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CABRXXL STREETt 1836. n The following papers were written in num- bers for the Montreal Herald, and published in that journal under the signature of Civls, but as it was suggested that their utility would be increased by their republication in the form of a Pamphlet/the writer has adopted the sug- gestion, in the hope that some advantage to the province, however small, may result from his labours. W. BADGLEY. Montreal, Sept. 15, 1836. a2 REMARKS OJf REGISTER OFFICES. No. I. SiR» — As pariy acerbity has in some degree abat- ed of its sharpness and given way to a less pungent feeling, the consideration of a question of import- ance to the future prosperity of Lower Canada may be allowed to claim some attention at present, in consequence of the early session of the Legislature ; but especially, as the silent wisdom of the delegates has concealed their projected plans of provincial im- provement from the knowledge of their constituents ; and still more so, as the Royal Commissioners are, at last, allowed to be disposed, as well as desirous to obtain every possible information upon the con- flicting interests, wants and wishes of the Inhabit- ants of this province, which their royal master com- manded them to visit. The present stagnant condition of Lower Cana- da must be an object of solicitude to every class of her inhabitants ; her farmers suffering from want of capital and a succession of bad harvests ; her mer- vhantg partaking in the pressure upon the agricul- turists ; and all others, more or less affected, by the a3 Ui i 5t 6 evil consequence! arising out of this unfortunate state of things. Ruinous indeed will be the result of another agricultural year similar to the former, nor can any general improvement be anticipated from more favourable harvests alone. It is in vain, that the merchants in Lovi-cr Cana- da calculate upon support and assistance from Up- per Canada. The inhabitants of that province are daily making a market for themselves; and, if high- er remunerating prices for their produce can be ob- tained in the United States, and the present want of facilities to the intercouise between the two pro- vinces is continued, the timber and corn of Upper Canada, her staple produce, will be carried across the line to oui* neighbours:— deprived of the bulk of our exports, the amount or value of our imports may be ascertained with the greatest facility, and the inevitable consequences to this province, in such an event, may be easily anticipated. The inhabit- ants of Lower Canada will be cast on their own re- sources ; to them, therefore, the consideration of the question assumes an important aspect, because it is by them that its consequences must be atten- tively examined dni its results carefully applied. The French Canadian agriculturists of Lower Canada, who constitute the greatest portion of her inhabitants, and who possess the largest part of the landed property of the country, cultivate little be- sides grain, and a bad season cuts oflFall their crops at once, leaving nothing for their support but their credit with the merchant, whose interest compels him, for his own protection, to deprive them in the end of the only capital they posses, and upon which their credit is founded; — first, their im- plements of husbandry, then their farming stock, and finally, their last resource, their farm itself. In the meantime, seigniorial dues and parish tithes must be paid out of the proceeds, until penury and fa- mine, with all their horrors, stare the luckless far- mer in the face. These evils, under no common circumstances of agricultural distress alone, could become so fearful if tlie farmers had the power of relieving themselves from the pressure of present necessities, by obtaining temporary assistance from the superabundant and unproductive capital of others. By means of loans upon the sufficient se- curity of their real estate, they would be relieved from distress and destruction, enabled to preserve their property and stimulated to increased exertion and additional industry. They should likewise bear in mind, that every improvement in the implements of industry, in the farming stock, and even in the farm itself, is not only a saving of expense, but becomes an actual pro- fit far beyond the amount of the first outlay in pro- curing them. Instead of the ricketty havrow, stuck full of wooden teeth, the harness made of old rope or horsehair, two or three teams upon one farm, and a very large amount laid out for labour which, in a new country, is al^^ays extremely expensive, capital would enable the cultivator at once, to procure the necessary improvements in his implements and stock; and by rendering his land richer and more easily cultivated, make one team and a less outlay of ca- pital paid for labour amply sufficient for his pur- poses. I3y this means his wealth would augment, he would become a capitalist instead of a borrower, and enabled to advance his children by locating them upon new farms, where they might obtain si- milar advantages. The commercial community, another great class interested in this question, are so well aware of the important advantages to be derived from the intro- duction into this province of foreign capital, that it is idle to urge it upon their consideration, and, in- deed, every enlightened or even commonly intelli- gent person must be persuaded of this truth, that jDonev brought into and expended in the province^ a4 8 must necessarily lead to the present improvement and future prosperity of the country at large. In- dividuals may suffer, but the public will be b.-nefit- ed, the mere speculator may be ruined, but the country will be improved. By imported capital, labour will be employed in internal improvem«nts, opening out the country, facilitating the intercourse between remote parts of the province as well as with the neighbouring government ; it will create public and private enterprize, and cause a general diffusion of wealth over every quarter of Lower Canada. To use the language of the Report of the Legis- lative Council of the 16th February last on the subject of Register Offices. " The introduction of foreign capital into a new country, whose principal wealth consists in its agri- cultural and natural products, must materially pro- mote its general prosperity, by encouraging the ac- tive energies of its inhabitants, and extending their means of improvement, not only to land actually under cultivA anniiallv fipnf. from the Coun- cil, for the establishment of Register Offices in 16 (( tlie townships, which resulted in the laws now in force for that purpose, and the 10th and 11th Geo. IV. ch. 77, intituled, « an act for rendering valid " conveyances of lands and other immoveable pro- <• perty, held in free and common soccage within " the province, of Lower Canada and fjr other pur- poses therein mentioned." " This question, therefore, is no novelty in Provm- cial Legislation. The House of Assembly has not only deliberately admitted that evils exist, from the present system of defective legislation, but has like- v7ise itself solemnly declared its op-nion, of the ab- solute necessity of Register Offices— -Ist by its own recorded resolutions, and 2d, by establishing these offices in the townships of the province. The re- fusal to make them co-extensive with the whole province, cannot be viewed in any other light, than as a highly exclusive and unjust system of Legisla- tion. The