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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 CIVIL CODE OF LOWER CANADA. i / THE CIVIL CODE OF LOWER CANADA AND THE BILLS OF EXCHANGE ACT, 1890 WITH ALL STATUTORY AMEXDMKNTS VKRIFIKD, COLLATED AND LNDKXED. BY ROBERT STANLEY WEIR, D.C.L., ADVOCATE OF THE MONTREAL BAR AUTHOB OK "an INSOLVENCY MANUAL," " BILLS OF UXCHANOK ACT, 1WM»," "TIIK AUM1XI8TRATIUN OF THK OLD RKOIMK," KTC, KTC. / MONTREAL C. THEORBT, LAW-BOOK PUBLISHER 11 AND i:^ ST. JAMES STREET. 1888 ExTEHKi) according to Act of Parliament of Crtiiuda, in the year one t}iou!^and eight hundred and ninety-eight, by C. TuKOKKT, Montreal, at the Department of the Minis- ter of Agriculture, Ottawa. PEEFACE. In the ])rc partition of thiH edition of the Civil Code of Lower Canada, the Editor has endeavoured to secure an accurate text, and to facilitate the labours of the student by careful attention to the many details that are essen- tial to a good book. A Concordance of the Code with the Code of Civil Procedure and the Code Napoleon, to be found at the foot of each article, will prove, it is hoped, of special value. It will be observed that the solicitude of the Legisla- ture for the Code is, if possible, more cons[)icuous than ever. In addition to the uncertainty thereby occasioned as to the actual law that governs any case, important defects in form have become prominent. It will be seen, for instance, that by the transfer to the Code of Civil Procedure of a number of articles that formerly were part of the Civil Code, large gaps occur in the enumera- tion of the articles. Quite frequently also a numeral is repeated with \^ iters of the alphabet to provide for the insertion of a series of amending articles which take the place of a single article that formerly sufficed. Finally, it is to be noted, that the ungramraatical construction of many sentences . detracts in no small degree from the vi PREFACE \ I dignity nmt sluuild diHtingiiish so iinportaiil u work HH that which is still named the Civil C^odc of Lower Canada. A revision of tlieCodt^ therefore, should soon he had. In the meantime, however, the need of a convenient and accurate Kni^lish edition is very ur^^ent, and the Editor sends this forth in the hope that it will be found useful. The Editor has pleasure in acknowlediring the assist- aiice he has received from the excellent Codes of Messys. Dorais & Dorais, and Mr. W. Prescott Sharp, B.C.J >. Mr. Hciriiiald Rojj^ers, M.A., has also i^iven valuable help in rea27 XV\— Ofsikktyshii' U)2J) " XVI. -Ofi'I.kimjk imi '• XVII. - Of I'lUVII.KGKS AMI liVl»l»THECS lUHO •" .Will, -Of UKOISTIIATION OF HKAL RIOHTS '^OSi! XIX. -Of i'ui:.sti«iiTioN , 2lM;t nooK PoruTii. COMMKKCIAl. LAW. TITLE l.-hepealeU Gknkual fkovision 227H " II. -Of MEKCHANl' SHIPHIN« . . .v iSlSS TAUI.K OK OONTKNTH. \x A HTM. nri.l': III. (Ik aii'imiiuiumknt 21(7 IV. ())• ( AUIMAJii: nr 1'AS.SKNJJKKH IN MKKCIIANT VIOSSKLM 2UM ♦* V. Ok i.NsruAM !•: 2MW " V'I.-()K IM»TTOMIlY AND HKSI'ONMKNTIA 'l^liH Final iM{ii\isH)Ns 2i\\H I'MiK. TiiK iniJ,s or MxiiiANjiK A« T ISIH) :ij47 l.NDKX TO THi; rivii. riiDi: HBl InOKX TO Tin: llll.l.S OK KXrilANJiK A< T 4fiH ABHKKVIATIONS. ('. C. 'I'hc Civil ('(Mir 1)1 r,o\ver('uimdH. ('. ('. P.— The (%nlr of Civil Miocerhin'. C. M. TJh- Mmiici|nil CixU-. C. X. -Tlu'Codi' NapohMin. R. S. Q. Thf HeviM'tl Statiiles of the Pniviiict? of (juelM*i; \l. S. C. TIh^ llevis«M| Sttitur«'.«s of Caiuitiu. V'.--Victuria. C— Canada. c— Chapter. s. -Section, et H.—et ftctjiiunfur. I l.'l CIVIL CODE OP LOWER CANADA. P R J: L I M I N A R Y TITLE. OF TUB PROMULGATION, DISTRIBUTION, EFFECT, AIM'LIOATION, INTER- I'RHTATION AND BXKCUTION OF THB LAWS IN OENKRAL. 1. Acts of the iniporial par- liament whicli affect Canada are deemed to he promulgated and come into force fiom the day on which they receive the royal assent, unless sojne other tinje is therein appointed. 2. The acts of the legislature are deemed to he pronnilgated : 1. If they he assented to by the Tiieut-nant-tiovernor, from the date of such asseiit ; 2. If they be reserved, from the time at which the Lieuten- anl (jovernor makes known, either by proclamation or b}' speech or message to the Legis- lative Council and Assembly, that they have received the assent of the Governor-General in Council. If, however, they have not been reserved aiid unless an- other time has been fixed, they come into force only on the sixtieth day after they have been sanctioned ; and if they have been reserved and after- wards assented to, then on the tenth day after their public- ation in the Quel)ec Otticial Gazette (R.S.Q. 5770). 