if such pro- prietors be not named in the requisition, the registrar is bound to ascertain who were proprietors during the given period in the manner provided with respect to the certificate to be given in cases of sheriff's sales. — C. S. L. 0. o. 37, s. 44 ; 26 V. 0. 11, 8. 4 J 0. N. 2196. [III. 207, 387.] 8178i He is bound to deli- ver, to all persons demanding the same, copies of the acts or documents registered, but he must mention thereon the dis- charges, cancellations, [convey- ances or subrogations] thereof which are entered in such register or in the margin. — C. N. 2199. [III. 207.] *2179* He is also bound to allow all persons desirous of examining the entry-book dur- ing his office hours, to take communication of the same without removing it, and free from charge. — He must like- wise, upon payment of the lawful fee, exhibit the register to any person who has required the registration of an act and wishes to be assured of such registration.— [III. 209.] 2180a The entries upon the registers and books kept by the registrar must be consecutive without blanks or interlinea- tions. — Every document regis- tered must be numbered and transcribed in the order in which it is produced, and mention must be made in the margin of the register, of the hour, day, mon& and year when it was deposited in the office for registration. — The re- gistrar is bound, when required to do so, to give the person who presents a document for registration a receipt indicating the number under which such document is entered in the entry-book.— lb. s. 60, 63, § 2 j 0. N. 2203. [III. 209.] 2181. Every register for registration must, before any entry is made therein, be authentioatod by a memoran- dum written on the first page thereof and signed by the prothonotary of the Superior Court in the district in which such register is to be used; and such memorandum must contain a certificate stating the purpose for which the register is intended, the number of leaves therein, and the day, month and year in which such memorandum is made; each leaf being numbered in words at length and paraphed by the said prothonotary. — lb. s. 69 j C.N. 2201. [III. 209.] 2182. [The provisions of the preceding article apply equally to the entry-book and to the inde;^ to immoveables.] —[III. 74.] S4A TITLE NINETEENTH. OF PRESCRIPTION. OHAPTEB FIRST. OENEBAL PBOTISIONS. 2183. Prescription is a means of acquiring, or of being discharged, by lapse of time and subject to conditions established by law. — In posi- tive prescription title is pre- sumed or confirmed and owner- ship is transferred to a pos- sessor by the continuance of his possession. — Extinctive or negative prescription is a bar to, and in some oases precludes, any action for the fulfilment of an obligation or the acknow- ledgment of a right when the creditor has not preferred his claim within the time fixed by law. — ff. L. 13, De usurp, et usncap J Poth. Ob. n. 671-6, Pros. n. 1 J Guy. Pres. a. 1 j Dun. 1, et pas. ; C. L. 3421, 3422 J C.N. 2219. [1.609.] 2184:. Prescription cannot be renounced by anticipation. That acquired may be re- nounced, and so may also the benefit of any time elapsed by which prescription is begun. — ff. L. 33, De pac. ; Bar. ad L. 58, ff. De leg. n. 20, 21 j L. & B. let. P. som. 21, n. 4 ; Dun. Ill, 112 J Guy. Pres. s. 1, § 3, a. 1, 2 J Poth. Ob. n. 699, C. R. 146, C. 0. t. 14, n. 54 j Speech of Bigot de Pr€ameneu j 1 Teu. & Sul. 726, n. 7-10 ; Tr. Pres. n. 42-6 ; R. de Vil. Pres. n. 476, 7 J Marc. Pres. on a. 2220; C.N. 2220. [1.511.] 2185. Renunciation of pre- scription is express or tacit. Tacit reonnoiation results from any act by which the abandon- ment of the right acquired may be presumed. — Darg. on 226 0. Br., Interruption, c. 5, n. 3 ; Poth. Ob. 692 ; Dun. 58, 171 ; Guy. Pres. s. 1, S 3, a. 2; 1 Teu. & Sul. 731, n. 11, 15 ; C. N. 2221. [I. 511.] 2186i Persons who cannot alienate cannot renounce pre- scription acquired. — ff. L. 28, De verb sig. j Poth. Ob. 699, C. R. n. 144-6 : C. N. 2222. [I. 511.] 2187. Any person interested in the acquiring of a prescrip- tion, may set it up although the debtor or the possessor have renounced it. — ff. L. 19, De except. ; Desp. Pres. n. 36, i. f. ; Merl. Pres. s. 1, § 4, a. 2 ; C. N. 2225. [I. 511.] 2188* The court cannot of its own motion supply the de- fence resulting from prescrip- tion, except in cases where the right of action is denied. — Poth. Ob. 676 J Guy. Pres. s. 1, § 3, a. 3 ; Merl. e. y. adds to Guy. J Dun. 110 ; Per. C. P. t. 6, § 1, n. 15; Car. Q. pt. 1, t. 22, c. 4, i. f., Pand. 1. 4. o. 4 ; Chit. B. 136,j 3L. C. J. 294, Pigeon & Corporation of Mon- treal; C.N. 2223. [1.511.] 2189. Prescriptions in re- spect of immoveable property are governed by the law of the place where it is situated.— PBESOBIPTI05. 84T Poth. Ob. 38, Pres. 247, 248, 261, 263, 254 J Voet, P. 44,3, 11; Dun. 113-4; Bouh. C. B. 0. 36, n. 3 ; Boul. Dissert, q. 3 ; Stat. obs. 20, p. 364-6, obs. 23, f. 629, 630, obs. 46, p. 488. 1. 611 J 2190. [As regards move- able property and personal ac- tions, even in matters of bills of exchange and promissory notes and commercial matters in general, one or moro 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 prescription 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 result- ing from the lapse of successive periods in the cases of the two preceding paragraphs, when the first period elapsed under the foreign law.] — 21 Jac. 1, c. 16 J C. S. L. C. c. 67, s. 1, c. 64, 6. 30, 31 ; Bos. B. 841-877 &cit.; Sm. Con. 235- 237 ; Sto. Con. § 676-583, § 182 & n. J 2 Bing. N. C. 202, 211, Huber v«. Steiner. — [1.513.] 219L [Prescriptions com- menced according to the law of Lower Canada, are completed according to the same law, without prejudice to the right of invoking those acquired f>reviouBly under a foreign aw, or by a union of periods under both laws, conformably to the preceding article.] [1. 513.] CHAPTER SECOND. OF POSSESSIOX. 2192. Possession is the de- tention or enjoyment of a thing^ or of a right, which a person holds or exercises himself, or which is held or exercised in his name by another. — Poth. Pos. n. 1, 37, 49, 64, 61, 63, C. 0. t. 22, n. 1, 17 ; C. N. 2228. [I. 513.] 2193. For the purposes of prescription, the possession of a person must be continuous and uninterrupted, peaceable, pub- lic, unequivocal, and as pro- prietor.~C. P. 113, 114, 118 j Poth. Pres. n. 1, 18, 26, 37, 38, 174, 176, Pos. n. 27, 28, 39-41, C. 0. 1. 14, n. 16, 17, 22 ; Dun. 20 ; C. N. 2229. [I. 613.] 2194. A person is always presumed to possess for himself and as proprietor, if it be not proved that his possession was begun for another. — Darg. C. Br. a. 365, c. 6, n. 17; Poth. Pres. 172 i. f., C. 0. 1. 14, n. 17; Dun. 22. [I. 613.] 2195. When possession is begun for another, it is always presumed to continue so, if there be no proof to the contra- ry.— ff. L. 3, § 19, De adq. vel amit. pos. ; Poth. Pres. 172* [I. 515.] 348 PRESOBIPTlOir. 2196a Acta which aremero- ly faonltatire or of sufferance cannot be the foundation either of possession or of prescription, ff. L. 41, De adq. vel amit. jpos.; Dun. Pros. 15, 85; Ouy. Pres. St. 1, 9 6> dist. 5 ; Lao. Faoultd e rachat, n. 1 ; Author, under a. 2201 ; 0. N. 2232. [I. 615.] 2197* Nor can acta of vio- lence be the foundation of such a possession as avails for pre- scription. — A. D. Violence; N. D. Clandestinitd ; Poth. Pos. 19-; C.N. 2233. [1.515.] 2198> [In cases of violence or clandestinitj, the possession which avails for prescription begins when the defect has ceabed.— Nevertheless the thief, his heirs and successors by universal Utle, cannot by any length jf time prescribe the thing stolen.^ — Successors by J>articular title do not suffer rom these defects in the pos- session of previous holders, when their own possession has l)een peaceful and public. — ff. L. 1, 5 36, De vi et vi arm. ; Poth. Pos. 29. 33, 34, C. 0. t. 22, n. 12, 13 ; Dun. 28 — ; Tr. Pres. n. 419, 420, 629; C. N. 2233. [I. 615.] 2199. An actual possessor who proves that he was in possession at a former period IS presumed to have possessed during the intermediate time, unless the contrary is proved. —Poth. Pres. 178; Dun. 17, 18; €. N. 2234. [I. 615.] 2200* A successor by par- ticular title may join to his possession that of his author in order to complete prescription. Heirs and other successors by universal title continue the possession of their author, saving the case of interveraion of title.— ff. L. 14, L. 20, L. 31, § 5, 6, De usurp, et usuo. ; Poth. Pos. 31, 33, 34, 63, Ddp. 68, Prdt U. 47, C. 0. t. 22, n. 14; Delh. r. 248-251 ; Arr. Lam. t. 29, a. 1 ; 0. N. 2233, 2235, 2237. [L 616.] CHAPTER THIRD. OF THK CAUSES WHICH HINDIS PRESCRIFTIGK, AMD SPECIALLY OF PBECABIOUS POSSESSION AKD OF SUBSTITUTIONS. 2201. Things which are not objects of oominorce cannot be prescribed. — Special provi- sions explanatory of the pre- sent article are to be found in the fourth chapter of this title, ff. L. 9, L. 45, De usurp, et usuc. ; Poth. Pres. 7, C. 0. t. 14, n. 9 ; Dun. o. 4, 12, p. 16, 80, 88-91 ; Delh. r. 286 ; Hen. 1. 4, q. 91 ; Tr. Pres. n. 112- 131; C. N. 2226, 2232. [I. 616.1 2202. [Good faith is always presumed.] — He who alleges bad faith must prove it. — Poth. Pres. 27, 28, 36, 173, 206, Pos. 9, 17, 18, Prop. 244-340 ; Dun. p. 1, c. 8, & p. 43, 4 ; Guy. Pres. s. 1, § 6, n. 6; C. N. 2262, 2268. [I. 516.] 2203. Those who possess for another, or under acknow- ledgment of a superior domain, never prescribe the ownership, even by the continuance of their possession after the term fixed. — Thus emphyteutic les- sees, tenants, depositaries, usu- fructuaries and those who hold precariously the property of another cannot acquire it by rBESOBIPTIOK. M$ preioription. — They cannot by preaoription liberate themselres from the obligation of paying does attached to their posses- sion, but the measure of such dues and any arrears thereof aro presoriptible. — Emphyteu- siSf usufruct and other like ftroprietary rights are susoept- ble of a distinct ownership and of a possession available for prescription. The proprietor is not hindered by the title which he has granted from pre- scribing against these rights. — He who has been put in defi- nitire possession of the pro- perty of an absentee only begins to prescribe against him or his heirs or legal repre- sentatives, when such absentee returns or his death becomes known or may bo legally pre- sumed. — S. L. 25, S 1, De adq. vel ami. pos. ; Cod. L. 1, Comm. de usuc; Poth. Prop. 8-12, D6p. 67, Prfit U. 47, Nan. 63, Pos. 13, 15, 31-34, 60, 63, Pres. 27, 43, 44, 172, 0. 0. t. 14, n. 9, 118, t. 22, n. 10-14 ; Guy. Pres. p. 308 ; Proud. D. P. 11, 13, 495, 709, 710, Usufruit, 751-753; Arr. Lam. t. 29, a. 2, 3 J Dun. Pres. o. 7 j Tr. Pres. 518, 519 ; C. S. L. C. c. 4, s. 10, § 5, c. 50, s. 1, 6 ; 0. N. 2236, 2239. [1.517.] 220%« Heirs and successors by universal title of those whom the preceding article hinders from prescribing, cannot them- selves prescribe. — Poth. D4p. 67, Pr6t U. 47, Pos. 31, 33, 34, 63, C. 0. t. 22, n. 14; 0. N. 2237. [1.617.] 2205i Nevertheless the per- sons mentioned in articles 2203 and 2204 and also persons charged with a sub8titation» may, if their title have been interverted, begin a possession available for prescription, dat- ing from the information given to the proprietor by notification or other contradictory acts.— Such notification of title and other contradictory acts only avail when made to or in res* peot of a person against whom ?rescription can run. — Poth. 08. 35, C. 0. t. 22, n. 14 ; Guy, Pres. 323-4-5; Dun. 37-38; Tr. on a. 2236, 2238; Marc, on 2236, 2238 ; Dal. J. G. Pres. p. 256, n. 10, 11,12; C. N. 2238. [I. 617.1 2206. Subsequent purcha- sers in good faith, under a translatory title derived either from a precarious or subordi- nate possessor, or from any other person, may prescribe by [ten* years] against the pro- prietor during such subordinate or precarious holding. — Third parties may also, during a sub- ordinate or precarious holding, prescribe against the proprie- tor by thirty years with or with- out title. — Cod. L. 3, § 3, Comm. de leg. et fid. ; Th. Des. Sub. 877-911; Fer. C. P. a. 117, p. 409, n. 9, a. 113, gl. 7, n. 19 ; C. S, L. C, c. 37, s. 1, § 3 ; Poth. Sub. p. 641, 642, 651, 652 ; 0. S. t.2, a. 29; C. N. 2239, 2267. [I. 519.1 2207. In cases of substitu- tion prescription does not run against the substitute, before the opening of the right, in favor of the institute, nor of his heirs or successors by univer- sal title. — [Prescription runs against the substitute, before the opening of the right, in '■ S60 FBESOEIPTION. favor of third parties, unless he is protected as a minor, or otherwise. — Any substitute, against whom prescription thus runs, maj bring an action to interrupt it.] — The possession of the institute avails the sub- stitute, for the purposes of pre- scription. — Prescription runs against the institute during the time of his possession and in his favor against third par- ties. — After the opening, pre- scription may begin to run in favor of the institute and of his heirs and successors by univer- sal title. — Th. Des. 1. o. ; 2 Bret. H. 1. 4, 0. 6, 9, 19, p. 245-j Dun. 269} Fer. C. P. a. 117, p. 410,n.lOj C.N. 2241. [1.619.] 2208. No one can pre- scribe against his title, in this sense that no one can change the cause and nature of his own possession, except by in- terversion. — Poth. Pos. 31-33, 35, C. 0. t. 22, n. 10-12 j Guy. Pros. pt. 1, § 6, dist. 3; Sal- vaing, U. F.c. 94; C. N. 2240. [I. 619.] 2209* A person may pre- scribe against his title in the sense that he may be freed by prescription from an obligation he has contracted. — Dun. pt. 1, 0. 8 ; Author, under a. 2208 ; 0. N. 2241. [1. 619.] 2210. Positive prescription by thirty years takes place, for the contents of corporeal immoveables in excess of what is given by the title, and ne- gative prescription takes place by the same time in all cases, in diminution of obligations 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. —Poth. C. R. 149 — J Dun. pt. 1, 0. 8; Guy. Rente, 144. tl. 621.] CHAPTER FOURTH. OP CERTAIN THINGS rMPRESCRIP- TIBLE AND OP PRIVILEGED PRESCRIPTIONS. 2211. The crown may avail itself of prescription. The sub- ject may interrupt such pre- scription by means of a petition of right, apart from the cases in which the law gives another remedy. — Among privileged persons, the privilege takes effect in the matter of prescrip- tion.— Chit. Pr. 340 J Poth. Pres. 191 J 13 Guy. Priv. 689, 340 J Dun. Biens d'^glise, 32 J Delh. r. 276 j 0. S. L. C. c. 19, s. 1, § 2 J C. N. 2227. [I. 621.] 2212. The rights of the crown with regard to sovereign- ty and allegiance are impre- scriptible. — Bac. Desh^rence, c. 7, n. 1, 2 ; Cho. Domaine, 1. 3, t. 9, n. 6 ; Bosq. Pres. n. 1 ; Lem. C. P. 170, 171 et pas.j C. N. 2226. [I. 621.] 2213. Sea-beaches and lands reclaimed from the sea, ports, navigable or floatablo rivers, their banks and the wharfs, works and roads con- nected with them, publio lands, and generally all immoveable property and real rights form- ing part of the domain of the crown are imprpscfiptible. — 2 0. F.lllO, E.June 1639; Bac. Deshdrence, c. 7, n. 4j Dun. 71-75, 273, 276 ; Cho. Domaine, PFESOEIPTION. 361 1. 3, t. 9, n. 2 ; Delh. r. 8 j N. D Domaine, § 8, n. 1 ; Fer. D. Pesche, 382 ; Bosq . Pres. n. 1 ; Brod. C. P. a. 12, n. 10, 11 j Lem. C. P. 170, 171 ; Bou. Bib. Tiers, Danger, c. 18 j Car. R6p. 600, u. 47 J Bao. Des- h^rence, c. 7, n. 6-8; Poth. Pres. 288 ; Loisel, Inst. 1. 5, t. 3, n. 15, 16 ; Cho. Domaine, 1. 3, t. 9, n. 2, 3, 6 ; C. N. 2226, 638, 540, 641. [I. 521.] 22l4. 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 aliena- tion or from the use of crown property, are also imprescrip- tible. — Author; under a. 2213. [I. 621 J 221di All arrears of rents, dues, interest and revenues, and all debts and rights, be- longing to the crown, not de- clared to be imprescriptible by the preceding articles, are pre- scribed by thirty years. — Sub- sequent purchasers of immove- able property charged there- with cannot be liberated by any shorter period. — 1 Fer. C. P. 312 J Poth. C. 0. t. 14, n. 36, Pros. 142 ; Brod. C. P. a. 12, n. 10 J Lem. C. P. 170, 1 j Bosq. Pres. n. 2 J J. P. 11 Jan. 1673 j Chit. Pr. 25, 6 j St. Rep. 324, The King vs. Black ; Bac. Des- h^rence, c. 7, n. 21, 29 j C. N. 2227. [I. 621.] 2216. Property escheated to the crown, by failure of h«irs, bastardy or forfeiture, is not considered as incorporated or assimilated to the crown domain for purposes of prescription until a declaration to that effect is made« or until after ten years of enjoyment and actual posses- sion, 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 ti^f ordinary proscriptions. — 1 0. Ndron, 442, R5g. Feb. 165ft: 2 Tb. 84, E. April, 1667; A. D. Domaine, n. 1, 2, 30; Bac. Desh6rence, c. 7, n. 20-22; Dun. 275 ; Bosq. Pres. n. 1, 2, Domaine, § 1, n. 7 ; 1 Fer. C. P. 312, n. 2 ; Brod. C.P. a. 12, n. 11 ; Lem. 170, 1 ; 1 Fer. D. Pres. 411, a. 3 ; 2 Guil. 4, c. 41 ; 3 Bur. 36 ; C. N. 2227. [1. 621.] 2217. Sacred things, so long as their 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 as to be liable to prescription, until the dead bodies, sacred by their nature, have been re- moved. — Poth. Pres. c. 7. Pos. 37 ; Fer. C. P. t. 6, § 3, n. 4, et pas. [I. 623.] 2218. [Positive prescrip- tion of corporeal immoveables not sacred, and negative pre- scription as regards the princi- pal of rents and dues, legacies and rights of hypothec, take place against the church in the same manner and according to the same rules as against pri- vate persons. — Purchasers with title and good faith prescribe against the church by ten years, whether positively or negative- ly, in the same way as against private persons. — Positive pre- scription of corporeal move- 352 PBESCBIPTION. ables not sacred, and the other negative prescriptions, includ- ing that of capital sums, take place against the church as against private persons.] — C. P. 123 J C. N. 2227. [I. 623.] ''*2219. The right to tithes and the rate of the tithe are imprescriptible. Positive pre- scription by thirty years runs between neighbouring rectors. — Arrears of tithes can only be demanded for one year. — Tithes must be paid at the rector's residence. — 0. May, 1679, 1 Ed. & 0. 231 J Arr. C. S. 18 Nov. 1706 J Guy. Dimes, 22-3 J Lac. Dizmes j L. & B. let. D. 9, 16, 17 J 1 Hen. 1. 1, q. 37, 38 ; 4 Dum. annot. in Deer. p. 156 j Bril. Dixmes, n. 109, 156, 167 j Delh. r. 274; For. C P. t. 6 § 3, n. 13, & on a. 124, n. 19 j 3 L. C. R. 196 J 3 Rev. 73, 81. [I. 625.1 2220. Roads, streets, wharfs, landing-places,squares, markets and other placed of a like nature, possessed for the general use of the public, can- not be acquired by prescrip- tion, so long as their destination has not been changed other- wise than by tolerating the encroachment. — Author, under a. 2201; ff. L. 9, De via ; Dun. c. 12, p. 74 J C. N. 638, 2227. [I. 626.] 2221. Any other property belonging to municipalities or corporations, the prescription of which is not otherwise deter- mined by this code, is subject even when held in mortmain, to the same prescriptions as the Property of private persons. — I. 626.] CHAPTER FIFTH. OP THE CAUSES WHICH INTEEBUPT OB SUSPEND PBESCBIFTIOX. SECTION I. Of the causes which intcrritjpt prescription. 2222. Prescription may be interrupted either naturally or civilly. — Darg. on 266 C. Br. Interruption, c. 4-6 j Poth. Pres. n. 28, 152, B. R. 200; Guy. Interruption, 489; Dun. 62 ; C. N. 2242. [I. 527.] 2223. Natural interruption takes place when the possessor is deprived, during more than a year, of the enjoyment of the thing, either by the former proprietor or by any one else. — ff. L. 5, De usurp. ; Cod. L. 7, § 5, De pres. 30 v. 40 ann. ; L. 5, De duo.'reis; Darg. on 269 C. Br. Interrupt, c. 4 ; 9 Cuj. col. 977 D.; Poth. Pres. 39, 40, 152, Pos. 73-76, B. R. 200, C. 0. t. 14, n. 23; Guy. Interruption, 489, 490; Dun. 62 ; C. N. 2243. [I. 627.] 2224. A judicial demand in proper form, served upon the person whose prescription it is sought to hinder, or filed and served conformably to the Code of Civil Procedure when a per- sonal service is not required, creates a civil interruption. — Seizures, set-off, interventions and oppositions, are considered as judicial demands. — No ex- tra-judicial demand, even whor made by a notary or bailiff, and accompanied with the titles, or eren signed by^the party noti- f : ; is an interruption, if there be cot an acknowledgment of the right.— Cod. L. 3, De ann. ex. ter 97! te3 FBESCBIPTICX. 35a ex. ; Darg. on 266 0. Br. In- terrupt, c. 6, n. 1 ; 9 Cuj. col. 977, b. J col. 984-5, proem, et texte ad L. preedict. Cod j Bril. Ajournement, n. 13 ; L. & B. let. A 10, n. 1 J 2 J. P. 573 j 1 J. A., 1. 8, c. 8; Poth. Ob. 692, 696, 711, Pres. 48, 50, 51, 152, C. R. 141-2, C. 0. 1. 14, n. 26, 44, 60 J Guy. Interruption, 490 ; Fer. on 113 C. P. gl. 6, n. 6-11 ; Tr. Pres. 661-4, 576, 584,679; Dun. 56-57; Brod. on 113 C. P. n. 4 ; Lam. arr. t. 29,n. 46; C.N. 2244. [1.627.] 2225i A demand brought before a court of incompetent jurisdiction does not interrupt prescription. — Cod. L. penult. Ne de statu.; Cod. L. 6, De duo. reis ; Pap. Arr. 1. 12, t. 3, n. 24 ; 2 Dum. 680, arr. 102 & n./ J. A., 1. 1, c. 1, 34, p. 72 ; Dun. 66-7; Poth. Ob. 696, Pres. 61 ; Fer. on a. 113 C. P. gl. 5, n. 9, i. f. ; Arr. Lam. t. 29, a. 45; Tr. Pres. n. 696-8; Cho. on C. Anj. 245 ; Bas. on 485 C. Nor. 320, i. f. ; Desp. pt. 4, t. 4, n. 29, 3«^ ; Le Camus, in Fer. C. P. t. 7, § 4, n. 14; C. N. 2246. [L527.] 2226. Prescription is not interrupted : — If the service or 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 dis- missed. — Darg. on. C. Br. In- terruption, c. 6, c. 8, n. 10, 11 ; Poth. Ob. 696, Pres. 63, 153, C. 0. t. 14, n. 26, 50, 56; Fer. on 113 C. P. gl. 5, n. 9, 11 ; Brod. on 113 C. P. n. 4; C. N. 2247. [I. 627.] 2227. Prescription is inter- ru|j'«d ciTilly by renouncing the ben:>fit of a period elapsed, and by any acknowledgment which the possessor or the debtor makes of the right of the person against whom the prescription runs. — Cod. L. 7, § 6, De pres. 30 v. 40 ann. ; L. 5, De duo. reis ; Darg. on 266 C. Br. Interruption, c. 5 ; 9 Cuj. col. 977, E. ; Poth. Ob. 692, 699, 700, C. R. 143, 4, C. 0. t 14, n. 44-49; C. N. 2248. [I. 529.] 2228. A judicial demand brought against the principal debtor, or his acknowledgment, interrupts prescription as re- gards the surety. The same acts against or by a surety interrupt prescription as re- gards the principal debtor. — Poth. Ob. 665, 698; Guy. In- terruption, 490 ; Dun. 60 ; Tr. Pres. n. 633-635 ; C. N. 2250. [I. 629.] 2229. Renunciation by any person of a prescription ac- quired does not prejudice his codebtors, his sureties, or third parties.— Poth. Ob. 699, C. R. 145; Tr. Pres. n. 620, 634-636. [I. 529.] 2230. Every act which interrupts prescription with regard to one of joint and several creditors benefits the others. — When the obligation is indivisible, acts of interrup- tion with regard to some only of the heirs of a creditor, benefit the others. — If the obli- gation bo divisible, even when the debt is hypothecary, acts of interruption in behalf of some only of such heirs do not benefit the other heirs. In the same case these acts only benefit the other joint and ZbA PRESOUIFXION. several creditors for the share of the heirs with regard to whom such acts have been done. In order that the inter- rnption should in this case produce the full e£fect 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 heirs of the decease<^ creditor. — Cod. L. 6, De duo. reis J Poth. Ob. 260, 697, Pros. 64, C. 0. 1. 14, n. 27, 51; C.N. 1199, 2249. [I. 529.] 2231* Every act which in- terrupts prescription by one of joint ana several debtors, in- terrupts it with regard to all. — -Acts of interruption with re- gard to one of the heirs of a debtor, interrupt prescription with regard to the other heirs and joint and several debtors, when the obligation is indivi- sible.- 'If the obligation be di- visible, even when the debt is hypothecary, a judicial de- mand brought against one of the heirs of a joint and several debtor, or his acknowledge- ment, does not interrupt pre- cription with regard to the other heirs j without prejudice to the right of the creditor to exercise his hypothec within the proper time on the whole of the immoveable property charged, for that portion of the debt for which he retains 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 is sued or has acknowledged the right. In order that in this case the in- terruption should take place for the whole with regard to the joint and several codebtors, it is necessary that the judicial demand or the acknowledg- 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 in- terrupt the prescription by a third party holding the im- moveable property burthened with any charge or hypothec j 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 hold- ers of other immoveables or of other portions of the same im- moveable, do not prejudice the holder of a separate portion of the property, with regard to whom they have not taken place. — When done with regard to one joint holder of undivided property they inierrupt pre- scription with regard :o the others. — In natural interrup- tion, however, it suffices that one of the posau:3i^ora of undi- vided property, jr an heir of one of them, should have kept useful possession of the whole in order to secure the advan- tage of it to the others. — Cod. L. 5, de duo. reis ; C. P. 115 ; Poth. Ob. 272, 697, Pres. 55, 56, 148, C. 0.t.l4,n.27, 51; C.N. 1206, 2249. [I. 529.] SECTION n. Of the causes which suspend the course ofprespription. 2232i [Prescription runs against all persons, unless they are included, m rome exception PRESCRIPTIOir, 355 established by this code, or unless it is absolutely impos- sible for them in law or in fact to act by themselves or to be represented by others. — Saving what is declared in article 2269, prescription does not run, even in favor of subsequent pur- chasers, against those who are not born, nor against minors, idiots, madmen or insane per- sons, with or without tutors or curators. Those to whom a judicial adviser is given and persons interdicted for prodi- gality do not enjoy this privi- lege.— Prescription runs against absentees as against persons present and by the same lapse of time, saving what is declared as to persons authorized to take provisional possession of the estate of an absentee.] — Poth. Ob. 674, 683, Pres. 22, 23 j C. N. 2251. [I. 631. 2233i Husband and wife cannot prescribe against each other.— Poth. Ob. 680, C. 0. t. 14, n. 39 J Leb. Com. 1. 3, c. 2, s. 1, dist. l,n. 29; C. N". 2253. [I. 531/1 2234i Prescrv. tion runs against a maiiiod woman whether separated or in com- munity, with respect to her private property, including her dowry, even when her husband has the administration of it, saving her recourse against her husband. Nevertheless, when the husband is liable as war- rantor for having alienated the property of the wife without her consent, and in all cases where the action against the debtor or the possessor would turn against the husband, pre- ecription does not run against 27 the married woman, even in fa- vor of subsequent purchasers. — Poth. Ob. 680, B. R. 206, P. Mar. 79, 80 j Dun. pt. 3, c. 3, p. 451, 2; Leb. Com. 1. 3, o. 2, s. 1, dist. 1, n. 16-30 ; Arg. h contr. de L. 30, fragm. " Qmnis" Cod. De ju. dot. J C. N. 2254, 2256. [I. 631.] 223d. Neither does pre- scription run against the wife during marriage, even in favor of subsequent purchasers, with respect to dower and other rights of survivorship, nor with respect to the preciput or other distinct; rights which she can only exercise after the dissolu- tion of the community, either by accepting or renouncing, unless the community has been dissolved during the marriage j at the time of which dissolu- tion prescription begins against the wife, as regards the rights which she may then exorcise in consequence of such dissolu- tion. — Saving what is excepted in the present article, prescrip- tion acquired or which has run against the property of the com- munity affects the share of the wife who ace <^pts. — 0. P> 117; Poth. Ob. 679; Dun. Pres. 251, 2 ; 2 Dum. C. Bourb. a. 28, p. 740; Marc, on a. 2256. n. 4; Tr. n. 767, 784; 0. N. 2265, 2256. [1.531.] 2236. Prescription of per- sonal actions does not run: — With respect to debts depending on a condition, until such condi- tion happens; — With respect to actions in warranty, until the eviction takes place ; — With respect to debts with a term, until thci term has expired — Cod. L. V, § 4, do pres. 30 v. uO 868 PRESCRIPTIOX. an. ; Poth. Ob. 679, Sue. c. 4, a. 6, § 3 J Maro. on a. 2257, p. 169, 170 } C. N. 2257. [I. 533.] 2237. Prescription does not run against a beneficiary heir, with respect to claims he has against tb e succession. — It runs against a vacant succession, although there be no curator. — Poth. Ob. 680, 684 J C. N. 2258. [I. 533.] 22 The following actions are prescribed by five years : 1. For professional services and disbursements of advocates and attorneys, reckoning from the date of the final judgment in each case ; 2. [For professional services and disbursements of notaries, and fees of officers of justice, reckoning from the time when they became payable ;] 3. Against [notaries,] advo- cates, attorneys and other offi- cers or functionaries who are depositaries in virtue of their office, for the recovery of papers and titles confided to them; reckoning from the termina- tion of the proceedings in which such papers and titles were made use of, or, [in other oases, from the date 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 commercial nature,] reckoning from maturity ; this prescription however does not apply to bank-notes ; 6. Upon sales of moveable effects [between non-traders] or between traders and non- traders, these latter sales being in all cases held to be com- mercial 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 I the following articles;] 7. For visits, services, opera- tions and medicines of physi- cians or surgeons, reckoning from each service or thing furnished. As regards what- ever is sued for within the year, the oath of the physician or surgeon makes proof as to the nature and duration of the services. — Aa to § 1 — C. S. L. C. c. 82, 8. 3, 4; Poth. Ob. 725 J C.N. 2272, S.—Aa to § 3 —Poth. Ob. n. 726 ; Guy. Pros. 358, 362, Procureur, 716 j C. N. 2276.— ^» to § 4, C. S. L. C. c. 64, s. 30, 31 ; Byles, 7, 273 ; 21 Jac. 1, c. 16, s. 3 J Chit. 381- 389 ; C. L. 3505 ; C. Co. 189.— Aa to § 5—0. 25 Geo. 3, c. 2, s. 10 } C. S. L. C. c. 67, s. 1, 2, c, 82. s. 17, 18. c. 83. s. 26 : St. SCO PRESCBIPTION. Rep. ^i.—Aa to § 6—6 L. C. R. 260.— ^» to § 7— C. S. L. C. c. 71, B. 15, 16 ; Fer. D. Mddeoino ; C. P. 125 J C. N. 2272. [I. 645, 547, 549.] *2261. [Tho following ac- tions are prescribed by two years : 1. For seduction, or lying-in expenses ; 2. For damages resulting from oflfenoes or quasi-offencos, whenever other provisions do not apply j 3. For wages of workmen not reputed domestics and who are hired for a year or more j 4. For sums due school- mastoM and teachers, for tui- tion, and board and lodging furnished by them. — Aa to ^ 1 —2 Dar. Inj. 197, 384; Four. S. 108.— ^« to § 2— Author, under a. 2260, § 5.— As to § 4— Poth. Ob. n. 709, 3° & 4°. [I. 645, 547.] 2262. The following actions are prescribed by oje year : 1. For slander or libei, reck- oning from the day that it came to the knowledge of the party aggrieved j 2. [For bodily injuries, sav- ing tho special provisions con- tained in article 1056 and cases regulated by special laws ;] 3. [For wages of domestic or farm servants, merchants* clerks and other employees who are hired by the day, week or month, or for less than a year J ] 4. [For hotel or boarding- house charges.] — Aa to § 1 — Guy. Injures, 239; Dun. 144; Dar. Inj. c. 10, s. 1 ; Car. Obs. Injures; Imb. Pratique, c. 33, n. 4.—A8 to § 3— C. P. 127; 0. 1510, a. G7; Poth. Ob. 709, 5^ 116 ; For. on 127 C. P. n. 16-30,23, obs. 8; 2 Rev. 1G6; 2 L. 0. J. p. 183; 3 Do. 299; C. S. L. C. c. 37, 8. 8; C. N. 1781, 2272.— Aa to § 4— Author, under a. 2261, § 4. [I. 545; III. 389.] ^ 2263. Short limitations and prescriptions established by acts of parliament, follow tho rules peculiar to them, as well in matters respecting the rights of tho crown as in thoso re- specting the rights of all others. —[I. 649.] 2264. After renunciation or interruption, except as to prescription by ten years in favor of subsequent purchasers, prescription recommences to run for tho same time as befort, if there bo no novation, saving the provisions of the following article.— [I. 549.] 2265. Any action which is not declared to bo perempted, and any judicial condemnation, constitutes a title wh' '- is only prescribed by thir.^ years, although the subject matter thereof be sooner prescriptiblo. — A judicial admission inter- rupts prescription, even in an action tho peremption of which is declared or which is other- wise insuiflcient to interrupt it alone ; but the proscription which recommences is not thereby prolonged. — Poth. Ob. 696, 701, 711 ; Fer. on 125 C. P. n. 7, 8, on 126 C. P. gl. 2, & on t. 6, § 4, n. 40 ; C. N. 2244, 2247, 2248.— [I. 649.] 2266. A coptinuation of like services, work, sales or supplies, does not hinder a prescription, if there have been PBElCBIPTIOy. 861 b. 709, 5^ C. P. a. Uov. 166 r Do. 299; 8j C. N. —-Author. [I. 545; ations and ished by bllow tho n, as well tho righta thoso re- all others. unciation ipt as to years in rchasers, ences to 13 before, n, saving following which is rompted, mnation, '- la only years, matter rij)tiblo. n inter- n in an )f which 3 other- irrupfc it oription is not )th. Ob. 125 C. gl. 2, & J. 2244, ion of lies or ider a '^e been no acknowledgment or other cause of interruption. — 0. P. 126, 127 J Poth. Ob. 714 ; 0. C. 1673, t. 1, a. flj C. N. 2274. n. 651 J *2267. [In all the cases mentioned in articles 2250, 2260, 2261 and 2262 the debt is absolutely extinguished and no action can be maintained after the delay for prescription has expired.]— Poth. Ob. 718-721, 726, 727, C. 0. 265 ; For. oh 125 C. P. n. 3-5, 0. C. 167^ t. 1, a. 10; C.N. 2275. [1.661.] ^2268i Actual possession of a corporeal moveable, by a per- son as proprietor, creates a pre- sumption of lawful title. Any party claiming such moveable must prove, besides his own right, the defects in the posses- sion or in the title of tlie pos- sessor who claims prescription, or who, under tho provisions of the present article, is exempt from doing so. — Prescription of corporeal moveables takes place after the lapse of throe years, [reckoning from the loss of pos- session,] in favor of possessors in good faith, [even when the loss of possession has been occasioned by theft.] — This prescription is not, however, necessary to prevent revendi- cation, if the thing have been bought in good faith in a fair or market, or at a public sale, or from a trader dealing in similar articles, [nor in com- mercial matters generally ;] saving tho exception contained in the following paragraph. — Nevertheless, so long as pre- scription has not been acquired, the thing lost or stolen may be revendicated, although it have been bought in good faith in tho cases of tho preceding para- graph; butthorevendicationin such cases can only take plaoo upon reimbursing the pur- chaser for the price which he has paid. — If the thing have been sold under tho authority of law, it cannot, in any case, bo revendicated. — Tho stealer or other violent or clandestine possessor of a t'linj*, and his successors by gf^ I title, are debarred from riibing by articles 2197 anil 2198.— Poth. Pros. n. 199-202, 204, 5, C. 0. t. 14, p. 4 ; Bour. 1. 3, t. 2, o. 1, t. 22, c. 6; Poc. c. 10, a. 15, 16 j Dun. 150 ; Brod. on 118 C. P. n. 2; Fer. on t. 6. C. P. § 3, n. 2, & on a. 113, gl. 6, n. 5; Tr. Pros, on a. 2279, 2280 ; C. N. 2279, 2280. [I. 553 ; III. 389.] 2269i Prescriptions which the law fixes at less than thirty years, other than thoso in favor of subsequent purchasers of immoveables with title and in good faith, and that in case of rescission of contracts mention- ed 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.— Poth. Ob. 717 ; Dun. Pres. p. 241, 2 ; Guy. Pres. 330 ; Hen. 1. 4, q. 135, n. 11; 2 Lep. Lois des b^t. 10; C. N. 2278. [I. 553.] SECTION VI Transitory provisions, 2270. Prescriptions begun before the promulgation of this code, must be governed by the former laws. — [Nevertheless h'. ^;^^- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l&i|2£ |Z5 Ui Ui |'2.2 ^ U& 12.0 1.25 III 1.4 1.6 /a >^ Photographic Sciences Corporation 23 WiST MAIN STREET WEBSTER, N.Y. 14S>80 (716) 873-4503 % ^ % «? ^ ^ 862 PBESCBIPTIOK. prescriptions then begun, for which, according to these laws, •n immemorial duration or one of a hundred years is required, are acquired without respect to such necessity.] — [I. 563.] TITLE TWENTIETH. OF IMPRISONMENT IN CIVIL CASES. 2271i Imprisonment under a judgment rendered in a civil action is not allowed, except against the persons and in the cases specified in the following articles. — C. S. L. C. o. 87, s. 7, §3, 8.24. [III. 209.] 2272. The persons liable to imprisonment are : 1. Tutors and curators, for whatever is due by reason of their administration, to those whom they represented ; 2. Any person indebted as sequestrator, guardian or depo- sitary, sheriff, coroner, bailiff, or other officer having charge of moneys or other things under judicial authority ; 3. Any person indebted as a judicial surety, or for the purchase of property or effects, moveable or immoveable, sold in execution of the judgment of a court ; ' 4. Any person indebted in damages awarded by the judg- ment of a court for personal wrongs, for which imprisonment may by law be awarded ; 5. Any person sued in dam- ages under the provisions of chapter 47 of tho Consolidated Statutes for Lower Canada, and against whom judgment has been rendered for such damages with condemnation of imprisonment. — C. S. L. C. lb. & c. 47, s. 2, § 2. [III. 209.] 2273. Persons are also sub- ject to imprisonment for con- tempt of any process or orddr of court, and for resistance to such process or order, and for any fraudulent evasion of any judgment or order of court, by preventing or obstructing the seizure or sale of property in execution of such judgment.— C. S. L. C. 0. 87, s. 7, § 3, s. 24, c. 47, s. 2, § 2, 0. 1667, t. 34, a. 2-4; C.N. 2060. [III. 209.] 2274. Any debtor impri- soned or held to bail, in a cause wherein judgment for a sum of eighty dollars or upwards is rendered, is obliged to make a statement under oath, and a declaration of abandonment of all his property, for the benefit of his creditors, according to the rules, and subject to the penalty of imprisonment in certain cases, provided in chap- ter 87 of the Consolidated Statutes for Lower Canada, and in the manner and form specified in the Code of Civil Procedure. — lb. c. 87,.s. 12, 13. [III. 211.] 2276. When the statement and declaration of abftndon- of < no BILLS OF EXOHANOK, BTO. m ment are made without fraud, at specified in the last pre- ceding article, the debtor is exempt from arrest and impri- sonment by reason of any cause of action existing before the making of such statement and declaration, unless such debtor is arrested and impri- soned for any debt of the description specified in articles 2272 and 2273.— lb. c. 87, s. 13, $ 3, 8. 16, S 1, 2. [III. 211.1 2276i No priest or minister of any religious denomination, no person of the age of seventy years or upwards, and no fe- male, can be arrested or impri- soned, by reason of any debt or cause of civil action, except such persons as fall within th» cases declared in articles 2272 and 2273.— lb. c. 87, s. 7. [III. 211.] 