great objection to the principle of registra- tion having been disposed of, those that remain are, to use the language of a celebrated modern writer, « merely trivial, such as that there is no experience liow such a thing would work, though there is the favourable experience of every nation in Europe, not to mention Scotland and Ireland; that every man's debts would be generally known— as if cre- dit could not exist without tricks of concealment and mystery, or as if the whole world would crowd to the Register Office from mere idle curiosity ; that no man would be able to borrow money on his own individual securities and deeds— as if these would not be verified and confirmed, and greater security given to the lender." And in France, from which we derive our legal civil system, registration is in force and approved of ; there the necessity and moral obligation of establishing such a mode of security have been I'elt and appreciated ; and in that country, modern legislation, breaking through 17 theUattiers of antiquated notions, has confirmecl the maxim, that « all laws are made for the convenience "f thTcommonity", and that, "what '^'egaly done should be legall/ recorded, that t'-/""/"! b r^e raav be known, and that where evidence may be re- "uUite, evidence may be found. For tins reason. Te obi gation to frame and establish a legal register s enforced by a legal penalty whicl, penalty .s he «ant of that perfection ™dpl»'">"^«,°f"8'^'"'"f'' a register would give. Thence .t follows, that the objection to the present insecm.ty, .. ""^ "" f "^ tion merely legal, for the reason on which the law standjbeing equitable, makes it an equitable objec "°The general objections to the principle of regis- tration being, therefore, untenable th^y can only be discovered to exist, in the defects of t'.e system of law in force in this province ; and it is here that tbey appear to be well founded, because before such a reys«ation could be rendered efficient, the impe- diments in its way, arising from the present system onurtptudence,Lust previously be removed and some changes must be introduced. The report before referred to thus proceeds :-. « That the establishment of offices in the seigmo- rial parts of the province, for the "^g'^'"""" °f ';,- Us I land, and the incumbrances l";'^* *"; is the only effectual mode of rendering the transfei of landed property secure, economical ^"^ f ^P""" tious, and of remedying the «''l%-=°™Plr"'*°,^,^"' the Committee are also sensible that their establish- ment would be encompassed with difflcuU.es, un- less previous modifications are made in certain par- ticulars of the existing laws relating to real estate. ,^^"h would, in a great degree, remove the obsla- r,.:.".!.. „Lpv«1 measure, without endangering «TsU;g'i"nter7;tsror creating too sudden an inno- va on fn alongestablished system of ur.sprudence. It is unquestionable, that innovations m any es- Ej^^^<^>mH 18 tablislied system of jurisprudence, should be avoided as much as possible ; but where the general wants of a country, and equity and justice combine to re- quire them, they should be immediately and sponta- neously conceded. Etsi nihil facile mutandum ex solemnibus, tamen ubi (gquitas poscit, subveniendum est. Inconveniences in individual cases must be antici- pated, but these should never be allowed to impede the general good. " Even if the introduction of these modifications should be productive of more inconvenience, or at- tended with greater difficulty than the Committee now see any reasonable ground to apprehend, they still believe that the inconvenience and the di6ScuU ty will be greatly counterbalanced by the benefit to accrue from the change, " •i ; ii No. IV. Previous to entering into an explanation of tht aetails of the contemplated changes and modihca- tions above alluded to, it is expedient to examine cursorily the origin, extent a"^ modification, o^^^^^ law regarding mortgages, in order that thei'jh°^« system may be appreciated and distinguished, and ficilities afforded for comprehending any P^^J^ct by which contracts of this description, may be rendered^ at once expeditious, economical and secure. It is a fundamental principle which admits of no diversity of opinion, that the contracter of a debt is bound to discharge it by means of all. or such por- tions of his property moveable and immoveable, pre- sent and future, as may be necessary to comple e the payment. The consequence of this principle is, that his credit is composed not only of all lirt actual, real and personal property, but a so of all that his good conduct, his industry, and the natu- ral order of successions might lead him to expect ; and the reason is evident, because so long as his debt endures, so long, will the liability of his actual as well as his future property for its discharge subsist *^'ln the inlercourse of civil life, it is well nigh im- possible not to borrow and lend ; we borrow sorne- limes from necessity, sometimes for the sake of an- ticipated profit ; and we are compelled to lend ei- ther from expected profit upon the loan or to pre. vent our money remaining unerapioyeu. «Uv„ considerations have made this kind of contract very common. But all obligations are not founded on 20 i :il Similar principles, nor are they similar in quality, wherefore, difficulties frequently arise among cre- ditors of the same person, touching their preference, privilege or concurrence upon their debtor's proper- ty ; moreovi?r, as loans are only effected on condi- tion of reimbursement, and, as good faiih is not al- ways to be found among debtors, creditors have sought different modes of obtaining security, by the pledge or engagement of their debtor*s property ; yet, whatever were the contracts made, or precau- tions taken, it was frequently found to be impossi- ble to ascertain the precise situation of the debtor's affairs, or to discover his solvency or insolvency at the time of making the contract. Personal obligations were first employed, but having been found not to be sufficiently solid and permanent, real obligations were adopted, by which at first the thing pledged, whether real or personal, was actually transferred to the creditor. This mode of security upon real estate, was also, in time, found to be very inconvenient, because, as money is a commercial commodity and constantly changing hands, every new loan occasioned the necessity of the actual tradition or transfer of the land itself to the new possessor, and new engagements were required to be made ; great loss and depreciation in the value of real property were caused by these means. The possession of the creditor being un- certain and insecure, he took no pains or trouble to cultivate and improve the land ; the debtor could not cultivate it himself, because he could not make the ameliorations he intended, without the consent of the creditor, in a word, he could not give to the land that constant care which preserves and improves real property ; while, on the other hand, the credi- tor must likewise have fell a repugnance and dis- like to cultivate the property of another, and to give to it that attention which he applied to his own. This led the way to the introduction of the existing 21 f^^tfrasc. which becoming more fitted ta ,ystem of mortgage, win progress of the requirements of the time, »n ^^^^^ »,,, comtnerce and ""'"»"°"' t»a""d. but prevented debtor of the property -""'^g;^* ,;,, ^e to the its disposal, urdess-f^'-- ("^^^i^ed ,„ „,- u existing creditor, jn° '*' ^ jmo the hands of ,ven after the land ^>^^J^^^^,\^ only lost by third persons, "".