3. Any provincial act assent- ed to by the Lieutenant- Governor ceases to liave force and ertect from the time at which it is announced, either by proclamation or Iw speech or message to the Legislative Council and Assembly, that such act has been disallowed, within the year following the reception by tiie Governor- General of tiie authentic copy which has been transmitted to him of such act.— (Id. 5771 ». 4. An authentic copv, In ITrench and Knglish, of the statutes assented to by the Lieutenant-liovernor, or the as- sent to which lias i)een pub- lished as required by article 2, if a reserved act, is furnished by the Clerk of the Legislature to the Queen's printer, whose duty It Is to print the numi)er of copies indicated to him by the lileutenant-Governor In council and distribute them to those j)ersons designated by orders in council and to the members of the Legislative Council and Legislative Assem- bly according t^ joint resolu- 2 PRELIMINARY TITLE. I I ! ; i I tion of the two houses (Id. 5772). 5. The persons entitled to such distribution are : the mem- bers of both Houses of the Legislature, and the public departments, administrative lK)dies, judges, public officers and other persons, mentioned in the orders in council of the Lieutenant-Governor— Id. 5773. O. The laws of Lower Canada govern the immoveable prop- erty situate within its limits. Moveable property is govern- ed by the law of the domicile of its owner. But the law of Lower Canada is applied when- ever the question involved relates to the distinction or nature of the property, to privileges and rights of lien, contestations as to possession, the jurisdiction of the courts and pro<'edure, 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. The laws of Lower Canada relative to persons, apply to all persons bemg therein, even to those not domiciled there ; sub- ject, as to the latter, to the exception mentioned at the end of the present article. An inhabitant of Lower Canada, so long as he retains his domicile therein, is governed, even when absent, by its laws respecting the status and capacity of per- sons ; but these laws do not apply to persons domiciled out of Lower Canada, who, as to their status and capacity, remain subject to the laws of the ir coun try. —C.N. 3 ; C . C . 79, 2189, 2190, 2191. C C. P. 79, 80, 212. 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.— C.C. 135, 776. H. Deeds art* construedaccord- ing to the laws of the country where they were passed, unless there is some law to the con- trary, or the parties have agreed otherwise, or by the nature of the deed or from other circum- stances, it appears that the intention of the parties was to be governed by the law of an- other place ; in any of which cases, effect is given to such law,or such intention expressed or presumed.— C.C. 1016. O. No act of the legislature affects the rights or preroga- tives of the crown, unless they are included therein by special enactment. The rights of third parties, who are not specially men- tioned in any such act, are like- wise exempt from the cflTect thereof, unless the act is public and general. 10. Every act is public unless declared to be private. All per- sons are bound to take cogniz- ance of public acts ; but private acts must be pleaded.— K. S. Q. 5774. 1 1. A judge cannot refuse to adjudicate under pretext of the silence, obscurity or insuffi- ciency of the law. — C.N. 4. 12. When a law is doubtful or ambiguous, it is to be inter- preted so as to fulfil the inten- tion of the legislature, and to attain the object for which it has passed. The preamble which forms part of the act, assists in ex- plaining it.-C.C. 2615. C.C. P. 2,4. 13. No one can by private agreement, validly contravene the laws of public order and PRELIMINARY TITLE. good morils.— C.N. 0. C.C. 545, 760, 872, 1)89, 990, 1062, 1080, 1258. 14. Prohibitive laws import nullitj', all hough such nullity be not therein expres.sed. 15. The word "shall" is to be construed as imperative and the word " may" as permi.ssive. 16. Penalties, confiscations and flues 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 juris- diction to the amount sought to be recovered, except only the Commissioners Courts for the summary trial of small causes, which are prohibited from tak- ing cognizance of these cases. — C.C. P. 60,80, 180. 