2277. The arrest and im- prisonment of debtors under process of capiat ad respond' endum are made according ta the provisions contained in the act referred to in article 2274, and in the Codo of Civil Pro- cedure. — C. S. L. C. c. 87, s. 1,. 2,9. [III. 211.] BOOK FOURTH. COMMERCIAL LAW. OENEBAL PROVISION. 2278. The principal rules applicable in commercial cases wnioh are not contained in this book are declared in the seve- ral preceding books, and morfr especially in the titles 0/ Ob' ligations f Of Sale, Of Lease, Of Mandate, Of Pledge, Of Part- nership and Of Prescription, in the third book. [III. 269.] TITLE FIRST. OF BILLS OP EXCHANGE, NOTES AND CHEQUES. CHAPTER FIRST. OF BILLS 07 EXCHANGE. SECTION I. Cf the nature and requisites of bills of exchange. 2279. A bill of exchange is a written order by one per- son to another for the payment of money absolutely and at all events. — Poth. Ch. n. 3 ; 2 Par. n. 330— J Sm. M. L. 207-9; Bay. B. 1 j Stu. B. E. n. 62, 63 j 3 Kt. Com. 74; Cot^ vs. Lemieuxr 9 L. C. R. 221. [III. 269.] '''2280. It is essential to a bill of exchange — That it be 494 BILLS OF BXUHANOE, BTO. in writing and contain the sig- nature or name of the drawer ; — That it be for the payment of a specifio sum of money only ; — That it be payable at all events without any condition. — Au- thor, under a. 2279. [III. 269.] 2281. The parties to a bill of exchange at the time of making it are the drawer of the bill and the payee. — The drawee becomes a party by ac- ceptance and is then called the acceptor. — Indorsers, war- rantors upon the face of the bill, the person requested to pay au oeaoin who accepts, acceptors supra proteat and holders also become parties. — Dom. 1. 1, 0. 16, s. 4 ; Poth. Ch. n. 17-26 J 1 Nou. L. C. 148, 9 J Bay. B. c. 1, § 2 — j Sto. B. E. n. 35, 36, 254, 6. [Iir. 269.] 2282. A bill of exchange may be made payable either to a certain person by name or other sufficient indication, or to such person or his order, or to the order of the drawer or to bearer. — If the name of the f)ayee be left in blank the egal holder of the bill may fill up the blank. — Poth. Ch. n. 31, 223, 4 J 1 Savary, P. N. 201 J 1 Nou. L. C. 148; Ros. B. 2, 22 J Sto. B. E. n. 64-57 j C. S. L. C. c. 64, s. 3j 0. 1673, t. 6, a. Ij C. Co. 110. [III. 269.] 2283. If no time be speci- fied in the bill for its payment, it is held to be payable on de- mand ; if no place be specified. It is payable generally. — C. S. L. C. c. 64, 8. 9 J 0. S. 0. 0. 67, s. 4. [III. 269.] 2284. Foreign bills of ox- change are usually drawn in sets of several parts, all of which the drawer is bound to deliver to the payee. — Poth. Ch. n. 37, 130 ; 2 Par. n. 342 ; 1 Chit. & H. 3; Bay. B. 30; Sto. B. E. n. 66 ; C. Co. 110. [III. 271.] 2285. When a bill contains the words "value received," value for the amount of it is presumed to have been received on the bill and upon the in- dorsements thereon. The omis- sion of these words does not render the bill invalid. — Poth. Ch. n. 34; 0. 1673, t. 5, a. 1; C. S. L. C. c. 67, s. 1 ; Duches- nay, vs. Evarts, 2 Rev. 31; Hart, vs. Macpherson, Gir. L. C. 66 ; 8 L. C. R. Larocque & al, vs. Franklin Bank, 328 ; Bay. B. c. 1, § 14, p. 40 ; Sto. B. E. n. 63 ; C. 989 ; C. Co. 110, 137. [III. 271.] SECTION n. Of the mgotiation of bills oj exchange. *2286. Bills of exchange payable to order are trans- ferred by indorsement, which may be either in full or in , blank. When indorsed in blank, they become transfer- able by delivery. Bills pay- able to bearer are transferable by delivery either with or with- out indorsement. — C. S. L. C. c 67, s. 3. [III. 271.] *2287. The transfer of a bill by indorsement may be made either before or afte;* it becomes due. In tho formdr case the holder acquires a perfect title free from all liabilities and pi 14 [: BILLS OP EZOHANaE, ETC. 366 objections which any parties may have had against it in the hands of the indorser ; in the latter case the bill is sub- ject to such liabilities and ob- jectionS) in the same manner as if it were in the hands of the previous holder. — Poth. Ch. n. 141 ; 2 Far. 352 ; Sto. B. E. n. 220 ; Bay. B. 162, 3 ; Wood et al. vs. Shaw, 3 L. C. J. 175. [III. 271.] 2288. An indorsement may be restrictive, qualified or con- ditional, and the rights of the holder under such indorsement are regulated accordingly. — | But no indorsement other than that by the payee can stop the negotiability of the bill.— -jSay. B. 126 ; Sto. B. E. n. 217 ; 3 Et. Com. 90; 2 Par. n. 348; Chit. &H. 17. [III. 271.] 2289. The holder may, at his option, strike out the last indorsement, although it be in full, and any prior inaorsement in blank subsequent to that of the payee. — ^Ros. B. 285 ; 3 Kt. Com. 89; Sto. B. E. n. 208. [in. 271.1 SECTION III. Of acceptance, 2290. Bills of exchange payable at sight, or at a cer- tain period of time after sight or after demand, must be pre- sented for acceptance. — The E resentment is made by the older, or in his behalf, to the drawee or his representative, at his domicile or place of busi- ness, or if the drawee be dead or cannot be found, and is not represented, presentment is made at his last known domicile or place of business. — If there be also a drawee au besoin, presentment is made to him in like manner. — Poth. Ch. n. 137, 146 ; 1 Nou. 220, n. 3 ; 2 Par. n. 358, 362, 381 ; Bay. B. 244, 5 ; Sto. B. E. n. 228, 229, 235, 254; Chit. B. 301 (8 Ed.) ; C. S. L. C. o. 64, s. 16, § 2; C. Co. 173; C. 2308. [III. 271.] *j2291. Presentment for ac- ceptance when necessary must be made within a reasonable time from the making of the bill according to the usage of trade and the discretion of the courts. — Poth. Ch. n. 143 ; Sto. B. E. n. 231. [III. 273.] 2292. The acceptance must be in writing upon the bill or upon one of the parts of the bin.— C. S. L. C. c. 64, s. 6. [HI. 273.] 2293. The acceptance must be absolute and unconditional, but if the holder consent to a conditional or qualified accep- tance the acceptor is bound by it— Poth. Ch. n. 47-49 ; 0. 1673, t. 5, a. 2 ; 2 Par. n. 370, 372 ; Bav. B. 201, 202 ; Sto. B. E. n. 240. [III. 273.] 2294. The effect of accep- tance is to oblige the acceptor to pay the bill to the holder according to its tenor. — The signature of the drawer is ad- mitted by the acceptance and cannot afterwards be denied by the acceptor against a holder in good faith.— Poth. Ch.n.44, 115-117 ; Hein. de camb. o. § 26 — ; c. 6, 5 5 ; 2 Par. n. 376 ; Sto. B. E. n. 113, 261, 262; Bay. B. 318, 319. [III. 273.] 2295. When a bill has been accepted and delivered to the 860 BILLS or BXOBANOE, BTO. holder the acceptance cannot be cancelled otherwise than by tbe oonuent of all the parties to the biU.— Poth. Ch. n. 44; 1 Sar. P. N. 840 J 2 Par. n. 377 j Bay. B. 208 - } 3 Et. Com. 85. [III. 273.] 2296. When a bill has been protested for non-acceptance or for non-paymentitmaywith the consent of the holder be ac- cepted by a third person for the honor of the parties to it or of any of them. Such accep- tance benefits the parties only who are subsequent to the one for whose honor it is made. — Poth. Ch. 113, 114, 170, 171 j Jou. 0. 1673, t. 6, a. 3, 75 j 2 Par. n. 383, 388; Bay. B. 176-180; Sto. B. E.n.l21, 122, 123, 125 ; 3 Et. Com. 87 ; C. Co. 126. [III. 273.] 2297. An acceptor supra protest is bound to give notice of his acceptance without delay to the party for whose honor he accepts and to other parties who may be liable to him on thebUl.—Poth. Ch. n. 113, 114; Jou. 0. 1673, t. 6, a. 3, 76, 76 ; 2 Par. n. 386 ; Bay. B. 179, 180 ; Sto. B. E. n. 124, 256 ; C. Co. 127. [III. 273.1 SECTION IV. Of noting and protest for wow- acceptance. 2298. Whenever accep- tance of a bill of exchange is refused by the drawee the bill may be forthwith protested for non-acceptance, and after due notice of such protest to the Sarties liable upon it, the hol- er may demand immediate payment of it from such parties ' in the same manner as if the bill had become due and had been protested for non-payment. — The holder i s not bound after- wards to present the bill for payment, or, if it be so present- ed, to give notice of the dis- honor. — C. S. L. C. c. 64, 8. 10. [III. 273.] . 2299. The holder of any bill of exchange, instead of protesting upon the refusal to accept, may at his option cause it to be noted for non-accept- ance, by a duly qualified no- tary; such noting to be made underneath or to be endorsed upon a copy of the bill and kept upon record by the offi- ciating notary. — lb. c. 64. s. 12. [III. 276.] 2300. When a bill which has been noted ibr non-accept- ance as provided in the last preceding article is afterwards protested for non-payment, a protest for non-acceptance need not be extended, but the not- ing, with the date thereof and the name of the notary by whom the same was made, must be stated in the protest for non-payment. — lb. c. 64, s. 12. [III. 276.] 2301. Upon every bill noted or protested for non-accept- ance, the words ** noted for non-acceptance," or ''protested for non-acceptance," as the case may be, together with the date of noting or protesting, and his fees and charges, must be written or stamped by the offi- ciating notary, and subscribed by him with his .name or initials as such notary. — lb. c. 64, s. 12. [III. 276.] 2302. When a biU is noted pal ac4 teS DILLS OF EXOHANOE, ETC. 86t for non-acceptance the holder is not bound to give notice of the same in order to hold any party liable thereon. But whenever a bill so noted is afterwards protested for non- payment> the notice of such protest must contain a notice of the previous noting for non acceptance. — lb. c. 64, s. 20. [III. 275.] ^ 2303. The noting and pro- testing of bills of exchange for non-acceptance and the giving notice thereof, are done by the ministry of a single public notary without witnesses, in the manner and according to the forms prescribed by the act intituled : An act respecting bills of exchange and promiaaory notes. — ^Ib. c. 64, s. 11, 22 j C. 1209. [III. 276.] 2304* In case there is no notary in the place, or he is unable or refuses to act, any justice of the peace in Lower Oanada may make such noting and protest and give notice thereof in the same manner, and his acts in that behalf have the same effect as if done by a notary ; but such justice must set forth in the protest the reasons why the same was not made by the ministry of a notary. — lb. c. 64, s. 24. [III. 276.] 2305> The duplicate pro- test and notice, with the certi- ficate of service, and all copies thereof attested by the signa- tures of the notary or the justice of the peace as the case may be, are primd facie evi- dence. — lb. c. 64, s. 14, 24 ; C. S. C. c. 57, B. 6. [III. 275.] SECTION V. Of payment *2306. Every bill of Ex- change must be presented by the holder, or in his behalf, to the drawee or acceptor for pay- ment, on the afternoon of the third day after the day it be- comes due, or after present- ment for acceptance, if drawn at sight ; unless such third day falls upon a legal holiday, in which case the next day there- after not being a legal holiday is the last day of grace. If the bill be payable at a bank, presentment may be made there either within or after the usual hours of banking. — If the bill be unaccepted and there be a drawee au hesoin, presentment must be made in like manner to him also. — C. S. L. C. c. 64, 8. 6, 15, 32 J C. S. C. c. 57. s. 6; Poth. Ch. n. 137; Chit. B. 187, 188, 262 ; Sto. B. E. n. 66 ; 3 Et. Com. 88 ; 2 Par. n. 341. [III. 275,] 2307i If a bill of exchange be made payable at any stated place, either by its original tenor or by a qualified accept- ance, presentment must be made at such place. — C. S. L. C. c. 64, 8. 9, 15; C. S. C. o. 57,8.4. [III. 277.] 2308. If the bill be payable generally, presentment is made to the drawee or acceptor, as the case may be, either person- ally, or at his residence, or office, or usual place of busi- ness ; or if by reason of his ab- sence and not having any known residence, or office, or place of business, or of his death, such presentment can- 368 BILLS OF EXOUANOE, ETC. not be 80 made^it may bo made at his last known residence, or office, or usual place of busi- ness, where the aooeptanoe, or, if there be no acceptance, where the bill bears date. — 0. S. L. 0. c. 64, 8 2. [III. 277.] 2809. If a bill payable generally be accepted before and become due after the ap- pointment duly notified of an assignee to the estate of the ac- ceptor, in the case of an insol- vent trader, presentment for payment may be made either to the insolvent or to the assig- nee personally, or at the resi- dence, or office, or usual place of business of either of them. — lb. s. 18. [III. 277.] *2310« The acceptor, drawer and indorsers of a bill of ex- change are jointly and several- ly liable to the holder for the payment of it.— The liability of the drawer and indorsers and also of acceptors aupra protest, is subject to the rules concern- ing protest and notice herein contained. — Poth. Ch. n. 58, 79, 117 J Sto. B. B. 107, 108, 113-118 and oit. : 0. Co. 140. [III. 277.] 2311. A third person who becomes warrantor on a bill of exchange, is liable in th% same manner and to the same extent as the person in whose behalf he so becomes warrantor. — He is bound by the diligence which binds his principal, and is not entitled to any notice of protest apart from the latter. — Poth. Ch. n. 60, 122, 123 ; 1 Sav. P. N. 205, 2 lb. 94 J 2 Par. n. 394, 398, 397 j Jou. 0. 1673, a. 33, p. 131, 132; Sto. B. E. n. 372, 393-6, 464-6; Sto. P. N. n. 460, 484; 1 Bell, Com. 376; C. Co. 141, 142 ; Marrett vs. Lynch, 9 L. C. R. 353; 10 Lou. R. (0. S.) 374. [III. 277.] 2312. Theoblfgationofthe acceptor to pay the bill is {primary and unconditional, and egal payment by him dis- charges the bill with respect to all the parties, unless ho is an acceptor for honor, in which case he is substituted in the Elace of the party for whose onor he accepts and has his reoourse against such party also. — The rule above declared is without prejudice Ut the rights of an acceptor against the party for whose accommo- dation ho has accepted. — 2 Nou. 342, 343; Sto. B. E. n. 256, 257, 410, 420, 422; C. 2310. [III*. 277.] 2313. Payment by the drawer of an unaccepted bill finally discharges it. If it be accepted he is entitled to re- cover from the acceptor, unless the acceptance is for his ac- commodation. — C. 2310 ; 2 Nou. 350 ; Sto. B. E. n. 422. [III. 277.1 2314u Payment by an in- dorser entitles him to recover from the acceptor and drawer and all the indorsers prior to himself; saving the rights of the acceptor for his accommo- dation. — Author, under a. 2313. [III. 279.] 2315. Payment of a bill must be made upon that part of the set upon which the name of the party paying appears, and such part Should be de- livered to him, otherwise he will not be discharged from his liability to innocent holders BILLS OF EXOHAKOE, KTO. 86» of such part of the bill. — C. Co. 146, Uf, [III. 279.1 2316. Payment ofa lost bill of exchange may be recovered upon the holder making due groof of the loss, and also, if the ill be negotiable, on giving seonrity to the parties liable, according to the discretion of the court. — Jou. 0. 1673, t. 5, a. 18, 19, 111; 2 Bor. 591; Sm. M. L. 285, 286 ; Sto. B. E. n. 447 -- , lb. P. N. n. 106 -- ; 0. 1233 i C. 150-153. [III. 279J 2317. Payment may be made of a bill of exchange after pro- test, by a third person for the honor of any party to it, and the person so paying has his recourse against the party for whom he pays and against all those liable to such party on the bill. — ^If the person paying do not declare for whoso honor he pays, he has his recourse agaust all the parties upon the biU.— Poth. Cho. n. 170, 171 j 2 Par. n. 405 j 1 Bell, Com. 312,334; C. 1141 j C. Co. 158, 169. [III. 279.] 2318. Payment of a bill must include the full amount of it with interest from the last day of grace and all expenses of noting, protest and notices legally incurred upon it, with damages in the oases herein- after stated. — C. S. L. C. o. 64, 8. 7, 21. [III. 279.] SECTION VI. Of protest for non-payment. 2319. Bills of exchange after presentment for payment, as provided in the fifth section of this chapter, if not then paid. are protested for non-payment» in the afternoon of the last day of grace. — The protest is held to have been made in the after- noon of the day on which it bears dato unless the contrary appears on the face of it. — C. 2306, 2307, 2308, 2309; C. S. L. C. ib. B. 16, S 2, s. 17, § 2. [III. 279.] 2320. Protests for non-pay- ment are made by the ministry or the same persons and in the same manned and form as pro- tests for non-acceptance, and are subject to the same rules of proof. — If the bill have been noted for non-acceptance it must be so stated in the protest for non-payment, as declared in article 2300.— C. 2302, 2303, 2304; C. S. L. C. s. 11, 14,20, 22. [III. 279.] 2321. Bills drawn abroad upon any person in Lower Canada, or payable or accept- ed at any place therein, are subject, as to all parties there- in resident and liable on such bills, to the rules contained in this title with resr.:>o>> to the days of grace and ihcf noting and protesting of bilL for non- acceptance and for non-pay- ment, and the notification and service of protests, and also with respect to commission and interest. — C. S. L. C, s. 25. [III. 279.] 2322. In default of pro- test for non-payment, accord- ing to the articles of this sec- tion, and of notice thereof, as provided in the section next following, the parties liable on the bill other than the acceptor are discharged, subject never- theless to the exceptions con- 370 BILLS or EXCHANGE, ETC. tained in the two following articles.— 0. S. L. 0. 8. 16, 9 2. £111. 279.] 2323* The drawer cannot avail himself of the want of protest or notice, unless he proves that provision was dnly made by him for the payment of the bill.— 1 L. 0. R. The Bank of Montreal, vs. Enapp & al, 252 - ; 0. Co. Ild-ll7. rni.28i.] *2324. The want of protest and notice is excused when they are rendered impossible by inevitable accident or irre- sistible force. They may also be waived by any party to the bill, in so far as his rights only are concerned. — Poth. Gh. n. 144; 2 Par. n. 426, 434, 5; Bee. 99, n. ; Bay. B. 294, 5, (5 Ed.) ; 3 Kt. Com. 113 ; Sto. B. B. n.327. [III. 281.] 2325. Want of protest and notice is not excused by the loss of the bill or by the death or bankruptcy of the drawee or of the party entitled to notice. — Poth. Ch. n. 145, 6; Byles, n. 193; Sto. B. E. n. 326. [III. 281.] SECTION vir. Of notice of protest 2326. Notice of protest' for non-acceptance or for non- payment is given at the in- stance of the holder, or of any party liable on the bill who has received notice and who on paying will be entitled to recover from other parties upon the bill. — Poth. Ch. n. 158; Bay. B. 270, n. 147, (6 Ed.) ; 1 Bell, Com. 330, n. 259 ; Sto. B. E. n. 201, 303, 304, 388. [III. 281.] 2327. The notice is given by the notary or Justice of the peace by whom the protest is made, and such notice, to- gether with the certificate of service thereof, is in the form prescribed in the act intituled : An act reapecting bilU of ex- change and promiteorynotea,-^ C. S. L. C. c. 64, 1. 22 ; 0. 2303, 2304. [111.281.] *2328. The notice is given to the party entitled thereto personally, or at his residence, or office, or usual place of busi- ness, and in case of deaUi or absence at his last residence, office, or place of business ; or the notice, directed to the party, may be deposited in the near- est post-office communicating with his actual or last resi- dence, office, or place of busi- ness as aforesaid, as the case may be; the postage being prepaid.— lb. s. 13. [III. 281.] 2329. In the cose of an insolvent trader the notice may be given as provided in tlie last preceding article, or to the assignee of the insolvent estate, provided the bill were drawn or endorsed by the in- solvent before the assignment, or the attachment in compul- sory liquidation. — lb. s. 13, § 2. [III. 281.] 2330. Service of the notice of protest, whether for non- acceptance or for non-payment may be made at anytime with- in three days next after the day on which the bill it protested, —lb. 8. 19. [III. 281.] 2331. The party notified is BILLS OP EXOBANQE, STO. tn bound to gtvo notice, within a reasonable delay, to any par- ties to til bill whom he in- tends to hold liable upon it, other than the acceptor. — Poth. Ch. n. 148-153 ; Chit. B. 620, 521 (8 EdO ; 3 Kt. Com. 108, 109: Sto. B. E. n. 384: C. Co. 164. [III. 283.] SECTION VIII. Of interest, commission and damages. 2332. The amount of inter- est which may lawfully be paid upon the principal sum of a bill of exchange, for the discount thereof, may be taken at the time of discounting. — C. S. L. C. 0. 64, 8. 26. [III. 283.] 2333i Any person who dis- counts or receives a bill of exchange payable in Lower Canada, at a distance from the place where it is discounted or received, may take or recover, besides interest, a commission sufficient to defray the expenses of agency and exchange in collecting the b'H Such com- mission not in any case to ex- ceed one per cent on the amount of the bill. — This article does not apply to banks, which are subject to the provisions con- tained in the next following article. — lb. s. 27 ; C. S. C. c. 58, 8. 4, 6, 7. [III. 283.] * 13334:. Banks in this pro- vince discounting bills of ex- change may receive, for defray- ing the expenses attending their collection, a commission on the amount according to the rates and in the manner pro- scribed in the act intituled An «c« resjificting interest,— 'C. S. C. 28 0. 58, 8. 5, 7, 0. 55, s. 110. [III. 283.] 2335. Bills drawn for an usurious consideration are not void in the hands of an inno-, cent holder for valid considera- tion.— C. S. L. C. 0. 64, 8. 28. [III. 283.1 *2336. Bills of exchange drawn, sold, or negotiated wi^- in Lower Canada, which are returned under protest for non- payment, are subject to ten per cent damages if drawn upon Persons in Europe, or the West ndies, or in any part of Ame- rica not within the territory of the United States or British North America. — If drawn up- on persons in Upper Canada, or in any other of the British North American Colonies, or in the United States, and return- ed as aforesaid, they are subject to four per cent damages. — With interest, at six per cent, in each case from the date of the protest. — lb. s. 1. [III. 283.t *2337. The amount of dam- ages and interest specified in the last preceding article is reimbursed to the holder of the bill at the current rate of ex- change of the day when the protest is produced and repay- ment demanded; the holder being entitled to recover eo much money as will be sufficient to purchase another bill drawn on the same place and at the same term for a like amount, together with the damages and interest and also the expenses of noting and protesting and of Postages thereon, — lb. s. 1, § 2. III. 283.] 2338. When notice of the 372 BILLS OK KXOHANOR, ETC. protest of a bill returned for non-payment h given by the holder thereof to any party secondarily liable upon it, in person or by writing dolirored to a grown person at his count- ing-house, or dwelling-house, and thoy disagree as to the rate of exchange, the holder and the party notified appoint each an arbitrator to determine the rate ; these in ease of dis- agreement appoint a third, and the decision of any two of them given in writing to the holder is conclusive as to the rate of ex- change, and regulates the sum to be paid accordingly. — lb. s. 2. [III. 283.] 2339. If either the holder or the party notified, as pro- vided in the last preceding article, fail, for the space of forty-eight hours after the notification, to name an arbi- trator on his behalf, the deci- sion of the single arbitrator on the other part is conclusive. — lb. B. 2, § 2. [III. 285.] SECTION IX General provisions. 234:0i In all matters rela- ting to bills of exchange not provided for in tniu code re- course must be had to i:ie,laws of England in force on the thirtieth day of May, one thou- sand eight hundred and forty- nine.— lb. s. 30. [III. 285.] 2341. In the investigation of facts, in actions or suits founded on bills of exchange drawn or endorsed either by traders or other persons, re- course must be had to the laws of England in force at the time specified iu the last preceding article, and no additional or different evidence is required or can be adduced by reason of any party to the bill not being a trader.— lb. s. 30, s.2; 0. 1246. [III. 285.1 2342* The parties in the actions or suits specified in the last preceding article may bo examined under oath as provi- ded in the title 0/ Ohligationt. —lb. 8. 30, 8 3. [III. 285.] 2343. The rules concerning the proscription of bills of exchange are contained in the title Of Prescription.— Q. 2260. [III. 285.] ' CHAPTER SECOND. OF PROmSSOBT KOTBB. 2344. A promissory note is a written promise for the payment of money at all events, and without any condition. It must contain the signature or name of the maker and be for the payment of a specific sum of money only. It may be in any form of words consistent with the foregoing rules. — Poth. Ch. n. 216 J 2 Par. n. 478; Bay. B. 1 j Sto. P. N. n. 1 j 0. 2279. [III. 285.] 2345. The parties to a promissory note at the time of making it are the maker and the payee. The maker is sub- ject to the same obligations as the acceptor of a bill of exchange. — Bay. B. 169 j Sto. P. N. n. 4; C. S. L. C. c. 64. [III. 285.] *2346. The provisions con- cerning bills of e^hange con- tained in this title apply to promissory notes when they BILLS or XXOBAKOC, BTO. 373 rotate to the following sub- jects, viz. : 1. The indication of the payeej 2. The time and place of payment ; 3. The expression of value ; 4. The liability of the par- ties; 5. Negotiation by endorso- mont or dolirery ; 6. Presentment and pay- ment ; 7. Protest for non-payment and notice ; 8. Interest, commission, or usury ; 9. The law and the rules of evidence to be applied ; 10. Prescription. [III. 285.] 2347* Parties liable on promissory notes made payable on demand are not entitled to days of grace for the payment thereof.— C. S. L. C. c. 64, s. 6, 9 2. [III. 287.] ^2348. The making, circu- lation, and payment of bank notes are regulated by tho provisions of a statute intituled An act respecting banka and freedom of banking, and by the special acts of incorporation of the banks respectively. — C. S. C. 0. 65. [III. 287.] CHAPTER THIRD. OF CHEQUES. 2349t A cheque is a writ- ten order upon a bank or banker for the payment of money. It may be made payable to a particular person, or to order, or to bearer, and is negotiable in the eame manner ac bills of exchange And promissory notes. — Chit. B. 545, Chit. & H. 24 j Rofl. B. 9; 2 Par. 464-467: Sto. P. N. n. 488, 490, 491. [III. 287.] 2350. Cheques arc payable on presentment, without dayti of grace. — Author, under a. 2349. [III. 287.] 2351. The holder of a cheque is not bound to present it for accopfanco apart from payment; nevertheless, if It be accepted, ho has a direct action against tho bank or banker, without prejudice to his claim against ttio drawer, cither upon tho cheque or for tho debt on account of which it was re- ceived.— Poth. Ch. n. 230, 232 ; Sto. P. N. n. 494. [III. 287.] 2352. If the cheque be not presented for payment within a reasonable time, and the bank fail between the de- livery of the chcquo and such presentment, the drawer or indorser will bo discharged to the extent of the loss ho suffers thereby.— Poth. Ch. n. 229 ; Chit. &ir. 32, 48; Sto. P. N. u. 493, 498 ; 3 Kt. Com. 104, n. D; C.2323. [111.287.] 2353. Subject to the pro- visions contained in the last preceding article, the holder of a cheque who has received it from the drawer, may upon refusal of payment by the bank or banker return it to the drawer with reasonable diligence, and recover the debt for which it was given, or he may retain the cheque and re- cover upon it without protest. — If tlie cheque be received from any other party than the drawer, tho holder may in like manner return it to such party, or he may recover from the 374 UEBCHAKT SHIPPING. parties whose names are upon it as in the case of an inland bill of exchange. — Poth. Ch. n. 229 ; 1 Sav. 238, 244 ; 2 lb. 166, 169, 715, 719, 745, 748 j Sto. P. N. n. 498. [III. 287.] 2354. In the absence of special provlsiond in this sec- tion, cheques are subject to the rules concerning inland bills of exchange in so far as their ap- plication is consistent with the usage of jtrade.T-1 Chit. & H. 24; Ros. B. 9 ; Sm. M. L« 206; 3 Kt. Com. 75, 77 j Sto. P. N. n. 488,489. [111.287.] TITLE SECOND. OF MERCHANT SHIPPING. \ *2355. The act of the im- ?erial parliament intituled : %« Merchant Shipping Act, 1854, contains the law con- cerning British ships in Lower Canada in all matters to which its provisions extend and are applicable therein. — I. S. 17, 18 V. c. 104. [III. 289.] CHAPTER FIRST. OF THE BEOISTBATION OF SHIPS. '''2356. British ships must be registered in the manner and according to the rules and forms prescribed in the act re- ferred to in the last preceding article. — ^Vessels under fifteen tons and vessels under thirty tons burthen, employed respec- tively in the particular naviga- tion or in the coasting trade specified by the said act, are not subject to be registered. — M. S. A. 1854, pt. 2, s. 17, 19, § 2, 3; Abbott, pt. 1, o. 2. fill. 289.] ^ 2357. All persons claiming property in any vessel of over fifteen tons burthen navigating the inland waters of this pro- vince, and not registered as a British ship, must cause their ownership Iq be registered and obtain a certificate of such |:e- gistry from the person autho- rized to grant tne same; the whole in the manner and ac- cording to the rules and forms prescribed in the act intituled : An act respecting the registra- tion of inland veaaele, — C. S. C. e. 41, s. 1-6.— [III. 289.] H<2358. The special rules concerning the measurement of vessels of the description mentioned in the last preced- ing article and concerning builders' certificates, change of masters and change in the names of such vessels, and the granting of certificates of ownership and indorsements thereof, and with respect also to the authority and duties of collectors and oth^ officers in relation thereto, are contained in the act last referred to. — lb. 8. 7-12, 19-21, 28. [III. 289.] MKBOHAKT 8HIPPIN0. S75 CHAPTER SECOND. or THE TBANSFXB OF BEaiSTBBBD VESSELS. *2359. The transfer of re- gistered British ships can be made only by a bill of sale executed in the presence of one or more witnesses, containing the recital specified in the act of the imperial parliament, in- tituled: The Merchant Shipping Aetf 1854, and entered in the book of registry of ownership in the manner in the said act provided. The rule? respect- ing the persons qualified to m^e and receive such trans- fers and respecting the registry and certificate of ownership and {>riority of right are contained n the said abt. — I. S. 17, 18 y. c. 104, 8. 81, n. 10, 11 ; Sm. M. L. 30, 193, 4 : Abbott, 57,68. [III. 289. j ^2360. The transfer between British subjects of registered colonial vessels navigating the inland waters of this province, not registered as British ships, can be made only by a bill of sale or other instrument in writing containing the recital specified in the act of the pro- vinoial parliament intituled : An act respecting the registra- tion of inland veaaeU, and enter- ed in the book of registry of ownership, in the manner in the said act provided. — C. S. 0. 0. 41, 8. 13, 16. [III. 289.] He 2361. Transfers of ships and vessels of the description specified in the last two pre- ceding articles, not made and registered in the manner there- in respectively prescribed, do not convey to the purchaser any title or interest in the ship or vessel intended to be sold. — I. S. 1. 0. s. 43 ; C. S. G. 1. o. ; Sm. M. L. 1. 0. p. 33 ; Abbott i I.e. [III. 291.] ^2362. No transfer of a frac- tional part of one of the sixty- four shares into which register- ed ships and vessels are by law divided can be made or regis- tered ; nor can any number of persons greater than thirty- two be, by reason of any sale, registered as owners of any such shh> or vessel at the same time. —I. S. s. 37, n. 1, 2j 0. S. C. B. 14,15. [III. 291.] *2363. When the persons registered as legal owners of the shares in an inland vessel do not exceed thirty-two in number, the equitable title of minors, heirs, legatees, or cre- ditors exceeding that number, duly represented by or holding from such owners, or any of them, is not affected. — C. S. C. 0. 41, s. 15 ; M. S. A. 1854, 8. 37, §2. [III. 291.] ^ 2364* If at any time the property of any owner of an in- land vessel cannot be reduced by division into any number of integral sixty-fourth shares, his right of ownership to the fractional parts is not affected by reason of their not having been registered. — 0. S. C. c. 41, 8. 14, §2. [III. 291.] ^ 2365. Any number of own- era named in the certificate of ownership being partners in a copartnership carrying on trade in any part of the queen's do- minions, may hold any inland vessel or any share thereof in the name of such partnership as joint owners thereof, without 37« snip, no other bill of\.^if orsaoo share thereof from S UII. 291.J ' ^- •^^- o*ararC*r?hr ''" pronertv ?« T *"° 'same sanfe o4 ? a?i?r^ ^^ *^« madebvthl'^ endorsement is ceuificate of ownership^ of MERCHANT SHlPPiNo. SefS^!;;L^«? S' aLrnSfrefivr vessel to the port toTv C *?® belongs, in cafe of 2eT ah? '^' at the time of Rn«i x^^^^^^^o if the cerTficata h« w '^' ^"^ the prio'ttv„?'?°!?'°8 ""ole c.ai£a:.J'rd'eSSLrSftt [III. 2930 ' ^ ^- [III. 293.J ■ ' * ^' ^' vessel, or of any share thereof s made only as a securUy for UEBGHANT SBIPPINa, 377 ftrtioulars »er which produces "'n thirty *rj of his c of reg- *J days \ of the aich she absence try; and produc- 'ay, the nado to roduces »• s. 18, peeified article >ng the not by ch the Joctive in the >J the 'ent is ate of § 2. officer 'bject le act 3n of ielay >rery ined, ■ship '* 3, of a eof, for ite- ade •in >in •ti- ;he person to whom such transfer IS made, or any person claiming under him by reason thereof, is ' not deemed to be the owner of such vessel or share, except in so far only as may be necessary for rendering the same avail- able, by sale or otherwise, for the payment of the money so secured. — lb. s. 23. [III. 293.1 f>2372. When a transfer of the des.^ription specified in the last preceding article is made and duly registered, the right or interest of tho person to whom it is made is not affected by any act of bankruptcy com- mitted by the person making it after the registry thereof, although the latter, at the time of becoming bankrupt, be the reputed owner of the vessel or share, and have the same in his possession or disposition. — lb. s. 24. [III. 293.] * 2373. Vessels built in this province may also be transfer- red in security for loans In the manner declared in the next following chapter. [III. 293.] CHAPTER THIRD. OF THE MORTGAGE AND HTPO- THEOATION OF VESSELS. * 2374. The rules concerning the hypothecation of vessels by contract of bottomry are con- tained in the title Of Bottomry and Eeepondentia, — The mort- gage and hypothecation of registered British ships are made according to the provi- jsions contained in the act of the imperial parliament, inti- tuled: TAe Merchant Shipping Act, 1854.— M. S. A. s. 66 — : [III. 293.] ^2375. Vessels built in this Erovince may be mortgaged, ypothecated, or transferred,, under the authority of the act intituled : An act for the encouragement of ahip-buUding, according to tho rules laid down in the following articles of this chapter. — C. S. C. o. 42. [III. 293.] ^ 2376. So soon as the keel of a vessel is laid within this pro- vince, the owner thereof may mortgage, hypothecate and grant a privilege or lien on the same, to any person oon- tractiiig to advance money or goods for the completion there- of, and such mortgage, hypo- thec and privilege attaches to the vessel during her construc- tion and afterwards, until it is removed by payment or other- wise. — lb. c. 42, s. 1. [III. 295.] ^ 2377. After the first grant no other mortgage, hypotheca- tion and privilege, of the de- scription specified in the last preceding article, can be grant- ed without the consent of the first advancer ; if any subse- quent grant be made without such consent it is void. — lb. o. 42, s. 1, § 2. [III. 295.] ^ 2378. The contracting par- ties may agree that the vessel whereof the keel is laid shall be the property of the party advancing money or goods for the completion thereof, and such agreement ipso facto transfers to the advancer, for security of his advances, not only the property of the por- tion of the vessel then con- 378 "EBOHAXT SHIPPixo. 8tructed, but of ther, pro\ridp#i *t v^ ^° ano- siatr^r «^^i- obtain the rp Z380. Every confrL* , /which by li^\ . '^ypotheo ""der the aut^y of IS*?" *^^ «"»e of X *^^ ?f before 2375 and of tho L? .?^*'°^« any confrL? ^®S*stratzon of specif ed must lepalsL*^^^'"^ -5" '^'»*«^ anotaryorinduCfw^^'^P^' deprive aL'*'^ ""^""^es* *2381. RegistrvoVVi ^^ "■« "fraoS^f i P"?""'" for i» graced bXT.?5per oT"' "««'»«»»r '"^"' ''"''" 3. The o,p„,„ „f ^^^^ MEROHANT SOIPPINa. 87» the vessel and rigging, and of repairing the latter shioe the last voyage j 4. The wages of the master and crew for the last voyage ; 5. The sums due for repair- ing and furnishing the ship on her last voyage, and for mer- chandise sold by the captain for the same purpose ; 6. Hypothecations upon the ship, according to the rules de- clared in the third chapter of this title and in the title Of Bottomry and Bespondentia ; 7. Premiums of insurance upon the ship for the last voy- age j 8. Damages due to freighters for not delivering the goods shipped by them, and in reim- bursement for injury caused to such goods by the fault of the master or crew. — If the ship sold have not yet made a voy- age, the seller, the workmen employed in building and com- pleting her, and the persons by whom ihe materials nave been furnished, are paid by prefer- ence to all creditors, except those for debts enumerated in paragraphs 1 and 2. — fif. L. 26 j L. 34, de reb. auct. ; L. 5 j L. 6, qui pot. in pig. j I Va. 66, 362, a. 16, 367, a. 17 j Poth. Ass. n. 192; 1 Em. 85, 86, 584 — , c. 12; 0. M. t. Des navires, a. 2, 3, & 1. 3, t. 4, a. 19; Abbott, 105, 631, 632-; 2 Bell, Com. 612 - ; C. Co. 191 ; 3 Par. 612 — ; Flan. 166-7-8, 179, 180, 318-320, 324; Sm.M. L. 324, 457 ; I. S. 17 & 18 V. c. 104, s. 191 ; Toub. pt. 2, p. 305 ; Guy. Privilege sur b4timents. [HI. 297.] 2384. A ship's-husband, or other agent, holding the ship's papers, has a lien upon them for advances and charges due for the management of the business of the ship. — 1 Bell, Com. 612; C. 1713, 1722. [Ill* 297.] 2386. The following debts are paid by privilege upon the cargo : 1. Costs of seizure and sale; 2. Wharfage; 3. Freight upon the goods, according to the rules declared in the title 0/ Affreightment, and what is due for the pas- sage of the owner ; 4. Loans upon respondentia f 6. Premiums of insurance upon the things insured. — C. 2463, 2382. [III. 297.] 2386. The following debts are paid by privilege upon the freight : 1. The cost of seizure and distribution ; 2. The wages of the master and of the seamen and others employed in the vessel ; 3. Loans on bottomry accord- ing to the rules contained in the title Of Bottomry and Res- pondentia. — C. 2382. [III. 297.] 2387. The order of privi- leges declared in the foregoing^ articles is without prejudice to claims for damage liy collision, or for average contributions, or for salvage, which are paid by privilege after the debts enu- merated as I, 2, in articles 2383 and 2385, and before or after other priviloged debts, according to the circumstances under which the claim has arisen, and the usage of trade. — 2 Ya. t. Des nauf rages, a. 24, 380 ».A.18Hpt.