^.^''''''i^S' ,he creditor h»d, means of P^^^'PV .,»otln2 the engagsmement. from the moment of contract ng^heengS ^ a real right upon the P'°P"'y renlagement, and considered as '""^^^^Jea upon "^^ ''"' which conse-iuently attached P etancy. property, whether m V°'^^l'°^ . jj.^ hypothecary Wm this arose the P«f"«"''»jJ Zt of the fir.t before the P"-"*} "*?; ^ 'irdatel mortgage before ">"."? '""'entional mortgages ; This system applied to o""**"' . - , from their but there were also enpg.men.wh^^^^^^ ^^ object and from principles of »'""» J contracts ; claimed a preference b«f"? f^^^^"^^ ,iue privi- from such motives, these claims becam ^^ l-,^^^ leges and were sepamtedntoa d^st^^^ ^^^^ mention, by ^^^i^^:;:Ti^:i^^':^^^>»'v - tervenes at a ">?« J''^" " „,,ieh the obligation of preserve to creditors a ight w. f maintaining public order tui y ^,i,,,ea, u the moment that f^^Xlvotr of the debtor to should no longer !>«'"*«?''* ^^^^^^_ give to any P«^°">f^y ^f rTght of mortgage over tion. any valid P«f"*'* ^^ mortgage of r :.fe ufo^ h:Sndioperty that of minors Con tl.0 property of their «^ors,_&c.^^ ^^^^^ ^,^^ The power or lui-c «- J^"o 32 III ! ( have been perfectly illusory, if the party withhold- ing his consent, aud requiring the creditor to be at the expense and trouble of obtaining a judgipent of condemnation against him, could afterwards, by a simple conventional mortgage, give a preferable right upon his property ; wherefore, it became ab. soJutely necessary that judgments, like legal mort- gages, should rank, according to their date, amoncr the number of mortgage debts. If, on the one hand, this conventional manner of contracting appeared so commodious and easy to debtors, on the other, it became very dangerous to creditors, from the difficulty of effecting secure loans or making purchases without fear of eviction. It therefore, became an object of great importance for the prevention of frauds and deceits, which daily in- crease from public necessities, to discover some ef. tectual manner of preventing a debtor's hypothecat- ing his property beyond its real value, and of crivine security to loans and purchases. ** Although contracts of purchase and sale, and of loan have been in use among all nations and in all ages. It would appear that, until Registration of Deeds, became practised, useless efforts were made to give the required assurance, under a simole mortgage. ^ In Greece, whence the mortgage system is ori- ginally derived, marks or visible M*gns, placed on some conspicuous part of the real property, declared Its engagements, when it was not actually transfer- red mto Ihe possession of the creditor. At Athens a mortgage had a special character of notoriety and publicity, well adapted to prevent frauds so often practised upon the good faith of creditors and pur- chasers ; It was there made manifest, by small co- lumns placed before the mortgaged land, with an inscription upon then, declaring the obligations of the proprietor. Ihh mode of publicity, which was -_j lor a iim:.».rt , iinory and for a people but i 23 little advanced in civiliration and commerce, ga\t occasion to muck abuse and inconvenience in a creat empire, where the demand for credit rises m proportion to the necessity of expense, caused by luxury and commercial operations of great extent, to the latter of which especially, extensive popula- tion are compelled to devote themselves for subsis- tence. , _ . This mode of publicity among the Greeks, as well as the actual tradition of the real property, were practiiitd for a long time by the Romans ; but com- mertc. and the want of money, having mcreased with the greatness of Rome, and ambition having led individuals into great enterprlzes, for whose accomplishment immense loans were required, the difficulty on the part of the debtor to give up his possession, and on that of the creditor, to make the transferred land available, caused the real tradition to be abandoned, and subsequently, the use of signs and visible marks of the mortgage, not only fell into di5»use under the Roman Emperors, but was at last abolished by express laws. The mortgage, from that time, became occult, resulted from the conven- tion of the parties, and was secured to the earliest in date, except in cases of preference from priTile- ges as above mentioned. ^ Mortgages were introduced into France in nearly the same form as they existed in Rome, except that they did not attach upon moveables unless in cer - tain localities, as for house rent, &c. ; that they were the effect of every convention executed before Notaries, and that private writings or instrumenU could not create a mortgage, until after having been duly acknowledged by an authentic instrument, ex- ecuted by a public officer or before a court of jus- tice. Thus in France mortgages became occult as in Rome. No. V. u Although the modified hypothecary system be- fore described, was adopted in France, its occult and clandestine character was justly reproached both by ancient and modern French Jurists, with having lent itself to the commission of a multitude of frauds, not only against the creditor, but against the purchaser imprudent enough to pay his purchase money, without having previously purged his pur- chase from mortgage. Complaints were loudly made against a system so vicious and unprincipled, and whose results were so disastrous, particularly as the old laws of France had, until the promulgation of the Edit des Hypotheques in 1771, scarcely con- templated the possibility of obtaining a secure dis- charge from incumbrance. In fact it )vas found, that mortgages constituted for the benefit of individuals, became injurious, eventually to the interests of the state, which re- quires every possible improvement of real property from its possessors, as its produce is the principal, not to call it the only wealth of the state. Indeed, the purchaser of real property, the price of which he has paid, when troubled by mortgage creditors, of the existence of whose rights he was in profound ignorance, will of course neglect the cul- tivation of his purchase, the more so, as his improve- ments would awaken them to increased vigilance. By securing as much as possible, the interest of individuals, with a view to that of the public, use- less attempts were made in the reigns of the French Kings Henry the 3d and 4th and Louis the I4th» 25 *^ oAvrPct these abuses ; but so inveterate was the nXt one remedy alone was brought into ope- no security to engagements in general. This pirtiality ^V thaft'eli oX'^ S=rSi;t'red"o%he^^^^^^^^^^^^^^ means, to secure honest citizens aga^ns* ^»?3ury, ana ^t^fngrp?" -i^- vr:are ^ r'LS-— tsofaJUnou^^^^^ particular propert^^^^^^^^ ""u^'Zll t^ mort"ge ; with this information •Kfc °pi";oull be enabled to consent or refuse to treat with applicants. The idea of the publicity of r^Xftl^Z ing them* 26 I > .lei In 1673, during the administration of Colbert in the reign of Louis the 14th, an edict was promul- gated, founded upon that of Henry the 3d, which also erected offices of registration for the preserva- tion of the preference of mortgages. In virtue of this edict, mortgages registered against property in actual possession, or after actual possession, against that subsequently acquired, were preferred upon that property before mortgages not registered, the unregistered followed in the order