17. The words, terms, ex- pressions and enactments, enumerated in the following schedule, whenever used in this Code or in any act of the Pro- vincial Legislature, h.ave the meaning and application re- spectively assigned to them in such schedule, and are inter- preted in the manner therein specified, unle-anada, and moan now tlie Province of Quebec; and the words "Upper Cunada" mean that part of Canada whicii formerly constituted the Prov- ince of Tipper Canada and mean now the Province of On- tario. 7. The words " United King- dom " mean the United King- dom of Great Britain and Ire- land, and tlie " United States " the United States of America. 8. Tile name commonly given to a coimtry, place, body, cor- poration, society, officer, func- tionary, person,* party or tiling designates and means the coun- try, place, body, '■orporation, society, orticer, functionary, per- son, party or thing thus named, without tlie necessity of more ample description. 9. The masculine gender in- chidea both sexes, unless it ap- pears l)y the context that it is only applicable to one of them. 10. The singular number ex- tends lo more than one person, or more tlian one thing of the same sort, whenever the context admits of such extension, 11. The word "person" in- cludes bodies politic and cor- f>orate, and extends lo heirs and egal representatives, utiless such meaning is contrary to law or inconsistent with the particular circumstances of the case. 12. The words " writing," *' manuscript," and terms of like import, include words i rinted, painted, engraved, iitho^ruphcd or otherwise traced or copied. 18. The word "inonth " means a calendar month. 14. By "holidays" are under Btood the following »lays ; 1. Sundays. 2. New Year's Day. 3. The festivals of the Epi- phany, Ash Wednesday, Good Friday, Kaster Monday, the Ascension, All Saints Day, Con- ception and Christmas Day. 4. The anniversary of the birthday of the sovereign or the d ly fixed by proclamation for its celebration. o. Tlie first day of July (the anniversary of the day on which the British North America Act, 1867, came into force), or the second day of July if the first be a Sunday, and 6. Any oth- r day fixed by Royal proclamation or by pro- clamation of the governor-gen- eral or of the lieutenant govern- or, as a day of general fast or thanksgiving, or as Labour Day. 15. The word " oath " includes the solemn aflirmation which certain persons ac permitted to make instead of an oath. 16. The word " magistrate " means a justice of the peace. "Two justices of the peace" mean two or more justices sit- ting or acting together. When anything is ordered to be done by or before a justice of the peace, magistrate, func- tionary or public oflicer, one is understood whose powers or jurisdiction extend to the place where such tbing ought to be done. The authority given to do a thing carries with it all the powers necessary for that pur- pose. 17. The right of nominating to an office or employment car- ries with it that of removal. 18. The duties Imposed and the powers conferred upon an officer or public functionary, in hiH otficlai capacity, pass to hia successor, and pertain to his CIVIL RTOHfS) deputy, in so far as they are compatible with the cliarge of the latter. 19. When an act is to l>e per- formed by more than two per- sons, it may be validly done by the majority of them, except in the cases otlicrwise specially provided. 20. The pound sterlinja; is equivalent to the sum of four dollars eighty-Hix cents and two-thirds, or one pound four shillings and four pence cur- rency. The " sovereign " is of nice value. 21. The words " inhabitant of Lower Canada," or " inhabitant of the Province of Quebeo," mean a person having hisdonii- cile in the Province of Quelx'o 22. The terms "acts of civil status" mean the entries m.idi' in the registers kept according to law, to establish births, mar- riages and burials. " Registers of civil status " are the books so kept and in which such acts are ent'ered. " Officers of civil status" are those entrusted with the keeping of such regis- ters. 2.1 By "bankruptcy" is meant the condition of a trader who has discontinued his payments. 24. A " f«.rtuitous event is one which is unforeseen, and caused by superior force, whicli it was impossible to resist.