«,s.468. [ii^- "laoaixr shipfiso. that court IT&ZF'T '" Hercyna, 2Ji, «. ^tfi^^'^'jiy' OHAPTES riPXH Without «sTg4 ™^"««W'» crew.— Tiifl« -. *»mc or the IDS, 121! 128 1W i ®'«" '■ M«. sons.— ff. I,, f 5 ir^^l'^^ Pw- act.; Abbott, 55! 208.?? n- Com. 521 • 3 IT* 7 o4\ -^ •^«^^» 2*08 rV2f9V ^ '' '• unless thire is «„ « "'^^^«^"«' the contrary It? tr'T«'*° equal divisL on J? ""^ ''^ «« «ro„u,sta„oe, and tttScre Cod L „ft »<"?? «t"t court.1 59: Str.nt 9 « « <^Ieirac, a. l^u i>?t?Q?-lv^-C'o.220; 2393. The sie of a ship IfEROHANT SHIPPINO 881 ^ho hires "•om the yrith the « of an ^rd per- "o exer. 1 Bel], common onoern- "anage- opinion roverns, ment to fco an lestion )e em- ion in '^aila; ■o the ?htto ^ilitjr, to the scre- rt.~- OSS.; t. 5, a. J20; f.n. !ell, U. 09, 30, lip by lioitation 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 agree- ment to the contrary. — 1 Va. t. Proprii^taires, a. 6, 684 ; 0. Oo. 220; 3 Par. n. 623 ; Mol. b. 2, c. 1, § 2, 3, 308, 310 ; Sto. Part. § 437-439, & cit. ; Ersk. Inst. b. 3, t. 3, 5 66; 1 Bell, Com. 604. [III. 301.] 2394. The general powers of the master to bind the owner of the ship personally, and their mutual obligations toward each other are governed by the rules contained in the title Of Lease and Hire, and in the title Of Mandate, respectively. — C. 1606-, 1705, 1715, 1727 -. [III. 301. [ 2395* The master is per- sonally liable to third persons for all obligations contracted by him respecting the ship, unless by express terms the credit is given to the owners only. — ff. L. 1, § 17, De exer. act ; 1 Va. 569; 1 BeU, Com. 608, 611, 619, 622; 3 Kt. 161; Abbott, 97, 98; Mac. 104, 121, 128. [III. 301.] 2396. The master engages the crew for the ship. This he does nevertheless in concert with the owners or ship's- husband when they arc present at the place. — 0. M. 1. 2, t. 1, a. 6, 8, 1 Va. 384, 393 ; lb. 1. 3, t. 4, a. 1, 1 Va. 675 ; M. S. A. 1854, s. 149 ; C. Co. 233 ; Par. n. 629. [III. 301.] 2397. The master is bound to see that the ship is properly furnished and prepared for the voyage, but if the owners or ship's-husband be present at the pljice, the master cannot. without special authority, cause extraordinary repairs to be made upon the ship, or buy sails, cordage or provisions for the voyage, nor burrow money for that purpose ; sabject to the exception contained in article 2604.— C. 2396 ; 1 Va. 1. 2, 1. 1, a. 17, 18, p. 439, 440; Mao. 131-133 ; 1 Bell, Com. 624, 626. [III. 301.] 2398. He is bound to sail on the day appointed and to pursue his voyage without deviation or delay, subject to tho conditions contained in the title Of Affreightment.— C. 2410, 2411, 2426, 2444, 2447, 2448, & auth. cit.; C. Co. 238. [III. 301.1 2399. He may, during the voyage, in cases of necessily, borrow money or, if that be impossible, sell part of the cargo to repair tho ship or to supply her with provisions or other necessary things. — C. 2449, & auth. cit.; C. Co. 234; Par. n. 606; 1 Bell, 625, 528, 636 ; 3 Kt. 173 ; Abbott, 274, 275; Tud. 66. [III. 301.] 2400. He cannot sell the ship without special authority from the owners, except in case of inability to prosecute the voyage, and manifest and urgent necessity for the sale. — Abbott, 11, 12, 14; Mac. 148- 160 ; 1 Bell, 636 ; C. Co. 237 ; 3Kt. 174, 175; Tud. 67, 68; 1 Va. t. Capitaine, a. 19, 441, 443,444. [111.301.] ^2401. The master has all tne authority over the seamen and other persons in tho ship including the passengers, which is necessary for its safe navi- gation, management and pre- 982 ■orration, and for *i. 2402 L^^- fin.3oi.i <»»nger and wh«n 5 "»"»«ent ff- X.. 1, de leir rkJ^*^^P-— J88;C.Co:4fo^'^-l'2Va.; and of the ma«i«r J*? ^^'^^'s to the flhip an I « ^'*^ '®«P«<»t —The rules ^twT •''**»<'«• -^WWOBTlfBWT. ^ages and t^ir C5 *^«'' regulated b7 *»,«**'«« are contained refpeotLP^T^ioo^ act of the Wriwj. ^J« the , intituled fTAjIS^'fariiamen; ^fH pt. 3; 18 and 19 V n^' 25and26^.o.63.o^-^-»i> *2406 w ^'J ».5*PO' ^ages not exceed -seven w^ii-__ ®"' ingninety-ser!n'2°f.^^°««d- thirty-three S d'"^!:'' *«d seamen for ser^tllnV^ ^"^ registered in or hoi V^''^^ I'O^er Canada ^n^iT^ng to — The rules ^„„-l •'"'«»<'«• peace in *il^**J"®*^cesof the master's powers^^r""'"* *he cordon JlJi? banner and ac theatipnaTJo^fe^^^^^^^^ A^u^agt^^^^^^^^^^ of seamen for Tw *"® ^^aim after the eV^-!l'.^*S«« ^^til voyage.-!polh^*?*^*S ^^ *^« fill. 303.J ^' ^ar- 228. rill. 303. J ""' '^ ^«<^3, 2604. of mSws lkh?^°^*' ^««es keepinif of ^m '?P®°' to the and in ?ther matter '°?:^^°^« provided for ^hi ^ ''°* ^®'ein 'or, the engagement CHAPTER PiHST 2407 P """^«^ONs. »n°eof goods in a generZv^' fnliuT^' Contracts nf x. ~~^ ^a. ei8 • pAtjf^? , '^nip. AFFBEIOBTMEKT. 88S *J of tlieir '^*»"«e are ^y in the arliament «»* Shi^, "6 act of nada in. '^f^ng the ^- S. A. v.0.91. s.x.c; exceed- ars and to any J vessel ^ng to 9 reoo- ' of the Qd ac- ibrnis ituled : Covert/ "ertain fill. esnot Blaim until the 228. P- D. t. 2408i The contract may be loade by the owner or the mas- ter of the ship or by the ship's- hasband as agent of the former. —If made by the master, it binds himself, and also the owner of the ship ; nnless it is made at a place where the owner or ship's-husband is pre- sent, and they disavow the contract, in which case it binds the master only. — If the ship be hired by a party who sub- lots it, he is subject in con- tracts of affreightment to the same rules as if he were owner. — ff. L. 1, § 7, 15, de exer. act. ; Dom. 1. 1, 1. 16, s. 3, n. 2, 3 ; 0. M. 1. 3, t. 1, a. 2 ; 1 Va. 621,622; Abbott, 90-92, 172 j 3 Kt. 162 ; Sto. Ag. n. 35, n. 3, n. 116, 118; Sm. M. L. 299; Poth. L. Mar. n. 19, 46-48; C. Co. 232; 2 Bou.-Pat. 60, 54-56; 3 Par. 165; Mac. 164- 166; 1 Bell, Com. 504. [III. 303.1 2^9. The ship, with her equipments, and the freight are bound to the performance of the obligations of the lessor, and the cargo to the performance of the obligations of the lessee, or freighter. — Cleirac, a. 2, des Jug. d'Ol. n. 3, 86, a. 28, t. de la navig. des riv. 597 ; Va. 0. M. a. 11, 629, 630 ; Abbott, 204, 205; C. Co. a. 191, 280; Patterson vs. Davidson, 2 Bev. 77. [III. 305.] 2410. If before the depar- ture of the vessel there be a declaration of war or interdic- tion of trade with the country to which she is destined, or by reason of any other event of irresistible force, the voyage cannot be prosecuted, the con- tract is dissolved, without either party being liable in damages. — The expense of loading and unloading the cargo is borne by the freighter. — 1 Va. t. Ch. Part. a. 7, 626; Poth. L. Mar. n. 98, 99 ; C. Co. 276 ; Abbott, 426 ; 3 Kt. 248, 249 ; 2 Bou.- Pat. 288, 289. [III. 306.] 2411. If the port of desti- nation be closed, or the ship detained by irresistible force, for a time only, the contract subsists and the master and freighter are mutually bound to await the opening of the port and the liberation of the ship; without either of them being entitled to damages. The rule applies equally if the ob- struction arise during the voy- age ; and no increase of freight can be demanded. — 1 Va. t. Ch. Part. a. 8 ; Poth. L. Mar. 100; C. Co. 277; Abbott, 427, 428; 3Et. 249. [III. 306.] 2412. The freighter may nevertheless unload the goods during the detention of the ship for the causes stated in the last preceding article ; sub- ject to the obligation of reload- ing after the obstruction has ceased, or of indemnifying the lessor for the full freight ; un- less the goods are of a p erish- Oible nature and cannot be re- placed, in which case freight is due only to the place of the discharge. — 1 Va. t. Ch.-Part. a. 9, 628 ; Poth. L. Mar. n. 101, 102; C. Co. 278; Abbott, 428, 429 ; 3 Kt. 249 ; 3 Par. n. 714, p. 182. [III. 305.] 2413. Contracts of af- freightment and the obligations of the parties under them, are subject to the rules relating to I SM ii ill If! AFFSKIOHTMSXT. carriers contained in the title Of Leate and Sire, whnn ♦fci "e not inoonsistenr wUh ,«; Jjticles of this titlV'^Vll! CHAPTER SECOND. OF OHABTEB-PARTY K-r." "»■"■«'' and well labOM aa to the timeaSSl' "d ">!'""' P^ymentof freight ?^e wUhT ?"r »*■ «<"»"- f Va^t^^? r " '^ "^O- 623; pith i'^iS*- »• *• "8. •»<• the demCy ?e Zt Co. 274. £lli.307.j ' *^* 'ofachar?er!;SSyfc?r Jigns a bill of^ladU for S;*"' «31, 2j Poth T V' ^' ^Va- ,24l8. If the whole of ♦), ship be leased, but it i?f "'^ wholly loaded by the tV'* the master cannot receLn/if'' cargo without his conse„? • ' eceVed^hr^' ^T^^^^^^ to£?r^^/TilioTf CHAPTER THIRD. °^ '^iv ^'^:;:«^^N0« OF GOODS JN A OENEBAL SHIP deittatC 'ilAr "'. *"«'' liver thl ^l-r^t *«5« «»«e- CHAPrER POUKTH «r THE Bttl, 0» LiBKo. master or purser fin fi?^ *^® "ue, ine freighter also AFFBCIOUTMENT. tB^ GOODS the or ter [so keeps one> and sends ono to the consignee. — Besides tho names of the parties and of tho ship, it states the nature and quantity of the goods shipped, with their marks and lumbers in the margin, and the place of their delivery, the namo c£ the con- signee, the place of shipping and of the ship's destination, mih the rate and manner of payment of the freight, and priinage and average. — 1 Va. t. Connaissement, a. 1-3, p. 631-4; Poth. L. Mar. n. 17; C. Co. 281, 2; Abbott, 234; Sm.M.L.306. [III. 307.] 2421. When by the bill of lading the delivery of the goods is to be made to a person named or to his assigns, such person may transfer his right by en- dorsement and delivery of tho bill of lading, and the ownership of the goods and all rights and liabilities in respect thereof are held to pass thereby to the indorsoe; subject nevertheless to the rights of third persons. — C. Co. 281 ; 3 Par. 727 ; 2 Bou.-Pat. 313, 4; Abbott, 246, 247; Sm.M. L. 309; I. S. 19, 20 V. 0. Ill, s. 1. [III. 307.] 2'^22. The freighter or lessee upon the signing and delivery to him of tho bill of lading, is bound to return the receipts given by the master for tne goods shipped. The bill of lading, in the hands of a consignee or endorsee, is conclusive evidence against the party signing it; unless there is fraud, of which the holder is cognizant. — 1 Va. 638 ; C. Co. 283 ; Abbott, 238 ; Mac. 339,340; I. S. 19,20 V.o. 111. [III. 307.] CHAPTER FIFTH. or THE OBLIOATIOKS OF THK OWNER OB LESSOR AKO OF THE MASTER. 2423. The lessor is obliged to provide a vessel of the sti-> pulated burthen, tight and staunch, furnished with all tackle and apparel neoessary for the voyage, and with a com- petent master and a sufficient number of persons of skill and ability to navigate her, and so to keep her to the end of the voyage. The master is obliged to take on board a pilot, when by the law of the country one is required. — 0. M. t. Fret, a. 12, p. 653 ; Poth. L. Mar. n. 30 ; Abbott, 264, 257 ; 3 Kt. 203, 205, 206. [III. 309.] 2424. The master is oblig- ed to receive the goods, and carefully arrange and stow them in the ship, and to sign such bills of lading as may be required by the freighter or lessee, according to article 2420, upon receiving from him the receipts given for the goods.— Poth. L. Mar. n. 27, 28; Ab- bott, 234; Sm.M.L.312. [III. 309.1 ^ 242G, The goods must not be stowed on deck without the consent of the freighter, unless in a particular trade or in in- land or coasting voyages, where there is an established usage to that effect. If with- out such consent or usage the goods be so stowed and are lost by peril of the sea the master is personally liable. — 1 Va. t. Capitaine, a. 12, 397; C. Co. 229 ; Abbott, 366, 367, n. f. j 3 Kt. 206; Gaherty & Torrance M8 SJ,J 13 L. C. R. 401. fnx. tract, or/ff nn^ ^^v*^« oon- within a' ,eJo„l? S** ^"<»' cording to Smi! "*"*»' ^o- w»«er and m^ ?*****<'«» and her destination lu,,P''°*'««d to tion. If by fh^?"?' «»«^la- waater the fhin J't?'? ^^ the her departS?7i?.^*^yo- 509J ^'* ^^^> 210. fill. of the carg? and"'"^^"' °*^« wreck, or otherm: J** °*«« of the v'oyJg^X ^^^«*?»f on to event oMrresisLi? -fortuitous obliged to usXiilfT'^'^^ care of a Drud«nf i^®?°® ^nd tor for the^p?ese rt 'i^^^^^'^tra- ^^i'RUQinUEXT. ^'^'the^^S;?^ forthafprpo3e?fr"""'*°d ther ship, ititC ®"^*«® '^no-' 0. M. 13 t f ® ''ecessary.^ «51,652.Vt-h tV^'^^^- lEm. 428;129^9^^"•^S» Kt. 207 212 . P ^- 313,329; 3 309.1^ '^^^'^'^<>' 296. nil, ofie y^oyag^e 'aL''^^'"'''^ oomplianc^ iV ?h, f *"' ^°« regulations of the .'*'? '^"^ 'nasterisobCdtoH^r'"'' *^« payment of the froi^u, other oharirea d.,« f *^«'«nt and It-Poth i MaV" ''tP°«' 0' Abbott, 281. Sm M ?^' 36; fni.809.J ' ®"-M. L. 314.' deiivlrl?- i?' ^f"^' .*""«* be thetermsoftheSmnr'f^ith and according to the *^'°«' usage observed in thl """^ ««• delivery.-i vi ? w ?^''''« of «59;Poth.V*M*/;°t'a.l7, Co.306:3Po; „ rin"- ^^ '' C. n-727,p.20lf'sm &PrlS«* either by publLS T'^«nee, or other'^lt tVaf sTch^^ has reached- the «l««^ °'*'"«° ated in the bill oten^''^«1- oonsignee is bonni ? *' ^"°h the same withii"? *° 5®°«'^« hours after^nott/lJSth?'^' after such oariro on ? ®''®" placed on the wh«rf •*°°'' *» 'i«i and charges'of th^' *^« sisting of c«r^;-^*'?'*«8 eon- "lerchandL is r«f I ^'''^' of act intituled .7«^^'«d ^^ '^u fill. 311.J ®' ^' ^- °- 60- ". i. "n^otll^ble^'forirrd"'^*^' occasioned bv fl °' damage incapacity of „ ^® ^*"^t or pilot; acting fn S ^"^"^^^ f hip within^aiy fe'V^* thee.plo,.,e/,tf-4wl^^^^^ AFrBEIQHTMENT. S8T must be '"y With » lading, > law or placo of »t* a. 17 40; C. 1.315; ft. 216. V ves- de«ti- lK)wer there- 'ignee, 'ttents cargo OsigQ. • such 5ceivo -four bere- Q as t the oon- I. 0. Is compulsory by law. — I. S. 17 & 18 V. c. 104, R. 388; Bin, M. L. 319. [III. 311.] )K2439i The owner of a Bua- going ship is not liable for f^o loss or damage, occurring with- out his actual fault or privity : 1. Of anything whatsoever on board any such ship, by reason of fire, or 2. Of any gold, silver, dia- monds, watcnes. Jewels or precious stones on board such «hip, by reason of any robbery, emoezzlement, making away with, or secreting of the name ; unless the owner or shipper thereof has, at the time of .^hipping the same, inserted in his bill of lading, or otherwise declared in writing, to the master or owner of such ship, the true nature or value of such articles. — I. S. 17 & 18 V. 0. 104, 8. 603 ; Gaherty & Torrance et al., 13 L. C. R. 401. fill. 311.] * 2434b When any damage 01 loss is caused to anything on board a sea-going ship, without the fault or privity of the owner, he is not answerable in damages to an extent beyond the value of the ship, and the freight due, or to grow due, during the voyage j provided that such value shall not be taken to be less than fifteen pounds sterling per registered ton, and that the owner shall be liable for every such loss and damage arising on distinct occasions, to the same extent as if no other loss or damage had arisen.— I. S. 17 & 18 V. <5. 104, 8. 604, 506 J C. Co. 216 ; 1 Va. t. Propri^taires, a. 2, 668. till. 311.] 29 2436. The freight men- tion«(l in the last preceding article h, for the purposes thereof, deemed to inolude the value of the carriage of any goods belonging to the owners of the ship, paflj^agc-money, and the hire due or to grow due under any contract; except only such hire, in the case of a ship hired for time, as may not begin to bo earned until tho expiration of six months after the loss or damage. — I. S. 17 A 18 V. c. 104, 8. 606. [III. 311.1 2436* The provisions con- tained in articles 2433 and 2434 do not apply to any master or seaman, being also owner or Eart owner of the ship to which e belongs, to take away or lessen the liability to which he is subject in his capacity of master or seaman. — I. S. 17 & 18 V. 0. 104, s. 616 } 0. Co. 216. [III. 311.] CHAPTER SIXTH. OF THE OBLIQATIONS OF THR XjESSEEs SECTION I. General provisions. 84:37. The principal obli- gations of the lessee are : 1. To load the ship with the sti- pulated cargo, and within the time specified by the contract, or, if no timo be specified, with- in a reasonable delay ; 2. To pay the freight with primage and average, and demurrage when any is due. — 1 Va. t. Fret, a. 3, 642 ; Poth. L. Mar. n. 66; C. Co. 288; 2 Bou.-Pat 388 the ship Zv h„ ' !?■ "'i'* detention ?r forfeita™''"''*^'' ]» 329. tin. s":/- ''• ^8H »• load thfrtf* j!i/r'' <■»« "o J^oth. L. Mar. n. 73 74?? on' C. Co 9fi« 001 !:'.*' '7-80; 424 « ' ^S} ' Abbott, 311 thevoyaffe hvthlf./^^^^S tXII.313i ' ' ''• ^'"•^W. to fu*t h a^reL'J"'"^' *8"« fail to do so in? .t'"^?' »»<• necessity re?irnll'^/'"l' "^ Josseo if Sed '"'""" whole froiX*°.\!° .PV the latter oa?e fa,'*l, i°S'' " ""o «"oh aCu„t^*Ve1v "°'' "' ar7-'&"*"'^";^ 21^;3Kt.S:fAi.^j^3^o«, AFFBEIGHTMEA'T. SECTlOJf II Z442. Freight is *!.» of a ship, no1rcarrJ-*^^'"'»«« Pfac3 of tffielZff '° *^« the absence of exr.r«f"*l?- ^^ tion it is not due Cm tt^""^" riage of the e-on^- • ***® ^'ar- «pecifiedintrs?ec?on'lSr ^- Mar. n. 67 <5« . n V^ «*^°*"- . *^®« The amount nVp-^: .. IS regulated by th^ » "®'^^' in the chart«r%.: * ^SJ'eemeiit ladinff «?„ "P*'*^' or bill of who{?;hipTaT.rr ^^' *h« it, or at a Cd VJ*^'° P*""' of Package^fo'therwLrS^'^r regulated bv TJrli " "«* rateisestim«^J^'®®™®°t, the of tbiie!^:**'^pX-tw^ cordinff to fhZ ,f ®"ormed, ac- 32|. tnr.ll|.^- ^f- ^- 323, freigh**i.o?'.% '."■"""t of lon/er or ?W.!"i°'' ""y «■« ment be to n»^ *'"' "Coe- hy the moXLlri""" »"»> othe^lfo^'sfetJ^^^r commencement of fin I °® ?»ds„contiZs"/.^„,7«|;. 'ioaod by thf JLirVX AFFREIGHTMENT. 389 OG, average ," the ro- f^^r the lease "•ying goods ^age to the nation. In 'ssstipula. "i the car- completely ' the cases on— Poth. Co. 286; 2 ; Abbott, 306, 384: 3^Kt. 219! oi''freight greement or bill of a for the n part of 3r ton, or If not ent, the he value led, ac- f trade. Poth. L. 3, 286; L. 323, mt of by the tion of a^^ree- n sum r other ^ case if not tn the yage, dur- g all occa- ' the master or lessor j subject never- theless to the exception con- tained in the next following article. — 0. M. t. 3, a. 9, 1 Va. 649 J C. Co. 275 J 3 Par. 706 j Abbott, 313; Sm. M. L. 325. [III. 315.] 2445. If the ship be de- tained by the order ot a ::,ove- reign power, freight payable by the time does not j;ontiuue to run during such detention. The wages of the seamen and the expense of their mainten- ance are in such case a subject of general average. — 1 Va. Fret, a. 16, p. 657 ; Poth. L. Mar. n. 85 J 1 Em. 539, 624 ; 1 Beawes, 160, 1 ; Abbott, 380 ; Sm. M. L. 331 ; 3 Kt. 237, 8 j C. Co. 300, 400. [III. 315.] 2446. The master may discharge, at the place of loading, goods found in his ship, if they have not been declared, or he may recover freight upon them, at the usual rate paid, at the place of load- ing, for goods of a like nature. —1 Va. t. Fret, a. 7, p. 647 ; Poth. L. Mar. 9 ; C. Co. 292 ; 2 Bou.-Pat. 372, 3j Mac. 341. [III. 315.] 2447. If the ship be obliged to return with her cargo, by reason of a prohibition of trade occurring, during the voyage, with the country to which she is bound, freight is due upon the outward voyage only, al- though a return cargo has been stipulated. — 1 Va. Fret, 656 J Poth. L. Mar. n. 69 j C. Co. 299 J Abbott, 323 j 3 Kt. 222. [111.315.] 2448. If; without any pre- vious fault of the master or lessor, it becomes necessary to repair the ship in the course of the voyage, the freighter is obliged either to suffer the necessary delay or to pay the whole freight. In case the ship cannot be repaired, the master is obliged to engage another; if he be unable to do so, freight is due only in proportion to the pv\rt of the voyage which is ac- co nplished. — 0. M. 1. 3, t. 3, a. 11 ; 1 Va. 651, 2 ; Poth. L. Mar. n.68; C. Co. 296, 7j Abbott, 276-8, 330. [III. 315.] 2449. Freight is due upon the goods which the master has of necessity sold to repair the ship, or to supply it with pro- visions and other urgent neces- saries, 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. — 1 Va. t. Fret, a. 14, p. 655 ; Poth. L. Mar. n. 34, 71, 72; 0. W. a. 35, 69 ; J. Ol^ron, 22 ; C. Co. 298 ; Abbott, 322; Sm. M. L. 323, 4; 3 Kt. 214, 222. [III. 315.] 2450. Freight is payable upon the goods cast overboard for the preservation of the ship and of the remainder of the cargo, and the value of such goods is to be paid to the owner of them by contribution on general average. — 1 Va. t. Fret, a. 13, p. 654 ; Poth. L. Mar. 70 , C. Co. 301 ; Abbott, 322 ; Sm M. L. 323. [III. 315.] 2451. Freight is not due upon goods lost by shipwreck, taken by pirates, or captured by a public enemy, or which 390 AFFBEIQHTMEKT. without the fault of the freighter have wholly perished by a for- tuitous event, otherwise than as mentioned in the last pre- ' ceding 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 con- trary. — 1 Va. t. Fret, a. 18, 660, 661 ; Guidon, a. 2, c. 6 ; J. Oldron, a. 9, n. 9 j Poth. L. Mar. n. 63 J 3 Par. n. 716 ; Abbott, 307; Sm. M. L. 323 ; 3 Kt. 219, 223 J C. Co. 303. [III. 317.] 2452. If the goods be re- captured or saved from the shipwreck, freight is due to the place of capture or wreck, and if they be afterwards conveyed by the master to their place of destination, the whole freight is due, subject to salvage. — 1 Va. a. 19, 662 ; Poth. L. Mar. n. 67 ; C. Co. 303 ; Abbott, 331, 359 J Sm. M. L. 324 j 3 Kt. 223. fill. 317.] 24:53. The master cannot Keep the goods in his ship in default of payment of the freight j but, at the time of unloading, 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 his Eossession, or the possession of is agent, for the payment of his freight, with primage and accustomed average, as ex- pressed in the bill of lading. — 1 Va. t. Fret, a. 23, 24 ; Poth. L. Mar. n. 89, 90 j 0. W. a. 57 j C. Co. 306 ; 2 Bou.-Pat. 479-80 ; Abbott, 282 J 3 Kt. 220, 221; Brewster et al. vs. Hooker et al. 1 L. C. J. 90. [III. 317.] 2454. The consignee, or other authorized person who receives the goods, is bound to grant a receipt for them to the master ; and the acceptance of goods, under a bill of lading by which delivery is to be made to the consignee or his assigns, he or they paying freight, renders the person so receiving them liable for the freight due upon them, unless the person is the known agent of the shipper. — 1 Va. t. Conaisse- ment, a. 6, 636 j C. Co. 285; Abbott, 319, 320; 3 Kt. 221, 222. [III. 317.] 2455. Goods which are di- minished in value or damaged by reason of intrinsffo defect in them, or by a fortuitous event, cannot be abandoned for freight. — But if without any fault of the freighter, casks cdntaining wine, oil, honey, molasses, or other like things, have leaked so much that they are nearly or alto- gether empty, the casks may be abandoned in satisfaction of the freight.—! Va. a. 25, 26, p. 669, 672 ; Poth. L. Mar. n. 59, 60; Cons. d. M. c. 234; Guidon, c. 7, a. 11 ; C. Co. 310; 2 Bou.-Pat. 492-498; 2 Delv. 293; Abbott, 325-329; Bell, Com. 570; 3 Kt. 224, 225; Mac. 399 -. [III. 317.] 2456. The obligation to pay primage and average, which are mentioned in the bill of lading, is subject to the same rules as the liability for freight ; the primage is pay- able to the master in his own right, unless there is a stipula- tion to the contrary. — Poth. L. Mar. n. 57 ; Abbott, 305 ; 3 Kt. 232, n. a. [III. 317.] OARRIAaB OF PASSENGERS, ETC. 391 person who > II bound to tnem to the cceptanco of ofladingby ■ «>. be made ' nis assigns, ng freilht so receiving {r«ight due '^e person 5nt of the •^ "onaisse- 3 Kt. 221, lioh are di- r damaged »^io defect fortuitous abandoned f without peighter, ^me, oil, 5ther liJto so much ' or alto- isks may faction of '" 25, 26, Mar. n. 0. 234; Co. 310; 2 Delr. '; Bell, 5; Mac. tion to verage, in the k to the lity for 8 pay- is own ipula- )th. L. 3 Kt. 2457* Demurrage is the compensation to be paid by the freighter for the detention of the ship beyond the time agreed upon, or allowed by usage, for loading and dis- charging.— Abbott, 220, 221, 223; Mac. 445; 3 Et. 303. [III. 317.] 2458* Any person who re- ceives the goods under a bill of lading importing an obligation to pay demurrage, is liable for such demurrage as may be- come due on the discharge of the goods ; subject to the rules declared in article 2454. — Ab- bott, 220-2; Mac. 446, 447. [III. 319.] 2459* Demurrage under express contract is duo for all delays which are not caused by the shipowner or his agents. It does not begin to be com- puted until the goods are ready to be discharged, after which, if the stipulated time have ex- pired, a further reasonable time must be allowed for their dis- charge.— Abbott, 224,225, 227, 231, 232 ; Mac. 445, 446, 451-3 ; 3 Kt. 203; Sm. M. L. 302. [III. 319.1 2460. If the time, condi- tions, and rate of demurrage be not agreed upon, they are re- gulated by the law and usage of the port where the claim arises. — Abbott, 227. [III. 319.] TITLE FOURTH. OF THE CARRIAGE OF PASSENGERS IN MERCHANT VESSELS. 2461. Contracts for the carriage of passengers in mer- chant vessels are subject to the provisions contained in the title Of Affreightment, in so far as they can be made to apply, and also to the rules contained in the title Of Lease and Hire, relating to the carriage of pas- sengers. [III. 319.J 2462. The special rules concerning the conveyance of passengers by sea in passenger ships on voyages from the United Kingdom to this pro- vince, or on Colonial voyages, or from this province to the United Kingdom in any ship. are contained in the acts of the imperial parliament, intituled respectively : The Paaaengera Act, 1855, and The Passengers Act Amendment Act, 1863, and in the lawful orders and regu- lations made by competent au- thority under the same. — I. S. 18, 19 V. c. 119 ; 26, 27 V. c. 51. — Order of H. M. in Council, 7th Jan. 1864. [III. 319.] *2463. Special rules con- cerning vessels which arrive in the port of Quebec or in the port of Montreal from any port in the United Kingdom or of any other part of Europe with passengers or emigrants there- 3«2 INSURANCE. from, and rules relating to the rights and duties of the mas- ters of such vessels, and for the protection of such passengers and emigrants are contained in an act intituled : An act re- tpecting emigrants and quaran- tine.— C. S. C. c. 40. [III. 319.] 2464* Passengers while in the vessel are entitled to fitting accommodation and food, ac- cording to agreement and to the special laws referred to in the foregoing articles, or, if there be no agreement and such laws do not apply, accord- ing to usage and the condition of the parties. [III. 319.] 2465* The owner or isaster has a lien or privilege upon the haggage and other property of the passengers on board the vessel for the amount of the passage money. — Mac. 294 ; Wolf and Summers, 2 Camp. 631. [III. 319.] 2466. The passenger ia subject to the autnority of the master as declared in the title Of Merchant Shipping. — C. 2361. [III. 319.] *2467. Damages for per- sonal injuries suffered by pas- sengers are subject to the spe cial rules contained in articles 2434-6. [III. 319.] ^ TITLE FIFTH. OF INSURANCE. ♦ CHAPTER FIRST. GENERAL PROVISIONS. SECTION I. Of the nature and form of the contract. 2468* Insurance is a con- tract whereby one party, called the insurer or underwriter, un- dertakes for a valuable ' con- sideration, to indemnify the other, called the insured, or his representatives, against loss or liability from certain risks or perils to which the object of the insurance may be exposed, or from the happening of a certain event. — Poth. Ass. 2j 1 Bell, Com. n. 634, p. 609 ; 1 Em. 2', 2 Par. 588 j 3 lb. n. 766 j 1 Arn. 1, § 1 ; 3 Kt. 252 j 1 Alau. n. 108 ; 1 Ph. s. 1, p. 1; Marsh, p. 1. [III. 321.] 2469* The consideration or price which the insured obliges himself to pay for the insu- rance, is called the premium. It does not belong to the in- surer until the risk begins, whether he has received it or not. — Poth. Ass. 179 J 1 Em. 61 J 2 Va. 0. 1681, p. 93 j 2 Par. 691, p. 467 ; Marsh. 648 j 1 Ph. 79 : C. Co. '349. [III. 321.] 2470i 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 ^ INSURANCE. 393 Jroriaaster ro upon the >ropert7 of «>oard tho nt of the tfac. 294. 2 Camp. senger ig »ty of the 1 the title ^^9' — C. for per- by pas- the spe > articles I 1. 766: 252; 1 f ''• tion or bligea insu* Qium. le in. >gins, it or Em. Par. I Ph. •J 36 is act; hj but r a' ing on the business of insurers; subject to the exception con- tained in the next following article. — Smith vs. Irvine, 1 Bev. 47 J 2 Par. n. 688, p. 443-4; 1 Dal. D. Assurance Ter. n. 19, 20, 22; Boud. n. 70, 77,384; C. Co. 633. [III. 321.] 2471« Mutual insurance is not commercial. It is governed by special statutes, and by the general rules contained in this title, in so far as they are ap- plicable and not inconsistent with such statutes. — C. S. L. C. c. 68; C. 2470. [III. 321.] 2472. All persons capable of contracting may insure ob- jects in which they have an interest and which are subject to risk.— C. 2468; Poth. Ass. 10, 46 ; 2 Par. 592 ; Ph. 19, 26, c. 3, s.l. [III. 321.] 24b73i Incorporeal things as well as corporeal, and also human life and health, may be the object of insurance. — Poth. Ass. 26 ; 2 Par. 589, 590 ; Marsh. 208; C. 2470. [III. 321.] 2^74* A person has an in- surable interest in the object insured whenever he may suffer direct and immediate loss by the destruction or injury of it. —1 Arn. 281 ; 1 Ph. 27. [III. 321.] 2475. The interest insured must exist at the time of the loss unless the policy contains the stipulation of lost or not lost. — The rule is subject to certain exceptions in life insur- ance.— Arn. 285; 2 Ph. 27. [III. 321.] 2476i Insurance may be made against all losses by in- evitable accident, or irresistible force, or by events over which the insured has no control; subject to the general rules relating to illegal and immoral contracts. — 2 Par. 591 ; Marsh. 1 ; Ph. 167, c. 10 ; C. 1068 ; Alau. c. 9, p. 299 -. [III. 321.1 2477. The insurer may effect a re-insurance, and the insured may insure the solvency of the first insurer. — 2 Va. 0. M. a. 20, p. 65 ; Guidon, c. 2, 19, 20; 3 Par. n. 767; Ang. Ins. Pr. View, § 24, 25, 83, 84; Pars. M. L. 514 ; Marsh. 137 -. [III. 323.] 2478. In case of loss the insured must, with reasonable diligence, give notice thereof to the insurer; and he must conform to such special re- quirements as may be contain- ed in the policy with respect to notice and preliminary proof of his claim, unless they are waived by the insurer. — If it be impossible for the insured 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. — Scott vs Phoenix Ass. Co. St. Rep. 152, 356; Dill vs. Quebec Ass. Co. 1 Rev. 113. [III. 323.] 2479. Insurance is divided, with respect to its objects and the nature of the risks, into three principal kinds : 1. Marine insurance ; 2. Fire insurance ; 3. Life insurance. [III. 323.] 2480. Tho contract of in- surance is usually witnessed by an instrument called a policy of insurance. — The policy either declares the 394 INSURAKCR. I! value of the thing insured and is then '^mlled a valued policy, or it contains no de- claration of value, and is then called an open policy. — Wager or gaming policies, in the ob- ject of which tho insured has no insurable interest, are illegal. — Poth. Ass. n. 99 — ; Em. o. 1, s. 1; 1 Ph. 4, 5, 305, 320, 0. 14, s. 1, 2, p. 2, 3, n. b. ; I. S. 19 Geo. 2, c. 37 ; 2 Par. n. 692, 593, 3^, 594, p. 81, n. 693 -, c. 3 ; 1 Am. 12, 13, n. 14, 16; C. Co. 332, 339. [III. 323.] 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. — The Montreal Assurance Co. and McGillivray, 9 L. C. R. 488; Poth. Ass. 99; Marsh. 290, n. ; Pars. M. L. 492, n. 1 ; 1 Ph. 5. [III. 323.] ^ 2482. Policies of insurance may be transferred by indorse- ment and delivery, or by de- livery alone, subject to the conditions contained in them. — But marine policies and fire policies can ^ transferred only to persons hdVing an insurable interest in the object of the policy. — 2 Va. 45 ; Am. 211 ; 1 Ph. 11, 12; 2 lb. 17,' 18; Marsh. 800, 893. [III. 323.] 2483. In the absence of any consent or privity on the part of the insurer, the simple transfer of the thing insured does not transfer the policy. — The insurarce is thereby ter- minated, subject to the pro- visions contained in article 2576. — C. 2475; Loclaire vs. Orasper, 5 L. C. B. 487; 3 Kt. 261, n. 2. [III. 323.] 2484. The announcements and clauses which are essential or usual in policies of insur- ance, are declared in articles hereinafter contained relating respectively to the different kinds of insurance. [III. 323.] SECTION n. Of rcjwesentaUon and con- cealment. 2485. The insured is oblig- ed to represent to the insurer 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 pre- mium.— 2 Par. n. 693, 5«> ; C. 2486, 2487. [III. 325.] 2486i 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 ho obliged to de- clare facts covered by warranty express or implied, except in answer to inquiries made by the insurer.— C. 2487 ; 3 Kt. 285, 286 ; 1 Ph. 88, 89. [III. .S25.1 * 2487. Misrepresentation or concealment either by error or design, of a fact of a nature to diminish the appreciation of the risk or change the object of it, is a cause of nullity. The contract may in such case be annulled although the loss aas not in any degree arisen from the fact misrepresented or con- cealed. — Poth. Ass. c. 3 s. 3, 194-109; 1 Alau.n.202,p.371, 380, 381; 2, lb., p. 414; Marsh. IKSUBANCE. 89»- 487; 3 323.J mcements 5 essential of insur- > articles relating diflforent II. 323.J "^ COW- IS oblig- insurer fy fact ire and which ftaking of pre- 5^• C. is not facts which ©rand ©d to to de- ranty pfc in [e by 3Kt. [III. >nor >r or ■ e to 1 of Jtof The be aas 'om on- n, 3h. 452, 453, 479} 3 Kt. 283; 1 Ph. 80, 81, 103 J 1 Am. 544. n. 194; 2 L. C. R. Gasej and Goldsmith, 202; 4 lb. 107; 1 Dal. D. Assurances ter. n. 85 ; C. Co. 348; 1 Bell, Com. 532 .-, n. 558; Bond. c. 1, s. 4, § 1. [III. 325.] 2488. Fraudulent misre- presentation or concealment on tlie part either of the insurer or of the insured is in all cases a cause of nullity of the con- tract in favor of the innocent party.— C. 2487. [III. 325.] 2489. The obligation of the insured with respect to repre- sentation is satisfied when the fact is substantially as repre- sented and there is no material concealment. — C. 2487. fill. 325.] SECTION III. Of warranties. 2490. Warranties and con- ditions are a part of the con- tract and must be true if affirm- ative, and if promissory must be complied with; otherwise the contract may be annulled notwithstanding the good faith of the insured. — They are either express or implied. — 3 Kt. 288 ; 1 Ph. 117, 127, c. 8, 9 ; 1 Am. p. 625, § 223, p. 689, c. 4 ; Scott vs. Quebec Fire Ass. Co. and Scott vs. Phoenis Ass. Co., St. Rep. 147, 354 ; 1 Bell, Com. 629, 530, n. 1. [III. 325.] 2491. An express warranty is a stipulation or condition expressed in the policy, or so referred to in it as to make part of the policy. — Implied war- ranties will be designated in the following chapters relating^ to different kinds of insurance. —Marsh. 353 ; 3 Kt. 287-290 ; Am. c. 3, 625, 629, 630, 689 ; 1 Ph. 112, 124, 127. [III. 325.1 CHAPTER SECOND. OF MABINE INSUBAXCE. SECTION I General provis'ions 2492. The policy of marine insurance contains : — The name of the insured or of his agent; — A description of the object insured, of the voyage, of tho commencement and termination of the risk, and of the perils insured against ; — The name of the ship and master, except when the insurance is on a ship or ships generally ; — The pre- mium ; — The amount insured ; — The subscription of the in- surer with its date. — It also contains such other clauses and announcements as the parties may agree upon. — 2 Va. 0. M. h. t. a. 3, 31 ; 1 Em. c, 2, s. 7, p. 52 ; Poth. Ass. 104 ; 1 Bell, Com. n. 542, 516 ; 1 Am. c. 2^ s. 3, p. 19, § 18 — ; 1 Alau. n. 209—, c. 14; Marsh. 313 — ; C. Co. 332. [III. 325.] 2493. Insurance may b& made on ships, on goods, on freight, on bottomry and res- pondentia loans, on profits and commissions, on premiums of insurance, and on all other things appreciable in money and exposed to the risks of navigation, with the exception of seamen's wages, upon which insurance cannot be legally made, and subject to the gen- r Z99 IKSUBANOB. •ral rules relating to unlawful and immoral contracts. — 2 Va. 0. M. h. t. art. 7 ; a. 15, 16 ; Poth. Ass. c. 1, s. 2, a. 1> § 2; 3 Kt. 270-2 ; 1 Ph. 64-74, c. 6 ; Am. 0. 11, 249 ; Marsh, b. 1, o. 3, 51, 93 -- J C. Co. 334. [III. 327.} 24:94> Insurance may be made for any kind of voyage or transport by sea, river or canal navigation and either for the whole voyage or for a limited time. — C. Co. 335. [III. 327.] 2495. The risk of loss or damage of the thing insured by perils of the sea is essential to the contract of marine insur- ance. — The risks usually speci- fied in the policy are tempest and shipwreck, stranding, colli- sion, unavoidable change of the ship's course, or of her voyage, or of the ship itself, fire, jetti- son, plunder, piracy, capture, reprisal and other casualties of war, detention by order of a sovereign power, barratry of the master and mariners, and generally all other perils and chances of navigation by which loss or damage may arise. — The parties may limit or extend the risks by special agreement. —2 Va. 1. c. a. 26, p. 74 j Poth. Ass. 1. c. § 2, n. 49 — ; 1 Bell, Com. 518; 1 Am. 17, 80 j 3 Par. n. 770 -j C. Co. 350. [III. 327.] 2496. If the time of the commencement and termina- tion of the risk be not specified in the policy, it is regulated according to article 2598. [III. 327.] 24b97. Marine policies in «ases of doubtful meaning are construed by the established and known usage of the trade to which the policy relates ; such usage is held to be a part of the policy when it is not otherwise expvessly provided. —1 Am. 71. [III. 327.] 2498. An insurance made after the loss or the arrival of the object of it, is null, if, at the time of insuring, the insured had a knowledge of 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. — 3 Va. Q. M. h. t. a. 38, 93 ; Poth. Ass. 46, 47 ; 1 Am. 585; C. Co. 365; 2 Duer, 433 ; 0. M. a. 39 ; C. Go. 366. '"III. 327.] SECTION II. Of the obligations of the insured. 2499. The principal obli- gations of the insured relate : — To the premium; — To repre- sentation, and concealment; — To warranties and conditions ; — To abandonment, which is treated in the fifth section. [III. 329.] § 1. Of the premium. 2500* The insured is ob- liged to pay the amount or rate of premium agreed upon, ac- cording to the terms of the con- tract. — If the time of payment be not specified, it is payable without delay. — 2 Va. h. t. a. 6, p. 47; Poth. Ass. 81 ; 3 Par. 789; 1 Ph. 76. [111.329.] 2501. In the following cases the premium is not due, and if -frr" IKSURAKOE. established >' tho trade cy relates; to bo a part ■* " IS not anco made arrival of "» if, at the »e insured the loss, or arrival.-, presumed jght have 'he Usual al rate of • Q. M. h. '•46,47: 365- 2 ^• C. Co. >al obli- Blate ; ' ropre- nent;— tiitions; tich is section. m. is ob- or rate n, ac- e con- sent yable • t. a. !Par. cases ndif SOT it have been paid it may be re- covered back, the contract being void; 1. When the risk insured against does not occur, either by reason of the entire break- ing up of the voyage before the departure of the ship, or for other causes, even those arising without fraud from the act of the insured ; 2. When there is a want of insurable interest, or any other 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 his indem- nification, unless the policy is illegal, or rendered null by fraud, misrepresentation 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. — 2 Va. h. t. a. 37, 38, p. 93, a. 41, p. 96 ; Poth. Ass. 179, 180, 182 j 1 Em. 12 J 2Ib. c. 16,8. 1, p. 187; 2 Am. 0.11, 1269, §424-; IPh. 503, 514; 2 lb. 353 ; Marsh. 464, 662, 663; 1 Alau. n. 179; Par. n. 872 ; 4Bou.-Pat. 1, 3, 114; 1 Arn. 349; C. Co. 349. [III.329.] 