of their dates upon any other property. The legal mortgages of women and minors were protected and preserved. This edict excited the displeasure of the great, whose credit it destroyed, and so violent an outcry was raised against it, that it was revoked in 1674 ; thus the clandestinity of mortgages remained the common law of France, and publicity existed only in certain provinces, known by the name oipays de aaisine or nantissement. The clandestine and vicious hypothecation system above described, which has been so much and so justly abused in France, is fostered and protected as the existing law of Lower Canada. Modern France has felt its abuses and has entirely rejected it, she has boldly and honestly proclaimed the triumph of publicity. In 1 795, a change was accqmplished ; by a law of that year, officers were appointed in every arrondissement, who were chakgedwith the registra- tion of mortgage titles, and the existence of the mortgage was made to depend upon the usage of this formality. In 1799, another law was made which may be considered, in almost every particular as the basis of the present French code upon this subject $ its fundamental principles were publicity and speciality, it preserved the formality of regis- tration required by the law of 1795, and subjected every mortgage creditor, even women and minors, to the formality of registration for the securiiy of the preference of their legal mortgages. The 27 French code, at a later period, established limilar principles, it secured legal «}«^^g«gff /"^^^"^ [rom tuteUei and marriage conventions, without registra- tion, but compelled the husband and tutor to effect the registration of these mortgages, under the pe- nalty of being deemed steUionatairei. and subjected to corporal punishment for non-compliance with the \avtr By the preceding observations it has been shewn, that the theory of speciality and publicity is not new, that its institution reaches to remote antiquity, that it was the general law of Greece, adopted by t Romans, and formed part of their Jumprudence until the time of the later emperors. It might rea- dily have been shewn, had it been necessary, that was for a long time the law of two-thirds of Cus- tomary France, and never <^^^'^tXT''\Lutl portion of those conquests, by "^^^'^^^''^^ll^l]" Ltendedthe French monarchy; and hat .t conti- nued through the republic, the consulate, and he empire, to the restoration of the monarchy and the ^' U^ hls^Uketise been shewn, that the wfsest of the statesmen and ministers of France, Sully and Colbert among others, endeavoured to restore th s institution to France, and it has been seen how was repelled by prejudice and intrigue, ami Parti- cularly by the necessities of landed proprietors, whic/cotnpelled them to continue to impose upon the public and to deceive their ereditors. If some inconveniences belong to the fY stem of publicity and speciality, it may be easily shewn, Cth/samealsoexistin the clandestine and oe- cult system, and that they are more injurious and vicious in the latter; and finally, that the latter possesses peculiar inconveniences, whic|j "ot only Lder it unavailing in practice, but which ab a- lately destroy the essential objects of every legisla- tor in establishing a mortgage system, namely, me security of the investment. No. VI. I t i [ i If The law at present in force in France respecting mortgage rights, is founded upon two general prin- ciples— 1st, that no mortgage or privilege shall be effectual without registration ; and, 2d, that credi- tors shall be satisfied with a special mortgage, except in the cases of the legal mortgages of rnar- ried women and minors, and for some petty claims, which, humanity and the law regarding as privile^ ges of a special nature, has exempted from the ne- cessity of registration ; such as the legal, funeral and last medical expenses, and limited amounts of servant's wages and debts due for subsistence. The unknown amount of these petty privileges is necessarily so small, as never to cause any diffi- culty, they were exempted, therefore, from regis- tration ; but legal mortgages, which Ijave been most carefully and wisely protected, being from their nature, unsusceptible of estimation, are, notwith- standing, made public, as far as the law can compel their publicity, with a due regard to the protection of the rights of the mortgagees, by the husband's or tutor's being required to efifect their registration ;■ and these persons are subjected to severe penalties, in case of their remortgaging their real property without declaring its pre-existing incumbrances. In default of the husband or tutor making the re- gistration, the married women and minors them- selves, or their relatives and friends, or the crown officer, or suhroge tutor may complete the formality. It is also to be observed, that the parties to a mar- riage contract if of age, and the tutor by avis de pa- R '"1 29 rents at the time of Lis appointment, may limit tl.» aen-ral mortgage incurred in both these .nsta»ees ; fXth, moreover, have the tight to demand th.s special limitauon, when the property ^fi^^'f'^ the general mortgage i« known to exceed .n value a sufficient guaranteefor the charge ; when the va- Vmo incumbered realty exceeds the amount of the mortgage a reduction is also granted. Conditionaf. eventual and undetermmed mortga- ces are likewise estimated and specialized, and an excessive estimation renders them subject to reduc- "°KnalIy, customary dower has been totally abo. "'This state of the modern French law affords good security for investments, because the capitalist is enabled to ascertain the existence of »" «"'«S''f,^^ Ton any particular property, and fH'oogh ''e amount of legal mortgages may be unknown, their Snce being ascertained, gives 1"- ">;?°7^J^? making himself sufficiently acquainted with their "e'ailsfto judge with accuracy of the security of '" trpuThtser, the law authorizes him to obtain tiie freedom of his purchase from incumbrances of every kind, and even from the legal mortgages of Carried .v;men and minors, after a public transcrip- "on Ld special notification to all the parties .nlerest- ed ixpreiive of his intention to obtain that rd.e^ within the time limited by law, ^n* "requiring them to file their claims against the purchase, within that ""i^iL'se' deu'ls have been entered into, to shew, that no serious impediments exist to *« '""f "-i- tion of change, in the hypothecary ^y»'f™ «[ '^'■ province, and that if these changes should be ntro- duced, they need not necessarily hfterfere with old dence of Lower prejudices or disturb existing rigbts. Xil5 lUblilUiiuiia ciiiu „-- — sr m 1 1 it dO ^ 1 „.« ry^t *n deenlv impressed with a clmrac- in this Coony, ^\'''''^%l''ll,,,^eU Vimit.^s '' "xt'a^t^'nCu Geo. 3,1 Cap. 83.Wed. or penod, th*' *7,'-°'°"^„ of jurisprudence, or were cmting a settled sjste™ i J^^^ ^^ ^^^,, ^ ^j.^. T™ F rtl- c?„q-^^ to the present time, inno. i e. o. by imperial orp.oyincial enactments, through out the entire body of our J!'"??™'^""- ,^„, ,ike U cannot be ^^^":^ Z^'^ ™ore P".^'".