— R. S. Q.,577o; C. C. P. 5, 7,^21. Clause 3 of paragrapli 14 of the schedule to article 17 is replaced bv the following : ^'3. Thefestival of the Epiph- any, Ash Wednesday, Good Friday, Enster Monday, the Ascension, All Saints' Day, Con- ception and Christmas Day." -m Vict., mu, ch. an, s. i. BOOK FIRST. OF PERSONS. TITLE FIRST. OF THE ENJOYMENT AND LOSS OF CIVIL RIGHTS. CHAPTER FIRST. OF THK ENJOYMENT OF CIVIL RIGHTS. 18. Every British subject is, as regards the enjoyment of civil rights in Lower Canada, on the same footing as those born therein, saving the special rules relating to . domicile. — C. X. 8; Capit. Que. 1730; Treaty of St. Germain, 1703. 10. The quality of British subject is acquired either by right of birlh, or by operation of law.-C. N. 7. 20. A person born in any imrt of the British empire, even of an alien, is a British subject by right of birth, as also la he whose father or grandfather by 6 CIVIL RIGHTS. i 1 the father's side is a British sub- ject, although he be himHelf Dorii in a foreign country ; sav- ing the except ions resulting from special laws of the empire. -C. N. 10. 21. An alien becomes a Brit- ish subject by operation of law, by conforming to the renditions the law prescribes.— C. N. 9. 22. These condition^^, in so far as they are prescribed by the laws of the Dominion, are : 1. Residence in Canada dur- ing three years at least, or ser- vice during at least three years under the Government of Can- ada, or under the Government of one of the Provinces of Can- ada, with the intention when naturalized to either reside in Canada, or to serve under the Government of the Dominion, or under the Government of one of the Provinces of Canada ; 2. Taking the oath of resid- ence or of service and that of allegiance required by UinV ; 3. Pi'ocuriiig from the proper court, with the necessary form- alities, the certificate of na- turalization required by law. — R. S. Q. 6228; R. S. C. c. 113. 23. An alien woman is na- turalized by the mere fact of the marriage sne contracts with a British subject— C. N. 12, 19. 24. Naturalization confers in Lower Canada, on him by whom it is obtained, all the rights and privileges he would have if born a British subject.— C. N. 13. 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-born or naturalized .subjects. —C. N. 11 ; C. C. H09 20. Aliens cannot serve as jurors. -R. S. Q. 5776, 6220; K. S. C. c. 174. 27. Aliens, although not resident in Lower Canada, may be sued in its courts for the fulfilment of obligations con- tracted by them even in foreign countries. 28. Any inhabitant of Lower Canada may be sued in its courts for the fulfilment of ob- ligations contracted in foreign countries even in, favor of a foreigner. 29. Repealed by 60 Vir. (1897), Cap. 50, sec. 2. Vide C. C. P. art. 179. CHAPTER SECOND. OF THE LOSS OF CIVIL RIGHTS 30. Civil rights are lost : 1. In the cases which are pro- vided for by the laws of the British Empire. 2. By civil death. SECTION I. Of Civil Death. 31. Civil death results from condemnation to certain cor- poral punishments.— C. N. 22.* 32. Condemnation to death carries with it civil death. — C. N. 23. 33. Civil death also results from the condemnation to any other corporal punishment for life. 34. The disabilities which re- sult as regards persons profess- ing the Catholic religion, from religious profession by solemn ^ Vide Criminal Oodo, s. 965, as to Civil Death. Acts OF CIVIL STATUS. and perpetual vows made by them in a religious community recognized at the time of the session of Canada to England and subsequently approved, re- main subject to the laws by which they were governed at that period.— C. C. 70 et s. SECTION II. Of the Effects of Civil Death. 35. Civil death carries with it the loss of all the propertv of the party attaintea, which is confiscated to the crown. -C.N. 25. 36. A person civilly dead : 1. Cannot take or transmit by succession.- C. N. 25. 2. He can neither dispose of nor acquire property, whether inter vivos or by will, and whether by gratuitous or oner- ous title ; he can neither con- tract nor possess property, but he may receive maintenance. -C. N. 25. 3. He can neither be appoint- ed tutor nor curator, nor take part in the proceedings relative to such appointment. 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. 5. He cannot be a party to a suit, either as plaintiff or de- fendant. 6. He is incapable of contract- ing a marriage that will pro- duce any civil effect. 7. Marriage previously con- tracted by him is dissolved for the iuture, in so far as regards its civil effects only ; the mar- riage tie subsists 8. His consort and his heirs may respectively exercise the rights and actions to which natural death would give rise ; saving rights to survivorship, to which civil death only gives rise when that effect results from the terms of the marriage contract.