2502< The preceding ar- ticle applies when the risk oc- curs for part only of the value insured, for the non-payment or return of a proportional part of the premium, according to circumstances and the discre- tion of the court. — Poth. Ass. 183 ; C. 2501. [III. 329.] § 2. Of representation and concealment: 2503* The rules concern- ing representation, and . ; effect of misrepresentation or concealment are declared in chapter one, section two. — C. 2485-2489. [III. 329.] § 3. Of warranties, 2504. The general rules relating to warranties are con- tained in chapter one, section three. — C. 2490, 2491. [III. 329.1 ^2o05. It is an implied warranty in every contract of marine insurance that the ship shall be sea-worthy at the time of sailing. She is sea- worthy when she is in a fit state, as to repairs, equipments, crew, and in all other respects, to under- take the voyage. — 3 Par. n. 866, p. 438 - ; 1 Arn. 689 ; 3 Kt. 287, 288; 1 Ph. 112, 113; 1 Bell, Com. 530 - . [III. 329.] 2506. In insurance for a ship-owner it is an implied warranty that the ship shall be properly documented and con- ducted according to the laws and treaties of the country to which she belongs, and to the law of nations. — 3 Par. n. 866, p. 437 ; Marsh. 177 ; 1 Ph. 113, 119 ; 1 Arn. s. 4, a. 1, 727 — j C. Co. 352-3; 1 Bell, Com. 530 " . [III. 331.] SECTION III. Of the obligations of the insurer 2507. The principal obli- gation of the insurer is to pay to the insured all losces suffer- ed by him by reason of any of the risks insured against, ac- cording to the terms of tae con- tract. — His liability is subject 398 INBVBANOE. •f to the rules contained in the foregoing section and to the rules and conditions herein* after declared. — Foth. Ass. 115, 117, 118; 3 Par. o. 3, s. 4, 365: C. Co. 350. [III. 331 _ 2o08. Tho insurer is not liable for losses suffered after a deviation or change of the risk made without his consent, by changing, contrary to the established usage, the ship's course or the voyage, or the ship itself, by the order of the insured, unless the deviation or change is of necessity, or for the purpose of saving human life. — The insurer is neverthe- less entitled to the premium if the risk has commenced. — 2 Va. 0. M. h. t. a. 27, p. 77, a. 36, p. 87 J Poth. ^ss. 61, 68 - j 1 Em. 363, 418, 419, c. 2, s. 2, 15, 16, 2 lb. 0. 13, s. 16, p. 98 j 1 Am. c. 15, p. 393 - j 2 lb. c. 1, 8. 3j 3 Kt. 314, — ; 1 Ph. c. 12, p. 179, c. 13, p. 224 J 3 Par. n. 66, p. 867 j C. Co. 351, 352, 364. [III. 331.] 2509. The insurer is not liable for loss or damage ari- sing from intrinsic defect in the thing, or caused by the culpa- ble act or gross negligence of the insured. — 2 Va. h. t. a. 29, p. 80 J Poth. Ass. 66; 3 Kt. 306, 397, n. e.; C. Co. 352. [III. 331.] 2510i The insurer is not liable for loss by barratry of the master or mariners unless there is an agreement to the contrary. — 2 Va. h. t. a. 28, p. 79; Marsh. 338; Am. 17, 31; C. Co. 353. [III. 331.] 2511. Barratry is any act of wilful misconduct by the master or mariners whereby loss is caused to the owners or freighters. — 2 Am. 843, 845, 864 ; 1 Ph. 0. 13, s. 2, p. 230, 1 ; 3 Kt. 304, 305; Marsh. 519, 521 ; Toub. 658. [III. 331.] 2612* The insurer is not liable for the ordinary charges known as petty averages, such as pilotage, towage, tonnage, ancnorage, clearance, or duties imposed upon the ship or cargo. —2 Va. h. t. a. 30, p. 81 j Poth. Ass. 67 ; 3 Par. n. 884 : 2 Am. 1006 ; 0. Co. 354. [III. 331.] 2513. The limitation of the insurer's liability, for particu- lar average under a eertain amount and for the loss o^' dam- age of certain articles enumera- ted in the common memorandum of warranty to be free from average, is regulated by the terms of suchmemorandumcon- tained in th'e policy. If there be no memorandum of war- ranty, the ,^'eneral rules decla- red in this iitle apply. — Stev. 219 --; 2 Am. c. 3, p. 872-4; 1 Ph. c. 18, p. 483; 4Bou.-Pat. 87 ; 4 £m. o. 12, a. 9 ; Poth. Ass. 166 ; C. Co. 408-9. [III. 331.] 2514. A contract of insur- ance made fraudulently un the part of the insured for a sum exceeding the value of the ob- ject of it, may be annulled by the insurer who in such case is entitled to one half per cent upon the amount insured. — Val. h. t. a. 22, 71 ; C. Co. 357. [III. 333.] 2515. If in the case speci- fied in the last preceding ar- ticle there be no fraud, the contract is valid to the amount of the value of tho object in- sured. — The insurer is not en- titled to the full premium upon :^s 1NSCBAN0B. 899 owners or 843, 845. ■P- 230,1. ^Mh. 619, fll. 331.] er is not 7 charges g^8, such tonnage, or duties or cargo. ;i ; Poth. Lj2Arn. fl. 331.1 on of the particu- «3ertain q^dam- iuniera> randum 50 from by the uincon- f there f war- decla- -Stev. r2-4; 1 i.-Pat. h. Ass. . SSl.J insur- t>n the I sum leob- 3d by ase is cent ed.— .357. peci- f ar- the ount ; in- ; en- ipon the amount insured in excess of the value, but to one half per cent only. — 2 Va. h. t. art. 23, 72: C. Co. 358. [III. 333.] 2516« If there be several eontracts of insurance effected without fraud upon the same object, and against the same risks, and the first contract in- sures the full value of the ob- ject, it alone can be enforced. — The subsequent insurers are free from liability and are bound to return the premium, reserv- ing a half per cent. — Subject nevertheless to such special agreements and conditions as may be contained in the poli- cies of insurance. — 2 Va. h. t. a. 24, 73 ; 2 Alau. 52 — ; 2 Par. 589; 3 lb. 767; 1 Am. o. 12, s. 5, p. 345-351 ; Marsh. 139 ; C. Co. 359. [III. 333.] 2517t When in the ease specified in the last preceding article the total value of the ob- ject is not insured by the first contract, the subsequent insur- ers are liable for the surplus according to the date of their respective contracts ; subject to the same restriction. — ^Va. h. t. a. 25. [III. 333.] 2518* Ifthe subsequent in- surance be fraudulent on the {>art of the insured, he is ob- iged to pay the whole premium on such insurance but is not entitled to recover anything upon it. — 1 Em. (Bou.-Pat.) o. 9, 8. 2, p. 270, 272, 273 j 4 Bou.- Pat. 124, 125; 1 Am. 348; C. Co. 357. [III. 333.] 2519* When there is a par- tial loss of an object insured by several insurances to an amount not exceeding its full value, the insurers are liable for it rateably in proportion to the sums for which they have re- spectively insured. — 0. Co. 360, 401 ; 2 Va. 73, 74. [III. 333.] 8d20« When the insuranoo is made separately upon goodfl to be laden in different ships, if all the goods be placed in one of the ships or in any num- ber of them less than the whole, the insurer is liable only for the sum insured on the goods which under the contract were to be placed in such ship or ships, although all the ships specified in the contract be lost. He is entitled nevertheless to one half per cent of premium upon the remainder of the total amount insured. — 2 Vn. h. t. a. 22, p. 84 ; 1 Alau. 66, 67 ; C. Co. 361 ; Em. c. 6, s. 5, p. 174-178 ; 1 Am. c. 9, s. 3. [III. 333.] SECTION IV. Of losses. 2521* Loss for which the in- surer is liable is either total or partial. — Marsh. 486, & o. 13, s. 1, p. 563, 564. [III. 333.] 2o22i Total loss may be either absolute or constructive. — It is absolute when the thing insured is wholly destroyed or lost. — It is constructive when, by reason of any event insured against, the thing though not wholly destroyed or lost be- comes of little or no value to the insured, or the voyage and adventure are lost or rendered not worth pursuing. — Before the insured can claim for a constructive total loss he must make an abandonment as de- clared in the following section. 400 ~MarBh.597,Ari..loor.firi. tho To* "* '^° meaning of X* *f' 1 P'®°«<*'n« article are ovenf ^-lif .y * fortuitous the fi3Ju"o?sL''JS^^,«„ "P'^n course oeaingt th^l\u '°" is a loss hv 5t °.*^®^' and «oa for XchlJ"''^' °f the UoKi V°'on the insurer in INSUBANOB. 335.1 liable to the othef^ and if L" niarmors of tho other ti.f- »a«r is liable under fL° '"■ "1 clause, butUtZ tlf't ba.™tr,, iu's^sJl I'ornr'fi? as the insurer is concerned to 335.1 ^^^' till. 25; tm. 335.J ■ '• ^- Co. 40r. tor tho sob bouia; o?'":™'' P«r«cular iutorosf'as LT ship alono or for tim » ° tothetsu^oa.Xr"';,'''"'"'" * b?®;hoTJf/!;'™g««» <>«-b"i\r"'°^«"> K« i . unknown or if Kn'fia'b? ^"'P' '*«'»-' under the 1 ? '""l" ««»» I. 29 5 2 I'^^^'/la-se.-ff. 2Va.l-s^'-i*'P:V416 ".".pa77ri8^:vtr2.„"; -f 'S g'el'r-aT^eJ^I J'At" ,, "• "»y Marsh. 552, 3 • r ,„.f ?29.- Tho rules coacernine of fl.. °" ^''™ *" too course SLabIed°^?S' ""> =>"P I'-X'oS ttf 1 Tbou'^""* "• natir!??r'"'Pj''»"'°fSi! XS.^ononi,''V--t? INBURANOK. 4in terestod j and in such caso tho liability of the insurer continues after ilio cargo ia transhipped for that purpose. — 0. 2427 j 3 Kt. 321, n. 1 .; Marsh. 164, 6, n. b. 626, tj C. Co. 390 .2; Em. c. 12 a. 16. [III. 335.1 2o31* The insurer is also liable in the case provided in the last preceding article for damages, expenses of discharg- ing, storage, reshipment, sup- plies, freight and all other costs not exceeding the amount in- sured.— C. Co. 393; C. 2530. [III. 337.] 2532i If in the case pro- vided in article 2530, tho master be unable to procure another vessel ivithin a reasonable time for conveying the cargo to its destination, the insured may mtike an abandonment of it. — Co. 394 ; C. 2530. [III. 337.] 2533> In insurance by an open policy the value of tho ship is held to be that which she bears at the port where the voyage begins, including what- ever adds to her permanent value or is necessary to pre- pare her for the voyage, and also the costs of insurance. — 1 Bell, 527 J Marsh. 633. [III. 337.1 ^2o34. The value of the goods insured by open policy is established by the invoice, or if that cannot be done is estimated according to their market price at the time of landing; all charges and ex- penses incurred up to that time, together with the pre- mium of insurance, are in- cluded.— 2 Va. a. 64, p. 146 j 1 Em. 261-3; 3 Kt. 335, 6; Marsh. 620, 031,2; Am. 381, 382; Guidon, o. 2, a. 9, c. 15, a. 3, 13,15; C. Co. 339. [HI. 337.1 2D3Bt The amount for which tho insurer is liable on a partial loss is ascertained by comparing the gross pro- duce of the damaged sales with the gross produce of the sound sales, and applying tho percentage of difference to the value of the goods as ppeciQed in the policy, or established in the manner provided by tho last preceding article. — Am. 985; 1 Ph. 375-7; Johnston vs. Shedden, 2 East, 581. [III. 337.1 2d36* The insured is bound when he malces claim for any loss, to declare, if thereunto required, all other insurance^} effected by him on the thins; insured and also the loans talcen by him on bottomry and respondentia. — Ho cannot claim Sayment for tho loss until such eclaration is made, when so required, and if the declara- tion bo fialso and fraudulent ho loses his right to recover. — Va. 0. M. a. 53, 54, p. 135, 6 ; Marsh. 145, 702 ; C. Co. 379, 380 ; Arn. 353 ; I. S. 19 Geo. 2, c. 37, s. 6. [III. 337.] 2537* The insured is bound to do in good faith all in his power between tho time of loss and the abandonment to save the effects insured. His acts and those of his agents done for that purpose are for tho beneflt of the insurer and at his expense and risk. — 2 Va. 45, p. 98 ; Marsh. 626, 7 ; C. Co. 381. [III. 337.] li I 402 tNSUBANCE. SECTION V. Of abandonment. 2538. The insured may make an abandonment to the insurer of the thing insured in all cases of its constructive loss and may thereupon recover as for a total loss. W ithout aban- donment he is entitled in such cases to recover as for a partial loss only. — 2 Va. h. t. a. 46, p. 99 : Marsh. 564, o. 13, p. 567 ; C. Co. 369, 371. [III. 337.] 2539* An abandonment cannot be partial or condi- tional. It extends however only to the property actually at risk at the time of the loss. — 2 Va. a. 47, p. 108 — ; 2 Em. 249, o. 17, s. 8 ; Marsh. 611, 612 ; Arn. 1160, 1161 j 4 Bou.-Pat. 289 ; C. Co. 372. [III. 339.] 2540. If different things or classes of things be insured by the same policy and separately valued, the right to abandon may exist in respect to a part ^separately valued, as well as in respect to all. — C. 2539. [III. 339.] 254:1. The abandonment must be made within a reason- able time after the insured has received intelligence of the loss. — If from the uncertainty of the intelligence or the nature of the loss further inquiry and in- vestigation be required to en- able the insured to determine whether he will abandon or not, reasonable delay for that purpose is allowed according to circumstances. — ^Va. a. 48, 49; Marsh. 606; Arn. 1169; €. Co. 373. [III. 339.] 2542. If the insured fail to abandon within a reasonable time, as provided in the last E receding article, he is held to ave waived the right to do so and can only recover as for a partial loss.— C. 2541. [III. 339.] 2543. The abandonment is made by a notice given by the insured to the insurer of tho loss, and that he abandons to tho latter all his interest in the thing insured. — ^Va. a. 24 ; 2 Em. 190 ; Poth. Ass. 126 ; Marsh. 610 j Arn. 1162, 1163: 0. Co. 374. [III. 339.] 2544. Tho notice of aban- donment must be explicit and must contain a statement of the grounds of abanflonment. These grounds must exist and be sufficiant at the time of the notice.— Arn. 1163-8 ; C. 2543. [III. 339.] 2545# Abandonment on the ground of the ship being disa bled by stranding cannot be made if she can be raised and put in a condition to continue ner voyage to the place of des- tination. — In such case the in- sured has his recourse against the insurer for the expense and loss occasioned by the strand- ing. — Em. c. 12, s. 13, p. 404 — ; 1 Ph. 393 J 2 lb. 285; C. Co. 389. [III. 339.] 2546. If a ship has not been heard of within a reason- able time after sailing, or after the reception of tho last intelli- gence of her, she is presumed to have foundered at sea, and the insured may make an abandonment and recover for a constructive total loss. — The time necessary fior raising such presumption is determined by the court according to the oir- INBUBAKCE. 403 ^qmstances of the case. — 2 Va. a. 58, 59, 141; Marsh. 189, 192: 2 Arn. 817, 818; 0. Co. 575,377. [III. 339.] 254:7> Abandonment made and accepted is equivalent to transfer, and the thing aban- doned with the rights pertain- ing to it becomes from the time of abandonment the property of the insurer. — The accept- ance may be either express or implied.— 2 Va. 143 — ; 2 Em. 230, (Bou.-Pat.) 233-4; Gui- don, 0. 7, a. 1 ; 3 Kt. 324, 325, «. b.; Marsh. 612-3; 2 Ph. 321, c. 17, 8. 14 ; Levi, 167, n. M2; C. Co. 385. [III. 339.] 254k8* [On an accepted abandonment of the ship, the freight earned after the loss be- longs to the insurer of the ship ; that earned previously to the loss belongs to the ship-owner or to the Insurer on freight to whom it is abandoned.] — 2 Va. Ass. a. 15, p. 58, 115-6; Em. c. 17, 8. §, p. 251 — , (Bou.-Pat.) 259 ; 3 Kt. 332-3 ; 2 Ph. c. 17, s. 17, p. 473 — ; Arn. 1153, 4, ^-8; C. Co. 386. [III. 341.] ^ 2549* Abandonment made upon sufBicient ground and ac- cepted, is binding on both par- ties. It cannot be defeated by any subsequent event, or re- voked otherwise than by mu- tual consent. — 2 Em. c. 17, § 6, p. 331 ; Poth. Ass. 138 ; Marsh. 625 J Levi. 166, n. 657-8-9 ; Arn. 1069; 2 Va. 143-4; C. Co. 385. [III. 341.] 2650i If the insurer refuse to accept a valid abandonment he is liable as for an abso- lute total loss, deducting from the amount any proceeds of the thing abandoned which have 30 been applied to the benefit of the insured. — 2 Marsh. 609. [III. 341.] SECTION VI. Of loss hy average contrihu' tions. 2551. In the absence of special agreement between the parties, average contributions are regulated by the following articles of this section, and, when these do not apply, by the usage of trade. — The in- surer is bound to reimburse the insured the amount of his con- tribution not esceeding the sum insured. — 2 Arn 967; C. Co. 398. [III. 341.] 2552. Contribution by the ship and freight and by the goods whether sav^d or lost, rateably and according to their respective values, is made for damages voluntarily sustained and extraordinary expenses in- curred, for the common safety of the ship and cargo. — These are called general or gross average losses, and are as fol- lows: 1. Money or other things given as a compensation to pirates to ransom the ship and cargo, or as salvage to recap- tors; 2. Loss by jettison ; 3. Masts, cables, anchors or other furniture of the ship, cut away, destroyed or abandoned ; 4. Damages caused by jetti- son to the goods which remain in the ship or to the ship itself ; 5. The wages and mainten- ance of seamen, during the de- tention tf the ship in the course of her voyage, by a sovereign 404 INSUBANCE. ■i power, and during the neces- sary repairs of injuries of a nature to give rise to average contribution ; 6. The expense of unlading, to lighten the ship and enable her to enter a port of refuge or river, when she is compelled to do so by storm or by pursuit of an enemy ; 7. Loss and expienses arising from the voluntary stranding of the ship for the purpose of es- caping total loss or capture. — And in general all damages voluntarily suffered and extra- ordinary expenses incurred for the common safety of the ship and cargo, from the time of loading and departure of the ship to the time of her arrival and discharge at the port of destination. — ff. L. 14, t, 2, L. 1-5 } 2 Va. h. t. a. 2, 6, 7, p. 169, 165, 168 J 1 Em. o. 12, s. 13, fe404~, s. 41, p. 598—j Cons, de . 0. 51, 192, 193, 150 J 2 Par. Col. L. M. 166; Cas. 45, n. 60 ~ J 3 Par. c. 4, s. 1, n. 731- 741 ; 2 Marsh. 538-548 ; Am. c. 4, s. 2, 3, p. 894, 933-5 j 3 Kt. 233-2393 C. Co. 400,401, 422 J Abbott, c. 346, 7 : C. 2402, 2445. [III. 341.] 2553. Jettison gives rise to contribution only when it is made in imminent peril and is necessary for the preservation of the ship and cargo. — It may be of the cargo, or of the pro- visions, tackle or furniture of the ship.— ff. L. 14, t. 2, L. 1, L. 2, § 2, de leg. Rhod. de jao. ; 2 Va. h. t. a. 1, 2, p. 188, 189 ; 1 Em. 605, c. 12, s. 40 ; 2 Am. 900-4 J 1 Ph. 331-2; 2 lb. 245 j Marsh. 540 j 3 Kt. 233-4, «fe n. a. : C. Co. 410. [III. 343.] 255^ Jettison must be first made of things the least necessary, the most weighty, and of the least value. — 2 Va. a. 3, 189 ; 3 Kt. 333 ; C. Co. 411. [HI. 343.] 2555. The ship's warlike stores and provisiouo, and the clothes of the crew, do not con- tribute, but the valiie of those lost by jettison is paid by con- tribution upon other effects generally. — The baggage of passengers does not contribute. If lost it is paid by contribu- tion in which it shares. — 2 Va. 0. M. h. t. a. 11, p. 199, 201 ; 1 Magens, 63, s. 55, 56 ; 1 Em. 624-5-6 J Am. 936 j 1 Ph. 364; 3 Kt. 241-2 ; 4Bou.-Pat. 561-2 ; C. Co. 419. [III. 343.] 2556. Goods for which there is no bill 9f lading or acknow- ledgment by the niaster, or which are put on board con- trary to the charter-party, are not paid for by contribution if lost by jettison. They contri- bute if saved. — 2 Va. 0. M. h. t. a. 11, p. 202 ; 2 Am. 904; C^ Co. 420. [III. 343.] 2557. Goods carried on deck, which are lost or dam- aged by jettison, are not paid for by contribution, unless thoy were so carried in conformity with an established usage and course of trade. — They contri- bute if saved.-r-2 Va. h. t. a. 13, p. 203; Em. c. 12, s. 40, 623 Arn. 904; Ben. P. I. 293; 1 Ph. 364; Abbott, 350; C.2425; C. Co. 421. [III. 343.] 2558. In cases of average contribution the ship and freight are estimated at thoir value at the port of discharge. — The goods lost as well as INSUBAKCC. 405 i^; tbose saved are estimated in like manner, deducting freight, duties and other charges. — S. L. 2, § 4, de leg. Rhod. de jac. ; 2 Va.h.t. a. 6, 7, p. 194-7; Poth. Avaries, 130 j 1 Em. 636-7 ; Marsh. 550-1 j Am. s. 6, 7, 946, 948, 950, 951 ; 3 Kt. 24: 0. 2449 J C. Co. 402, 415, 417. [HI. 343.] 2559* Notwithstanding the rule of valuation contained in the last preceding article, the amount which the insurer is liable to reimburse to the in- sured for his contribution is regulated 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. — 2 Va. 0. M. 115 J 2 Em. (Bou.-Pat.) 2, 8j Am. 967-8; 2 Ph. 253-4; Ben. P. I. 328 ; Magens, 245, case 14 J Levi, 460. [111.343.] 2560> No contribution is made for particular average losses. They are borne by the owner of the thing which has suffered the damage or occa- sioned the expense ; saving his recourse against the insurer as declared in article 2527. [III. 343.] 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 dam- aged thereby. — ff. L. 4, § 1, de leg. Bhod. de jac. ; 2 Ya. 0. M. a. 15, h. t. 205 ; Poth. L. Mar. n. 113, 114 ; 1 Em. c. 12, s. 41, p. 601; Marsh. 541; 3 Kt. 235; C. Co. 423; Am. 943 -. [III. 343.] 2562. If the ship be saved by the jettison and continue her voyage, but be afterwards lost, the goods saved are sub- ject to contribution at their actual value, deducting the costs of salvage. — 2 Va. 0. M. h. t. a. 16 ; C. Co. 424. [III. 345.] 2963. The goods jettisoned do not in any case contribute to the payment of losses hap- pening afterwards to the goods saved. — The cargo does not contribute to the payment of the ship when lost or rendered unfit for navigation. — 2 Va. 0. M. h. t. a. 17 ; C. Co. 425. [III. 345.] 2564. In case of the loss of goods put into lighters to enable the ship to enter into a port or river, the ship and her whole cargo are subject to con- tribution; but if the ship be lost with the goods remaining on board, the goods in the lighters are not subject to con- tribution, although they arrive safely in port. — 2 Va. 0. M. h. t. a. 19, 20, p. 209, 210 ; C. Co. 427; 2 Marsh. 541. [III. 345.] 2565. It is the duty of the master on his arrival at the first port to make his declara- tion and protests in the cus- tomary form, and also together with some of his crew to make oath that the loss or expense sustained was for the safety of the ship and crew. The ne- glect to do so does not however affect the rights of the parties interested. — 2 Va. h. t. a. 5, 6, p. 190, 191; Marsh. 550 j Arn. 900 ; Stev. 29 ; C. Co. 411, 412. [III. 345.] 2566. The owners and mas- I' 406 INSURANCE. ter have a privilege and right of retention upon the goods on board the ship or their price for the amount of contribution for which these are liable. — 2 Va. 0. M. h. t. a. 21, p. 211 ; Am. 965 ,• Marsh. 550 ; 0. Co. 428. [III. 345.] 2567. If after' the contri- bution 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 dam- ago suffered by the goods and the costs of salvage. — ff. L. 2, § 7, 8, de leg. Bhod. do jao. ; 2 Va. 0. M. h. t. a. 22, p. 211 ; Dom. 1. 2, t. 9, s. 2, n. 17 j 1 Em. 640 } Am. 907 j C. Co. 429. [III. 345.] CHAPTER THIRD. oe FIRE INSURANCE. 2368* Insurance against loss by fire is regulated by the provisions contained in the first chapter of this title, and is sub- ject also to the rules contained in the second chapter, when these can bu made to apply and are not inconsistent with the articles contained in this chap- ter. [III. 345.] 2569. A fire policy contains the name of the party in whose favor it is made; — A descrip- tion or sufficient designation of the object of the insurance and of the nature of the interest of the insured ; — A declaration of the amount covered by the in- surance, of the amount or rate of the premium, and of the na- ture, commencement and dura- tion of the risk; — The sub- scription of the insurer with its date; — Such other announce- ments and conditions as the parties may lawfully agree upon. — Boud.ri^202-204; Quen. c. 7, § 2, n. 163-191 j 2 Alau. $ 401, p. 298 ; 1 Bell, Com. n. 561, p. 640 " J Scott vs. Phoenix Ass. Co., St. Bep. 152, 355. [III. 345.] 2570. Representations not contained in the policy or made a part of it, are not admitted to control its construction or effect. 2 Ph. 96. [III. 347.] 2571. The interest of an insurer against loss by fire may be that of an owner, or of a creditor, or any other interest appreciable in money in the thing insured ; but the nature of the interest must be speci- fied. — Marsh. 789 ; Bond. n. 28 - J 1 Bell, Com. 640. [III. 347.1 2572. It is an implied warranty on the part of the insured that h\<9 description of the object of the insurance, shall be such as to shew truly under what class of risks it falls according to the proposals and conditions of the- policy. — 1 Bell, Com. 641; Ellis, 48; Quen. n. 174-176 ; Bond. n. 202, p. 241, n. 104, 111, 112. [III. 347.] 2573. An insurance upon effects indeterminately as being in a certain place is not limited to the particular effects which are there at the time of insuring, but attaches to all those falling within the description contain- ed in the polic3^ which are in the place at the time of the loss ; unless a different inten- INSUBAXCC. 407 tion is indicated in the policy. 2 Par. n. 694, p. 489 j Ang. § 101, 2 } Quen. n. 78 ; B. A. Ins. Co. & Joseph, 9 L. G. R. 448: Bond. n. 122. [Ill 347.] 2574. Any alteration in the use or condition of the thing insured from those to which it is limited by the policy, made without the con- eent of the insurer, by means within the control of the in- sured 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. — 3 Kt. 374 J 2 Ph. c. 7, s. 2, §2, p. 96 — ; 2 Par. n. 595 ; Bond. n. 119, p. 149 J 3 Par. n. 883. [III. 347.] 2575. The sum insured does not constitute any proof of the value of the object of the insurance ; such value must be established in the manner required by the conditions of the policy and the general rules of proof, unless there is a special valuation in the policy. 2 Alau. 304; Ang. Ins. § 11 ; 1 Bell, Com. 542, 3. [III. 347.] *2576. The insurance is rendered void by the transfer of interest in the object of it from the insured to a third person, unless such transfer is with the consent or privity of the insurer. — The foregoing rule does not apply in the case of rights acquired by succession or in that specified in the next following article. — It is subject to the special provisions con- tained in The Inaolvent Act of 1864. — The insured has in all oases a right to assign the policy with the thing insured, subject to th.f> conditions therein contained. — C. 2482, 3 j Marsh. 803; Ang. § 11, 193 " } 1 Am. 211 ; Led. vs. Crasp. 5 L. C. B. 487 ; Ellis, 76, 77. [III. 347.] 2577. A transfer of interest by one to another of several partners or owners of undivided property who are jointly in- sured, does not avoid the policy. — [III. 349.] 2578. The insurer is liable for losses caused by the in- sured otherwise than by fraud or gross negligence. — Ang. 122 - J Boud. n. 294, p. 340 — j 3 Kt. 374, n. c. [III. 349.] 2579. Tho insurer is also liable for losses caused by the faults of the servants of the insured committed without his knowledge or consent. — C. 2678. [III. 349.] 2580. The insurer is liable for all losses which are the immediate consequence of fire or burning from whatever cause it may arise, including damage to the things insured suffered in their removal or by the means used for extinguishing the fire ; subject to the special excep- tions contained in the policy. —Ang, § 116 J 2 Par. n. 695, p. 493; Qu. n. 66, p. 56; C. 2683 ; B. A. Ins. Co. & Joseph-) 9 L. C. R. 448. [III. 349.] 2581. The insurer is not liable for losses caused merely by excessive heat in a furnace, stove or other usual means of communicating warmth when there is no actual burning or ignition of the thing insured. — Poth. Ass. c. 1 ; 2 Par. 494, 496; Ellis, 77; Ang. Ill, 112, 116 " ; 1 Bell, Com. 540, 541. [III. 349.] 408 IKSURAXCE. 2582. In case of loss by fire the insurer is liable for the whole amoant of the loss not exceeding the sum insured, without deduction or average. — Peddie vs. Quebec Fire Ass. Co., St. Rep. 178 J 1 Ph. 375 j 1 Bell, Com. 643. [III. 349.] 2583t When by the terms of the policy a delay is given for the payment of the renew- ed premium, the insurance con- tinues, and if a loss occur with- in the delay, the insurer is liable, deducting the amount of the premium due. — Ellis 119 — ; Ang. § 61 j Marsh. 799, 800 J 2 Par. n. 696; 1 Bell, Com. 640, 1, § 3; Ellis, 249 -, Want. vs. Blunt j 12 East, 183. [III. 349.] 2584. The insurer on pay- ing the loss is entitled to a transfer of the rights of the insured against the persons by whose fault the fire or loss was caused. — The Quebec Fire Ass. Co. vs. Molson et al. 1 L. C. R. 223 - ', Ellis, 112, n. 1 j Marsh. 796 ; 2 Par. n. 696, p. 498-600. [III. 349.] CHAPTER FOURTH. OF LIFE INSURANCE. 2585. Life insurance is re- gulated by the pBovisions con- tained in the first cha](^ter of this title, and is subject also to the rules contained in the second chapter when these can be made to apply and are not inconsistent with the articles contained in this chapter. — Articles 2670 and 2683 apply to contracts of life insurance. [III. 349.] 2586* Life insurance is sub- ject also to the rales contained in articles 1902, 1903, 1904, 1906, 1906, relating to the per- sons upon whose life it may be effected. [III. 349.] 2587« A life policy contains : — The name or sufficient de- signation of the party in whose favor it is made, and of the person whose life is insured; — A declaration of the amount of the insurance, of the amount or rate of premium, and of the commencement and duration of the risk j — The subscription of the insurer with its date; — Such other announcements and conditions as the parties may lawfully agree upon. — ^ Alau. 489 ; Ang. § 284. [III. 361.] 2588. The declaration in the policy of the age and con- dition of health of the person, upon whose life the insurance is made, constitutes a warranty upon the correctness of which the contract depends. — Never- theless in the absence of fraud the warranty that the person is in good health is to be constru- ed liberally and not as mean- ing that he is free from all in- firmity or disorder. — Marsh. 772-3 ; Ellis, c. 2, p. 206 — , & n. [III. 351.] 2589. In life insurance the sum insured may be made payable upon the death of the person upon whose life it is effected, or upon his surviving a specified period, or periodi- cally so long as he shall live, or otherwise contingent upon the continuance or determina- tion of life.— Ang. § 274, 276 ; Ellis, 187. [Hi. 361.] 2590. The insured must have an insurable interest in m BOTTOMRY AXD BESPONDKNTIA. 409 the life upon which the insur- ance is effected. — He has an insurable interest in the life : 1. Of himself; 2. Of any person upon whom he depends wholly or in part for support or education ; 3. Of any person under legal obligation to him for the pay- ment of money, or respecting property or services whioh death or illness might defeat or pre- vent the performance of; 4. Of any person upon whose life any estate or interest vest- ed in the insured depends. — 1 Bell, Com. 544 ; Ang. Ins. § 297-300 - ; Dowd. Ins. 21 ; I. S. 14 Geo. 3, c. 48, s. 1 ; Ellis, c. 3, p.232— ; 2 Alau. n. 55l-556j Quen. 60, 61, 63. [III. 361.] ^ 2591* A policy of insur- ance on life or health may pass by transfer, will, or succession, to any person, whether he has an insurable interest or not in tho life of the person insured. — 1 Bell, Com. 645 j Ellis, o. 5, p. 263, 264, n. 1. [III. 351.] 2592. The measure of the interest insured is the sum fixed in the policy, except in cases of insurance by creditors or in other like cases in which the interest is susceptible of exact pecuniary measurement. In these cases the sum fixed is reduced to the actual interest. —2 Par. n. 693, p. 479 ; 1 Bell, Com. 644, 646 ; Ang. § 288 ; 2 Alau. n. 652, p. 484. [III. 361.] 2593* Insurance effected by a person on his own life is void if he die by the hands of justice, by duel ing, or by suicide. — Ellis, 192, 3, n. 1, 195 n. 1 ; 4 BHgh R. 164, N. S. BoUand vs. Disney ; 2 Alau. 563 J Ang. §289". [III. 351.] TITLE SIXTH. OF BOTTOMRY AND RESPONDENTIA. 2594. Bottomry is a con- tract whereby the owner of a ship or his agent, in considera- tion of a sum of money loaned for the use of the ship, under- takes conditionally to repay the eame with interest, and hypo- thecates the ship for the per- formance of his contract. The essential condition of the loan is that if the ship be lost by a fortuitous event or irresistible force, the lender shall lose his money j otherwise it is to be repaid with a certain profit for interest and risk. — 1 Va. 0. M. 1. 3, t. 6, a. 2 J Poth. Pr. G. A. n. 9; 2 Em. 411, 417; 3 Par. n. 887, 890 ; 1 Bell, Com. 433 j Sm. M. L. 419 j Abbott, 113 - ; Woolrych, 35; Marsh. 742, 3 ; 3 Kt. 633-5 ; i Ph. n. 298 ; C. Co. 314; 2 Bor. 0. 1673, t. 7. a. 2, 649, n. [III. 353.] 2595, If the loan be made not upon the ship but upon the goods laden in her the contract is called respondentia. — Auth. 410 BOTTOUBT AKD BESPONOENTU. under a. 2594. [III. 353.] 2596. The loan may be made upon the ship, freight and cargo together, or upon such portion of either as may be agreed upon by the parties. —Same autn. [III. 353.] 2597t The contract must specify : 1. The amount of money loaned with the rate of interest to be paid j 2. The ob- jectf} upon which the loan is made. It specifies also the na- ture of the risk. — Poth. Pr. G. A. n. 7, — ; Mac. 52, 53 ; Sm. M. L. 419; 1 Bell, Com. 434; 3 Par. n. 890; C. Co. 311. [III. 353.] 2598. If the time of the risk do not appear from the contract, it runs, with respect to the ship and freight, from the day she sails until she is anchored or moored in the place of her destination. — With re- spect to the cargo, it runs from the time the goods are shipped until their delivery ashore. — ff. L. 3, de naut. fen. ; 2 Va. 0. M. ib. a. 13, p. 15 ; Marsh. 764; C. Co. 328. [III. 353.] 2599. In loans upon bot- tomry the ship, with her tackle, furniture, armament and pro- visions, and freight earned, are held by privilege for the pay- ment of the capital and inter- est of the money loaned upon them. — In loans upon respon- dentia the cargo is held in like manner. — If the loan be upon a part only of the ship or cargo such part only is held for the payment. — 2 Va. 0. M. ib. a. 7, Poth. Pr. G. A. n. 9 " ; Marsh. 750 ; C. Co. 320. [III. 353.] 2600. Loans in the nature of contracts of bottomry or res- pondentia cannot be made upon the wages of sailors. — Va. 0. M. ib. a. 6, 6 ; Poth. Pr. G. A. n. 15 ; 2 Em. 507, 508 ; 1 Bell, Com. 435, n. 465 ; 3 Kt. Com. 303 ; Marsh. 754 ; G. Co. 319. [III. 353.] 2601a A loan made for a sum exceeding the value of the objects affected for the pay- ment of it may be annulled at the instance o| the lender, if fraud be proved against the borrower. — If there be no fraud, the contract is valid to the amount of the objects af- fected for the payment, and the surplus of the sum borrowed must be repaid with legal in- terest at the place of borrowing. —2 Va. 0. M. ib. a. 3, 15, p. 6, 16 ; Poth. Pr. G. A. n. 12, 13; 2 Em. 601--; Marsh. 750, 761 ; 3 Kt. 357 ; C. Co. 316, 317. [III. 353.] 2602. The borrower upon respondentia is not discharged from his liability by the loss of the ship and cargo; unless he proves that he had goods aboard, at the time of the loss, of the value of the amount loaned to him. — 2 Va. 0. M. ib. a. 14, p. 15; 3 Par. n. 929; C. Co. 329; Author, under a. 2601. [III. 355.] 2603. A loan upon bot- tomry or respondentia may be made to the master, in case of urgent necessity, for the repair and other uses of the ship ; but, if made to him without the authority of the owners in the place where they reside, or where communication with them is easy, etich part only of the ship or cargo as may belong to the master is held BOTTOMBT AND RESPONDENTIA. at made upon •8.-Va. 0. th. Pr. 6. 07, 608; I 465; 3Kt. J ^54; c. mdo for a »J"eofthe the pay- nnulled at lender, if ainst the [■o be no valid to y'ects af- ti and the borrowed legal in- )rrowing. 3» 15, p. ^. n. 12, rsh. 750, Co. 316, 9r upon charged the loss ; unless 1 goods ho loss, amount 0. M. a. 929; »der a. a bot- aay be sase of repair ship; ithout ers in Bside, with only may held for the payment of the loan; Bubject to the provisions con- tained in the next following article.— 2 Va. 0. M. ib. a. 8, p. 10 ; 2 Em. 424, 436 ; 3 Par. n. 909, p. 607 ; 1 Bell, Com. 428-432, 441 j 3 Kt. 356-7 ; Sm. M. L. 421, 422; Abbott, 163, 164 ; 0. Co. 321. [III. 355.] 2604. The parts of the owners, even if residing in the place where the loan is made, are held for the payment of money loaned to the master for repairs and provisions, when the ship has neen affreighted with the consent of such owners, and they have refused to furnish their contingent for putting her in condition for the voyage. — 2 Va. 0. M. ib. a. 9 ; Ib. b .2, 1. 1, a. 17 ; G. Co. 322 ; Auth. under a. 2603. [III. 365.] 2605. Loans upon bottomry or respondentia, made for the latest voyage, are paid by preference before those of a preceding one, even when it is declared that the latter are continued by a formal renewal. — The loans made during the voyage are paid by preference over those contracted before the departure of the ship ; and if several loans be contracted during the voyage the last is preferred to any which precede it. — 2 Va. 0. M. ib. a. 10 ; Guidon, c. 19, a. 2, 3 ; Poth. Pr. G. A. n. 63; 3 Par. n. 919 ; Sm. M. L. 424 ; Abbott, 163-4 ; 1 Bell, Com. 438 ; 3 Et. 368 ; C. Co. 323. [III. 355.] 2606. The lender upon re- spondentia does not bear the loss of goods which perish by perils of the sea, wnen such goods have been transferred 26 from the ship specified in the contract into a different one ; unless it is proved that such transfer was caused by irre- sistible force. — Poth. Pr. G. A. 18 ; 2 Em. 649 ; 3 Bou.-Pat. 168, 164,171,6; Marsh. 764; 3 Kt. 360 ; Co. C. 324. [III. 365.] 2607. If the ship or cargo upon which a loan is made be totally lost, by a fortuitous event or irresistible force, within the time and place for which the risk extends, the money loaned cannot be re- covered. — 2 Va. 0. M. ib. a. 11, p. 12 ; Poth. Pr. G. A. n. 16 ; Marsh. 769, 760, 762, 768 ; 1 Bell, Com. 433, n. 460 ; 1 Et. 366; 0. Co. 326. [III. 366.] 2608. Losses arising from defect in the thing, or caused by the act of the owners, master, or charterer, are not considered fortuitous events, unless there is a special agreement to the contrary. — 2 Va. 0. M. ib. a. 12, p. 14; Poth. Pr. G. A. n. 34 ; Em. c. 1, s. 2 ; 1 Bell, Com. 437 ; Marsh. 762 ; 3 Et.. 356; C. Co. 326. [III. 367.] 2609. In ease of partial loss by shipwreck or other fortuitous event, the payment of the sum loaned is reduced to the value of the things hold for it which are saved. — 2 Va.. 0. M. ib. a. 17, p. 12, 20 ; Poth. Pr. G. A. n. 47; 2 Em. 644, 647; 3 Et. 369; Marsh. 768; C. Co. 327. [III. 357.] 2610. Lenders upon bot- tomry or respondentia contri- bute to general average in dis- charge of the borrower. — They do not contribute to simple average or particular damages, unless there is an arrangement 412 to that effect.— 2 Vft iK « 10 2 Em. 529: Poth ?; a*A^^' 42-6 ;Ma;sh 760 5.^1- Is* BOITOMT AND HESPOTOUjrTIi. Merl n,_ '^'i Par. 855 «ox2. Bottomry anH « same effect nn^ ^ ^^^ *'^^ Iill!:/^<^vi.;7^s: force of thi, cLf""""* '■"» wrt5eT.ncs^' iar matter to which an?S 1 x«a^ir^°'p'»'-"»^^^^^^ regards transactions mo*; and thin»a 1 . ' Diatters auu tnin,»s anterior to *»,« oould .ot appWnr iE'fF - - - applies to them only so far «! it coincides with such provf iiions. [III. 391.2 sha I not haye the effect of re have.«o|l^-/- s a,. tion, there be ad ffr''""^^*- wun the proyisions of the exist- "ia-ging the eilt?