™ „"^^'' Sy wi^h innovations intro- St: riS^-J rrf vSf r. inthe habits «// P^'^" ^'^ known to the causes; '>»««' »''\'''r^;3\r4 immediate de- original French colomsts and the.r Kn scendants, were modified ^"^'^^ i„^, « iCa- circumstances of the colony, tvcu ^ ^ 4;;on J"^''/ reprobated in France, and which did not afford the leTrsecurity to lenders or creditors; by them- tr^uction of the ratification of title act. some fae- ces of little importance, beyond the requirements of the Sheriff's sale, or D^cret, have been extei^ed Z purchasers, but their security has >">» been at all mproved. It may not ke improper to mention, that Uie ratification of title act is » t«f "t'"" f' most seriatim et literatim ol the French LM cfe, Hppothegucs of 1771, which was founded upon the older edict of 1673. .. . The report of the Legislative Council supports these assertions, and states, " That under the ex- -isting system of law, it is impossible to ascertam « the freedom of any landed property, m the seig- » niorial parts of the province, from mcumbrances, *c or the extent to which it may be incumbered, and ** that the^nly means available to persons aesitrou. 32 K *' i .V ■ i! " of putchasing real estate, are— -Ut, the integrity »' or honour of the seller ; 2d, the general report " respecting his estate or property ; 3d. the pro- ^< ceeding of a decret for a Sheriffs title by a suit at "law; and, lastly, the obtaining a judgement of « confirmation of title under the act for the more «« effectual extinction of secret incumbrances — « The two former means are evidently not to be re- *' lied upon, and the two latter are equally ineffica- « cious, from affording no relief against the opera- ♦« tion of dower, an evil which has been productive «' of serious injury, and which is generally admitted « to be of the greatest magnitude. The delay and "expense of both these measures are so great, that " they are resorted to only where the real estate is " of considerable value, and it is established that " even these limited means of protection, are not « participated in by the inhabitants of the country " parts, from the operation of the above causes. " The two latter are in consequence but partially " efficacious in their operation, limited in practice " to real property of considerable value, not availa- « ble to the inhabitants of the country parts, do not " free real property from the worst evil of the pre- " sent system, and are attended with great expense «< and loss oi time." No. Vll. It has been asserted that the punishment of Stdlionat inflicted under the old French law was amply sufficient to prevent fraudulent conveyances and mortgages. The experience of French Jurists and the unsuccessful attempts to amend and correct the hypothecary system of France, up to the period of the revolution in that kingdom, are a sufficient refutation of this allegation. The term, as well as the crime and punishment, are all derived from Roman Jurisprudence. By this \a.w,Stellionat was applied to every kind of fraud practised in contracts and false declarations in deeds By the French law, StelUonat is restricted to a false declaration of the freedom of real property from incumbrance. In Rome the punishment was arbitrary. In France, it depended upon the gravity of the offence and the circumstances of the transaction, and the usual punishments were fine and banishment, some- times whipping and amende honorable. It was, under the old law of Fiance, a criminal proceeding*'--on poursuivait autrefois le StelUonat par la voie crimi- nelle, mais on ne prend aujourd'hui cettevoiet que lorsque le del est nccompagne de circonstances tres graves. In all cases it was punished by corporal im- prisonment. A French Jurist of eminence says, that as fraud always proceeds from debtors, who, notwithstanding their knowledge of their own in- solvency, continue to borrow, and to hypothecate iheir reui prupeny, ua iv.»J5 «= v^vii -^^^a.^ 34 'm Stellionat was therefore found to be ineffectual tor it prevention of frauds in France, nor can it be rendered more efficacious in this country. Rv the act of 1774, the criminal law of England JV^UZ in thi^ Pro^^l^'l^o^^^^^^ of sverv other lule of cnminsl law or mode ot pro c««^U.2 therein, which did or might prev.il before t^ vefr 764" By the same law the custom ot Parlfor the regulation of civil rights, was 1-ke- w?se re established; and consequently the cr.mmal f „f .h^ customary or French Jurisprudense gave Sf/vto that "gland. Stellionat forming no Tr^t 0° the English Criminal law, and lt» penalt.es Cthavng been enacted by our prov nc.al legisla- "urel^U h^ ceased altogether to exist in this coun- %aving shewn that Stdlionath no part of the pro- vineiallaw and that even if it were •» f««. ij «„..ld be insufficient for the prevention of frauds in lor tsU we »re thrown back upon the system of ^:SLi speciality, which has been adopted^n- io the jurisprudence of France, as the only etteo EilnX^tS^^^^^^^^^ "g;"aKmty."^en rj debts are known not to exceed the value of their property. An objection to registration may l>««b/.™?"- tioned, which has been passed over unnotced,' that it would lead to the exposure of family affUirs . In reply, it may be sufficient to refer to the pre- amble of tlie edict of 1673, which offers as the amme oi „ ^^^^^^ of pyi,. reasons lor at i,ii«n.""^i"'i . ' „,.,i., ,vit"i ♦* licity by registration, loans m.ghi be made wita 35 <* security, and purchases effected without fear of " eviction from anterior mortgages, and that cre- ** Jitors would be made certain of the fortunes of *» their debtors, without the apprehension or unea- ** siness of losing their claims :" later writers declare <» that the publicity of mortgages was considered by " tlie French tribunals as the chef d'osuvr* of wis- " dom, as the protection and security of property, *< as a fundamental right, the use of which had con- «' stantly produced the happiest results, and esta- <* Wished as much confidence as facility in transac- «' tions between individuals ; that the principle of «» publicity and speciality, is essentially a conserva- «« tor of property, a creator of public and private « credit, a regenerator of good faith and morality" ; these are the recorded opinions of men of eminence, as well as of the principal legal tribunals in France; and when publicity is found to be so much applaud- ed in that kingdom, where the ramifications of pri- vate interests and rights are so minute, not only no doubt should exist against the continuance of the clandestine system, but the necessity for that conti- nuance should be clearly demonstrated, to allow of its protracted existence'in this province, where real property is but little divided. Too much space would be occupied in detailing the various powerful reasons for publicity ; it may suffice to state generally, that, at present, contract- ing parties are not placed on an equal footing. The borrower knows his previous engagements, and acts in bad faith, the lender is ignorant of those en- gagements and compelled to trust to the integrity of the other party. On the one hand, unincum- bered property needs no concealment, while on the other, incumbered property should not, in common honesty or good faith, be permitted to deceive the lender. The provincial public registration insinuation m .1 . -,.--1 4.1 t.,^:r^^^ r^fiR^ao rxF w'tWc rlnnations the sevCriij psuuiuiiwanvo vm-^^a) %?» "...-'; 36 1 *^ m 11 ff= m u ■.!! 11 ■ i' :tnd Other legal instruments bearing substitutions, entail-, demonstrates that neither inconveniences nor ef il arise from disclosure ; and as neither com- plaints nor objections have been made to this branch of the formality of registration, it is fair to conclude that it is neither troublesome nor repugnant to the habits and feelings of the people. AS the expense of the registration of mortgages, ^ould of course be regulated by enactment, it would no doubt be made as economical as possible. It has also been asserted that mortgages are pro- nertv ; if so, an actual or a constructive possession must have been given to the mortgagee, to enable Sim to be repaid the amount of his mortgage, and then the public have a right to demand that con- cealment should not be practised nor fraud allowed, to the injury of the lender, who, seeing the posse.