— C. C. 284, 479, 608, 8:35, 844, 986, 1208, 1295, 1310, 1360, 1403,1438; C. C. P. 78, 314. 37. Civil death is incurred from the time of the sentence. -C.N. 26. 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 condemned, but without any retroactive effect, unless such effect be specially granted by Act of Parliament. TITLE SECOND. OF ACTS OF CIVIL STATUS. CHAPTER FIRST. GENERAL PROVISIONS, 30. In acts of civil status nothing is to be inserted either is the duty of the parties to declare.— C.N. 35. 40. In cases where the par- ties are not obliged to appear in person at the making or an act of civil status, they may be by note or recital, but what it represented by an attorney. 8 A0T8 OF CIVIL STATUS. \\\ specially authorized to that elrect.--C.X. 36. 41. Tiie public officer rendH to the partieH, or to their attor- ney, and to the witnesseH, the act which he inakcH. -C.N. H7. 42. ActR of civil HtatUH are inscribed in two registers of the same tenor, kept for each Roman Catholic parish church, church, private ch'ipel or mib- sion, and for each ProtesUmt church or congregation or other religious community, entitled i)y law to keep such registers, each of which is authentic, and has in law equal authority.-- R.S.Q. 5777.^ 42a. The duplicate registers for acts of civil status may be divided into three volumes, one for acts of births, one for acts of marriage, and the third for acts of burial ; or into two vol- umes, one for acts of birth and of marriage, and the other for acts of burial. Such volumes of the duplicate registers may be either blank, or may be prepared with print- ed forms, running consecu- tively through each volume ; but when one volume is used for acts of birth and of mar- riage, the first part shall con- tain, in consecutive order, the forms for acts of birth, and the last part, the forms for acts of marriage.— /r?. .5778. 42ft. Whenevjir the duplicate registers are divided into vol- umes and are in printed forms. a sutlicient number of blank pages shall be placed at the end of the volume for the certificates of death of persons whose bodies have been, before burial, delivered to a school of medi- cine or university for the pur- poses of the study of anatomy. -^Id. 42r. An aipluilu'tical index is made at the end of each duplic- ate of the registers of civil status for each church, congreg- ation or other religious com- nmnity, by the person entitled by law to keep such registers. -Id. 43. The registers are fur- nished by the elnirehes, con- gregations or religious com- munities, and must be in the form preseril)ed by the Code of Civil Procedure, -C. C. P. l:]ll et s. 44. The registers are kept by the rector, curate, priest or minister having charge of the churches, congregations or reli- gious communities, or by any other ofticer entitled so to do. In the case of Roman Catholic churches, private chapels or missions, tliey are kept by any priest authorized by competent ecclesiastical authority to cele- brate marriages or adminis- ter baptism and perform the rites of burial.— R. S. Q., 5779 ; C. C. 129. 45. The duplicate register so kept, before it. is used, must, at the instance of the party keep- i The Protestant churches or congregations referred to in article 42 of the Civil Code, comprise all cliii-ches and conKic^fations in communion with the Cburob of Uogland or Scotland, and the several religiuuK coa^munities and denominations in the Province, mentioned in fhe ppecial acts concerning them, and the priests or ministers thereof, who may validly solemnize marrfnge, and may obiain and keep reeister? of civil status, subject to the DroriRions of the said acts with reference to ouch of them respect- ively. -IU9.Q. 5499. Vidt R. S. Q. 6500 otr. for special provisions m to regit-ters of civil statas in a oeriain portion of the district of Satueuay* ACTS OP CIVit STATUS. ing it, lie presented to one of the judKC^* of the Superior Court or to the prothonotary of the dis trict, or to a clerk of the Circuit Court In the county, to be by such jiulij^o, pi'otlionotary or clerk, numbered and initialed in the manner prcscril)cd by the Code of Civil Procedure. In the case of Roman Catholic churches, private chapels or miflRlonN, the register must be granted under the name men- tioned In the certificate of authorization by the bishop, the ordinary of the diocese, the vicar general, or the adminis- trator, and the priest on pre- senting the register for authen- tication must exhibit the certi- ficate of authorization.