°» * J^ ' that version shall prevail wS orri-^niVol'tatt^'^ pretation ahall app y*f„ d"^!' Eir D 1 Ph. 301, ^ Par. 855. «t»r,, 322: ^y and re- ™ado pay. *>o negoti- >ent. Such 9m haa the ►reduces the transfer of nstruments. Mao. 53' 357.] ' S. ration that regulated J*rocedure Sect of re- rule or of of pro, til the said iure shall 11.391. icleofthis *W8 exist- romulga- fence be- d J'renoh ^all pre- onsistent he exist- article 'e be any t article S laws, il which the in- md the 1 inter- 1 deter- INDEX. Abandonment of property, in em- phyteusis, 580 ; does not discharge purchaser in alienation for rent, iS9S; by ascendants, 781, 1277; of divers things, see Surrender ; Stray property; Insurance. Absence, defined, 86t: as regards marriage^ 108-112; as regards con- tingent rights, X04-107. Absentee. — Curator to, when named, 87 ; appointment of, 88 ; duties and powers of, 89, 90, 91 ; when his powers cease, 92. — Pro- visional possession of property of, 93-97 ; definitive possession of pro- perty^ of, 98 ; contingent rights accruing to, 104-107; care of minor childrt, .1 of, X13, 4. Abuse 01 enjoyment, 480. Acceptance. — Of Communis, see Community.— Q/* Gt/is, 787, 788. 789 ; by tutors, 789 ; when pre- sumed, 788 ; form o^ 788 ; wnen may be made, (see Gifts) 791, 793, 794. — Oy Successions, by heirs, see Successions ; by minors, 301 ; under benefit of inventory 649, 660. — Of legacies, 866. — Of trans- fery is equivalent to notice, 1571. Accession, right of, in general, (see Ownership), 408-413 ; as re- gards immoveables, 414-428 ; as regards moveables, 429-442; over what is produced by a thin^, 409- 412 ; over what becomes united to a thing, 413 ; between coheirs, 653 ; as regards joint legatees, 868 ; be- tween consorts, 627 ; between joint donees, 868. Accessories, comprised in legacies, 891 : in sale, 1499, 1^74. Accident, see Fortuitous event. Account. — Of community, 1354- 1378. — By beneficiary heir^ 677. — By tut r, when due, 308, 309 ; may be rendered to emancipated minor, 310 ; balance of, bears interest, 313; rendered at cost of minor, 310 ; to emancipated minor assist- ed by his curator, 318 ; may be de- manded before end of tutorship, 309. Accketion, of property bequeathed, 888 ; see Accession. Acknowledgment, — Of debt, m commercial matters, how proved, 1235 ; must be in writing to avoid prescription, 1235. — Of illegiti' mate children entitles them to maintenance, 240. Acquests of community, see Com- munity. Acquittance, see Payment. Act of man. Servitudes established by, see Servitudes. Act of parliament, see Laws. Actions.— For removal of tutors, see Removal. — To establish status are imprescriptible, 235.— Of minor, in name of his tutor, 304 ; for wages, 304.— Real, ofemancipated minor, 320. Acts.— (Statutes) when public, when private, 10 ; private must be plead- ed, public not, 10,— Notarial, form of, 1208, 1209 ; effect of, and what they prove, 1210 ; how contradict- ed, 1211. — Individual, to be done by several may be done by maio- nty, 17 § 19 ; confirming voidable obligations, requisites of, 12 14; done abroad, effect of, 7. — Of re- copiition^ how far make proof of primordial title, 1213. — Uiider pri- vate signature, what proof they make, 1222 ; how proved, 1223, 1224 ; how acquire a date certain, 1225, 1226; may be proof against him who wrote them, 12*7, 1228. but not in his favor, 1227, 1229.— Authentic, how make proof, 1207 ; how construed, 8 ; in form of country where they are executed, 7. — Commercial, presumed to be made on the day of their date, 1226. — Of civil status, defined, 17, § 22 ; must contain only what is requisite, 39 ; parties to, may 414 IXDKX. sometimes be represented by attor- ney, 40 ; must be read to the par- ties, 41 ; are inscribed on two re- gisters, see Registers ; how proved when registers lost, 51. — Rectifica- tion of, 75, 76; in case of total omission, 77 ; against whom effec- tive, 78. — Extracts from registers o^ are authentic, 50. — Of birth^ what they must contain, 54, when parents are unknown, 56 ; by whom signed, 55 ; prove filiation, 228. — Of marriage, publication of bans and certificate, 57, 58, 60 ; bans may be dispensed with, 59 ; dis- allowance of oppositions must be notified, 61 ; no opposition can be founded on promise of marriage, 63 ; by whom must be signed, 64 ; what they must contain, 65. — Of burial, none within 24 hours, 66 ; what thev must contain, 67 ; as regards hospitals, &c., 68. — Oj religiotts profession, kept in re- gisters, 70; what they must con- tain, 72 ; how authenticated, 71. Additional value, given by till- ing, &c., privilege for, 2009, 2010. Additions, of parties to acts of civil status, 54, 58, 67. Administration, of community, see Community; of tutors, see Tutorship ; of curators, 337-348 ; voluntary, see Negotiorum gestio. Administrator, testator may con- stitute his executor an, 92X ; how replaced, 923, 924 ; see Wills. Admissions, judicial or extra-judi- cial, 1243 ; judicial, when may be revoked, 1245 ; extra-judicial, how proved, 1244. Aditlterv, a cause of separation from bed and board, 187, 188. Advances, as regards commercial agents, i7So._ ^\ Adviser, judicial, see Judicial Ad- viser. Advocates, 1732 ; prescription against, 2260. Affinity, see Witnesses ; Wills ; Marriage, Affirmation, when equivalent to oath, 17 § IS. Affreightment— u*«^rrt/ provi- sions — Contract of, how made, 2407 ; who may make it and who are bound, 2408 ; liability of ship and freight for lessor, and of cargo for lessee, 2409 ; dissolved when irresistible force prevents the voy- age, 2410; if obstruction is only temporary, contract subsists, with- out claim for damages on either side, 2411; right of freighter to unload during detention, 2412; what general rules govern, 2413. — Charter-party, 2414 ; what memo- randum of, specifies, 2415 ; how time of loading, unloading and de- murrage are regulated, 2416 ; bill of lading should be signed lor goods shipped under, 24x7 ; lessee of whole ship entitled to frei^lit on any cargo taken without his con- sent, 2418, — Conveyance of goods in a general ship, 2419. — Hill of ladihg, how signed and delivered, 3420 ; transferable by endorse- ment, 3421 ; freighter on k-eceiving, is bound to return receipts given by master, 2423 ; is proof against party signing it, 2422. — Obliga- tions of owner and of tnastet. — Of owner, as regards ship, 2423. Of master, as to pilots, 2423 ; as to receiving ^nd stowing, andi bill of lading, 2424, 3425 ; as to departure and course of voyage, 2426 ; as to safety of cargo, 2427 ; as to deli- very of goods, 2428, 2429; when ship becomes disabled, 2530 ; how it ceases as to cargo, 2430; and time allowed for discharging cargo, 2431. Of owner, as to damages caused by pilots, 2432 ; as to other losses, 2433 ; not beyond value of ship and freight, 2434, 2435 ; when owner is also master or seaman, 2436. — Obligations of lessee^ 2437 ; he cannot snip prohibited, uncus- tomed or dangerous goods, 2138 ; he is liable for full freight ii he does not load ship fully, 2439 ; is liable if he delays the ship, 2440 ; his liability if he fails to furnish a return cai:go, 2^1,— Freight, what, and when due, 2442 ; amount of, regulated by agreement or usage, 3443 ; when affected by duration of voyage, 2444 ; when payable by time ceases during detention by sovereign power, 2445 ; may be claimed for goods not declared, or they may be discharged at the place of loading, 2446 ; is due upon out- ward voyage only when prohibi- ssolved when '^nts the voy f ''°n is only ubsjsts, M^itij, ?" r» either ^/^'•eighter to ntion, 3412; vern, ,4x3.-' what memo- .2415; how ""Iff and de- f. 2416; bijl ledforgoods ' Jesgee of ;;. freight on 'ut has con- ^ delivered y endorse- ".receiving, eipts given °o' against \'—Obliga' ship, 2423. »423 ; as to »na biJl of > aeparture 426; as to »s to deh'- 29; when 530; how .430; and •ng cargo, damages s to other value of 15 ; when seaman, •''»2437; » uncus- It If he '439 ; is '» ^.440; 'niish a U what, unt of, "sage, iration ble by on by ay be ed, or place lout- Jhibi- INDEX. 41ft tion of trade obliges ship to return, 3447 ; due notwithstanding delay to repair ship when master or owner is not in fault, 3448 ; is due only in part, when ship cannot be repaired nor another got, 3448 ; is due upon goods necessarily sold, and what price is due to owner of goods, 2449; is due upon goods cast overboard, and now value thereof paid, 24 w ; is not due upon goods lost by shipwreck or captured by an enemv, 2451, un- less afterwards saved or recap- tured, 2^53 ; master's privilege for, with prunage and average, 2^53 ; duty of a conpienee and his liability for, 2454 ; when goods m:iy be abandoned for, 2455. — P^ifnaee and averaee^ liability for, the same as that for freight, 2456. JJemurraget what is, 2^57 ; when, how and by whom due, 2458- 2460. Age, of majority, 346, 324 ; what, requisite for marriage, 1x5, Alienation for rent, see Rent, alienation for. Aliens, how become British sub- jects, 21, 22, 2^; rights of, 24, 25 ; when may be jurors, 26 ; may be sued here, 27 ; non-resident, bound to give security for costs, 29; when subject to laws of Lower Canada, 6; subject as to status and capacity to laws of their own country, 6; may inherit in Lower Canada, 609 ; may be witnesses to vriDs, 844. Alien woman, naturalized by mar- riage with British subject, 23. Alimentary allowance, see Maintenance. Alluvion, right of riparian pro- prietor to, 420. Alterations, in registers of civil status, responsibility of o£Eicial de- posit^ for, 52. Alternative, see Obligations. Ambiguity, of laws, how dealt with, XI, 12. AMBLiORATiONS,see Improvements. Ameublissemeni, see Mobilization. Animals, responsibility of owners or lessees of, 1055, 1056; found straying, 594. Annuities, valua of, how deter- minedi zgii;- Answers, inserted by notaries in protests do not make proof, 1209. Appeal, in matters of tutorship, 281, 388; in matters of emancipa- tion, 316 ; in matters of interdic- tion, 333. Application of laws, 6. Appointment of heir, by contract of marriage, valid, 830. Apprentices, their responsibility. X053 ; responsibility of masters ot 1054; prescription of wages of, 2262 ; privilege of, 2006 : not bound to return to succession the expenses of their apprenticeship, 720. Appropriation of payments, see Imputation. Architects, see Lease and Hire of Work; Prescription. Archives, see Records. Arrears of annual rents, prescribed by five years, 2250 ; when claim for, must be registered, 2x22, 2125. Arrest of debtors, 2277. Artisans, responsible for their ap- prentices, X054; rules applicable to, 1696, 1697. Ascendants, when and from whom entitled to maintenance, x66, 167 ; to whom they owe maintenance, 166, X67, 168 ; when and how they inherit, see Successions. Assemblee de pare f its, see Family council. Assessmen-^ 5, borne by usufruc- tuary, 47X. Assignee of right of succession may be excluded from partition^ on being reimbursed, 710 ; of litigious right may be satisfied by reim- bursement, X582. Assignment of debt, see Transfer; of litigious rights, see Sale ; of rights of succession, see Sale ; of lease by lessee, 1638 ; of lease of a farm on shares requires consent of lessor, 1646. Assigns, see Representatives, legal. Assurance, see Insurance. Attachment, for rent, right of lessor to, 1623,1624; inrevendica- tion, right of vendor to, 1998, 1999. Attorney, power of, see Mandate. Attorneys, responsibility of, see Mandatary. Attorneys adlites, 1732; prescrip- tions aeainst, 2260. 416 IKDEX. Auction, voluntary sale by, 1564 ; when licensed auctioneer is not required, 1565, 1566 ; adjudication, and entry in saJe-book complete sale by, 1567; resale of property sold by, and not paid for, 1568. Authenticity, of registers of civil status, 42, 50; of notarial acts, J 208, 1209; of copies of authentic copies, 1215-1219; of acts made abroad, 7, 1220. Authority, Parental^ see Parental 2L\xXYioniy.— Marital, see Marital authority. Authority to take possession. — Of property of absentees, when granted, 93, 94, 95 : nature of, 96 ; shoxild be followed by an inventory, 97 ; when moveables may_ be sold under, 97 ; when possession may become absolute, 98 ; presumptions resulting from, cease from day of absentee's death, 99 ; effects o^ cease as soon as absentee returns, 100, loi ; recourse of children of absentee, 102 ; when it has been granted, claims against absentee may beenforced against person in possession, 103. — Of succession, may be demanded by wife when husband leaves no heirs, 607, 638, 639; may be demanded by the crown in default of either heirs or surviving consort, 607, 638, 639. Authorization.— (^ coroner, ne- cessa^for burials in certain cases, 69. — Of wife, to bind herself, to give, or to receive, 17:^-184; to appear in judicial proceecungs, 176, 178, 180; as mandatary, 1708; as curatrix to her husband, 342 ; when general, avails only for acts of administration, x8i ; of age, bv husband under age, 182 ; general, to alienate immoveables* is void, 181 ; to release husband from prison, or to establish children, 1297. — Of tutor, when required for minors, 297, 301, 306, 307. Avoidance of contracts and pay- ments made in fraud of creditors, 1032- 1040. Bad faith, as regards expenditures and improvements, 417 ; must be proved, 2202. — see Prescription. Bailiffs, a not buy certain litigi- ous rights, 148^. Baker, see Provisions. < Balance, due by tutor to minor bears interest from closing of the account, 313 ; due by minor to tutor, bears interest from judicial demand, 313. Banking, corporations prohibited from, unless specially authorized, 367 ; rules which govern companies formed for, 1888. Bank-notes, prescription o^ 2260, 2348. Bankruptcy, definition of, 17 § ^^ . as regards payments and contracts with respect to third parties, 1032- 1040 ; registration ineffectual with- in thirty days of, 2090.— -See Obligations ; Hypothecs. Bank-stock, is moveable, 387. '^K-^s,,— Publication of and certifi- cate thereof, 57, 58, 130 ; dispensa- tion firom, 59, 134 ; when and where made, 130, 131, 133 ; nu;st be renewed if marriage does not take place within the year, 60. Bargain, see Contracts; Estimate and contract. Barratry, definition of, 2511. Bastard, see Illegitimate. Baths, floating, are moveable, 385. Beaches, ownership of grass grow- ing on, 5^1 ; wood and other objects obstructing them, provisions con- cerning, 594. Beams, restoration of. Is among greater repairs, 469; how placed in common wall, 514. Beneficiary heir, see Heir, bene- ficiary. Benefit of discussion, see Discus- sion. Benefit of division, see Division. Benefit of inventory, see In- ventory, Bet, when binding, 1927, 192S. Betterments, see Improvements. Betting, when gives rise to action, 1927, 1928. Bill OF ladiks, see Affreightment. Bills of exchange, definition of, 2279 ; essentials of, 2280 ; who are parties to, 2281 ; to whom made payable, 2282 ; when and where payable, 2283 ; may be drawn in sets, 2284 ; mention of value re- ceived, 2285. —\Negotiation of^ 2286 ; when may be tiansferred .-\nd effect of transfer aftei matu- rity, 2287 ; endorsement may bn INDEX. "O""?© minor, dosing of the by minor to n-om judicial 's prohibited y authorized ■m companies t'on o^ 2260, wd contracts jarties, 1032. rectual with- 2090.— See ecs. ile, 387. and certifi- • dispensa- n and where mi.st be »es not take >o. .' Estimate te. eable, 385. rass crow- ner objects sions con- is among >w placed eir, bene- e Discus- Division» see In- )28. cements. > action^ htment. tion of, ivho are 1 made where awn in lue re- iferrei matu- lay br» 4ir restricted or modified, 2288 ; holder may strike out the last and any prior indorsement, except that of payee, 2289. — Acceptance o/^ j)re- sentation for, 2290; presentation to drawee au besoin, 2290; when must be presented for, 2291 ; how made, 2292, 2293 ; effect of, 2294 ; cannot be cancdled without con- sent of all the parties to the bill, 2295 ; may be accepted, after pro- test, by third party for honor, 2296 ; notice to be given of, for honor, 3297. — Non-acceptance— rta.y be protested for, and eftect of protest, 2298 ; may be noted for, and how, 2299; how and by whom protested or noted for, 2300-2305. — Liability of parties tOy 2310; of warrantors, 231 1 ; of acceptor, 23x2. — Pay- ment oft when and where must be demanded, 2306-2309 ; effect of, by drawer, 2313 ; by endorser, 2314 ; on what part of the set must be made. 2315; how re- covered, when bill is lost, 23x6 ; for honor, after protest, 2317; what must be comprised in, 3318. —Protest for non-payment, when and where made, 2319, 2320; of bill drawn abroad, 2321 ; effect of want of, 2333, 2323 ; when want of, is excused and when not, 2324, 3325. Notice of, at whose request Eiven, 3336 ; by whom and in what rorm, 3327 ; wnere and how given, 3338, 3329 ; when must be given, 3330; party receiving, bound to notify those he intends to hold liable, 3331. — Interest and com- mission OHf 3332-2334; usurious, does not render bill void in hands ofinnocent holder, 3335.— i?«»»- ofes on, rate of, when drawn abroad, 3336, 3337 ; arbitration in case of disagreement as to rate of exchange 2338, 2339.— Lost, how payment of, recovered, 3316. — General Provisions. Law of Eng- land (3otn May, 1849) to govern in the investigation of facts, and in matters not provided for by Code, 3340, 3341, but parties to suits upon, may be examined on oath, 3342. — Prescription of, 2260, 3267. Birth, established by registers of civil status, 328 ; by possession of status, 229, 230 ; liow established otherwise, 231-234; see Acts, of civil status. Blanks, not allowed in registers for registration of real rights. 21801. Boarding schools, prescription for tuition, board and lodging m, 2261, Boats, are moveable, 385. Boilers, when immoveaole by des- tination, 379. Books, not comprised in the word "moveables," 395. Borrower, obligations of, 1766. Bottomry, see Loan upon bottomry and respondentia. Boundaries, proprietors may oblige their neighbours to settle, 504. BrancheSj of trees, may be cut by owner of the land over which they hang, 529. Breach, see Infiraction. British SUBJECT, every, enjoys civil rights in Lower Canada, 18: who is, and how a person may become, 20-23. Brokers, defined, 1735 ; obligations o^ 1737. Brother-in-law and sister-in- law, marriages between, prohibit- ed, 125. Brothers and sisters, marria^* between them, or connections m the same degree, prohibited, 125. Builder, privilege of, 2009, 201^; responsible for the goodness of hi» work, 1684, 1685, 1688 ; prescrip- tion as to his warranty, 2257, 3359 ; registration of his privilege, 3103 ; see Lease and Hire, of work. Buildings, owner of soil may mak& above or below it, 4x4 ; presumetr to be made by owner unless con- trary is proved, 415 ;. made with materials of another, must remain, but owner is bound to pay value and damages, 416; made in bad faith on property of another, may be removed or kept at their valua- tion, 417 ; if made in good faitlv builder is entitled to tlieir value, 417; requisite distances and works between neighbouring, 332 ; servi- tudes relating to, 533. Burial, when should take place, 66; what act of, should contain, 67 ; rales as to, in religious houaas pretation of, see Interpretation, «f 418 INDEX. and hospitals, 68; of persons dying in places of confinement, 69. Butcher, see Provisions. Buyer, his obligations, 1532; (see Payment; Interest; Dissolution; Redemption ; Sale ;) disturbed or fearing disturbance may demand security before paying, 1535 ; rights and obligations of, upon 1420. lust keep 68; must igreligi. restores IKDEZ. 421 f\ when for price claimed >7: due sion de- I out of tusband iither of » »303, taken, the day o^nmu- out of succes- nsorts, te pro- 5ing it ben it y sole operation of law, ziS8 ; takes place notwithstanding term granted by indulgence, 11 89; when it does not take place, zioo; may be set up by surety for whatever creditor owes principal debtor, 1191 ; may be set up by one of joint and seve- ral debtors for what is due his codebtor to the extent of the share of the latter, 1191 ; cannot be set up by the debtor who consents to tine assignment of his debt, X192 ; how emcted when both deots are not payable at the same place, 1 193 ; when it may only be pleaded, xtQ4 ; when there are several debts, is governed by the same rules as imputation of payments, 119^: does not take i>lacetothe preimlice of the acquired rights of third parties, 1196: failure to set up debt in, may cause loss of privileges and hypothecs attached to it, as against third parties, 1197. Complicity in death of testator, 893. Computation, of time for prescrip- tion, 2240. Concealment, of community pro- perty by wife, renders her liable as in community, 1348 ; of effects by consort gives rise to forfeiture of his share thereof, 1364. CoNCUBiNARiBs, gifts between, 768. Condemnation to corporal punish- ment, when cause of civil death, 311 33 ; when dissolves community, 36 I 7 : disqualifies for tutorship, 36 S 3. Conditions, required for validity of contracts, 984 ; for naturalization, 22. — In the matter of Obltgation%^ X079 : contrary to law or to good morals, or impossible, are null, 760, 1080; optional, when null, 108 1 ; may always be performed when no time is fixed, 1082 ; when deemed to have failed, 1082 ; when deemed to be fulfilled, 1083 ; debtor preventing fulfilment of, renders obligation unconditional, 1084 ; fulfilled, have a retroactive effect, 1085 : though not fulfilled, creditor may do all conservatory acts, X086. — Suspensive^ effect of, X087. — Resolut^e^ effect of, 1088 ; in matters of gift, 811, 816, 824. Confinement, persons dying in places of, ouinot be buried with< out authorization of coroner, 69. Confirmation, of title, a mode of extinguishing hypothec, 2081. Confusion, a means of extinguish- ing obligations, 1x38; of qualities ofaebtor and creditor extinguish ^^Xprotanto, 1113; when it takes place, 1 198; when it avails the sureties, 1199; when it ceases in matters of hypothecs, 2081. Conguets, see Joint Acquests. Consent, in contracts, 984, 988. Consideration, in contracts, 984, 989. Consorts, their respective rights and duties, 173-175; when may remarry, 118, 108 ; may oppose marriage of consort, 136/; rights of surviving, 1338 ; obligations^ of surviving, x68 ; consort ^ against whom judgment of separation from bed and board is obtained loses all advantages granted by the other, 211 ; consort obtainmg separation fi'om bed and board retains all such advantages, even though they were stipulated reciprocal, 213 ; separated from bed and board, owe each other maintenance when needed, 213 ; mutual gift between, abolished, 1265 ; liability of, who have jointly benefited a common child; 1308 ; the)** respective rights as regards debts, when the com- munity dissolves, X372-1377; sepa- rated, may at any time unite, and thus put an end to the effects of separation, 217.' Consumablb things, may be sold by beneficiary heir, 665 ; by usu- fiiictuary, 465 ; are the subject of loan for consumption, 1777. Consumption, loan for, see^ Loan. Contempt of court, punishable by imprisonment, 2273. Contents, liability of vendor of immoveable for, I'sox— 1503, Contingent rights, see Absentee. CoNTiNUATiON, of lease, see Lease ; of community, see Community; of partnership, see Partnership. Contractors, see Work, lease and hire of, by estimate and contract. Contracts, and agreements, 984; essentials of, 984 ; capacity of per- sons to enter into, 9S5 ; cause o^ 989 ; defects of, 991-1012 ; inter* 433 IKDEX. pretation of, see Interpretation of contracts ; effect of, 1022-1027 ; effect of, as rejgards third parties, 1028-1040; of insurance, seelnsu- nuice. CoHtrainte par cor^s, 2271--. Contravention, see Infhiction. Contribution, in cases of insurance and maritime losses, see Insurance; to debts of community, see Com- munity ; between creditors, 198 1 ; to debts of succession between usufructuary and owner, 473, 474 ; between jomt and several debtors when one is insolvent, 11 18, 11 19; in partnership, 1839, 1840, 1893. Conventional dower, see Dower, conventional. Conveyance, iti merchant vessels, 2461-2467. Copartitioners, warranty between, 748, 1898; jprivilege of, 2014; re- gistration of their claims, 2104. Copies, when authentic, 1215-1219; when prima facie proof, 1220; when may serve instead of origi- nals, X217-1219. ^ Coroner, when his authorization is necessary for burials, 69 ; liable to imprisonment for official indebted- ness, 2272. Corporations, are ideal persons, 352 ; when deemed legally consti- tuted, 353 ; are aggregate or sole, 354; ecclesiastical or lay, 355; political or civil, 356 ; have a cor- porate name, 357 ; rights of, 358 ; may elect officers, 359 ; duties of officers of, 360 ; may make by- laws, 361 ; privileges of, 362 ; re- sponsibility of members of, 363; disabilities of, 364, 908 ; prohibi- tions affecting, and persons held in mortmain, 365, 366, 836 ; cannot carry on banking without author- ization, 367; how dissolved, 368- 370 ; liquidation of affairs of, 371 ; curators to dissolved, 372 ; duties of curators to^ dissolved, 373 ; property belonging to, 404. Correction, of children, 245. Corrosive substances near neigh- bour's property, 532. Costs, security for, to be given by persons residing out of Lower Canada, 29 ; their privilege, 1995, 3009, 2017 ; see Expenses. Co-sureties, see Suretyship. Co-TUTORS^ or joint tutors, 264. Council, family, see Family coun- cil. Counsel, judicial, see Judicial Ad- viser, Counter-lettbUs, have no effect except between the parties to them, 1212. Counter-walls, between neigh- bours, rules concerning thickness of, 532. Covenants, see Contracts. — Mar- riage, see Marriage Covenants. Coverture, disability resulting from, 986. Creditors, may demand the nullity of contracts made to defraud them, 1032 ; requisite conditions for such nullity, X033 ; what contracts or payments are deemed fraudulent, 1034-1036 ; what contracts or pay- ments are not deemed fraudulent, 1038 ; subsequent, cannot demand nullity except in case of insolvency, 1039 ; prescription of actions of, to annul, 1040. Crown, privilege of claims of, 19^4 ; legal hypothec of, 2032 ; is subject to the provisions concerning regis- tration of real rights, 2086 : excep- tion to this .«!2, 2084 ; when sub- ject to the rules concerning pres- cription, 2211-2216; what thmgs belong to, 584, 589, 591. Curator, to whom given, 337, 338, 34|i 347» 348; formalities of ap- pomtment of, 339, 341 ; when he must be replaced by a curator ad hoc, 346 ; to emancipated minor, his duties and powers, 317, 318, 320, 321, 322, 340;^ responsible for offences and quasi-offences of in- terdicted person, 1054; to inter- dicted person, when and how appointed, 341 ; when husband or wife may or must be appoint- ed, 342 ; his authority over the person interdicted for insanity, 343; his authority over the per- son interdicted for prodigality, 343; to cliild not yet bom, 345; ad hoc, in what cases, 346 ; CuRATORSHip, To absentee, see Absentee. — Ta^roperty, in what cases, 347 ; of Absentees, 347 ; of dissolved corporations, 347, 372- 373 ; of vacant estates, 347 ; sur- rendered in hypothecary actions, INDEX. 423 347 ; abandoned by cebtor, 347 ; of Fuccessions accepted under benefit of inventory, 347. — To the person, in what cases, 338; need not be retained for more than ten years except by consorts or ascend- ants or descendants, 344. Customary dower, see Dower, customary. Customs duties, privilege of the crown for, 1989. Damages, in tlic case of ttegotio- rum gestioy 1045 ; resulting from the reception of a thing not due, zo4g : resulting from non-perform- ance of obligations, 1065, 1070 ; do not accrue unless debtor is put in default, 1070, 1077 ; except when obligation is not to do, 1070 ; are due unless contrary be proved, 107 1 ; are not due for fortuitous events, 1072 ; what they consist of, Z073 ; stipulated, cannot be re- duced by the court, 1076 : result- ing from delay in payment of money, what they consist of, 1077 ; in the case of a suspensive condi- tion, 1087 ; as regards joint and several debtors, 1109; resulting from non-performance of indi- visible obligations, 1128 ; incurred 4>y mandatary, 1709, 1710 ; by lender, 1776; by partners, 1845, 1856 ; by pledgee, 1973 ; hypo- thecary debtor, 20^5. Date of pirivate writings, 1225 ; of commercial documents and writ- ings, 1226. Days, how reckoned for prescrip- tion, 2240. Deaf mutes, how may make a will, 847,850,852. Death, of testator, complicity in, 893 : by violence or in a place of confinement; 69 ; acts of, see Acts of burial : civil, see Civil death. Debentures, how transferred, 1573. Debtors, joint and several, see Joint and several liability. Debts, of the matrimonial commu- nity, how the copartners contri- bute to, 1369-1378 ; of a succession, how and by whom payable, 735- 7^5 ; of a testator, now and by whom payable, 875-878, Decisorv oath, see Oath, decisory. Declaration d'hypothkque, see Hy- pothecs. 27 Deductions (mferences), Icfl to dis- cretion of the court, 1242; (before partition), see Pretakings. Deeds, see Acts ; Writings. Default, putting in, how done, 1067- 1069; putting in, necessary to obtain damages, 1070. Default to publith bans, or to allow delays to elapse, 157; to comply with law as to marriage, [>enalties in consequence of, 157- 158. Defects, in contracts, 992-1012, error, 992, fraud, 993, _ violence and fear, 994-1000, lesion, looi- IOI2 ; in a tiling sold, 1522-1531 ; in a thing lent, 1776; in posses- sion, 2197, 2198 ; in things car- ried, causing damage, 24^5 : of ship insured, 2505; in thing in- sured causing loss, insurer is not liable for, 2509. Degrees, of relationship, how com- Euted in successions, 616-6x8 i eritable, 635. Delay, see Term. Delegation, does not effect nova, tion, 1173; leaves creditors no recourse against debtor delegating, whom he has discharged in the event of the person delegated be- coming insolvent, 1175; debtor accepting delegation cannot op- pose to the new creditor the grounds of exception he might avehad against the other, 1180. Delivery, of thing sold, what con- stitutes, 1492 ; what constitutes, as regards immoveables, 1493; as regards moveable property, 1493; as regards incorporeal things, 1494 ; expenses of, by whom borne, 1495 ; cannot be en- forced before payment, 1496 ; can- not be enforced in case of insol- vency of buyer, 1497 ; of thing in the condition in which it was at the time of the sale, i4<)8 ; com- prises accessories of thing sold, 1499. Demand, judicial, interrupts pres- cription, 2224. Demurrage, how regulated, 2416 ; what is, and by whom it is paid, 2457 : when due, 2416, 2458. Deposit, two kinds of, 1794. — Sim- ple ^ is gratuitous, 1795 ; moveables only can be the object of, 1796; iU INDXX. ■ delivery essential to, 1797 ; is either voluntary or necessary, 1798. -—VoiuHtary, what is, 1799 ; takes Elace only between persons cap;«* le of contracting, 1800, 1801: obligations of the depositary, 1803, 1810 ; obligations of the represen- tatives of the depositary, 1806; where and how the thing must be restored, 1807, x8io; depositary cannot demand proof of ownership of person from whom he received the deposit, x8o8; obligations of the depositor, 1812. — Necessar^^ definition of, 18x3; is presumed in certain cases, x8x4 : responsibility of depositary in such cases, 181 5, x8x6 ; see Sequestration ; Ofholo' ^aph vaillsy 857 1 Of wills made in English form^ 857. Deposit into court^ see Tender. Depositaries, of registers of civil status are responsible for their correctness. ^3 ; pensUties to which they are subject, 53. Deposits of earth, see Alluvion. Deputy, has all the powers of his principal, 17 § 18. Derelict lands, belong to the Crown, 400k Descendants, see Successions. Destination, by proprietor in matters of servitude, 551 ; pro- perty maybe immoveable by rea- son of, 379, 380. Destruction of a thing, see Loss. Deterioration, of property under lease, X627-1635 ; during petitory or hypothecary action. 2054, 2055 ; during emphyteutic lease, 578 ; of property to be returned into a succession, 729, 730; of the thing due, X063, X064. Difference, inequality of lots in partition made up by payment of, 704. Differences, between English and French texts how regulated, 2615. Disabilities, to which corporations are subject, 364-367 ;^ resulting from minority, interdiction, cover- ture, &c., 248, 986 ; by whom may be set up, 987; which exclude from tutorship, 283-385. Disappearance, of a person, when a ground for obtaining provisional possession of his property, 93. Disavowal of paternity, when may or may not be nude, 219-322; when must be made by husband, 333; by his heirs, 224; formalities of, 235 : if not made within proper time the child if held to be legiti- mate, 326. DiscHARGEjSee Release; Cancelling. Discontinuance of suit prevents it from interrupting prescription, 3336. Discount, see Bills of Exchange. Discussion, benefit o^ may be set up by purchasers having right of redemption, 1554; benento^may be set up by holder of hypothe- cated property who is not person- ally liable, 3066, 3067. Disinheritance, how effected, 899. Disowning, see Disavowal. Dispensation, from ban^ may be obtained, 59; from impediments to marriage, X37. Dispositions, conditional, in a gift or a will, 760. Disqualifications, see Disabili- ties. Dissolution, Of community^ how it takes place, 1310;^ does not give rise to rights of survivorship unless stipulated, X322 — Of marriage., when it takiw place, \%^.—0} partnership^ when it takes place, 1892, 1803; when may be de- manded before the expiration of the stipulated term, X896, X897; what partnerships may be dis- solved at the wul of one of the partners, x8c|5; effects of, with regard to third parties, X900; as between the partners, 1897, 1898. — Of sale^ may be demanded for latent defects, XS25 ; for non-pay- ment, _ 1536; for non-payment, Erescription of right of, XS37 ; may e prevented by payment before judgment, X538; obligations of vendor in cases of, XS39; of buyer in cases of, 1540; action for, im- plies a waiver of action for the price, 1541 ; action for price is no waiver of action for, 1^42 ; when may be demanded m case of moveables, rSA7^~0f gifts, 8x6. — Prescription, 6f right of, 2248. Distances, required for certain structures, 532. Distribution, of printed laws, 4, 5 ; amongst creditors, X98X. I i i «m < -wffwwn i XHDK. 426 uy husband, : formalities hthin proper to be iegiti- Cancelling. prevents ?t •rescription, •xchange. fnay beset '"S right of efito/;may '^ hypothe- •ot persoQ- rected,899. T '^ may be Pediments .m agift JDisabiU- »'fy, how snot give nip unless carriage, ces place, ' be de- ration of e of the or, with 1900; as >7. 1898. tided for lon-pay- ayment, 17; may \ before ions of >f buyer for, im- for the « is no ! When ase of h 816. 8248. certain s, 4, s ; Disturbance, or reasonable fear of, gives a riebt to retain pxurchase money untu securitv is given, 1535 ; against which the lessor warrants tne lessee, 1616, xt\^. Ditches, between neighbours, see Common Wall, Servitudes; kept at common expense, 536. Divisibility, of obligations, when it exists, 1 1 21; with respect to whom it takes effect, 1x23, 11 23; of obli- gation to pay damages, 11 28. Division, of debt, with regard to one of codebtors does not destroy joint and several liability of the others, 1114, Z115; when and how ti^es Slace, 1 1 16; of joint and several ebt takes place between the co- debtors themselves, 11x7-11x9 ; when does not take place, 1x20; Benefit of,, cannot be set up by codebtor of a joint and severiu obligation, XX07. Documents, see Acts, Writings. Domain, public, see Crown. Domestics, see Servants. Domicile, as regards civil rights, 6, 79 ; . how established for the puiposes of marriage, 63 ; how changed, 80 ; intention to change, how proved, 8x ; former, of person hpldmg temporary office remains unchanged, 82 ; of married women, minors and interdicted persons, 83 ; of servants and other employees, 84 ; elected for the purposes of a deed, 85. Don mutuel, abolished, 770, 1265. Donee, cannot be heir without re- turning the gift to the succession, 712 ; who has registered, preferred to prior donee wiio has not, 2008 ; Dove-cot, to whom pigeons in, be- long, 428. Dower, how many kinds there are, 1426 ; from what date the right to, accrues, X433 ; when the right to, opens, X438, X439, 14^1 ; wife sur- viving enters immeaiately ^ upon the enjoyment of, X439 ; if the wife dies first, the children have mere o^Miership of, until the death of their father, 1439 ; how it termi- nates, 1439, 1462 ; wife and child- ren are seized of, and how, 144X ; is a real right, X442 ; alienation by husband of immoveables subject to, does not affect it, 1443: wife may renounce her right oj^ upon immoveables sold, 1444 ; effects of such renunciation of, 1445 : in what condition the dowager takes j^id leaves the property subject to, 1.453 '» dowager bound to give secu- rity in order to enjoy, 1434, 1455 ; how dowager enjoys property be- longing to, 1^56- 146 er in cases n for public '.gives right oneyinsale, ^e pleaded D'or, iria. pleaded by «ed hypo- ee Bills of t in ex- acted may back what a the same '»,does not lister her of, 1416- fiied by a nay enjoy II of her I stipula- I who are "cecutors, vho may pelled to nd to be enounce i^ should aJ. 912, irvatory ]x Vi; limited icurred ". 9,14; seizm » 918; 9x8; to be o not their resta< ExBMPTiov, from return may be granted by donor, 714 ; from tutorship,^ what causes give a right to it, 373-281. ExHEREDATiON, how effected, 899. Expenditures, see Improvements. Expenses, Oy lasf illnesst their pri- vilege, 3003, 3009 ; what tney comprise, 3003 ; must be re|;is- tered, 3x07. — Funeral, their privi- lege, 2002, 3oog; must be regis- tered, 210J. —O/ploughing^, tilling, and sowing, are charces upon the frofits, 410, 30I0. — Lying-in, see •rescription. — Qf preservation due to depositary, i8x3 ; negotio- rumgestor, 1046: the person who is obHged to return a thing unduly received, 1052 ; the borrower, 1770. Experts, must ascertain condition of property of absentee, 97 ; must value the immoveables for the par- tition of a succession, 696. Expropriation, for public purposes, 1589; in cases of, purchaser cannot be evicted and the only recourse is against the price, 1590. Extinction, of suretyship, 1956- 1961 ; of privileges and hypothecs, 3081; of obligations. 1138. Extracts, from civil registers are authentic, ^o; from certain acts are authentic^ 1216. Factor, definition of, 1736 ; whose principal resides abroad, how liable to third parties, 1738; when he binds the owner, 17J9; may act through clerks in his behalf, 1749 ; when deemed the owner of goods, and consequences, 1740- 1748. Failure, see Bankruptcy, Faith, Good, is always presumed, 2203 ; when it ceases, 4x2 ; as re- gards expenditures and improve- ments, ^ij.—Bad, must be proved, 2202; see Prescription ; as regards expenditures and improvements, 4X7' Falsity, authentic acts may be attacked on the ground of, and how, 1211. "Family," interpretation of the word, 979. Family council, by whom may be demanded, 250 ; who may be sum- moned to form part of, 251-254. Family-i»apers, what they prove, 1227; for establishuig fihation. 333 : for establishing paternity or maternity, 241. Farm, Leas* 0/ «, its duration, 1653; its termination, i6<5-t665; when no term is aereed upon, 1653 ; see Lease and Hire.