- .ion in the borrower, is justified in concludmg that the property is in him also. The report before mentioned, refers to the objcc tion of disclosing private affairs and states, that « The disclosure which would be afiforded by « Register Offices is considered in general as most « desirable, while its disadvantages would be of tern- « porary duration, operate in individual instances " and solely affect the fraudulent and dishonest. « That though it might be productive of pain and « mortification in some cases, the general good is ot « paramount importance, and that the apprehensions « entertained of unnecessary exposure are ill-founded « and futile; for, it is in evidence from the registrars « of the counties, where the registry system prevails, « that though few transactions of any amount take « place, without reference to the books of registry, no « instance has occurred in their experience since the « establishment of those offices, of the disclosure of « mortgages or incumbrances having been required it gx^-~t for actual purposes of sale or loan, iney « aS^stVtci tiat great'and universal satisfaction is 111 37 ' entertained, by all who have occasion to take ad- " vantaf^e of the registry, that real estate in all the «• counties, has been greatly inlmnced in value, trans- « actions therein much facilitated, and that its ex- «« pense is trifling and no delay is incurred." It is only necessary to refer to the example of Louisiana, a former French colony, governed by a system of jurisprudence similar to our own,whcre no difficulty, to the removal of impediments in the way of publicity was cxi)orienced and where registration prevails, and to the resolutions of the House of Assembly adopted in 1825, mentioned in No. 3, to convince every unprejudiced mind, of the evil of clandcstinity and the necessity ef change. No. VIIL % I .•1 I. -4 III .1 ,. thf nrincipte of puliliclly and Assuming ibat '^" P'^'^'^^er tl.at ofclanclosU- or by what means this is to uc au i P^'^'^fnv it payment of l.is debls, and that . s sccuuty for II ° P^y^ dist.ibuted among all Ins •value should be eq"*"/ "' . .^^.f^rcncc exist, creditors, unless legal «™^,',^°',f;:'^e,n restrained Individual f''--<=''<'VJ, """''' i^-'ute^Lcourse of -•>, 'r^^-V^r we e fre'e^l^d from entering eivd hto, a person J"'' ' . contracts, not into any engage.«cnts or '^^^"^ "S ""f ^hj^,, i.is contrary ?»?"<>.'! ;7:i:,/su4et to l.im ; and wants or '»<=1'"'' '7',,, ^^'f^',' « 5° freedom, he was as a conseauence of "' ^ P^^^"'" „ „s of his pet- debt- 89 The faciUty -^ff Utc^'s^i-T aS mcnts arc completed, ami "'= ^/l? ,„ ,y the Pf "- '— il o\S that it" .ould great and at the same i»"*^ favour of a con- t. idle to oftcr »ny -f ™;^'; "Jlot executing T""'' Me'S^l^Tf rhe"pe,atio„. in com- them, *^'^;f,^,'3ersome forms of other coun- ?H"ct;s ar;"possiblc difference of optmoa upon tlie subjecf conventional Admitting the f !'' y> '^ f,Se be allowed. mortgages are created. .tmu^^^^.UkeT' ^„ j,. that it would be the «''"«"?«'. °;<,„ \„ privileges, ''"^^. "JLTtfrby the -Sry convenrion of the granted to °"'f 'L'^?, ' jiUngness or refusal, under debtor, because of hsunwuuno voluntarily to the influence of bad faith, to "^sem j ftes is denominated the J»<>'«;«'- ,<,„,ent of While the voluntary "''^^^^^Pf^jy creditors, the P»t-^f -n^rronaW ttrtho claims it was equal y }U5t and '«»^™»" ' ,, (.^m prin- of an extensive class »* '"^',™X''iled, ftom ma- ciples of public pobcy, »-J^;Xf protUtion. and king engagements for the" °^''» P j^j feelings whose interests, the best «nd most Ij '«";„„ ^f of humanity, l-»ve l^-^^j und the P ^^ .^^^^ ^^^ society, » »f .„^^ *";° P^l c order, guarantees, necessity "f, '"'""'''rri,,] „rcscrved from exposure - should also be guarded and P'«^"«° ^ f,';„du. ,„ possible loss or dcs""ta?r motives hence the lent connivance or from baser rooii clnss of mortgages called, the legal. . , •„, These several K''"'^ rTbSpon an expr«« dicial and conventional, are based upo ^^^^.^^ ^j,^^. «1 40 ii I II selves in the conventional, by the court of justice, acting for the unwilling debtor in the judicial, and by the law acting for the unprotected claimant, and the public, in the legal. w. Considering mortgages only in respect to their effect, it may be said with strict propriety, that they are all of one kind; for the effect of every mort- gage, is to give to the creditor, a right upon the real property of his debtor, for the security of his debt ; but there are some claims, which, in addition to the general effect of the mortgage, are entitled to a peculiar preference from the nature of the transac-^ tion or debt •, these are called privileges, from bemg founded upon the cause of the debt; they are not legulated or ranked in order, accoiding to dates like mortgages, but carry a preference for their discharge, over all other mortgages even anterior in datey ard in consequence the rule prior tempore potior jure is inapplicable to them. Among privi- leged creditors, the preference is regulated, by the more or less favourable quality of the privilege, and tliose of the same quality, concur equally in the value of the reality. < Mortgages and privileges, therefore, are the cau- ses of preference, which exist to prevent the equal distiibution of the debtor's property, among all his x^orcdttors. Conventional mortgages are from their nature and form of the same description ; the judicial, m like manner, are also substantially similar to each other ; the legal are those of married women, minors and persons interdicted, and that of the public against public officers. Applying to these different classes of inortgages, the principle of publicity and speciality, it will be obvious that the conventional, without any difficul- ty, admits of its application, because the deed may • - J- A ^t^\^ «rkf ««!« «-lio nrppiso amount of the debt, but also the Riecific realty upon which 41 that debt is to bo secured; the judicial. I^omjc.^ sessinj; the character of a compulsory liquidatu n or determination of a certain amount, or l'^"^ 'g' norance of the debtor's real property, upon .vhich to apply the judicial mortgage m general, cannct extend'to th^ reality, and only specifies t^.e amount of the condemnation ; and the legal, irom their peculiar nature, must remam undetermmed in amount and unlimited to any specific realty. 13oth conventional and judicial mortgages may be easily rendered determinate ; the *«rrner, by an estimation or amount to be agreed upon by the par- ties ; in the latter, by a compulsory or voluntary valuation, or by a penalty in damages, for non- compliance with the judgment. .,,,,.