— R.S.Q. 5780; C.C. P. 1311. 40. Acts of civil status, as soon as tliey are made, are in- scribed in the two registers in successive order and without blanks ; erasures and marginal notes are acknowledged and initialed by all those who sign the Ijody of the act. Everything must be written at length with- out abbreviation or 'figures.— C. N. 42. 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 office of the pro- thonotary of the Superior Court of the district in which the reg- isters were kept one of the said duplicates. Such delivery is acknow- ledged by a receipt which the prothonotary is hound to give free of charge.- R.S.Q. 5781. 48. Within six months after such deposit, each prothonotary is bound t^ verifv the condition of the registers deposited in his office, and to draw up a sum- mary report of such verific- ation.- Id. 57H2. 40. The other duplicate regl«- ter remains in the custody and possession of the priest, ndnls- ter or ot her officer who kept the sanie, to be by him preserved and transmitted to his succes- sor in office. In the case of a Roman Cath- olic ndssion. such other duplic- ate is deposited by the priest in charge of such mission at the palace of the bishop of the diocese to which the mission belongs; and for the purpose of authenticating copies or ex- tracts from any such register and for all otiier purposes con- nected therewith, the bishop or his secretary is deemed to be the depositarv thereof— /f/. 57H3 ; C C.P. 1.^12. 50. The depositary of either of the registers is bound to give extracts thereof to any person who may require the sante ; and such extracts, Vieing certified and signed by him aie authen- tic. -C.N. 44. 51. 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 regis- ters and papers, or other writ- ings, or uy witnessrs.~C. N. 40; C.C. l.W, 2H2, 23H. 52. Every depositary of such registers is civilly responsible for any alteration made therein, saving liis recourse, if any tiiere be, against the party altering the same.— C.N. 51. 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 pun- 10 Acts OF CtVlL StAtng. !l !!;; ished by a penalty not exceed- ing eighty clollnrH, nor less than elght.-(^.N. 50;C.U.P. 1313. 58a. The father, or in case of his death or abHence tlie moth- er, of everv child bom, who has not causea such child to be bap- tized, or who, being of a creed other than Roman Catholic, has not caused the birth of such child to be registered by the persons authorized to keep a register of acts of civil status, is bound to cause the birth of such child to be registered within four months from the date thereof, at the oftice of the secretary-treasurer or of the clerk of the municipality or city of his domicilf , or else with the nearest iustice of the peace ; and the latter shall during the first two weeks of the month of January in each year, make to the secretary-treasurer or to the clerk of the municipality or city a report of the births by him so registered. The secretary-treasurer or clerk of the municipality or city shall each year during the month of January transmit a statement of such births to the office of the provincial secret- ary.— R.S.Q. 5784. 536. Every person authorized to celebrate marriages, or to preside at burials, wlio is not authorized to keep registers of Civil Status, shall immediately prepare, in accordance with the provisions of the Civil Code, an act of every marriage which he celebrates, and of every burial at which he presides, and, with- in thirty days after such mar- riage or burial, forward the same, with a solemn declaration attesting the truth thereof, to the prothonotary of the district in which the marriage was celebrated or the burial took place.— 67 V. c. 44, CHAPTER SECOND. OF ACTS OF BIRTH. 54. Acts of birth set forth the day of the birth of the child, that of its baptism, if per- formed, its sex, and the names given to it ; the names, sur- names, occupation and domicile of the father and mother, and also of the sponsors, if any there be.— C, N. 57. 55. These acts are signed in both registers, by the officer officiating, by the father and mother it present, and by the sponsors if any there be ; if any of them cannot sign, their declaration to that effect is noted.-C. N. 30. 