— Z/M^r of, cannot sublet or assign his lease, 1646 : his obligations, X647, 1649 ; right to reduction of rent in certain cases, 1650-X652 ; increase or reduction of his rent, if extent ol farm be greater or less than speci- fied in lease, X648 ; his obligations with regard to manure, X654. Farmer on shares, cannot assign his lease, 1646. Father, liable for damages caused by offences or quasi-offences of his children, 1054; authority of, see Parental authority. Fear, is a cause of nullity in con- tracts, 994 ; must be a reasonable and present fear, 995 ; of injury to near kindred is a cause of nullity, 996 ; reverential, is not a cause of nullity, 997 ; of legal constraint, when is a cause of nullity. ()98 ; pro- duces only a relative nullity, 1000. Fences between neighbours, se& Servitudes. Fidei-commissum, see Substitution.. Fiduciary, legatees may be simply, 869. Filiation, rules concerning, when husband is deemed father of the child, 2x8 ; when he is not, 321, 227 ; when and in what cases child may be disowned, 219-226; is proved by acts of civil status, 328 ; or by possession of status, 229 ; or by witnesses in certain cases, 230, 232, 233 ; proof contrary to, how made, 234 ; by •whom and when action of child may be brought, 236 ; action of child for, is impre- scriptible, 235; no status can be claimed contrary _ to that estab- lished by act of birth and posses- sion, 231. Final judgme-.t, res judicata, is an absolute presumption, 1241. Fines, see Penalties. Fins de tion recevoir, see Excep- tions. Fire, when lessee is responsible for loss by, 1629-1631. Fire insurance, see Insurance,, against fire. 428 INDRZ. Fish, passing into another pond, to whom belong, 438. Fishing, right of, governed by laws of public poh'cy, 587. Flock, or nerd, as regards usufruct, 478 : see Lease, of cattle on shares. Foot-road, a legal servitude, 507. Force, superior irresistible, causes '* fortuitous event," 17 $ 24. FoRBicNBR, see Aliens. Forfeiture of right of redemption, 15491552. Fortifications, form part of Crown property, 40a ; even when no lon- ger used, 403. Fortuitous event, what is, 17, § aj ; as regards leases of farms, 1050 : as regards obligations, io;r2, I300, I303 ; in cases of reception of a thing not due, 1050 ; does not give rise to damages, X073, 1200. Found (Things), see Things found. Fraud, is a cause of nullity in contracts, 991, ^93 ; when may be invoked by third parties, 1033- 1037 ; cannot be invoked against iona Jide^ purchaser under an onerous title, 1038; time within which third parties may invoke it, 1039, 1040; as regards third parties, see Third parties. Free and clear, in contracts^ of marriage, 1397, 1399 : stipulation to get back property, brought into the community, 1400. Freight, Freighter, see Af- freightment. Fruits, belong to owner of the thing, 409 ; are subject to expenses of ploughing, tilling and sowing, Jfio; accrue to possessor in good aith, 411; belong to usufhictuary, 4^7 : see Prescription ; natursu, what they are, 448; , industrial, what they are, 448; civil, what they are, 449 ; civil, accrue day by day, 451. Funeral expenses, their privi- lege, 1904, 2009 ; must be regis- tered, 3107. " FuRNiTURb," what moveables comprised under the word, 396. <3am)no contracts, when binding, 1927, 1928. Gaol, burial of persons dying in, 69. Ohnder, masculine, includes femi- nine, 17 § 9. Gbnbral partners, in limitc(k Eartnerthips, 1873 : their responsi- ility, 1873 : have sole manage- ment of the partnership, 1874, 1 881; must nave partnership registered, 1875; change in, dis- solves the partnership, 1879 ; bound to render account, 1885. Generations, or degrees of rela* tionship, 615-6x8. Giving in payment, equivalent to sale, i|93. Gift, of a house with all that it contains, does not comprise ready money, titles, nor debts due, 398. Gifts, causa mortis^ in contracts of marriage, partake of gifts and of wills, 757 ; when void, 758 ; to be valia must be initr vivos or by will, 754. — Inter vivos, defini- tion of,^ 755 ; the proUbitions and restrictions as regards the capacity to contract apply to, 759 ; effect of impossible or immoral conditions in, 760 ; who may dispose by, and when, 761-763 ; in cases of second marriage, 764; who may accept, 765-^69'; between consorts, 770; relatively to what time capacity to receive is considered in, 771 ; in favor of persons not yet born, 772 ; in favor of persons incapable of receiving, by means of persons interposed, 774 j what persons are presumed to be interposed in, 774 ; of the property of another when valid, 773; no longer subject to payment of legitim, 775 ; form of, 776 ; donor to complete gjil must divest himself, and how, 777 ; can only be of present property, except in contracts of marriage, 778; donor may stipulate right to take back, or resolutive conditions, in, 779; may be universal or by general title, or by particular title, 780 ; to what conditions may be subject, 782, 783 ; of present pro- perty, how may be made, 784, 786, — Acceptance of, and from when they take effect, 787 ; need not be in express terms, and is presumed in contracts of marriage, 788 ; presumed from delivery ot move- ables given, 7'88 ; by whom may be made, 789, 790 ; when may be made, 791 : whether minors 01 interdicted persons may be relieved ITVDRX. '; .'" limited ne>r responsi. ■ole manage- 'erah'P, 1874. Partnershj «ng« in, dis. »«>P, 1870 . >unt, 1885/^ rees of reJa- equivalent to » all that it nprise ready bts due, 398. >n contracts O' gifts and ,7°'d.. 7S8: nvosj defini. ubitions and the capacity 59 ; effect of 1 conditions 5ose by, and 5s of second nay accept, isorts, 770; I capacity to '"» 771 ; in t born, 77a; ficapable of of persons persons are !edin,774; '"ler when subject to »; form of, > &^ must » 777 ; can i^y, except 'ge, 778; >; to take itions, in, u or by ular title, » may be sent pro 784. 786. )m when id not be resumed e, 788; >t move- 3m may maybe nors 01 relieved from, 79a ; maybe future, 793 ; see Acceptance, of ^xi^.^.— Effect c/x divest the donor, 793 ; when war- ranty implied from, 796 ; effect of, as regards debts of the donor, 796- 801 ; when creditors may demand separation of property in cases of, 803 ; when creditors may demand the annulling of, 803. — Rtgistra- tioH of^ and where it should take place, 804 ; effect of, 805 ; is requi- site, 806; exceptions as to, 807 808 ; when must be made, 809 ; who is responsible for want of, %\o.— Revocation of , when may be made, 811; none by birth of children to donor, 8ia ; for in- gratitude, 813 ; effect of, for in- gratitude, 8x5 ; under resolutory clause, 816. — Causd mortis, by contract of marriage, 757, 781 ; in what terms may be expressed, 830 ; By contract of marriage, free from restrictions, 818 ; rules applicable to, 817 : by tvhom and in favor of whom may be made, 818-820 ; how maybe accepted, 821 ; validity of, depends on solemnization of mar- riage, 823 ; how far irrevocable, 823 : may be stipulated to be re- vocable, conditional or reducible, 824 : to what debts may be made subject, 825 ; how donor may free himself from debts to which they are subject, 826, 827, 828 ; when they admit of representation, 829 ; may be expressed in any^ terms which indicate the intentions of the donor, 830. Good faith, is always presumed, 2203 ; as regards expenditures and improvements, 417 ; when it ceases, 413. Good morals, things contrary to, cannot form the object of obliga- tions, 1080. "Governor," meaning of the word, 17, § 3. "Governor in cotJNCiL," meaning of the words, 17, § 4. " Grandchildren," meaning of the term, 980. GrantSj original, exempt from re- gistration, 2084. Grass, upon certain beaches, to whom it belongs, 591. Greater repairs, what are, 469 ; when usufructuary is liable for, 468. Guardian, see Sequestrator, Tutor, Curator. Habitation, right of, in what it consists, 487 : established by the will of man, 4S8 ; ceases in tht same manner as usufruct, 488 ; requires security to be given and inventory to be mad*;, 489 ; govern* ed by the title creating it, 491 ; ex* ercise of, must be that of a prudent administrator, ^90 ; extends to family, even subsequent, of oer^ son having it, 495 ; right of; is confined to whaf is necessary, 496 ; cannot be assij; ncd nor leased, 497; he wlio 1 ■ i it jj subject to charges in proj ortion *o the ' .art of the property he enjoys, 498. Harbors, form part of crown domain, 400. Harvest, when luss of, t.atitlcs lessee to reduction of rent, 1650- 1652 ; standing, subject to privilege of expenses for sowing and tilling, aoio; privilege of tithe; v ^on, 1997. Hearths, against comm •n w^Us, 533 ; repairs of, by lessee, 1635. Hedges, see Common wall. Heir, meaning of the word, 597 ; how seized of the property of the succession, 607 ; may accept un- conditionally or tinder benefit of inventory, 642 ; is not bound to accept, 641 ; who has renounced, when he tray resume succession, 657 ; who has abstracted or con- cealed property cannot renounce, 659 ; delay allowed him to have inventory made and closed, 66 extension of delay, 66/ ; how long the option remains with him, 669 ; how he contributes to p 5j- ment of debts of the suc- ces'.-.on, 735-738 ; covenanted ap- pointment o^ valid in contracts of marriage, 830 ; ostensible, in pos- session, receipts granted by, are valid, 870 ; see Partition. — Bene- ficiary, see Successions, 660 - - ; loses his right when he has con- cealed property, 670; effect of benefit of inventory, 671 ; obliga- tions and immunities of, 672-67t» , may renounce the benefit, 677; how discharged, 677, 678 ; his 430 INDRX. liability towards creditors who did not come forward, 679, 680 : not excluded by unconditional more distant heir, 6S3 ; see Prescription. Heirs, of wife in community, delays for inventory and for deliberating, I349i 1353! when divided as to acceptance or renunciation, how partition is made, 1363. Hbrp, or flock, as regards usufruct, 478: see Lease, of cattle on shares. Highways, maintained by the state, form part of crown domain, 400 ; things found on public, how dis- posed of, 593 ; tow-path, so;r. Hindering testator from modifying or revoking his will, a ground of revocation, 893. Hire, see Lease and Hire. Holder, of real property, may be sued h3rpothecarily, 2056, 2058 ; may be sued and condemned to surrender or to give a renewal- deed, 2061 ; when sued may call in his vendor or any previous grantor, 2063, 2063 ; may in any case set up any plea tending to dismiss action, 2064. If he is not personally liable, may plead exceptions of discussion, 2065-2067, warranty, 2065, 2068, 2069, subrogation, 2065, 2070, 2071, resulting from expenditures, 206^, 2072, resulting froin a prior claim, 2065, 2073. Against whom an hypothecary action is brought cannot alienate the property, 2074, deteriorate the property, 2054, 2055 ; in what condition must surrender property, 2075 : surrenders nothing but the possession, 2079; when may be condemned personally to pay what he has received from the property, 2076 ; regains, when he Surrenders, whatever rights were extinguished by his possession, 2078 ; see Hy- pothecs. Holidays, what days are, 17 § t^. Homologation, of advice of family council, necessary, 262, 328, 329, 339. Hospitals, subject to rules as to acts of burial, 68. Hotel- KEEPERS, deemed necessary depositaries, 1S14; their responsi- bility, 1815 ; see Prescription. House, with all it contains, what Is comprised in sale or gift of, 398 ; minor cannot leave his father's, without permission, 244; board- ing, responsibility of keepers of, for effects of travellers, 1814 ; see Prescription. Hunting, by what laws governed. 587. Husband and wife, see Consorts. Husband, authority of, see Marital authority ; must be curator to his interdicted wife, 342 ; interdicted, may be under curalorship of his wife, 342 ; administers all the pri- vate property of his wife, 1298 ; responsibility ofj as regards private property of wife, 1298 ; cannot grant leases of his wife's property for more than nine years, 1299, 1300 ; is entitled to be indemnified for obligations personal to his wife, 1302 ; see Community ; when re- sponsible for replacement of pro- perty of his wife, 1319. HypotheCj upon property expro- priated for public purposes can only be exercised against the price, 1^90 ; definition o^ 2016 ; its in- divisibility-and extent, 2017, 2018 ; kinds of, 2019 ; legal, judicial, and convent^'onai, what are, 2020; upon undivided portion, how affected by partition, 2021 ; move- ables are sometimes subject to, 2022; upon the property of an insolvent, 2023. — Legal, 2020 ; what property is affected by it, 2025, 2028 ; of married women for what claims, 2029 ; of minors and interdicted persons, 2030, 2120 ; of the crown, 2032, 2121 ; of mutual insurance companies, 2033, 2084. — Judicial^ from what it results and to what it extends, 2034 ; what property it affects, 2035, 2036. — Conventional^ by whom may be created, 2037, 2038 ; upon property of minors and interdicted persons, 2039 ; by whom may be created, 2040, 2041 ; must be special, 2042 ; upon pro- perty to which the debtor has not a sufEcient title, 2043 ; for what debts granted, 2044, 2046 ; rules of^ apply to liypothecs created by will, 2045.— /?a«A of hypothecs, 2047 ; cession of priority of, 2048 ; when upon more than one imove- able, 2049 ; rank of hypothecary IXDEX 431 * his father's '244; board' )f keepers of. "s, 1814; see ws governed, see Consorts, f. see Marital curator to his ; interdicted, orsh'p of his rs all the pri- wife, 1298; gards private 298 ; cannot le s property 3:ears, 1299, 5indemuified u to his wife, C ; when re- nent of pro- • >erty expro- urposes can 1st the price, 3i6 ; its in- 2017,2018; al, judicial, ■t are, 2020; rtion, how 521 ; move- subject to, erty of an ral, 2030 ; cted by it, ed women of minors ons, 2030, 532, 2i2i; onipanies, from what t extends. It affects, ional^ by -^> ?^27, >t mmors 2039 ; by '40, 2041 ; ipon pro- r has not for what \(> ', rules eated by 'pothecs, 5^. 2048 ; a imove- )thecary creditors of a vender, 2030 ; con- ditional, Jiow collocated, 2051: subrogation of, 2052. — Effects of, with regard to debtor or other holder, 2053 ; debtor or other holder cannot deteriorate the pro- perty, 2054, 205s ; follows the property into whatever hands it passes, 2056 ; remedies of hypo- thecary creditor, 2057. — Hypo- thecary actiojt, by and against whom may be brought, 2058- 2060 ; object of, 2061 ; exceptions to, 2062-2065, discussion, 2066, 2067 : warranty, 2068, 2069, sub- rogation, 20:70, 2071 ; resulting from expenditures, 2072 ; result- ing from prior claim, 2073 ; effects of, 2074 ; what fruits the holder is bound to restore, 2076; surrender of immoveable, when and how made, 2075, 2077 ; rights of holder upon the property prior to his acquisition of it revive after he is evicted, 2078 ; surrender does not affect the ownership of the pro- perty, 2079 ; warrantors may stop the effect of the surrender, 2080 ; how hypothecs and privilege ter- minate, 2081 : how preserved, see Registration. Hypothecation of vessels, see Merchant Shipping. Illegitimate, children bom 300 days after dissolution of marriage are, 227 ; see Children, illegiti- mate. Imbecility, is a ground of interdic- tion, 325. Immoveables, laws which govern, 6; kinds of, see Property, 374; what things are, 375, 376; mills, 377; crops, 378; by destination, 3791 380, 386 ; by reason of the object to which they are attached, 381, 386 ; by determination of law, 382; under seizure atti not affected by registration, 2091 ; can- not be sold by emancipated mmor without authorization, 322 ; cannot be sold or hypothecated by tutor without authorization, 297. Impediments to marriage, be- tween ascendants and descend- ants, 124 ; between brothers and sisters and their connections, 125 ; between uncle and niece, aunt and nephew* 126 ; other, 127 ; dispen- sations firom, by whom may be ■ granted, 127, Implements, farming, lessee bound to furnish farm with, 1647. Impossibility, of condition in con- tracts, ^60, 1080 ; of performing an obligation, when it extinguishes it, 1200 ; obliges debtor to assign to creditor all rights of indemnity re- lating to it, 1201 ; partial, of per- forming obligation, binds creditor for the part performed, 1202, Impotency, when it renders marri- age null, 117. Imprescriptible things, see Pre- scription. Imprescriptibility of crown pro- perty, 2212-2214 ; of sacred things, 22i7«'22i9 ; of roads and public places, 2220. Imprisonment, of husband, wife cannot bind herself in case of, with- out authorization, 177, 178, 1297. Improbation, of authentic acts, 1211. Improvements, persons making, upon the property of others, 417 ; upon immoveables, made by purchaser evicted, 2072; by lessee, 1640 ; by usufructuary, 462 ; belonging to one of con- sorts, i2>p\> '355 J see _ Owner, Ownership, Emphyteusis, Re- turn to successions, H3rpothecs. Imprudence, liability resulting from, 1053. Imputation, of payments at the option of the debtor, 1158 ; debtor nevertheless cannot require it to be made upon capital in preference to interest, 11 59; when accepted cannot be changed except on the ground of nullity, 1160 ; in the absence of special, how payments should be imputed, 1161. Incapacity, see Capacity. Incapacities, see Disabilities. Incest, nullity of marriage resulting from, X24, 125, 126. Incompetency, of court, as regards interruption of prescription, 2225; of witnesses, 1231. Incorporated bodies, see Corpo- rations. Incorporation, of trading com- panies, &c., 18S9-1891. Incorporeal rights, sec Rights, incorporeal ft32 INDEX. Increase, of animals, in the matter of usufruct, 759, 837. Indemnity, previous to expropria- tion for public puTposes, 407. Indeterminate object, contract re- specting, is null, 1060. Index to immoveables, as regards registration of real rights, 2161, 2164, 2171. Indication of payment, does not effect novation, 1174. Indigent relations, see Mainten- ance. Indivisibility, of admissions, 1243; of obligations, 1122-1130. Indorsement, see Bills of exchange. Inebriety, renders persons inca- pable of contracting, 9S6. Inexecution, see Non-perform- ance. Infant, must be viable to inherit, 608. Influence, undue, see Undue in- fluence. Ingratitude, a cause for revoca- tion of gifts, 811, 813. Inhabitant, of Lower Canada, meaning of the words, 17, § 21 ; is governed by the Laws of L, C. even when abroad, 6 ; may be sued in L. C. for any obligation con- tracted abroad 28. Inheritance, of what consists, 599 Injuries, see Prescription. Injjury to property, see Deteriora- tion. Inn-keepkrs, are deemed necessary depositaries, 1814 ; their responsi- bility, 181S ; see Prescrijjtion. Insane persc^s, oppositions to marriage of, 141, 142 ; cannot con- tract, 986 ; curators of, responsible for damages caused by, 1054. Insanity, gives occasion to inter- diction, 325 ; renders incapable of contractile , 1199 ; renders in- capable ol disposing by gift or will, 759. 837. Ifiscription de fauXy see Improba- tion. Inscription of gifts in offices of courts, abolished, 809. Insinuation of gifts, abolished, 809. Insolvency, see Obligations, Hypo- thecs. Institution contractuelle, valid in contract of marriage, 830. Insurance, definition of, 2468 ; pre- mium, what is, and when due, 2469 ; nature of contract of, 2470, 2471 ; by whom and upon what may be effected, 2472-2473, 2477; against what risks, 2476 ; notice ta be given in case ot loss, 2478 ; different kinds of, 2479 ; how con- tract of, is witnessed, 24S0 ; wliat constitutes a contract of, 24S1 ; how policy of, may be transferred, 248a ; transfer of property insured does not transfer insurance, 24S3 ; representations to be made by insured, 2484, 2485 ; what misre- presentation or concealment will annul, 2486-2489 ; warranties in, what they are, and how they are executed, 249o> 2491 ; Marine, what pohc3rof, must contain, 2492; upon what it maybe ejected, 2493 ; for what voyages, 2494 ; for what risks, 2495 ; time from which risk commences, 2496 ; interpretation of policy, 2497; nullity of insu- rance made after loss or arrival is known, 2498. — Obligations of tlie insured^ 2499 ; premium, when it should 'De paid, 2500; premium, when it is not due,^ 2501, 2502; what warranties are implied, 2505, 2506 ; obligation of insured to do what he can to save property, 2537. — Obligations 0/ the insurer, payment after loss, 2507 ; when insurer is not liable, 250S-2510, 2512, 2513 ; nullity of fraudulent insurance for more than ^alue, 2514, 2515 ; validity of several in- surances of same property against same risks, 2516-2519 ; obligations of insurer of things to be laden in different ships, 2520. — Losses, and kinds of, 2521-2523; upon whom loss by collision falls, 2524-2526 ; particular average losses which are borne by insurer, 2527, 2528 : responsibility of insurer when ship becomes disabled, 2530, 2531 ; how the value of property^ insured under an open policy is deter- mined, 2533-2535 ; the insured is bound, if required, to declare all insurances he has effected, 2536 ; insured bound to do all in his power betweeh loss and abandon- ment to save the property, and his acts for that purpose are for the benefit of tlie insurer, 2537.— INDEX. 433 id when due fr^'^t °f> 2470! na upon \\-hat 72-2475, 2477. M76 ; notice t9 J79 : how con- d.24SoMvhac act of, 248,; 36 transferred >Perty insured £^"^e 2^83; oe made by ; what misre- cealment will J^arranties in »ow they are » ; Marine. contain, 2493; ffected.2493; 54 ; for what ^ which risk nterpretation "ty of insu- ' or arrival is ^iions 0/ tJie um, when it '.* premium, PSoi, 2502; nphed, 2505, sured to do e property, tne insurer, '507; when fraudulent :han 'salue, several in- srty against obligations oe laden in ''■'Osses, and pon whom '524-2526 ; 563 which >27. 2528 ; when ship »53i;how \ insured is deter- nsured is eclare alj 2d, .2536; il m his ibandon- '» and his ! for the 2537.— Abandonment, wheu the insured may make, 2538 ; must be uncon- ditional, 2539; what things may be comprised in, 2540 ; within what time must be made, 2541, 2M2 ; how made, 2543, 2544 ; of ship stranded cannot be made if she can be raised, 25^5 ; time re- quired for presumption of ship having foundered, 2546 ; effect of, 2547, 2549 ; to whom freight be- longs in case of, 2548 ; responsibility of the insurer who refuses to accept, 2250. — Contribution, amount of, which insurer is bound to reim- burse to insured, 2551,2552; when jettison gives rise to, 2553 ; how jettison must be made, 2554 ; what things do not contribute, 2555; what things contribute when lost by jettison, 2555-2557 : haw ship and goods are estimated in cases of average contribution, 2558, 2559 ; none for particular '.verage losses, 2560 ; none for jettison if the ship is not saved by it, 2561 ; takes place if ship is saved by jettison but is afterwards lost, 2562 ; goods jettisoned do not contribute to subsequent loss of goods saved, 2563; cargo does not contribute to payment for ship lost or dis- abled, 2563 ; how takes place, when goods are put into lighters to enable the ship to enter port, 2564 ; master's declaration and protest, to be made on arrival at first port, 2565 ; privilege upon goods for contribution, 2566 ; owner of goods jettisoned and recovered is tound to repay, 2567. — AGAINST FIRE, rulcs Con- cerning, 2568 ; contents of fire- policy, 2569; effect of representa- tions not contained in policy, 2570 ; nature and statement of interest of insurer, 2571 ; warranty implied on the part of the insured, 2572; ex- tent of insurance upon effects in- determinately, as being in a certain place, 2573 ; what alterations annul the policy, 2574; how and when value of things must be proved, 2575; when transfer of interest annuls the insurance, 2576, 2577 ; for what losses insurer is liable, 2578-2580 ; for what losses he is pot liable, 2581 ; for what amount insurer is liable, 2582 ; case of delay given for payment of re- newed premium, 2583 ; insurer paying loss is entitled to transfer of rights of insured against par- ties who caused the loss, 2584.— ON LiFK. rules applicable to, 2585, 2586 ; contents of life-policy, 2587 ; implied warranties and their ex- tent, _ 2588 ; how sum insured may be stipulated payable, 2589 ; what interest insured must have, 2590 ; policy of insurance transferable to any person interested or not, 2591 ; what is the measure of the in- terest insured, 2592: when insu« ranee upon one's own life becomes void, 2593. — MUTtJAL, is not com- mercial^ 2471 ; by what rules governed, 2471 ; hypothec result- ing from, 2033 ' claims for con- tribution need not be registered, 2084. Intention, effect of, as regards interpretation of deeds, 1013. Interdiction, necessitated by im- becility, insanity or madness, 325 ; may also take place on the ground of prodigality, 326; may be de- manded Dy consort, or any rela- tion, 327 ; family council must be summoned for, applicant not form- ing part_ of it, 327, 329 ; in case of imbecility, insanity or madness, must be preceded by interroga- tories, 330 ; in case of prodigality the party must be heard or have been summoned, 330 •, judicial adviser may only be given, 331 ; is subject to revision, 332 ; must be inscribed on list, 333; takes effect from the day on which it is pronounced, 334 ; acts subsequent to, by insane persons are null, and by prodigal may be set aside, 334 ; acts anterior to, when may be set aside, 335 ; may cease by jud£:nent removing it, 336 ; disability result- ing from, 986 ; refjistration of rights of persons interdicted, 2030,^ 2120. Interest, actual and existing, necessary to bring action to annul a marriage, 155. — Interest of money, due minor by tutor from the closing of his account, 313 ; due tutor by minor from date of judicial demand, 313 ; is comprised in civil fruits, 449 ; 43^ INDEX. when and how due upon debts, 1063, ro77 ; when may produce interest, 1078; as between joint and several debtors, iitx ; upon price of sale, 1534 ; presumed to be paid when capital is paid, 1786 ; when and how registered, 2122, 2125, 2146; how prescribed, 2248, 2250; rate of, upon loans and agreements 1785; ceases after a legal tender, 1x62 ; upon debts between consorts, 1366 ; due by mandator, 1724; due by manda- tary, 1714; due by partner, 1840; upon a claim given in security, 1974; upon bills of exchange, 23x8, 2332, 2336. Intermeddling, ofwife in property of community, 1339, 1340, 1348 ; in successions, 646, 659. Interments, Isee Burials. Interposed persons, in matters of ' gift, 774. Interpretation, Of contracts^ according to intention of parties, ZOX3 ; in such a sense as will give them effect, 10x4 : in the sense which agrees best wiih the matter, 10x5 ; when ambiguous, accord- ing to usage, 10x6 ; customary clauses supplied though not ex- pressed, X0X7 ; one clause by another, 1018 ; in cases of doubt, in favor of the debtor, 10x9 ; ex- tent of general clauses, 1020 ; in case of special provision for parti- cular cases, 1021. — OflawSy XI, 12. — Of certain expressions^ 17 — Of willSf 872. Interrogatories, upon articulated facts, 1246; upon decisory oath, or suppletory oath, 1246; previous to interdiction, 330. Interruption (of prescription,) is natural or civil, 2222) natural, what is, 2223; by judicial demand, 2224 : not caused by eztra-judicial demand, 222.^ ; not caused by de- mand before judge without jurisdic- tion, 2225 ; ceases in certain cases, 2226 ; ceases by recognition of the right, 2227 ; against prmcipal, avails against surety, and vice versA, 2228 ; renunciation of prescription by one does not interrupt that of others interested, 2229; in favor ofone of joint and several credi- tors avails as regards the others. 2230; the same rul^ as regards heir when the obligation is indi- visible, 2230 : but not when debt is divisible, 2230 ; against one of joint and several debtors avails against the others, 223 x ; the same rule applies as regards heirs when the debt is indivisible, 2231 ; against a debtor does not affect another holder, 223 x ; against one of several holders of undivided property avails as regards the others, 223 x ; action in, 2057. Intervention, of creditors in actions for separation of property, 1316; of vendor to warrant his buyer, 2062. Interversion of title, in matters of hypothec, 2048; in cases of pre- scription, 2205. Inventory, in matters of spccession, see Successions ; failure' to make, gives minor children k right to claim the continuation of the com- munity, X323 ; formalities of, 1324, 1325 ; not required in certain cases, »343» 1354; delay for making, 1342, X344, 1340. . Investment, of moneys arising nrom sale of wife's property, 1303, X306 ; when husband is not responsible for omission to invest price of, or to replace wife's property sold, 13,19 ; of moneys belonging to minors, 294, 295, 296. Irrevocability of _ gifts made in contracts of marriage, 823. Irrigation, proprietor of land bordering on a stream may use the water for, 503. Islands, formed in navigable or floatable rivers belong^ to the crown, 424 ; formed in rivers not navigable or floatable belong to riparian proprietors, 425 ; formed by being cut off from riparian pro- perty, 426. Jettison of goods, when master may have recourse to, 2402 ; how it may be made, 2554, 2553 1 when it gives rise to contribution, 2553, 2555-2557 ; see Insurance. Joint acquests of community, what property deemed to be, 1272-1278, Joint and several interest among creditors, its effect, 1100; payment to one of joint and seve- INDEX. 439 ral creditors frees the debtor, i lox ; release by one of joint aad several creditors frees the debtor for part only, iioi ; as regards interruption of prescription, 1102, 2230. Joint and several liability, when and how it takes placer J 103, 1 104 ; is not presumed, 1 105 ; results firom offence or quasi-offence of two or more, 1 106 ; precludes the right of pleading benefit of division, 1107 ; suit agamst one of joint and seve- ral debtors does not preclude suits against the others, 1108; as re- eards an object which can no longer be delivered, does not exist for damages, for which debtor in fault is alone liable, 1109; as re- gards inten'uption of prescription, 1 1 10, 2231 ; demand of interest from one of joint and several debtors makes it run agadnst the others, iiii ; what exceptions may be pleaded by joint and several debtors, 1112 ; ceases for part in the event of debtor be- coming creditor, H13; continues for remaining debtors though one of them has been allowed to pay a share. 1114 : when and how it ceases by division of the debt, 1115- 1116 ; divided amongst debtors themselves, 1117 ; recourse of the debtors against each other, 1118- II 20; recourse of the debtors in the case of creditor renouncing his joint and several right against one debtor, 1119 ; does not render the obligation indivisible, 1125 ; sur- render of title to one joint and several debtor benefits the others, 1 183 ; express release of one joint and several debtor frees the others for his share only, 1184. Joint stock companies, see Part- nership, joint stock. Journeymen, privilege of, 2006. Judgments, carry hypothecs, 2034 ; upon what property, 2034-2036 ; must be registered, 2121. Judges, cannot become assignees of litigious rights, 1485; cannot re- fuse to adjudicate under pretext of silence or obscurity in law, ii. yudicatiim solviy (security) to be fiven by persons residing out of •ower Canada, 29. 32 Judicial adviser, when may be given, 331, 349 ; how and by whom appointed, 331, 350; duties of, 351 ; when his duties cease, 351. Judicial demand, interrupts pre- scription, 2224. Judicial sale, means of extinguish- ing hypothecs, 2081. Jurisdiction, want of^_ as regards interruption of prescription, 2225, Jurors, when aliens may be, 26. Jury, when aliens may form part of, 26. Keeping, of thing, see Preservation. Kind, rent may be payable in, 1594 : rents payable in, may be registered without specification of a precise sum, 2044. Lakes, which are private property, right of alluvion does not take place on, ^22. Land, reclaimed from the sea, be- longs to the crown, 400, 421 ; left dry by running waters, belongs to riparian proprietor, 421 ; owner- ship of, implies that of what is above and below it, 414 ; rules concerning buildings, works or improvements upon, 415—419. Lands, military, belong to the crown, 403 ; reclaimed from the sea, belong to the crown, 400. Languages, English and French, in this code, as to difference be- tween, 26x5. Lawful cause, in contracts, 990. Laws, promulgation of imperial, i ; provincial, 2 ; disallowance of, 3 ; printing and distribution of, 4, 5 ; regulating moveables, immove- ables and persons, 6 ; regulating the form of acts, 7; how inter- preted, 8 ; do not anect the crown or third parties unless expressly mentioned, 9 ; prohibitive, import nullity, 14 ; when imperative, when permissive, 15 ; of England in commercial matters, govern in the absence of other provisions, 2340 ; concerning public order or good morals, cannot be validly con- travened by any agreement, 13. Lease and hire, what things may be the object of, 1600. — OJ things^ what is, 1601 ; capacity for entering into contract of, 1604 ; what tilings are susceptible of, 1605 ; see Lease, Lessor, Lesset, 4«o IKDKX. Repairs, Privilege,^ Registration. — Of work, what is, 1602; what things may be the object of, 1666 - -, see Carriers, Estimate & contract. Work, Prescription. Lease, for more than nine years, cannot be granted by emancipated noinor, 319; granted by usufructu- ary expires with usufruct,^ but lessee enjoys for the remainder of the year, 457.-0^ cattle on shares, what it is, 1698; what may be object of, 1699 ; is regu- lated by the usage of the place, X700. — 0/ houses and rural estates, by what rules governed, 1607 ; when presumed, 1608 ; pre- sumed, extent of, 1609; tacit re- newal of, when does not take J}lace, x6io ; duration of presumed ease, x6o8 ; see Lessor, Lessee ; of farm, cannot be assigned, 1646; how terminated, 1655-1658 ; by reason of sale of thing leased, ■1663 ; in the case of redemption, 1665 ; for more than & year must be registered, 2128. — 0/ move' ailes, duration of, 1643 ; what things may be the subject of; 1605; how terminated, 1655-1658; Of work, principal kinds o\, i666 ; for personal services, duration of, 1667 ; how terminated, 1668 : oath of master as to conditions of en- g^ement^ and payment, 1669 ; rules which govern, 1670, see Carriers, Work, lease and hire of. Legacies, nature and kinds of, 863 ; imposed as a charge upon another legacy which lapses do not lapse, 865; may always be refused by legatee as long as he has not accepted, 866 ; how accepted, 866, 867 ; right of accretion applicable to, when, 868; interpretation of, 870 ; of things not belonging to the testator, 881, 882 ; of thuigs which did not belong to the testator until after the will, 8S3 ; how paid, 884 ; reduction of, and how enect- ed, 885, 886 ; recourse of legatee suffering reduction, 887 ; right of accession applicable to, 888 ; of a thing alienated or hypothecated how freed, 889 : in favor of a creditor, are not presumed to be in compensation of his claim, 890 ; how may be revoked, see Wills ; when they become lapsed, 901, 903, 904. — Universal, what are, 873. — By getteral title, 873 ; see Legatee ; what constitutes, 873.— Particular, do not rank till afier creditors, 880 ;.. by whom paid, 880 ; rignt to, is not accompanied with hy vthec upon property of the s':»;cession ^ unless expressly given, 880 ; registration necessary m such case, 2045; give right to separation of property, 1990. Legatee, who may be, 836, 838; how he is seized of his legacy, 891 ; may be a mere trustee, 869 ; is entitled to fruits and interest, and from what date,^ 871, 891 ; under suspensive condition, passes legacy to his heirs, 902 ; in posses- sion may give valid discharges, 870, 1145. — Universal,is&vnxAsiXtA to heir, ^98, 874, 878 ; his delay to make an inventory, 874 ; how liable for debts of succession, 875-879 ; how may be fi-eed from debts of succession, 878 ; may accept under benefit of inventory, 878. — By general title, how liable for debts, 875-879 . — By particular title, how liable for debts, 884-889 ; see Legacies. Legitim, abolished, 775. LegitimatioNj of children by sub- sequent marriage, 237, 238 ; effect of, 339 Lesion, may be a cause of nullity in contracts, 991, 1001 ; a cause of nullity in favor of minors, 1002 ; of emancipated minors when they exceed their capacity, 1003 ; minor declaring himself to be of age is nevertheless relievable, 1003 ; minor not relievable from, when it results from fortuitous event, 1004 ; minor who is a banker, trader, or mechanic is not reliev- able, 1005 ; minbr is not relievable from stipulations of his marriage contract on the ground of, 1006 ; obligations resulting from offences or quasi-offences, 1007 ; aliena- tions made with all the necessary formalities, 1010 ; acts of minor cannot be annulled on the ground of, if he has ratified them after he became of age, ioo8 ; cannot be invoked by persons of full age, 1012; as regards sale, 1561 ; as INDEX. 437 regards partition of successions, see Partition. Lessee, his obligations, 1621, 1626 ; as regards deteriorations, 1627, 1628 ; loss by fire, 1629, 1631 ; as to allowing greater repairs, 1634 ; repairs for which he is liable, 1632, j6^ ; his liability in case of re- scission of lease or ejectment, 16^7; his rights, 1638, 1640 ; may assign his lease or sublet unless the con- trary is stipulated, 1638 ; of farm property cannot subiet, 1646 ; rights of action of, against lessor, 1641, see Lease, Farm, lessee of. Lessor, obligations of, 1612-1618; as to cleansing of wells and pri- vies, 1644 ; warrants all defects and faults, 1614 ; does not warrant against mere trespasses, 1616, 1617 ; when bound to warranty against disturbance, 1618 ; rights of, 1619-1625; privilege of, 1619- 1623 ; rights of action of, 1624 ; see Lease ; cannot put an end to lease to occupy property himself, 1662 ; nor by selling property leased, 1663. Letters-patent, need not be proved, 1207. Liabilities, of community, of what they consist, 1280; of a succes- sion, 73S-7f S- Liability, joln<- and several, see Joint and several liability. Libel, see Prescription. Liberation, from punishment, re- stores civil life, 38. License, marriage, see Dispensa- tion. LiciTATiON, when it takes place in legitimate successions, 698 ; testa- mentary, 948 ; between coproprie- tors, 1562 ; how eflfected, 709, 1563 ; strangers may bid at sales by, 1562; effect of, when one of the proprietors becomes pur- chaser, 746; in matters of part- nership^ effect:;d as in matters of succession, 1898. Lien, see Retention. Life insurance, see Insurance on life. Life-rents, by what title may be constituted, 1901 ; may be upon the life of a third party, 1902 ; may be upon several lives, within restrictions, 1903 ; may be for the benefit of a third party, 1904 ; upon a person who is dead or who dies soon after, is of no effect, 1905, 1906 ; consideration cannot be recovered back by reason of non-payment of arrears, 1907; debtor of, cannot free himself by reimbursing capital and abandon- ing payments made, 1909 ; are due in proportion to the number of days, 1910; may remain charged upon property sold under execu- tion 1908 ; cannot be made exempt from seizure unless they are gra- tuitous, 191 1 ; do not cease at the civil death of the person on whose life they are constituted, 1912 : demand for, cannot be enforced without proof that the person on whom they are constituted is alive, 1913 ; how reimbursed in the case of sales under execution, 1914- 1917 ; for what term may be cre- ated, 389; are redeemable, 389, 391, see Registration. Lights, (view) servitudes concern- ing, S47- „ Limited partnership, see Part- nership, limited. Linen and wearing apparel, wife entitled to, when suing for separa- tioix, 202. Lines (boundaries), see Boundaries ; (of descent), 616-618. Liquidation, of property of dis- solved corporations, 3^0-373 ; of property of partnerships, 1898; of successions, see Successions; of property of community, 1354— ; of community, upon separation from bed and board, 209. Liquors, sold to be drunk on the spot, when cannot be sued for, 148 1. List, of interdicted persons, 333; of judgments ordering separation of property between consorts, 13 13. Litigious rights, see Rights litigious. Loan, two kinds of, 1762. — For use, definition of, 1^63 ; what things may be the^ object of it, 1765 ; lender remains owner in, 1764 ; obligations of the borrower, i;r66- 1771 ; when borrower has a right of retention, 1770 ; joint andseve- ral liability of joint borrowers, 1772 ; obligations of the lender, 1773-1776. — For conswnltioti. 