„, Legal mortgages are not susceptible of determina- tion, until after the death of the husband, the ma- orUy of the n.inor, the removal of the interdiction or death of the interdicted persons, and the termi- nation of the office of the public servant ; this c ass ot mortgages must, therefore, remain unlimited lu amount, as well as unspecialized as to property, because until after the marriage is terminated, rights, which during its existence, may become the objects of mortgage, upon the husband's property, cannot be appreciated or ascertained, and because, for the same reason, during the existence in office of the tutor, curator or public officer, their re^PO^^J' f is not less extensive and uncertain, nor less difficult to estimate at a precise diiiount. iiii No. IX. Havins shewn in the preceding iHimhcr, that convenulfnal mortgages -ay >> V""f, f bufX L. nnlv tlio precise .amount of the debt, but also tl^ speifo realty, and that the judicia is hm.ted o the specif cation of ■.he actual or possible amount 'of " condemnation, while the legal cannot be made Susceptible of ei.her specific amount or re.aUy, .1 nroner to observe, that the conventional n ortg.ige is ?lXositWeagree.;>entof thepartics, who.aUrayshavc he power of'stipulating a precise --;'"'. ^fi-^f ,,non some estimation or valuation of the ""-fSff cC even if it should be conditional, cventnal or uSermLd; because, individual interests would alwavs wnd to the determination of a precise sum. forwhich the registration might be made, without reeltHly limitin's the debt to the --mt ^P- ; fied • and it will readily be perceived, that thi. ac- cessary "tipulation would, from its utility, become a necessarv formality of the deed, «»c clause dc dyU. ItTsaUo necessary that this class of mortgage* shoidd express the actual realty, that .s the real y i roLssfon, upon which the mortgage .s to be securrd, otheWi e it should not exist, because, .rom beTn" a real right, it must, at the time of the agree- S have been based upon some real foundation, ^nee a ly, as the end and final object of the mort- ITgeU the sale of the really pledged for the pay- " Tlielctntral'pledges or mortgages of all real property, actual and future, for the payment of Ss, and which arc, in a!mo« every mstance, ua- 43 only sulTeir, Imt .. ^-^'"^^'^^ ^^t^^l^oui socu- ,ons' l«c.vdo,oLa the most eff.cient remedy o ;;ro:J;^rnur:^o1I"-tsecure^ 1,13 own ".'■'•'^"^J * , property subsequently ac- agamst "«^*'°'^ J ^ been so .i,wise as to T,„tlnial motteaaes establish in a compulsory mantr hramoSt of the debtor's cngageme"., X, without or against l'' V^^'"'' "? ut con peoia..otho.alty.^^^^^^^^^^^ fCt^ t'SydXat'ed if .a general mortgage 44 ^a-cs, but publicity ulo.io sudices tor judicial mort- mi^cs, inasuiuch as speciality is inco.mpatible with the nature and elU-ct of a -cneral mort-agc.^ Nor should successive registrations be rccpiired for iudicial mortgages,bec'iusc otherwise, a debtor would bcahvays armed with unjust favour to some creditors at the expense of others ; the first informed would be the fust enregistered against subsequent acquisi- tions, and rights attached to hypothecary registra- lion, would be prizes of speed for first reaching the Uegister Offices. In reply to the allegation, that real property not in possession, should not be atTeeted by the real ri-ht «-iven to the formality of registration, it may bc°said, that the mortgage, and not the incription. attributes tl:e real light to tha creditor ; the latter is the perfection of the former, and only in- sures its publicity. The judicial mortgage seizes or attaches upon the realty, from the moment of its becoming the debt- or's property,and no new judgment should be requir- ed to vest it. In like manner, the registration once completed, should exercise its inHuence and produce its eftect, from the moment, that newly acquired pro. perty vests in the debtor; all that should be required of the judisial creditor, is to secure the order of his mortgage, by a regular registration. Legal or tacit mortgages are granted and estab- lished by the law, without theconsent of parties or express stipulations, or they proceed from the dis- position and will of the law, without any convention of parties ; they are allo«red either by special tavour and p.ivilege, or in consideration of the person ot the credito? or the cause of the debt ; because, when u person does that, for which the law gran s a mortgage, he is presumed, to have tacitly consen cd to the same mortgage upon his realty, which th« law ha.s established, although no express stipulation had beca made^ and although this is accomplished 45 ^, a lc^^ for individuals, to make themselves acquain ed will. th« property of these public accountants however distant Lyl the situation of their realty trom c. residence. The same remarks apply ^« "™<'^;; f communities. As both offer great lacil.t.es of pe- 4G 1 • .r.A nf escape from discovery, iho legal ™t:;TgctgludTs.mst the. fro™ thoi, accept- ""Mdf '°ltc.c three clashes of individuals, to ,!^m that nay he called this exorbitant preroga- whom, wnai may u^ v ^,_„,,,,i .here are a few spociul real estate. No. X. The intciosls of posterior crcUtors, and the 6C- • ^>f iheir rial ts, arc UiC essential motives of U," 'in io of , ^blioity and speciality ; wherefore t e ypo hecation systen, should he made to repose inc ii^iiwv ^ nhcnrvancc of either "P°", ouM noTrSe from the acco»pi;d--t of ?": ^r bec'au^i by shewing, to third persons, the Ir^'ranco, upon properly, » k--^: "f tl 'e veycd to them of the ohject and foundation of he Zriffa^e • and, though it is true, that rcg.stra on exSthe nature and situation "f ""=, "'I'lr Vf the work of the creditor, and means should he af- nrinciulc arc, 1 st public registration, and 2d the spc- cificaFon of the amount of the mortgage and the actual realty upon which the security is to attach. Be. strafion'^applies with facility to conventional an?^°dicial mortgages, because the P«"«"~; ort in them will, of course, be desirous to render their securUy complete, by the execution of every r nuirTformality. But legal mortgages are en- :?^Lscd with difficulty ; the P-«>;;;>™f-':^. interested in them, are prevented by law. from eni- „lovh,nny protective means for their own security, n ufas long as they are thus incapac tated from securing Utunselveo by their own act, the om.ssio, ofthat^act, should not '5'=?"™ ^^ " , tlic'fw nnd pvivilogcs, which arc vested m them by the law. r r 48 To rcnuitc tlie execution of tl.e formality of re. cistratlo. for legal mortgagees, by other persons, InuTd be futile, because ti.eir interests ate not con- currnt* and moreover, this formality might not be clpted, and then the legal mortgage would ex.st ""'/t sl.o"alTnot, therefore be made to depend upon reiiistration, unless the most certam precautions arc ^ffS of ts being always indubitably completed ; Segal mortglgei should not be deprived of the.r securUy. by any abrupt clandestine change of their ""'pri'ci^erS^ldnotbe destroyed by the want of a formality, the execution of which, the persons most interested in the security, are prevented from '"^To gWe to any registration law an i^P"-'-f^f rivil iustice, it is necessary to reconcile conflict ng "t r sts butciviljustice is averse from casting back upon the mariied woman, minor, &c., the «" ence of a neglect, which they had not the nower of preventi«g. This principle should not, Sore, be sacrificed to the wish, however .aud- aUe! of taking transactions more secure, and the "dvantag" of simplifying a law must not be pur- I'hi'ed at the price of injustice. . . Indeed, too much simplicity in Legislation is, ... of untylngTt, ani abandoning many things toarbu ""Kthelts^civil justice is the basis of law : every o^els convinced, that personal rights repose upon immutable principles, whereas a 1 respe t fo nropertv is lost, when it is subjected to chaiict» S. tLnsfer it with facility but without reason, torn