56. When the father and mother of any child presented to the public officer are either or both of them unknown, the fact is mentioned in the regis- ter .-C. N. 55, 56, 58 ; C. C, 232. CHAPTER THIRD. OF ACTS OF MARRIAGE. 57. Before solemnizing a marriage, the officer who is to perform the ceremony must he furnished with a certificate establishing that the public- ation of bans required by law has been duly made ; unless he has published them himself, in which case such certificate is not necessary. — C. N. 63 ; C. C. 130 et s. 157. 58. This certificate, which is signed by the person who pub- lished the bans, mentions, as do also the bans themselves, the names, surnames, qualities or AOI'S'OF CIVIL flTAtU8. 11 occupations and domicUes of the parties to be married, and whether th-y are of age or minorn ; the names, surnames, occupations and domiciles of their fathers and mothers, or tlic name of the former husband or wife. And mention is made of this certificate in the act of marriage. -C. N. ttJ, 106 ; C. C. 65, s. 4. no. The marriage ceremony may, however, be performed without this ceriiflcate, if the parties have obtained and pro duce a dispensation or license, from a competent authority, authorizing Ine omission of the publication of bans.— C. N. 63; C. C. ({5, s. 4, 134. 157. 50a. In so far as regards the solemnization of marriage by Protestant ministers of the Gospel, marriage licenses are issued by the department of the provincial secretary under the hand and seal of the Lieu- tenant-Governor, who for the purposes thereof is the com- petent authority under the preceding article. The minister, who has per- formed any marriage ceremony under the a ithority of such license, is not subject to any action or liability for damages or otherwise, by reason of there being any legal impediment to the marriage, unless, at the time when he i erfonned such ceremony, he was aware of the existence of such impediment. — R.S.Q. 57a5. 60. If the marriage be not solemnized within one year from the last of the publications required, they are no longer sutticient, and must be renewed. — C. N. 65. 61. In the case of an opposi- tion, the disallowance thereof must be obtained and be noti- fied to the oftlcer charged with the solemnization of the mar- riage.-C. C. im et s.; C. C. P. 1109. 02. If, however, the opposi- tion be founded on a smiple promise of marriage, it is of no efl'ect, and the marriage is pro- ceeded with as if no such oppos- ition hud been made. 63. The marriage is solem- nized at the place of the domicile of one or other of the parties. If solemnized elsewhere, the per- son ofiiciating is obliged to verify and ascertain the iden- tity of the parties. B^or the purposes of marriage, domicile is established by u residence of six months in the same place.-C. N. 74 ; C. C. 131. 64. The act is signed by the officer who solemnizes the mar- riage, by the parties, and by at least two witnesses, related or not, who have l)een present at the ceremony ; and if any of them cannot siun, their declara- tion to that etrect is noted. 65. In this act are set forth : 1. The day on which the mar- riage was solemnized ; 2. The names, surnames, qual- ity or occupation and domicile of the parties married, 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 were married after publication of bans, or with a dispensation or license ; 5. Whether it was with the consent of their father, mother, tutor or curator, or with the ad- vice of a fimily council, when such consent or advice is re- quired ; 6. Thenamesof the witnesses, and whether they are related or allied to the parties, and if so, \i ACTS OF OlVlIi STATUJi. ^lif on which Hide, uiul in what de- greo • 7. That there hsH been no op- position, or that aiiv opposition made lias l)een disallowed. CHAPTER FOUHTII. OK ACTH OK HUUIAL.I 00. No l)nrlal can take place before the expiration of twenty- four hours after th(? decease ; and like the other resistors of civil status, and the acts are lnscrll)ed therein in the manner pi-e- scrU)ed In article 40.-C. C. 45 ; C. C. P. 1311 ets. 72. The acts set forth the names and surnames, and the ago of the pt^rson making pro- fession, the place uf her birth, and the names and surnames uf her father and mother. They are signed by the party, by the superior of the community, by the bishop or other ecclesiastic who performs the ceremony, and by two of the nearest rela- tions,* or by two friends who were present. 