438 INDEX. definition of, 1777 ; borrower be- comes owner in, X778; oblij^ations of the lender, 1781 ; obligations of tho borrower, 1779, 1780, 1782- 17S4. — Upon interest, rate of in- terest, 1785 ; acquittance for prin- cipal gives rise to presumption of payment of interest, 1786. — Upon bottomry and respondentia., what j* is, 2594, 2595 ; upon what made, 2596, 2600 ; what the contract must specifjr, 2597 ; from what time the risk runs, 2598 ; what things are held for, 2599 ; when may be annulled, 2601 ; borrower when discharged by loss of ship &c., 2602 ; when may be made to master and with what effect, 2603, 2604: order of f)reference when there are several oans, 2605 ; when lender does not bear the loss, 2606, 2608, 2610; when the sum lent cannot be re- covered, 2607 ; when the sum may be reduced, 2609; the lender is preferred to an insurer, 261 x. I^OANS, emancipated minor may effect, 321. Lodging of widow during delays for making inventory and deliberating. Loss, of a thing brought into a I)artnership, 1893 ; when it ex- tinguishes the obligation, X2oo, 1202 ; of a thing in the case of shipwreck, 2427, 2433 ; in the case of insurance, see Insurance ; of civil rights, 30. Lost things belong to the crown, 40X. Lots, see Shares. *' Lower Canada," meaning of the words, 17 § 6. LviNG-iN EXPENSES, sec 'Prescrip- tion. Madness, a cause of interdiction, "Magistrate," meaning of the word, 17 § 16. Maintenance, to whom due, 165- 172 ; may be claimed by illegiti- mate children, 240 ; may be claim- ed by husband or wife separated and m want, 213 ; may be allowed to person civilly dead, 36 ; may be given to concubine or to illegiti- mate children, 768 ; may be due to donor, 813. Majority, at what age attained, 246, 324. Mandatary, cannot exceed powers fiven by mandate, 1704; cannot uy or sell for himself what he is employed to buy or sell, 1706; is bound to execute the mandate he has accepted, 1709 ; must use the care of a prudent administrator, 1710; responsible for his substi- tutes, and liability of the latter to mandator, 1711 ; responsibility of joint mandataries, X712 ; must render an account, 17x3; is liable for interest of money he employs for his own use, 1714; when per- sonally liable towards third parties, 17x5, X716, 1717 ; when deemed not to have exceeded his powers, X718 ; has a privilege upon the Sroperty, 1723; see ^Attorney, rotary, Broker, Agent t may re- nounce mandate and on what con- dition, X7S9; representatives of, must notify mandator of his|death, X76X. Mandate, definition of, 170X; is gratuitous, X702 ; may be general or special for whatever exceeds acts of administration, X703, X704; powers of mandatary, X704, X706; extent of powers of mandatary in- ferred from nature of his profes- sion, 1705 ; may be given to minors and under what conditions, X707 ; entrusted to women under cover- ture, X708 ; is presumed iri certain CRses, 1705, i7S> ; how extinguish- ed, I7SS, 17^7 ; when revocation of, affects third parties, 1758 ; see Mandator, Mandatary. ^ Mandator, bound to indemnify mandatary as regards third par- ties, X720 ; when bound to in- demnify representatives of man- datary, 1721 ; wlxat expenses and charges he is bound to reimburse, 1722; when liable for interest, 1724; joint and several liability when there are several, 1726 ; bound towards third parties for acts of his mandatary, 1727- 1730 ; when his representatives are so liable, 1760; responsible in certain cases for the fault of his manda- tary, 173X ; recourse of, against mandatary, 1752 ; may always re- voke the mandate, X756. INDEX. 439 Manufactories, utensils belonging to, are deemed immoveables, 379. Manure, immoveable by destina- tion, 379 ; when lessee of a farm bound to leave it, 1654. Marchandi publique^ see Trader. Marine insurance, see Insurance, marine. Mariners, see Seamen. Marital authority, 174-184 ; obedience of the wife, 174: wife bound to live with her husband, 175 ; wife must be authorized by husband, to appear in judicial pro- ceedings, 17O ; to contract, 177 ; not necessary for dealings of wife who is a trader, 179 : in delault of husband, judge may authorize, X78, x8o; general authorization, only applies to acts of administra- tion, i8x ; husband a minor may authorize his wife who b of age, 183 ; wife a minor can only oe authorized to administer, 182 ; want of authorization entails nullity of act of wifcj 183; wife may make a ^wiU without hus- band's authorization, 184; hus- band's being party to the deed is equivalent to his authorization, 177; see Married woman; hus- band may lease his wife's pro- perty, and for what term, 1209, 13C0 : husband administers his wife's property, 1298. Marriage, where should be solem- nized, 128 ; at what age may be contracted, 1x5; consent neces- sary, X16 ; impotency apparent ana manifest annuls, 117; second, cannot take place before dissolu- tion of first, 1x8; of minors, con- sent of parents required, 119, x2o; consent of tutor or curator some- times required, 121, 122; in what cases prohibited,^ x 24- 126 ; dis- pensations from impediments to 127 ; solemnized abroad, when valid, 13s ; oppositions to, see Oppositions to marriage ; nullity ofv when and in what cases may be demanded by consorts, X48, 149, 151, i53» IS4. 156; whenmay be demanded by persons whose consent was necessary, 150, 155, X56 ; may be demanded by any person interested, in certain cases, i5s» ^55 ; effects of, cannot be claimed without producing certi- ficate, 159: even by persons in Eossession of status, 160 ; cannot e contested when established by certificate and possession of status, x6i; possession of status sufficient for legitimacy of children, X62 ; though null produces civil effects in favor of children and consort in good faith, X63, 164 ; can only be dissolved by death, 1S5 : emanci- pates, 314. Marriage contract, may contain all kinds of agreements, X257 ; exception, X258, 1259. Marriage covenants, in the absence of, legal community and dower exist, x26o, X26x : are irre- vocable so soon as marriage is celebrated, X260; may admit, ex- clude or modify community or dower, 1262, 1263 ; must be in notarial form, except in certain cases, and must precede the mar- riage, X264 ; cannot be altered aAer marriage, 1265 ; alteration in, before marriage how established, X266; of minors validity of, 1267 ; see Community of property ; modifica- tions which may be made in com- mimity, X384. — Clause ofrealiza- tiotiy what it consists of, 138^ ; its effects, 13S6; bow contribution is substantiated, 1387 ; how realiza- tion is effected, 1389 ; of reprises, X388. — Clause of wobilization^ what it is, X390 ; different kinds of, 1391, 1392 ; effects of, 1393.— Clause of separation of debts, what it is, 1396 : effects of, 1397- I3Q9. — IVife retaking' free and clear what she brought, 1400. — Conventional preciput, what it is, X401 ; is not subject to formalities of gifts, 1402 ; when may be de- manded, 1403, 1404; right of credi- tors as regards preciput, 1405. — Stipulation of unequal shares, how made, 1406 ; effects of, 1407- 141 1. — Community by general title, 1412. — Exclusion of com- munity, 1415 ; effects of, 1416- 1421 ; does not prevent wife stipu- lating to receive her revenues, 1420 ; does not render the im- moveables inalienable. 1421. — Separaticn of property, 1422 ; effects of, 1423-1425. 440 INDKZ. k Masculine genobr, includes femi- nine, »7» § 9- Master of ship, his responsibihty, see AfTreigntment, Insurance, Bottomrj*, Materials, belonging to another, and used in buildiug, cannot be taken away, 4x6. Maternity, proof of, 241. " May" the word, is permissive, 15. Ment'^v in acts of civil status, 54, 55. 56* 65. 67, 7a ; in wills, 843. Merchant shivting— Merchant Shipping Act, 1854, in force here, 33551 rules concerning registry and measurement pf, 2356-23^9. —Transfer of, registered British vessels, 2359 ; ^ colonial vessels, 3360; ownership not transferred without registration, 2361 ; no fraction of a 64th share can be registered, nor can more than 32 persons be registered as owners, 2362-2364 ; except where vessel is owned by a partnership, 2365 ; re- gistration of bill of sale of ship passes the property, 2366 ; no subsequent registration of a bill of sale can be made until a certain time has elapsed, 2367 ; where the same owner has made several transfers of the^ same property in a vessel, who is entitled to the endorsement of the proper ofificer, 2368, 2369 ; delay may be allowed for recovery of lost certificate, 2370 ; duly registered transfer is not affected by bankruptcy, 2372 ; transfers of vessels in security for moneys advanced must be regis- tered, 2371 ; how colonial vessels may be transfen-ed in security for loans, 2373-2377. — Mortgage of'. vessels may be mortgaged as soon as the keel is laid, in security for moneys advanced to complete them, 2376 ; a second mortgage cannot be granted without the con- sent of the first advancer, 2377 ; effect and extent of mortgage for advances, 2378; first advancer may mortgage the vessel, 2379 ; formali- ties of deed of mortgage, 2380: re- gistration of advancer's right, 2381; anterior rights not affected, 2382. — Privileges, rank of, upon ves- sels, 2383 ; upon cargo, 2385 ; upon freight, 2386 ; for damages caused b^ collision, for average contributions and salvage, 2387; ship's husband or agent has a lien upon the ship's papers for his advances and charges, 2384; in Vice-Admiralty Court the matter of privileges is governed by the laws of England, 2388.— nty of, Of equal IS to em- those in \ prevail, lect have ed from emnified, sold by rence of Jlf, 2393. •8 of, to al duties for con- P» 2395; :ert with I' 2396; Toperiy 2397 : Pointed, 'or sell, P» 2399, le crew 'ben he !>2402; ce;his ;-book, ges of vag^esj on o^ 3. ns o^ 3- sable, natri- delay >, or ; are sers. ises, lerty of, 298-300 ; ^ifts to, may be ac- cepted by their ascendants, 303 ; may sue in their own name for wages, 304 ; owe interest on bal- ance of account to tutor only from date of judicial demand, 313; in- capacity of, for contracting, ^86, 987 ; remedy of, in case of lesion, see Lesion, 1003, 1003, loii; re- gistration of real rights of, 2030 ; when may be testamentary execu- tors, 907 ; may be mandataries, ijoj, — Emancipated, administra- tion of their property, 314; can- not grant leases for more than nine years, 319 ; for anything beyond mere administration must be as- sisted by curator, 320-322 ; when they require advice of family coun- cil, 321, 322 ; excessive obligations contracted bvj may be reduced, 322 ; engaged m trade are reputed of age as regards such trade, 323* Minutes (original) loss of, 12x7, I3l8. Mobilization, what it consists of, 1390; IS general or special, 1391 ; is determinate or indeterminate, 1392 ; determinate, effect of, 1393 » indeterminate, effect of, 1394 ; in cases of, right of consort who has contributed the immoveable, 1395. " Month," meaning of the word, 17 § «3- Morals, good, things contrary to, cannot be the object of obligations, 1080. Mother, in default of father, exer- cises parental authority, 245 ; see Parental authority. Mourning, widow's, how regulated and to whom chargeable, 1368. Moveable, property may be, by its nature or by law, 383 ; by its na- ture, 384-386 ; by determination of law, 387, 388. " Moveable things," meaning of the words, 397. " Moveable property," " move- able things," meaning of, 397. Moveables, what comprised by the word " furniture/* 396. " Moveables," signification of the word, 39S. Municipalities, see Corporations. Mutual donation, abolished, 770, 1265. 4a see Insur* Mutual insurance, nnce, mutual. Natural children, scc Children, illegitimate. Naturalization, how acquired, 31-23 ; what rights it confers, a^ Nezotiorunt gestio, what consti- tutes, and obligations resulting from, 1043 ; continues notwith- standing death of principal, 1044 ; kind of care required in, 1045 ; in- demnification for, 1046. Neighbours. — Servitudes concern- ing^ 501-506, 508 ; walls, 510-522 ; ditches, 523-526; trees, 528-530; clearance, 531 ; hedges, 527-530; flow of water, 501-503 ; s^irings, 502 ; boundaries, _ 504 ; division fences, 505 ; the distance between and regulation of buildings, 532; view from common walls, 533; from walls which are not common, 534, 535 ; windows, galleries, and balconies. 536-538 ; see View ; eaves of roofs, 539. RiRhtofway, 540; how it is exercised, 541, 542 ; by whom due in certain cases, 543 ; how it ceases, 544. Nominating, right of, implies right of removing, 17 § 17. Non-performance, when gives rise to damages, 1065, 1066. Non-residents in Lower Canada, bound to give seairity for costs of suits brought by them, 29. Notaries, for authentic acts, 1208, 1209 ; responsibility of, 1732, 2148, see Registration, Prescription. Notice to terminate lease, when necessary, 1609, 1653, 1657, 1658. Notifications, may be made by one notary, 1209. Noting, of bills of exchange, see Bills of Exchange. Novation, when it takes place, 1169 ;^ between what persons, 1 1 70; is not presumed, 1171 ; by change of debtor without consent of the first, 11 72; does not take place by simple delegation, 1173; does not take place by simple in- dication of payment, 1174; privi- leges and hv^pothecs of old debts do not attach to the new debt un- less it is so stipulated, 1176 ; nor when new debtor is substituted for former one, 1177; nor in the case of novation with one of joint fli 4U TKDRX. and several tlobtors, 117S; efTect of a; I csards co-debtors and sure- ties, ii;^;. Nullity of contracts, what causes produce, 991 ; may be demanded by creditors, 1032, 1039 ; prescrip- tion of the action for, 1040. Number, singular includes plural, 17 5 10. Nuns, see Corporations, Profession, religious. Wills. Nurses, privilege of their claim, 2003. " Oath," the word, includes solemn affirmation, 17 § iS^ Oath, may be administered to par- ties to a suit either as witnesses or upon interrogatories on articulated facts, 1246 ; may be put by the judge to either or both of the parties, to complete the proof, 1246 ; decisory, when and by whom may be offered, 1247, 1248; party to whom it is offered, who neither takes it nor refers it to his adver- sary, or party to whom it is re- ferred, who refuses to take it, fails in the suit, 1249 ; when it may be referred, 1250; when taken can- not be controverted, 1251 ; party who offers or refers the oath can- not retract if his adversary is will- ing to take it, 1252 ; what persons and things are affected by it, 1253 ; put officially, when may be had recourse to, 1254, 1256; cannot be referred to the opposite party, 1255 ; of master, in suits for ser- vants' wages, 1669. Objections to witnesses, see In- competency. Obligations, essentials of, 982; what they arise from, 983 ; result- ing from the law alone, 1057; must have an object, 1058 : object of, must be object of commerce, 1059 ; object of, must be deter- minate, though quantity uncertain, 1060 ; future tnings cannot be ob- ject of, exception, 1061 ; object of, must not be impossible, prohibited or immoral, 1062 ; effect of, 1063 : preservation of the thing due, 1064 ; rights of creditor of; 1065, 1066. — Lottdiiional what are^iojg; are null if condition be immoral, impossible, or unlawful, 1080 ; are null when performance of condi- tion is optional with debtor, loSi ; condition may^ always be uiiAlled when no time is fixed, 1082 ; when condition is deemed to have failecl, 1082 ; when condition deemed ful- filled, 1083 : become absolute if debtor prevents fulfilment of con- dition, 1084 : fulfilment of condi- tion has a retroactive effect, io8< ; creditor may, before fulfilment, do all conservatory acts, 1086: sus- pensive condition, effect of, 1087 ; cease when the object is totally lost, 1087; when the thing is de- teriorated, 1087 ; subject to reso- lutive condition, cease when con- dition fulfilled, 1088.— fF/VA a te*mt nature of, 1089 ; effect of, 1090 ; when deemed in favor of creditor and when of debtor, 109 1 ; become exigible if debtor becomes insolvent or it securitv b^ lessened, 10^2.— Alternative, now perform- ed, 1093 ; to whom the option be. longs, 1094 ; when they become pur* and simple, 1095, 1096 ; how performed when one or both of the things have perished if option be with the creditor, 1097-1099. — Joint aud several, see Joint and several liability. — Divisible, when they are, 1121 ; effect and execu- tion of, 1 122, 1123. — Indivisible, when they are, 11 24; effect and execution, as regards debtor, 1126- 1129, heirs of creditor, 1128. — With a penal clause, effect of, see Penal clause, 1131-1137 ; how become extinct, 1 138. Occupancy, right of, 591. Offences, produce obligations, 1053 ; prescription relating to, 2261, 2262. Office, temporary public, does not affect domicile, 82. Officers, of civil status, definition of, 17 § 22 ; responsibility of, 52 ; penalties to which they are sub- ject, S3; of justice, see Prescrip- tion. OMissiONs,in registers of civil status, 77- Opening, of successions, place of, determined by domicile, 600 ; how it takes place, 601, 602 ; of succes- sions, presumptions of survivor- ship, 603-603 ; of substitutions, 961. lebtor, loSi • lie fuifiiieci 1082 ; when - »ave failed, deemed ful- absolute if >eiit of con- lU of condi- iirilment, do "oS6; 8US- c' off 1087 .• :t IS totally '"ing is de- set to reso- when con- 1; effect of, "1 favor of btor, 1091 ; 31" becomes lessened, w perform- option be. 5y become ^096; how both of the option be 97-1099.— ■ Jomt and Hie, when nd execu- tdivisible, effect and »tor, 1126- y 1128.— • Bct 0^ see 37 ; how ligations, Jting to, does not lefinition k'of, 52; are sub- *rescrip- il status, lace of, >o ; how succes- rrvivor- tutions. INDEX. 44S Oppositions to marriage, who may make, 136-143; must be fol- lowed up, 143 ; proceedings upon, 144-146; may ue rejected with costs, and liability for damages, 147. Option, see Obligations, alternative. Order of succession, general pro- visions, 614-618 j in tlie descend- ing line, 625 ; in the ascending line, 626-630 : in the collateral line, 631-635; irregular, 636-640. Ordinances, copies of, authentic, 1207. Originals, lost, 1217, 1218. Others, property of, cannot be sold without their consent, 1487. Owner, liis rights with regard to plantations and buildings made by others on his land, 415, 417 ; when he may have them removed, 417, 418 ; subject to right of retention by partjj who made improvements, 419 ; his right with regard ^ to moveables improved by accession or Mvorkmanship, 429-442 ; of building not bound to return ma- terials thereof which belong to another, but only to compensate, 416. Ownership, definition of, 406: how persons may be deprived of, 407 ; gives a right to all productions and accessories of the thing, 40S ; of the soil carries with it what is above and what is below it, 414 ; extends to all that is planted or built on the soil, if the contrary be not proved, 415; as regards im- provements made by third parties, 417-419; of alluvion, 420-424 ; of ground from which a river or the sea has receded, a2i ; of islands, or deposits of earth formed in the beds of navigable rivers, ^^24 ; of former bed of a river which has changed its course, 427 ; of pigeons, rabbits, and fish, ^28 ; of things formed of other things belonging to different owners, 429-442 ; how acquired, 583--; of things found without an owner, 592 - - ; of a treasure found, 586; of factors and commercial agents, 1740- 1748. Papers, family, what they prove, 1227 ; for establishing filiation, 233; paternity or maternity, 241. Pardon, puts an end to civil death, _ 38. Pakrntagk, right of illegitimate child to establish his, 341. Parental autiioritv, 343-345; children owe their parents honor and respect, 243 ; children subject to until their majority or emanci- pation, 243, 244 ; right of correc- tion, 34s. Parliament, imperial, meaning of the words, 17 J a ; provincial, 17 5 3. Partition, in the case of repre- sentation, how made, 623 ; may always be demanded, subject in some cases to delay, 689; may be demanded notwithstanding separate enjoyment, 690 ; cannot be demanded by tutor or curator except for moveahles, or, provi- sionally, for immoveables, 691 ; of property of wife belonging to com- munity may be demanded by hus- band alone, 692 ; definitive, cannot be demanded of wife without suing husband, 693 ; proceedings to obtain, 603-695 ; how immove- ables are valued, 696 ; how shares are formed, 697 ; when property must be sold, 6g8, 699; manner of proceeding with account and partition, 700-711; to whom titles should be delivered, 7 1 1 ; rights of creditors in cases of, 731 ; effects of, 746 ; what acts are reputed to be, 747 ; warranty resulting from, 748-750 ; when mu;< be rescinded, 751 ; time at which value of things IS to be estimated 10 establish lesion in, 753 ; suit in rescission of, for lesion, may be stopped by tender of supplement ot share, 753 ; of present property, subject to rules of gifts inter vivoSf 781 ; of community, see Community. Partners en commandite, see General partners, Partnership, limited. Partnership, essentials of contract ofi 1830 ; partition in profits im- plies sharing of loss, 183 1 ; time of commencement of, 1832 ; its dura- tion, 1833 ; obligations and rights of partners among themselves, 1839 '> contribution of each part- ner to, 1839 ; remedy of copart- 444 INDEX. ners against partner failing to con- tribute, 1840, 1841 ; partner cannot carrjr on any other business which deprives tne partnership of his time or his capital, 1842 ; imputa- tion of payment made to a partner who is also individually creditor, 1843, 1844; each partner liable for damages caused by his fault, 1845 ; risk of things contributed to, 1846 ; indemnity due each partner, 1847 ; division of profits and losses, 1848 ; powers of partner administering, 1849; how managed, 1850-1852; partner may associate another per- son in his profits but not in the partnership, 1853 ; responsibility of partners for the debts, 185^-1856; different kinds of, 1857 ; universal, what it consists of, 1858-1861 ; particular, what it is, 1862. — Com- mercial, \i\\?i\. is, and what civil, 1863 ; different kinds of, 1864; formalities and registration to which they are subject, 1834- 1838. — General, what is a, 1865; what stipulations may be made as to its management, 1866 ; gene- ral liability of the partners, 1867- x86g. — A nonymous, what and how povemed, 1870. — Limited, how formed, 1871 ; of whom composed, 1872 ; liability of, 1873 ; by whom managed, 1874 ; requisite legal formalities of, 1875-1879 ; how managed, 1880 ; by or against whom actions brought, i88i ; what amount special partners may withdraw during the partnership, 1882, 1883 ; rights of special part- ners, 1884, 1886; obligations of general partners, 1885 ; effect of change in the names of general partners or otherwise^ 1879; how may be dissolved before specified time, 1887 ; joint-stock, how formed and governed, 1889, 1890 ; rules concerning, 1891. — How it terminates, 1892, 1895, 1896 ; failure of partner to contribute to, 1893 ; may be stipulated to ■continue with heirs of a partner, 1894. — Effects of dissolution, 1S97 ; rights of partners upon the dissolution, 1894, 1898 ; pay- ment of debts of partnership and of partners, 1S99 ; now dissolution affects third parties, 1900. Passage, right of, see Way, Pasture, right of, is a discon* tinuous servitude, 547. Paternal authority, see Paren- tal authority. Paternity, see Filiation. Path, along navigable or floatable rivers, is a servitude established by law, 507. Patrimony, separation of; see Separation, of property. Pawn, see Pledge, of moveables. Pawnbrokers, rules governing, Payment, meaning of the word, 1139; presupposes a' debt, 1140; by whom may be made or ten- dered, 1 141, 1 142; must be made by owner of the thing paid, 1 143 ; to whom it must be made, 1144- 1146 ; to whom it muit be made in cases of attachment,' 2147; mast be of the thing due, 1148 ; must be of the whole debt, 1149; of a specific thing, in what condition may be made, 1150 ; of a thing of indeterminate kind, 1151 ; where to be made, 1152 ; at whose expense, 1x53; with subrogation, see Subrogation, 1154- - ; imputa- tion of, 1 158; imputation of, upon interest^ 1159; upon the debt the * debtor is most interested in pay- ing, 1160, 116 r ; of price of thing sold, when and where made, 1532, 1533; when and from what date due, 1534 ; may be withheld or security demanded, when buyer is disturbed or in danger of dis- turbance, 1^35 ; before judgment for dissolution for non-payment, 1538 ; of thing not due, 1047.— Tender of, and deposit, when may be made, 11C2; requisite conditions for validity of, 1163 ; how made when debt is payable at the debtor's domicile, 1164 ; when a specific thing is deliverable at a certain place, 1165; not accepted may be withdrawn, n66 ; but not if declared valid by the court, 1 167. Penal clause, definition of, i 131 ; is null if principal obligation is null, 1132; cannot be enforced together with performance of principal obligation, unless it was stipulated for a simple delay. INDEX. 445 1133; when penalty is incurred, 1 1 34; when penalty may be re- duced, 113s ; Its effect as regards the heirs, 1136. Penalties, civilly inairred, how recovered, 16 ; as regards keeping of registers of civil status, 53 ; for infractions of the law concerning the solemnization of marriage, IS7. «S8- . . Peremption of suits, prevents in- terruption of prescription, 2226 ; Perishable things, may be sold by beneficiary heir, 665 ; by usufruct- uary, 465. Permanency, what things are deemed to be placed for a, 380. "Person," meaning of the word, 17 §11. Persons, laws relating to, 6. Petition of right, to prevent prescription by the crown, 221 1. Physician, see Privilege, Prescrip- tion. Pigeons, passing into another dove- cot, 428. Pilots, see AflFreightment. Plantations, see Servitudes. Pledge, definition of, 1966; im- moveables may be the subject of, imputation of finiits thereof, 1967 ; of moveables, 1968 ; rights result- ing from, and duration of privilege, ic)69, 1970 ; how creditors may dispose of, 1971 ; debtor remains owner of, 1972; responsibility of creditor and debtor, 1973 ; impu- tation of interest of a debt given in pledge, 1974 ; cannot be claimed by debtor until he has paid the debt, 197s ; is indivisible, 19:^6 ; rights of third parties in the thing pledged, 1977 ; in commercial matters, 1978; regulations con- cerning pawnbrokers, 1979. Ploughing and tilling, privilege of expense of, 2010. Police regulations, govern build- ings and excavations, 414. Policy, see Insurance. Ponds, to whom fish in, belong, 428. Poor relations, see Maintenance. Ports, see Harbors. Possession of s ; atus, does not exempt from producinjj act of marriage, 160; with certificate of marriage bars demand of nullity of marriage, 161 ; as regards child* ren, 163, 229, 231. ives a nition ities for Erescription, 2193 ; is presumed to e that of a proprietor unless the contrary is proved, 2194;' for an- other, is presumed to remain such, unless the contn>ry is proved, 2x95 ; cannot be based upon acts which are merely facul- tative, 2196; upon acts of viol- ence, 2197 ; may commence afler violence or clandestinity have ceased,_ 2198; former and actual possession give rise to presump- tion of intermediate, 2199 ; how in the case of moveables it presumes title, 2268 ; authority to take, see Authority to take possession. Pound sterling, value of, 17 § 20. Power of attorney, see Mandate. Preamble, forms part of, and as- sists in explaining an act, 12. Preciput, conventional, of what it consists and how it is exercised, 1401 ; is not subject to the formali- ties of gifts, 1402 ; when it accrues, 1403, 1404 ; creditors of commu- nity can always sell the property comprised in the preciput, 1405. PrelevemeniSt see Pretakings. Prescription, as regards servitudes, 562-566; of the action of creditors for rescission for fraud, 1040 ; de- finition and different kinds of, 2183; cannot be renounced by anticipation, 2184; renunciation of, may be either express or tacit, 2185 : persons who cannot alien- ate cannot renounce, 3186; may be invoked by any party interest- ed, 2187; courts cannot supply the defence resulting from, 2188 ; in respect of immoveables is governed by the law of the place where they are situated, 2189 ; in respect of moveable property, what laws govern, 2190, 2191 ; possession for, see Possession, 2192 - - ; cannot be set up by the thief or his heirs, 2197, 2198; successors by particular title may join to their possession that of their authors, to complete, 2200 ; heirs continue the possession oj their authors, interversion except* 446 INDEX. ed, 2200 ; what things are subject to, 220 1 : good faith always pre- sumed, bad faith must always be proved, 2202 ; does not accrue to those who possess for another or who hold under another, 2203; of proprietary rights, such as em- phyteusis and usufruct, 2203; by person put in posp-ission of pro- perty of absentee, 2203 ; cannot be acquired by heirs of those who could not themselves acquire it, 2204 ; unless in case of interverted title, 2205 ; may be acquired against proprietor by subsequent puychasers in good faith from pre- carious or other holder, 2206; in cases of substitution, 2207 ; when a person may or may not prescribe against his title, 220S, 2209: for contents of immoveables, in excess of quantity stipulated, 2210; of excessive rents or dues, 2210 ; may be acquired by the crown; remedy of the subject, 2211; subject to the privileges of privileged per- sons, 221 1 ; things not suoject to, rights of sovereignty and allegi- ance, 2212 ; sea-beaches, ports, rivers, wharfs, works and roads, public lands, and whatever belongs to crow^l domain, 2213 ; rents and revenues of the crown, 2214, 2215 ; but net property escheated to the crown, unless, &c., 2216 ; sacred things, 2217 ; right of redeeming rents, 2248 ; as regards church property, 2218 ; tithes, -219 ; roads, streets, public places, &c., 2220 ; property of municipalities, 2221. — Interruption of, natural or civil, 2222 ; when natural takes place, 2223 ; what creates civil, 2224 ; when does not 'take place, 222^, 2226; does not result from registration, 2095 ; by renuncia- tion, 2227; as regards sureties, 2228, 2229 ; as regards joint and several creditors, 2.?30, debtors, 2231. — Suspension of, as regards minors, insane persons, and per- son" not born, 2232 ; between husband and wife, 2233 ; against wife, in certain cases, 2234, 2235 ; as regards conditional obligations with a term or act"'" =• of warranty, 2236 ; as regards tiu-eficiary heir and vacant successions, 2237 ; does not take place by reason of delays to make inventories, 2238 ; as re- gards joint and several creditors 2239. — Time required for, how computed, 2240 ; of thirty years without title when it takes place' 2242 ; of actions against tutors for acts of their tutorship, 2243 ; what if title be shewn against pre- scription, 2244 ; what is not pre- scribed by thirty years is impre- scriptible, 224s ; of action does not prevent pleading of same grounds by exception, 2246 ; of hypothe- cary action joined with personal, same as that of the latter alone, 2247 ; as regards rights of redemp- tion, of dissolution for non-pay- ment, and of redemption of rents, 2248 ; to prevent, creditor of a rent or of empttiyteutic dues has a right after 29 years to a re- newal-deed from his debtor, 2249 ; of rents, rent, and arrears of inter- est, 2250. — By ten years, for real property, 2251 ; for rents and dues, 2252; what good faith re- quired, 22S3 ; title void for in- formality cannot be ground of pre- scription by ten years, 2254 ; when renounced or interrupted, no other , prescription runs but that of thirty * years, 2255 ; may be invoked at the same time as that by thirty vears, 2256 ; in cases where it runs hoider may be compelled to fur- nish a renewal-deed at his own cost, .T257 ; of the action in resti- tution of minors for lesion, 2258 ; in fav jur of builders and architects, 2259. — Short prescriptions, for slander or libel, 2262 ; for bodily injuries, seduction, lying-in ex- penses, 2261, 2262; for servants' wages, 2262 ; for seamen's wages, 2406; against hotel, or boarding- house, keepers, ^262 ; against phjrsicians, surgeons, and apothe- caries, 2260 ; against advocates, attorneys, notaries, and officers of justice, 2260; igainst the recovery of papers and titles, 2260; of bills, iif tes, commercial matters, and moveables, 2360; against school- masters and teachers, and of hire of work, 2260, 2261 ; of offences and quasl-oflfences, 2261. — Gene' rally, after renunciation or in- INDEX. 447 (erruption, commences to run for the same period as before, 2264 ; of suits not perempted and judg.Tients, by thirty years, 2265. 2266; the short prescrip- tions are absoUite bars to the action, 2267 ; as regards corporeal immoveables, how equivalent to title, 2268 ; of less than thirty years, runs against minors and insane persons, 2269. — Begun be- fore coming into force of civil code, 2270. Preservation, of thing, by debtor, 1025, 1063, 1064 : by vendor, 1498 ; by lessee, 1626-1633; by manda- tary, 1710; by borrower, 1766; by denositary, 1802 ; bypledgee, 1073 ; privilege for expenses attending, 1996. Presumptions, different kinds of, 1238, 1239 ; legal, their effect, 1239, 1240; resulting from final judgments {res judicata), 1241 ; simple, are left to the discretion of the courts, 1242. Pretakings, by each consort or his heirs, 1357 ; of the wife, take pre- cedence of those of the husband, 1358 ; by heirs, 701, 702. Price, of wife's immoveables sold, how pretaken from mass of com- munity, 1357; of thing sold, obli- gation to pay, 1532 ; when it should be paid, 1533; when it bears interest, 1534 ; when it may be withheld, 1535 ; consequences of non-payment, 1536-1540 ; is abandoned when action is brought to rescind sale for non-payment, 1 541 ; effect of non-payment in sales of moveable property, 1543, 1544. Priest, see Spiritual adviser. Primordial title, how proved by acts of recognition, 1213. Principal, obligations of, 1720- Printing and publication of laws, 4» S. . . . Prison, burial of persons dying in, 69. Private signature, writings under, how they make proof, 1222, 1227 ; how they may be denied, 1223, 1224; from what day they date, 1225, 1226 ; by rreditof, upon a deed in his pos- session, 1228 ; effect of, upon bills of exchange, etc., 1229 ; writings not authentic for informality may sometimes avail as under, 1221. Privilege, definition of, 1983 ; re- gulated bv Uie nature and origin of the claims, 19S4 ; claims of equal rank are paid rateably, 1985 ; relative rank of subrogated credi- tors, 1986-1988 ; of'the crown, 1989 ; of those who are entitled to claim separation of property, 1990 ; upon what property it may be, 1992. - Upon moveable property — may be upon the whole of the moveable property or upon certain moveable property only, 1993 ; order of, upon moveable property, 1994 ; law costs, 1994, 1995 ; ex- penses incurred for the common interest of creditors, 1994, X996 ; of tithes, 1994, 1997 ; of vendors, 1994, 1998, 1999, 2000 ; of pledgees, 2001 ; of funeral expenses, 2002 ; of expenses of last illness, 2003 ; ofmunicipal taxes, 2004 ; of lessors, 2005 ; of domestic servants, and hired persons, and persons who have supplied provisions, 2006. — Upon immoveable property, 2009-201^; how preserved, 2015 ; see Registration ; effect of, and extinction of, see Hypothecs. — Maritime — upon ships, 2383, 2384 ; upon cargo, 2385 ; upon freight. 2386 ; as regards claims for damage by collision, or for average contributions or for salv- age, 2387. Privy, distance required between common wall and, 532. Probate of wills, how made, •857- 862. Prodigals, maybe interdicted, 326. Profession, religious, disabilities resulting from, 34 ; registers for establishing, 70-74. Prohibition to alienate, its ef- fects, 968 ; what may be cause for, 969 ; when void, 970, 972 ; when equivalent to a substitution, 971, 973, 974, 976 ; motive of, need not be expressed, 972 , may be limited, 975 ; by will, its effects, 976 ; out of the family, its effects, 977, 978: is subject to registration, 981. Promise of sale. Us effect, 1476; accompanied by giving of earnest. I lU i if 448 INDEX. may be receded from, 1477 ; with tradition and actual possession is equivalent to sale, 1478. Promise of marriage, no ground of opposition to marriage, 62. Promissory notes, definition of, 3344 ; may be transferred without notice, 1573, 2286, 2346; whoare the parties to. 2343; provisions which govern, 2346; payable on demand do not entitle to days of grace, 2347; memorandum of part payment of, does not interrupt prescrptioii, 1229. Promulgation, of laws, i, 2. Proof, of an obligation must be made by the party who claims per- formance of it, 1203 ; of exceptions must be made by those who plead them, 1203 ; secondary, when ad- missible, 1204: how it may be made, 1205; what acts are authen- tic, 1207 ; of private writings, 1222; cannot be adduced against presumptions juris et de jure, 1239 ; of extra-judicial admissions, 1244; oral, see Testimony. Property, in its relations with those who possess it, 399-404 ; is _ subject to rights of owner- ship, of enjoyment or of ser- vitude, 405 ; partition of, in matters of succession, 599; cannot be disposed of by gratuitous title except by gift or will, 754; how may be described, 2168. — I'm- \ moveable, by its nature, 37^, . 376 ; by destination, 377, 378, I 379, 380; by the object to which It IS attached, 381 ; by determi- nation of law, 387, •^Zz.—' Move- able, by its nature, 383-385 ; by destination, 386 ; by determination of law, 388 ; what is m^ant by the term, 397 ; by what laws governed, 6. — Vacant, and without owner «ccrues to the crown, 401, 584. — Common to all persons, 585. Pro^res, in matters of succession, distinction of, abolished, 599. Proprietor, see Owner. Protests, made by on" notary, 1209 ; see Bills of Exchange. Provisions (of lavv),ambiguous, how interpreted, 12; (food), privilege for supplies of, 2006. Publication, of bans of marriage, certificate of, must be furnished, 57 ; what certificate of, should contain, 58; dispensation from may be granted, and by whom' 59, 134; must be renewed if mani- age does not take place within a year, 60; by whom and where should be made, 130-133. Publicity, of registers of civil status, so ; of registers of real rights, 2177-2182. Purchaser, right of, to expel lessee, 1663-1665 ; preference among se- veral, 2085-2090; under forced sale for public purposes cannot be evicted, 1590; at auction when bound, and how liable in default of payment, 1567, 1568; at judicial sale, his recourse in case of evic- tion, 1586, 1587; see Buyer. Purchasers, subsequent, see Sub- sequent purchasers, I Putting in default) s^e Default. Quality (or occupation), see Addi- tions ; (to contract), see Capacity. Quarries, how they fall into the matrimonial community, 1274 ; how usufructuary may enjoy them, 460 ; as regards the institute in substitutions, 944. Quasi-contracts, a cause of obli- gations, 983 ; how formed, 1041, 1042 ; see Negotiorura gestio, • Und } payment. Quasi-offences, a cause of obli- gations, 983 ; obligations from, now formed, 1053-1055 ; how en- forced, 1056. Questions of status, see Fili- ation. Rabbits, going into another warren, 428. Rape, a cause of nullity in marriage, 148 ; but not after six months cohabitation, 149. Rates, see Assessments. Ratification of title, see Confir- mation. Reading, of acts of civil status to parties, 41 ; of authentic will to testator, 843. Real rights, see Registratian of real rightF. Realization, clause of, its nature, 1385; effect of, 1386; how the contribution is established, 1387 ; contributions how taken back before partition of community, 1388, 1389. IKDBX. 449^ Reception, of thing not due, quasi- contract resulting from, 1047--. Recognition, acts of, how make proof of primordial title, 12 13, 1214. Recognition of hypothecs, see Hypothecs. Reconciliation, of consorts, effect of, 196, 217. Records, copies of parliamentary, departmental, judicial, municipal and public, are authentic, 1207. Recovery, of what was paid with- out being due, 1047 - - ; from sub- stitute, of improvements made by institute, 958. Rectification of acts of civil status, 75 ; how established, 76 ; of totaf omissions, how made, 77 ; against whom rectification is binding, 78. Redemption, right of, m cases of sale of litigious rights, 1582-1584; in matters of succession, j to.