iSt hand. Legal mortgages have every '.T-" '-'•" ""nsidcrcd as emanating from and identifviiTg them.cUer, with the engagement 40 which produced ihcm ; this principle in the eg^suation system, must be made accordant w.U. the security of purchasers and lenders, flie law, b" th" me^ns, would be loss simple but more con- formable with the principles of civ- J"^t,ce. Little advantage would have flowed, from tlve mere public registration of conventional and judi- dal mortgages if information of the precise amount of thTLngage debt had not been imparted ; where teirtbe conventional claim resulting from tlH= d?ed,or the condemnation conveyed by the judg- ment, be conditional in existence, or undetermmed r amount, both should be estimated P-vmus to their registration : this iray be accomplished with- -rZS^^^ cannot be rendered deterrnlnate even by an approximate estimation, because of the iinpos Jbility'of appreciating jights, w -h^^^^^^^^^^^^ the entire course of the marriage or the existence of the office, may become the object of mortgage. ^ All mortgages, in thisp.ovince, are S^--^^-^^^;^ elTect. and only subject to the greater or less privi- lege of certain creditors. This generality was made a principle of law, in violent contradiction to the rules of'justice and equity ; and was based upon a legal fiction that the mortgage conveyed proper- ty! This, as a general principle, was a fallacy, be- cause no fiction could have conveyed what was not existing even as a right, and no conventional rnort- ^age could convey a real right,j«sm re where no realty existed, upon which to found it. As long as debtors have no realty, their volunta- ry engagements by deed, should only be considered as positfve acknowledgements of debt, and never be permitted to precede the subsequently and similarly acknowledged claims of others, or the compiUsory consent of a judgment of a competent tribunal. The general mortgage may be mam ained in ei- fect by means of proceedings, which the creditor r, b3 r *{ J() I iii. f I,: I wm I IVcc to aaopt, but ll»c debtot's credit should uot be naralyzcd by excessive registration ; as realty be- ZLl tbe property of tbe debtor, it becomes tbo nledL'C of all hU existing creditois, but no creditor ioukl liave obtained possession of '^'^^^ f "^^-^ P/*;- vious to its existence as the property of the debtor, the priority of debts in ihi^: respect is, therefore, duito indillerent. . , In line, rafe dealinf^s are never entered into witlr- out the warranty of property in pobsession. future property is too uncertain, and it i^ ^^f ^now" fact, that the greater part of notarial deeds execut- ed in this province, specify the realty to which the transaction applies, and upon which the security is established. In this respect, thererorc. the propos- ed restriction is not repugnant to the habits of the ^'conventional mortgages should always express the special realty mortgaged, and the judicial aod the legal should be relieved from this necessity. From the preceding observations, it will appear, 1st— That conventional mortgages shou d be lia- ble to the principle of publicity and speciality in all '^'aculxhat judicial mortgages should extend only '' SdSt^e'al mortgages should be relieved from ^"tIic registration and specification of the convcn- tional, and the registration oi^hcjudicia mortgage convey sulFicient information that incumbrances ex- ist, specially in the former case, and generally in the latter upon the debtor's realty. ''*No doubt can exist, of the propriety of affording similar information, of the existence of legal naort- Ces but as the mortgagees are prevented from accomplishing thio object, ana aiv. time secured against the effects of o^^^;^ « "Tf ^rkct, the public might obtam this information, It >l the law were made to allow tlicm, Ihuir friend.^ niui relatives, or tlic snhrnge UiioVf to make the registra- tion, or to compel the husband or tutor to complete the formality under severe pcnaltits, or to require the officer of the court registering the appointment of the tutor, or the notary executing the contract ot marriage, or the clergyman officiating at the marriage, to make the registration. By this means, the publicity of the legal mortgage would be attained and information of its existence would be attbrded to the creditor, without injuring the rights of tiie legal mortgagees. In framing any general system of registration, regard should be had to the removal of every im- pediment, which might prevent or impede its effect. The report of the Legislative Council states, that " Customary dower has been the fruitful source of ** many of the evils complained of, and though iii- " tended to secure a provision for the widow and ^* orphan, that its retention is not applicable to llie ** present condition of the province." An examination of the spirit of the hypothecary system, discovers, that the end of the mortgage is the prosecution to sale of the mortgaged realty, for the payment of the mortgage debts, out of the proceeds, and that every hypothecary creditor should be prepared, to be collocated in order for the amount of his claims. By our law, dower is the only exception to these principles, it is not removed by dccret force or a judgment of confirmation of title ; and the very distant period of its becoming open, namely, after the husband's and father's death, the conditional nature of the right itself, the uncertainty of the final partition of the endowed realty, and the gene- ral inconvenience of customary dower, render it impossible to reconcile the interests of the claim- lender. I 11 I; 52 Vnr ihcc reasons customary dower should be tain tins opinion ; »" ""^ "^^^ [.^ g^„ter of the r"' .^rihusantt tho'U-n ^f "-I- Assembly, "lusanswci *•.._« Customary gislative CO"""' »P°^f :„£; to secure tbe .ust be conceded, that the three former, whether with or wilhaut registrr^ion, avo especially serviceable and necessary. Previous to terminating this part of the subject, the testimony of I\lr. 1). B. Fapineau will again be adduced, as beating out the precedin<5 observations. That gentleman says, "that a register would do more harm\luin good, if it were open without restriction to all, who from motives of curiosity or otherwise, would wish to consult it, but that with certain re- strictions he did not think, that any incnnvynienee would result, on the contrary that advantages wonlil follow iVoui its tstablishment." To the (Question whether it would be productive of more good or evil to provide by law that in future, mortgages shall be special and not general? ho answers ** that it would be a desirable reform, ifit were not an isolated measure, and independent of others quite as useful"; and to the question, whether a county register would not afford protection a,;ainst con- cealed incumbrance, ? he answers, " he had always been of opinion, that v^-ith certain restrictions such ottices might bo useful, and that their establishment ought to be preceded or immediately followed, by great alterations in all our hypothecary system".-— The opinion of such a person should go far to satis- fy the most violently opposed to registration, that its introduction maet bo attended with the greatest advantage. It is the misfortune of this province to be pre-- vented from enjoy ing, or deprived of the advantages of measures, by the interests of classes, by petty^ difiicuUiea oiigiuating, cithci- in the appellations of jj iVori! jcaiuusy of their intrmlucers oi measures? ; jtrop jL;