— Jn sale, what it is, 1546; in what condition the vendor takes back the property, 1547; when it may be exercised, 1548-1552; notwith- standing, purchaser possesses as owner, 1553, 1554; of an undivided portion when must extend to the whole, 1555 ; by several jointly may be exercised by each sepa- rately, 1556; may be exercised separately by heii's of vendor, 1557 ; buyer may compel the taking back of the whole, 1558 ; unless the sale was made by each vendr)' separately, 1559; as regards the heirs of the buyer, 1560 ; pre- scription of, 22^1.8. Reduction of gifts made to concu- bines or incestuous or adulterine children, 768. Registers. — Of civil siattts, by whom and how kept, 43-/^5, 50 ; duplicate to be deposited in pro- thonotary's or clerk's office, 47 ; how authenticated, 46 ; duty of officer with whom they are depo- sited, 48, 50 ; one duplicate re- mains with the officer who kept them, 49 ; extracts from, are authentic, 50 ; responsibility of depositaries of, 52, 53. — Family, how they make proof, xiz-j—of real rights, see Registriicion, Registry- oflEices. Registration, of real rights, gives effect to them, 2082; priority of, gives preference, unless m excepted cases, 2083 ; rights exempt from, 2084 ; knowledge of prior right does not affect, except in case of insolvercy, 2085; against whom want of, may be invoked, 2086, 2088 ; by whom may be demanded, 2087 ; as regards the property 01 insolvent traders, 2090 ; as regards property seized in execution, 2091 ; at what office must be made, 2092 ; what parties it avails, 2093 ; of privileged claims, how it takes effectv ^ 2094 ; does not interrupt prescription, 2095; what acts are subject to, 2098. — Delay, for sales, leases, or transfers of mining rightSj 2099 ; for vendor, donor or giver in exchange, 2100 ; for right of rescission for non-payment, 2100 ; for judgments annulling registered deed of conveyance, 2101 j for claim of builder, 2103 'y for rights of copartitioners, 2104; for right to havQ; deed annulled for non-payment, and for right of redemption, 2102 ; by coheirs and colegatees, 2105 ; for demanding separation of property, 2106 ; for funeral expenses, 2107: for sub- stitutions, 2108, 2109 ; for wills, 2 109-2 II 2. — Particular claims : Rights of married women, 2113 ; when husbands are minors, 2114 ; what property is affected by, 2115; Customary dower, 2x16. Rights of minors and interdicted persons, 2117-2120; must be atteuoed to by subrogate tutors and notaries, 2118,2119. Judgments, what pro- perty affected by, 2121. Hypo- thecs bt;longing to the crown^ 2I2I. Interest, on price of sale, 2122; arrearL^ of rents, 2123; in- terest of other sums, 2124; other arrears, 2125. Leases beyond one year, 2128. Receipts for rent paid in anticipation, 2129. Renunci- ations, 2126. Transfers, 2127. — Rattking^, of registered rights, 2130. — Mode of, and renewal of, 21 31. — At length, how effected, 2132; formalities for obtaining, 2134 ; how certified, 2135 ; of notices, 2133- — By memorial, how effected, 2136J form of memorial. 450 XKDEX. by whom made, 2J37 : when there is more than one document to register, 3138 ; what it must contain, 2139; how it is received, 2140 ; how proved in Lower Canada, 2141, Upper Canada, 3142, other British possessions, 2143, foreign countries, 2144; certificate of, 2145; for interest must be sworn to, 2146 ; provisions concerning, apply to documents not affecting immoveables but requiring to be registered, 21-17. — Cancelltng of, when may be effected, 2148 ; may be judicially demanded, when, and by whom, 2149, 2150; consent to, may be authentic or under private signa- ture, and in the latter case now proved, 2151 ; how effected, 2152, 2153 ; when judicially ordered should be first notified to the adverse party, and ^ how, 2154 ; registration of sherifTs, or pro- thonotary's deeds is equivalent to the cancelling of all daims dis- charged by such salei, 2155-2157. — Renewal of, when necessary, 2172, 2173. See Registry offices. — Of merchant ships^ see Mer- chant shipping. Registry offices and registers, how established and organized, 2158-2165, 21 77-2182 ; the plan and book of reference, 2166-2172; index to immoveables, 2171; de- scription of immoveables after the plan is deposited, 2168 ; renewal of iegistration, 2172, Relationship, how proximity of, is established, 615-618. Kelative valuation, when it takes place, 2013. Release, of obligation,, how effect- ed, 1181 ; dr^'^s nor result from surrender of tlis pledge, 118?; of a joint and se ;":ral debtor frees He others only fron> his share, 11 84; of principal debtor discharges his surety, 1185 ; of one surety, when it discharges the others, 1185 ; sum paid by surety to obtain his discharge how imputed, ii86. Relief of minors for lesion, looi- 1012 ; action for, how prescribed, 2258. Religious profession, see Pro- fession, religious. Removal, Of tutors, when it may take place, 284, 285 ; where and by whom demanded, 2S6 ; how ordered, 288. — Of interdiction when necessary, 336 ; how ob- tained, 336. — Of opposition to marriage ^ how obtained, 143 Renewal, of registration, 2131, 2172, 2173 ; of lease, see Tacit renewal, Lease. _ Renewal deed, in rents and em- phyteusis, 2061, 2249 ; as regards hypothecs, charges, or servitudes, 2057, 2257. Rent is comprised m civil fruits, 44 >; paid in anticipation, must be registered, 2129; prescription of, 2250. — A lienaticnfor, rules which govern, 1593, 15:^; the obligation to pay the rent is personal, 1595 ; is equivalent to sale, 1593. Rents, Constituted, whether they are moveable or not, 388 ; defini- tion of, 1787; how made, 1783; may be in perpetuity or for a time, 1789; capital of, when demand- able, 1790 ; may attach upon pro- perty sold under execution, 1792. — Generally, for what term they may be stipulated, 389 ; are re- deeniable, ,389-391 ; arrears of, - are civil fruits, 449 ; t.ee Life-rents, Registration, Prescription. Rents, issues, and profits, see Fruits. Renunciation, Of prescription, 2184-2186. — Of sticcessions, see Successions. — Qf community, de- lay allowed^ the wife, 1342, 1343, 1350 ; by wife may be attacked by her creditors, 1351; by heirs of the wife, 1349, 1353; its effects, 1379, 1382 ; reprises of the wife, 1380, 1381 ; frees wife from the debts, 1382 ; wife may exercise her rights against property of com- munity and private property of husband, 1383. Repairs, for preservation, by usu- fructuary, 468; by lessor, 1613; by lessee, 1632, 1633, 1635; by borrower, 1766, 1773; by dowager, 1459 ; what are greater and what lesser, 469. Replacement of private property of consorts, 1305, 1306. Representation, what it is, 619; IKDEZ. 451 takes place without limit in the direct line descending, 6ao ; does not take place in favor of ascend- ants, 621 ; when admitted in col- lateral line, 622 ; in cases of, how partition is made, 623 ; living per- sons cannot be represented, 624 ; of person whose succession has been renounced, 624. Representations and conceal- ment, see Insurance. Representatives, legal, included under the term " person," 17 § 11. Reprises, of the wife, i3S7-i36o._ Rescission, of contracts made in fraud of creditors, 1032-1040. — 0/ gifts, 811-S16.— 0/ sale, for latent defects, 1525-1531 ; see Dis- solution. — 0/ lease, when lessor may demand, 1624, 1662; when lessse may demand, 1641 ; by in- solvency when lessee is a trader, 1656. — Of contract to build, 1691. Reservation of right to dispose of thing given, effect of, 782. Residence, as regards service of protest, 2328 ; of wife must be with her husband, 175. Bes judicata, is a presumption y«r/j etdejure, 1241. Respectful requisitions, to fa- ther and mother, no longer neces- sary before marriage, 123. Respondentia, see Loan upon bottomry and respondentia. RESPONSiBiLiTVjfor damages caused by the fault of minors, insane per- sons, apprentices and pupils, or animals, 1054, 1055; of owner of building, for damage caused by its ruin, 1055 ; of persons through whose offence or quasi-offence death has been caused, 1056. Restitution, due in cases of evic- tion, see Warranty. 1508-1521 ; of minors, see Relief. Resumption, right of, presumed in certain cases from prohibition to alienate, 972. Retention, right of, in returns of property to a succession, 732 ; in matters of substitution, 966 ; of possessor who has made improve- ments, 417 ; see Pledge. Retrait successoral, see Assignee. Return, to the community, ^A/hen due, 1355, i3S6. — /« successiotis, when due, 712, 714, 716, 717, 718 ; 33 is not due in case of renunciation, 713; what property is subject to It. 7iS» 7»9. 720, 721, 722; IS only made to the succession of the donor or testator, 718 ; is only due from coheir to coheir, 723 ; now made, 724-726; is not due for immove- able property destroyed by fortui- tous event, 727; wnen made in kind, 728 ; when party returning may claim for damages or must allow for deteriorations, 729, 730 ; rights of third parties when it is made in kind, 731 ; right of retain- ing the property subject to be re- turned until improvements are paid for, 732 ; how property to be returned is estimated, 733, 734 Reunion of consorts, puts an end to separation from bed and board, 196, 217, Revendication, by unpaid vendor, 1998-2000. Revocation, 0/ gifts, at the suit of creditors, 803 ; by donor, 811 ; by subsequent birth of children, 812 • — Of wills, by testator, 892 ; at the suit of the heirs, 893 ; partial, by subsequent will, 894 ; valid, although the will containing it be inoperative, 895 ; void, if con- tained in a will which is void, 895 ; presumed from every alienation of property bequeathecl, 897 ; testator cannot forego his right to re- nounce, 2iq8.-^Of mandate, may be made at any time, 1756 ; is a mode of extinguishing the con- tract, 1755. Right of redemption, see Re- demption. Right, petition of, to prevent pre- scription by the crown, 2211. Rights. — Of the crown, when affected, 9. — Of third parties, when affected, 9. — Civil^ enjoyed by all British subjects m Lower Canada, 18 ; how lost, 30-34 ; how restored, 38, see Civil death, — Incorporeal, gifts of, how divest the donor, 777 ; cession of, see Transfer.^ — Imprescriptible, see Prescription. — Contingent, see Absentee. — Of succession, what seller of, is bound to warrant, 1579 ; what seller of, is bound t« reimburse, 1580 ; what buyer of, is bound to reimburse, 1581 ; sale ■n 452 IKDEZ. 0^ subject to the ordinary rules of sale, 1581; purchaser o^ may be excluded from partition by being reimbursed what he paid, 7zo.y 0/ survivorship, may in certain cases be demanded during the husband's lifetime, 308, 1403. — Litigiousy what rights are held to be, 1583 ; purchaser of, may be satisfied by payment of what they cost him, 1582; but not in the case of insurance, 3584. — Real, see Registration of real rights. — Seigniorial^ their privilege, 3009, 30I2 ; exempt from registration, 2084. — Of retention, see Reten- tion. — of resumption, see Re- sumption. Riparian, see Alluvion, Land re- claimed, Servitudes. Risk, is the subject of insurance, 3468 : what kind of, may be in- sured, 2472-2477 ; its nature and extent should be declared, 2485, 3486 ; should be sjiecified in the policy, 2492, 2569 ; is essential to marine insurance, 2495, 2498, 2501, 3502; what are risks of the sea, 3495 \ when it begins, 2496, 2598 ; what risks are not covered by the insurance, 2508-2513; increase of, by insured, vitiates the policy, 2574 ; upon bottomry and re- spondentia, 2594, 2^97 ; of thing due, upon wiiom it falls, 1025, 1063, 1064 ; of thing sold, 1472, Z491-1499 ; of property leased, 1629, 1631 ; of borrower, 1767, 1768 ; of owner, in affreightnient, 2432-2434; seelnsurance, Affreight- ment, Bottomry j of things brought into a partnership, 1846. Rivers, navigable and floatable belong to crown dopiain, 400; alluvion caused by, belongs to riparian proprietor, subject to his leaving a footpath, 420 ; islands and islets forming in, belong to the crown, 424 ; navigable, former bed of, belongs to crown, 427 ; not navigable or floatable, islands forming in, 425 ; former bed of non navigable, belongs to those from whom nevv bed is taken, 427. Roads, maintained by the state, form part of the crown domain, 400; things found on, how dis- posed of, 593. Roadsteads, see Harbors. Roll, see List. Roots, partition is made accord- ing to, when representation takes place, 623. Ruin of a building, responsibility for damage caused oy, 1055. Safe-keeping, see Preservation. Sailors, see Seamen. Sale, definition of, 1472 ; subject to the general rules of obligations, 1473 ; of moveable things by weight or measure, when complete, 1474; upon trial, is conditional, 1475; takes place when promise of sale is accompanied by delivery and Bossession, 1478 ; cost of deed of, ome by buyer, 1479 ; of liquoi-s to others than travellers, no action for price of, 1481; cannot take place between husbcUid and wife, 1483 : what persons cinnot become buyers, 1484; what persons can- not buy litigious rights, 1485 ; what things may be the object o; 1486 : of a thing belonging to au- other, 1487- 1490; costs of delivery by whom borne, 1495 ; obligations of the seller, see Seller, Warranty; obligations of the buyer, see Buyer, Interest, Pajrment, Dissolution ; when may be dissolved, see Dis- - solution. Redemption, Lesion ; by licitation, when it takes place, 1562; by auction, 1564, see Auction ; of registered vessels, 1569. — Of debts and incorporeal things, 1570 ; how delivery is effected in, 1571 ; see Registration of real rights ; effect of pajrment before signification of, 1572; rules of, do not apply to bills of exchange, 1573 ; includes accessories of the debt, 1574 ; does not include interest accrued be- fore sale, i')7s; warranty of ex- istence of the debt, 1576, 1578 ; extent of warranty of solvency, ^577 •'^Qf rights of succession, warranty resulting from, 1579 ; seller bound to reimburse what he has received ou account of the right sold, 1580 ; buyer assumes the liabilities of the succession even towards the seller, 1581.— io3S» .»038i 1039; payments made by insolvent are presumed to be in fraud of, 1037 ; compensa- tion does not take place to the prejudice of, 1196 ; cannot be pre- judiced by failure of another credi- tor to invoke compensation, 1x97 ; see Returns to successions. Parti- tions. THers deien/eur, see Holder, Tilling, expenses of, privileged, 20XO. Time, computation of, for prescrip- tion, 22AO. Tithes, tneir privilege, 1994, »99' i how prescribed, 2219. Titles, to whom delivered in parti- tions of successions, 711. Title, renewal, see Renewal-deed ; primordial^ see Primordial title. Tow-path, is a legal servitude, 507. Trader, under age is deemed to be of age for his trade, 323; when wife IS deemed to be, ^79. Tradition, see Delivery. Transaction, definitioi of, 1918; cannot be entered into by tutor on behalf of minor, 307, 1919 ; has between parties the authority of a final Judgment, 1920 ; what causes justify a demand for rescission of, 1921-1924; when discovery of un- known documents is a ground of rescission of, 1925 ; errors of calcu- lation in, may be corrected, 1926 ; see Arbitrations in Code of Civil Procedure. Transfer, of debts, see Sale of debts; of registered vessels, see Merchant Shipping; of bills of lading, see Affreightment ; of policy of insurance, see Insurance ; of bottomry bonds, 2612. Treasure found, to whom it be- longs, 586. Trees, on neighbouring properties, 528-531; nght of usufructiwry to, ^455, 456. , , Trial, sale upon, presumed to be under suspensive condition, 1475. Trustees cannot become purchasers of property entrusted to them, 1484. TuTORj how many tutors may be appomted, 264 ; when his powers begin, 265. — IFAa may refuse to become: he who has not been summoned, 272 ; strangers, 273: septuagenarians, 274; infirm par- sons, 2^5 ; persons having other tutorships, 276 ; by reason of the number of their children, 277, 278. — IVho cannot be named, 282- INDEX. 451B> i%^.— Removal of, 285-287 ,* re- mains in office, pending suit for his removal, 281, 289. — Powers^ duties and disabilititSy 2^ ; must be sworn, 291 ; must cause an inventory to be made, 292 ; must cause moveables to be sold, 293 ; must invest moneys, 29A-296; cannot borrow, nor hypotnecate or alienate immoveables, nor enter into transaction for the minor without authorization, 297, 298, 307 ; formalities of sale of immove- ables of minor by, 299, 300 ; how may accept or renounce succes- sions for minor, 501, 302; what actions he may bring in his own name, 304 ; cannot demand defi- nitive partition of immoveables of minor, 305 ; cannot appeal without authorization, 306 ; cannot enter into transaction, 307. — Account o/, must be rendered at the termi- nation of his office, 308, 310 ; may be demanded during his tutorship, 309 ; he is allowed all justifiable excuses, 310 ; cannot settle with mmor before rendering his ac- count, &c., 311 ; owes interest on balance due, from what time, 312, 1078 ; responsible for damage caused by acts of minors, 1054 ; ad hoc, when appointed, 260; provisional, to children of ab- sentee, 114. Tutorship, is dative, and how, 249 ; formalities of, 250-253. — Family council for, all relations have a right to be present at, 254 ; what relations must be summoned to, 251 ; judge may appoint some person to take advice of, 256 ; advice of, may be taken ab initio by a notary, 257-260; report of, 261 ; how homologated, 262; ap- pointment by, subject to revision, 263. — Obligations of the heirs of a tutor as regards, 266. — Com- mencement of 26$.— Exemptions from, 272-278 ; when ^ must be stated, 279, 280; decision as to, subject to revision, 281. — Exclu- sion from, 282-285. — Removal from, 284, 285 ; how removal from, may be obtained, 286-288 ; judgment of removal is subject to appeal, '288. — Account of must be rendered, and when, 308, 309 ; 29 to emancipated minor is received with his curator, 3x8 ; no settle- ment between tutor and minor is valid before rendering of, 3x1.— How it ceases: by second mar- riage of widow, 283 ; by emanci- pation, 317, 318; at majority, 3x0; see Tutor. Undertenant, liability of, towards lessor, 1639. Undivided ownership, no one compelled to remam in, 504, 689. Undivided share, hypothec upon^ does cot subsist if after partition no part of immoveable remains with debtor, 2021 : except in the case of returns made in kind, 731. Undue influence, is not presumed in gifts to spiritual, medical or legal advisers, 769 ; wills, 839. Undue payment entitles to resti- tution, action in such cases, T047, 1048 : what must be reimbursed in cases of, 1049- 1052. "United kingdom," meaning of the words, 17 § 7. Unlawful cause, renders contract vaid, 984, 989, ggo. Un worthiness, in matters of suc- 'jession, 610, 612 ; in matters of gifts, 813 ; in matters of wills, 893. " Upper Canada," meaning of the the words, 17, § 6. Use, ri^ht of, in what it consists, 487 ; is established by the will of man, 488; ceases in the same manner as usufruct, 488 ; requires the giving of security and the making of an inventory, 489; is governed by the title creating it, 491 ; must be exercised as by a prudent administrator, 490 ; ex- tends only to what is necessary for self and femily, 492, 493 ; ex- tends to family accruing subse- quently, 494; cannot be assigned nor leased, 495 ; person having, must bear his proportion of ex- penses, like a usufructuary, 498. Usufruct, in what it consists, ^^43 ; how established,^ 444 ; its kinds, 445 ; upon what it may be estab- lished, 446 ; rights resulting from, see Usufructuary, 447-462; how it ceases, 479 ; may cease by reason of abuse, but creditors may demand the enjoyment of it, 480 ; courts may regulate 460 INDBX. the enjoyment of cases where it is aoused, 480 ; eranted to a corporation can on^ last thirty years, 481 ; granted until a per- son reaches a certain age, 48a ; not affected by sale of the property unless it is renounced, 483 ; upon a building, subsequently destroyed, does not attach to the materials or to the ground, 486 ; unless the building merely formed part of the property subject to the usufruct, 486. Usufructuary, has a right to all the fruits produced, 447, 465, 467 ; what fruits he is entitled to, 448, 449> 4501 451 i how he may enjoy consumable or perishable things, 453. 4^4 : not obliged to m^e restitution of pa}rments of life-rent made in advance, 453 ; his right to trees, 455, 4^6; his obligation to replace dead or uprooted trees, 4^6 : may either enjoy his right or dispose of it to others, ^57 ; Teases made by, expire with his usufruct, 457.! benefits by alluvion but not by islands formed during his usu- mict, 458 ; enjoys all the rights of the proprietor, 459 ; has not a right to mines and quarrries opened since his usufruct began, 460; has no right to treasure found, 461; has no claim for improvements, 462 ; may remove ornaments placed by himself provided he restores the property to its former condition, 462 : takes the things in the con- dition in which they are and makes an inventory, 463 ; is bound to give security unless specially exempt, 464 ; if he fails to give security the property is sequestrated, 465 ; how the sequestrated property is ad- ministered, 465, 466; fruits ac- crued since the opening, up to the time of his giving secuntv, belong to him, ^67 ; is liable for lesser re- pairs ana for such greater repairs as are caused by his neglect of the lesser, 468 ; is not, nor is proprie- tor, bound to restore what has fallen into decay or has been de- stroyed by unforseen event, 470: is liable for all charges imposea upon the property, 471 ; is liable for ground rents and annual dues, 47 z ; his liability for life-rents, 473 : is not liable for debts or hy- pothecs, bat is entitled to subro- gation if he pays them, 473, 11,6 ; general, or by general title, con- tributes to payment of debts, and how, 474 ; what costs he is liable for, 475 ; must notify proprietor of any encroachment or of any attack upon his rights, 476; is not bound to replace animals dying without his fault, 477 ; if the whole flock or herd perish by fortuitous event, is accountable only for the skins, 478 : if part only of the flodk or herd perish he is bound to replace them up to the number of the in- crease, 478. Utensils, belonging to manufacto- ries are deemed immoveables, 379. Vacant estates, escheat to the crown, 401 ; successians. see Suc- cessions, vacant, 684- 68S. Valuation, see Statement, appre- ciatory ; relative, when it takes place, 2013. Vendor, see Seller. Vessels, registered, see Registered vessels j are moveable, 38^. Viable, mfants do not inherit unless they are, 608. View, upon a neighbouring pro- perty, cannot be had from a common wall, 533 ; may be had from a wall which is not common, and how, 534, 535 ; distances re- quired for direct views, 536 ; upon a neighbouring property, distances required for oblique views, 537; how distances for, are measured, 538. Violence, b a cause of nullity in contracts, 994-1000; see Fear, Prescription. Vis major, superior irresistible force, causes " fortuitous event," 17 §24. Voluntary administration, see Negotiorutn gestio. Vows, religious, effect of, 34; tak- ing of, how established, 70. Wager, when binding, 1927, 1928. Wages, oath of master in actions for, 1669 ; their privilege, 1994, 2006, 2009 ; of seamen, 1671 ; when minors may sue in their own name for, 304. Waifs, to whom they belong, 584- 594- INDRX. m Walls, see Common property, Servitudes. Warrantors upon bills of ex- change, aaSx, 331X. Warranty, In tnsuranee^ see In- surance. — Between coheirs of the debtor of an indivisible obli^^tion, 1 137; resulting from partition of successions, 748-750.— (yv^^for, its nature and effects, 1506 : le^l, implied by law, xj;o7; agamst eviction, 1508 ; results from per- sonal acts of vendor, notwithstand- ing stipulation that there shall be no warranty, 1509 ; extent of, in such case, 15 10; what restitution is due in cases o^ 15x1-15x6, i;Si8, X519: when and how exer- cised, X520, X52X ; of latent defects, none for appar- in 1525, 1526 ; seller liable for dam- ages, if aware of the defect, 1527 ; ucus, if he did not, X527 ; none in forced sales, X53X ; when and how exerdsedf X530; of the existence of a debt sold, 1576 ; of solvency of debtor, to what extends, 1577 ; in sale of rights of succession, »S79- — 0/ lessor, for defects in the thmg leased, x6x^; against dis- turbances suffered by lessee, x6x6- 16x8. — In hypothecary actions, 2068, 2069. Warrens, to whom rabbits in, be- long, 428. Waste, see Deterioration. Watercourse, servitudes relatuig to, S0I-S03* Waters, Navigable,^ form part of crown domain, 400 ; islands formed .n, belong to the crown, 424. — 0/ • springy, proprietor of land may use as he pleases, 502. — Unnavi- gahle., how may be used by riparian, proprietor, 503. — Flow of, from higher to lower lands, SOX. Way, when may be claimed, 540, 543 : where and how given, 541, 542 ; who are bound to give it in certain cases, 543 ; when it ceases, 544. Wells, in cities or towns, regula- tions concerning, 532. Widow, is entitled to her mourning out of her husband's succession, 1368 : during the delays for niak> ing an inventory and deliberatinK may live, with her servants, at the expense of her husband's sue* cession, 1352: may occupy the house free of rent during said delay, X352; remarrying, ceases to be tutrix, 283. Widowhood, as regards tutorshiji, 282, 283. Wife, owes obedience to her has* bancL 174; obliged to live with and follow her husband, X7;j ; can- not bind herself, give, receive, nor appear judicially without the authorization of her husband, 176. t77i i^St 12^7' loay be authorizea by a judge if the husband reiuse, i;p8, xSo, X296, 1297 ; may make a will without the authorization of her hiisband, X84 ; a trader, does not require the authorization of her husband for what relates to her trade, 179, 1296 ; of age, may be authorized by herliusband who is not, 182; cannot accept Sifts without authorization, 763 ; ow may accept or retain testa- mentary executorship, 906; can- not bind herself with her husband except as common in property, 130X, X374 ; cannot alienate im- moveables under general authori- zation, X424; provisions relating to dower of, 954, x 450-1 465; re- gistration of rights of, 2087, 2x13- 2x16; see Husband, Consorts; in community, see Wife, Com- munity. — Separated as to pro- perty, does not require husband's authorization to administer her Eroperty, X77, X3x8 ; must contri- ute to household expenses and education of children, 165, 13x7 ; regains the administration of ber property, X318 ; cannot alienate immoveables without authoriza- tion, X318, X424. — Separation oft from bed and board, wife demand- ing, may leave husband's domicile, 194, X95, 20X ; has a right to main- tenance and her wearing apparel during action for, 202 ; has a right to a separate domicile, 207 : may demand restitution of her dowry, 208, 209 ; regains the administra- tion of her property, 210 ; cannot alienate immoveables without I I 462 INDKZ. authorization, aio, 1424; see Con* sorts, Children, Husband. Wills, definition of, 756 ; effect of impossible or immorsil conditions in, 760 ; capacity to give and to receive by, 759, 831-8^4; as re- gards married women, 184, 833 ; minors, 833, 834, 837 ; interdicted persons, 834, 837 ; tune relatively to which it is considered, 83^, 838; presumptions of tmdue influence and want of will in certain cases no longer exist, 839 ; may be ex- Eressed in any terms indicatmg the itentions of the testator, 840; of more than one person cannot be in the same act, 841 ; three differ- ent forms of, 842. — Authentic, form of, 843 ; requisite formalities of, 843-845, 848, 8^5 ; effect of re- lationship of notaries or witnesses, 845 ; itullity of legacies in favor of relations of notaries or witnesses, by soldiers or sailors, 849. — //olo- graph, formalities of, 850, 854, 855. — In the English form, for- malities of, 851, 854, 855 ; how deaf-mutes may make, 852 ; effect of legacies in favor of witnesses, 853. — Probate of, 857 ; heir need not be present at, and it does not prevent contestation of will, 858 ; when it is requisite, 859; when will has been lost or destroyed, 860, ^ 861 ; one witness sufficient for, if judge is satisfied, 862 ; see Legacies, Legatees. — Interpreta- ion of, 872. — Revocation, 892, 894; grounds for which, may be demanded, 893 ; when by, of a re- voking will the first will revives, 895, 896 ; effect of the alienation by the testator of a thing he had bequeathed, • 897 ; except in con- tracts of marriage no one can forego his right to make or revoke a will, 898; legacy has no effect if legatee dies before testator, 900. — Executors of who may be, 905- 907; see Testator, Testamentary executors. — Registration of, 2110. aii2. Windows, see View. Witnesses, for authentic acts, 1208; for wills in authentic form, 844,' 84s ; for wills in the English form, 851 ; to give testimony, 1231, 1232. Work, lease and hire of, bv esti- mate and contract, may oe for labor and skill only, or for mater- ials likewise, 1683 ; upon whom the loss of the thing falls, 1684, X685 ; when the work is deemed to be received, 1686, 1687 ; warranty of work by the builder, 1688, by the architect, 1689 '• ' cJ^tra, no claim for, unless expressly agreed to in writing, 1690 ; contract may be cancelled by the owner, 1691 ; when the contract is terminated by the death of the workman, 1692, 1693, of the party hiring, 1694 ; registration of the builder's privi- lege, 1695, 2009, 2013. Workmen, undertaking work at a fixed price regarded as contractors, 1696 ; employed ^ by contractor have no claim against the owner, 1697. Wrecks, and firagments coming from, 590. " Writings," of, 17 § 12. Writings, what, are authentic, 1207 ; executed out of Lower Canada, when need not be proved, 1220. — Private, their effect, 1221, 2222; how denied, 1224; how E roved, 1224 ; what date they ave against third parties, 1225, X226 ; on the back or other part of a document, effect of, 1228. — IVhen necessary for proof, X234~ 1237. " written," meaning SPECIAL REFERENCES. HOVABIBI. The articles more particu- larly useful to notaries in the course of their practice are the following : — 70 to 85, concerning the domi- cile of persons. 956 to aei, the holding of family councils for the appointment of tutors. 651—, renunciation of succes- sions. 662—, the inventory to be made by a beneficiary heir. 608, licitation of immoveables by consent. 600—, accounts and partition of successions* »T6, 786-, 701, 703, the form of gifts, and their acceptance. 843—, the form and requisites of wills. 857, the giving up of holo- graph wills. 1163, requisites for the validity of a tender. 1S08— , requisites of notarial instruments. 1315, authenticity of notarial copies. 1S64, 1366, form of marriage covenants. 1360, re-establishment of community after separa- tion. 1334, 1336, 1343, inventories in matters of community. 30 1354—, partition of commu- nity. 1384—, conventional commu- nity and its clauses. 1733, rights and obligations of notaries. 3110, obligation of registering tutorships. 3148, obligation of registering discharges. 3168, mode of describing pro. perty. 3360, 3367, prescriptions against notaries. 3308—, 3310, 3336—, 3346, protest and notice of pro- test of bills and notes. 3415, requisites of charter- parties. 3507, requisites of bottomry bondSr The articles in which clergy- men are more particularly interested are the following : — 34, as regards the disabilities resulting from religious profession. 30 to 78, comprising the whole title Of acta of civil gtatut, concerning the registers of births, deaths, and marri- ages. 108, as to marriage of the hus- band or wife of an absen- tee. M4 BPKOUL BIFEBBN0E8. 115 to 135, marriage and its formalities. 15T, 168, penalty against clergymen contravening the law respecting mar- riage. 769, Talidity of gifts to spiri- tual advisers of donor. 839, validity of legacies to spiritual adviser of testa- tor. 848, clergymen can no longer execute wills, except in Gaspe. 1994, 1997, privilege for tithes. 1994, »009, privilege for ftaneral expenses. JK119, prescription of arrears of tithes. 95176, exemption from impri- sonment PHYSICIANS. A few articles only apply specially to physicians. 769, as to the validity of gifts to one's medical adviser. 839, validity of legacies to medical adviser of testator. 1994, a003, a009, 2107, pri- vilege for expenses of last illness. JI960, 9$a67, prescription of their claims for profes- sional services. wleaia bstate owarEBs. Several whole portions of the Code, sufficiently indicated by the titles they bear, relate to real estate and its owners ; besides these, the following articles are also particularly applicable : — 6, what laws govern real estate in Lower Canada. 377 to 380, what things form part of real estate. 407, no one is obliged to give up his property without compensation. 414 to 428, what rights ac- company the ownership of immoveable property. 504, right of having bounda- ries Bottled. 505, right to have fences built at common expense. 500 and the remainder of the chapter, as to property re- lations with neighbours. 1479, expense of deed of sale borne by buyer. 1500—, excess or deficiency in contents of an immoveable sold, how remedied. 16ia— , rights and obligations of lessors. IQftQ—, rights and obligations of lessees. 1600, contractors cannot claim payment for extras unless they are agreed to in writ- ing. 9959, ten years prescription in favor of architects and contractors. MBBCHAlVrs. Merchants, and persons en- gaged in commercial pursuits, should read the whole of the Fourth Book, and gooerally the titles Of Sale, Of Lease, Of Exohange, Of Mandate, Of Loan, Of Deposit, Of Partner^ ship. Of Transaction, Of Sure- tyahip, Of Pledge, and portions of the titles Of Privilegea and Hifpotheca, Of Registration, in- dicated by their headings. SPROIAL KirUENOM. 4»l^ They are also referred to the fol- lowing articles particularly :— 17 S9 20, 23, defining the yalne of Uie pound sterling and sovereign, and the mean- ing of the word "bank- ruptcy." ITd, 179, ia06, as to married women engaged in trade. 3!13, as to minors engaged in trade. 367, what corporations may carry on the business of banking. 803, gifts made by traders within three months of their insolvency. 903, when fraud is a cause of nullity. 1035, 1027, 1479, how own- ership passes by contract alone without delivery. 1031 to 1040, recourse of cre- ditors against fraudulent debtors. 1158—, rules as to the imputa- tion of payments and effect of receipts. 1996, date of commercial wri- tings. 1935, when writings are neces- sary. 1313, as to judgments sepa- rating wife's property from her husband's, espe- cially in the case of traders. 1478, when a promise of sale is equivalent to a sale. 1488, When a trader may sell what does not belong to him. 1405, seller liable for cost of delivery, and buyer for cost of removal. 1656, effect of insolvency upon leases. 1679—, obligations and liabiN ities of carriers. 9006, privilege of merchants' clerks for wages. 9960, 9967, prescription of bills and notes, and of claims for goods sold. 9969, 9967, prescription of claims of merchants' clerks for wages. PBBSOIiS OUT OF liOWBB CANADA. 6, what laws govern property in Lower Canada. 7, validity in Lower Canada of acts and deeds made else- where. 8, how deeds executed out of Lower Canada are con- strued. 18, rights of British subjects not bom in Lower Canada 98, Lower Canadians may be sued in Lower Canada for debts contracted abroad. 90, when security for costs must be given. 135, marriage of Lower Cana- dians out of Lower Cana- da is valid if according to the formalities of the place where it is solemnized. 600, aliens may inherit in Lower Canada. 844, 851, aliens may be wit- nesses to wills. 1990—, proof of writings exe- cuted out of Lower Canada. 9190, 9191, effect of foreign prescriptions. 9391, as to bills drawn abroad upon Lower Canadians. I I i t'!i CONCORDANCE Of TUB OODE NAPOLEON AND CODE DB COMMERCE WITH THE CIVIL CODE OF LOWER CANADA. The flnt nam ben indicate the ertlclei of the Codt IftgpoUon, or of the CoJe dt Commerce ; the looontl uo thoie of the erticlei of the CIyU Code of Lower Canada. CODE NAPOLEON. 1 I 46 SI ~ a 47 Z330 a 3613 48 I330 3 6 49 76 " 7 - 77 i zx so S3 18 s« 53 I S3 57 48 54 9 az 63 57 - 33 - 58 lO 30 - 130 IS »5 U 60 za 33 6z »3 34 69 65 »4 ^1 74 63 \l 75 X29 39 76 65 aa 31 77 66 33 33 78 67 »4 33 g 67 as 35 68 - 36 8z 69 36 37 99 75 35 39 - 77 3^ 40 too 78 38 41 TOI 76 39 55 Z03 79 m !♦ ZO3 80 m 67 ZO4 8t 40 4a »o5 8z 41 45 106 83 43 46 107 83 43 47 108 f3 " 49 109 84 45 50 ZIO 600 ZIZ IZ3 "3 "4 "5 zz6 117 z»» Z3Z Z33 Z33 Z34 "5 Z26 Z37 Z29 Z30 X3I Z33 133 »34 135 Z36 137 138 «39 Z40 Z4Z 8S 87 95 93 94 93 94 93 94 93 94 Z09 zzo zzz 96 97 '3 99 zoo zoz Z03 Z03 Z04 zos Z06 Z07 to8 ZI3 Z13 143 "4 «44 "5 146 »«S X16 M7 X18 148 119 " X2I 149 1 30 150 133 I5» "3 ZS3 Z23 153 123 zs6 158 X59 131 z6o Z32 i6z "4 Z63 135 163 Z36 Z64 \^ z65 z66 Z3O Z67 «3« z68 133 Z69 134 Z70 135 Z73 Z36 »73 137 »74 170 178 179 X38 X39 Z41 Z43 138 144 145 146 147 143 "4 »44 "S 146 "S XI6 M7 118 148 119 m X3I »49 1 30 50 laa S« "3 Sa 123 53 123 56 158 59 X2t 60 X3a 6x "4 6a "5 63 X26 '4 ;3 i5 >6 X30 ^l X3X )8 »33 >9 134 135 '2 X36 3 »37 138 4 X39 X41 14a 5 138 S »44 J 145 B 146 b 147 OONCORDANOI 467 180 1x7 275 x86 4x7 364 :s 31} 318 • 148 399 aix 4x8 ^i 181 149 300 axa 4x9 48X 3x9 1S3 ISO 30X 213 430 ^7 4«3 330 183 i5x 303 2x4 422 36^ 483 32 X ^H 15a 303 315 ax6 434 484 333 185 153 ^ 425 a70 487 323 186 X54 x86 426 371 488 324 «87 15s 307 'H 432 273 489 335 19X 156 308 208 433 274 490 3'Z 328 328 192 193 158 309 3" Jil 434 435 375 376 49a 493 194 IS9 3X2 2x8 436 377 378 494 329 19s x6o - 330 437 495 329 196 i6t 3x3 XX7 438 ^g 496 330 197 i6a m 3x9 439 499 33X 20X X63 - aao 440 38X 500 333 202 X64 3x4 aax 443 28a 50X 333 203 i6s - aaa 443 "l* 50a 334 20s 206 x66 167 168 3'5 3x6 337 aa3 » 28s 386 503 504 335 335 207 3'Z 3x8 334 - lU 505 34X 203 X69 335 ^l S06 343 309 170 3x9 238 448 389 507 342 210 171 320 339 449 a86 508 344 2tX X7a 321 330 450 390 509 343 2X3 173 32a 33X 451 39a 5x3 336 213 174 323 33a 45a 393 5x3 349 214 X75 324 333 455 295 35X 3X5 X76 325 334 "■ 296 5x6 350 2x7 177 328 335 456 296 374 643 329 336 457 297 5x7 375 - 1318 330 336 - 298 5x8 376 2X8 X78 331 *37 458 398 5x9 377 2x9 X318 333 238 459 299 520 378 230 X79 333 239 460 300 S2X 378 33a x8o 338 340 - 709 522 379 2a3 x8i 340 341 461 30X 523 379 234 i8a 34X 241 - 643 524 379 22s 183 342 24X 463 303 52s 380 236 X84 37X 24a - 643 526 381 227 18s 372 343 463 303 527 383 229 187 373 343 - 789 528 384 330 188 374 244 464 304 529 3?7 23X X89 375 345 46s 305 388 233 186 388 346 - 6qi 530 389 234 19a 389 349 466 691 m 390 2S9 199. 393 345 - 693 - 39X JO 196 397 349 467 307 53 X 385 .67 300 40a 349 469 308 532 386 268 X9S 40s 349 470 309 533 395 - 201 406 350 471 3x0 534 396 - 20a 407 35 X 473 3XX 535 397 269 203 408 353 473 3x3 536 398 270 204 409 253 474 313 537 399 27X 20s 4x0 254 475 2243 538 400 27a 196 4XX 255 476 3x4 539 40X 273 «9r 356 478 3x5 540 403 ) j H 34 468 541 403 54a 404 S43 40s 544 406 545 407 546 408 1% 409 410 549 411 SSO 4x2 551 413 552 414 553 415 554 416 555 417 - 418 - 4*9 556 420 557 421 558 42a 559 423 S6o 424 561 42s 562 426 S63 S 564 565 429 see 430 sS 431 432 569 433 570 434 57» 435 57* 436 573 438 574 575 439 576 440 577 442 578 443 579 444 580 445 681 446 582 447 583 448 584 449 S8S 450 586 451 587 452 S88 453 589 454 590 455 591 455 592 455 593 455 594 456 595 457 596 458 OONOOBDANOB. 598 *l^ 6S7 658 514 7x7 533 460 5x5 i89 590 - ^' 659 516 m S 462 463 660 661 S'7 518 718 oox 601 464 662 519 719 602 602 465 663 520 720 603 603 466 664 521 721 604 604 467 66s S22 722 6oi 60s 468 666 523 723 606 606 469 667 524 724 607 607 470 668 525 725 608 608 471 669 S26 726 609 609 471 670 5^7 727 610 610 472 671 528 728 6n 611 473 672 529 729 612 6X2 474 673 530 730 613 013 475 674 532 731 614 614 476 t^i 533 732 599 6x5 477 676 534 733 629 616 478 677 535 t 633 6x7 6x8 479 678 536 - 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