7«l. The registers are used during five years, after which one or the duplicates is depos- ited in the manner declared in article 47, and the other remains with the community to form part of its records. 74. Extracts of such regis- ters, signed and certified by the superior of the community, or the depositary of one of the du- plicates, are authentic, and are delivered by one or other of them at the option and on the demand of those requiring them.- C. C. 50. CHAPTER SIXTH. OF THE RECTIFICATION OF ACTS AND REGISTERS OF CIVIL STATUS. 75. If any error has been committed in the entry made in the register of an act of Civil Status, the court of original jurisdiction in the office of which such register Is or Is to be (lepoHlted may, at the In- stance of any interested party, order such error to be rectlllea In presence of th«' other parties interested. -C. N. 9U; C. C. P. 1H14 et s. 7«. The depositaries of the registers, on n*ceif)t of a copy of any judgment of rectification, are bound to inserilM^ the same on the margin of the act so rec- tified, and if there l>e no mar- gin, then on a sheet of paper which remains annexed there- to. 77. If an act which ought to have been itiserted in the reg- ister be entirely omitted, the same court may, at the Instance of one of the parties interested, the others being notified, order tim. such omission be Supplied, and the judgment so ordering is inscribed on the margin of the said registers, at tlu-s place where the act so omitted ought to have beeu entered, ana If there be no margin, then on a sheet of paper which remains annexed thereto.— C. N. 99. 7H. The judgment of rectific- ation cannot, at any time, be set up against those who did not seek It. or who were not duly notifled.-C. N. 100. CHAPTER SEVENTH OF HEPLACIN'(J RE(.IHTKHS OF CIVIL STATUS WHK II HAVE UEEN LOST OR DESTROYED. 7Hn, Whenever registers of Civil Status have been lost or destroyed, in whole or in part, the officer charged with keeping them way, upon a resolution of the fnhrtque, trustees, or reli- gious community interested, es- tablishing such loss or destruc- t ion, obtain from the prothono- T^ ll„i| ! >ji 14 DOMICILE. tary of the district, in whose office such registers are de- posited, a copy of the whole or of any part thereof on payment of six cents for each certificate of baptism or of burial, and of eighteen cents for each certi- ficate of marriage. 7fib. The registers and books necessary for making awU copies are furnished by the fahrique, trustees, or religious comnmnity interested, and must be numbered and initialed in the manner prescribed by the code of civil procedure. — C. C. P. 1311. 78c. Such copy of the reg- isters must be a fac siuiiie of the sole existing duplicate. IHd. The certificate of au- thenticity of such copies of reg- isters must be appended by the prothonotary after the last entry in each book or register. 78e. P]very copy of registers, so authenticated and delivered, is considered as an original reg- ister ; and extracts', certified by the depositary of the said reg- isters, are authentic ; but such depositary must declare, in the extracts which he delivers, that the registers from which they are taken are copies so certified, of the only existing duplicate. 78/". Any person autliorized to keep registers of Civil Status, may, with the authorization of the fabriquCy trustees, or relig- ious community interested, at the expense of the parish, church, mission, congregation or religious community to which he is attached, replace, in so far as the writing may be deciphered, the said registers of Civil Status kept up to the year 1800, in his custody, by others, reproducing them as ex- actly as possible. 780'. Any such person, so au- thorized to keep registers of i Civil Status, after having care- I fully compared such copy kept 1 by him with the original, must i affix at the end thereof a certi- j ficate attesting that it has been I examined and compared and I tliat it agrees with the register I of which it is a copy. I Such certificate is made under I oath before the prothonotary of I the Superior Court of the dis- trict. Such copy must be authentic- ated and initialed by the pro- thonotary before being used. 7H/i. Notwithstanding the authenticity of such copy, which has the same effect as the orginal register, the latter must be preserved, so that reference may be had thereto.— 60 V., C. ou. s« o. TITLE THIRD. OF DOMICILE. li: 79. The domicile of a person, for all civ il purposes, is at the place where he has his principal establishment.-C. N. 103-0 ; C. C. 6, 63, 1152 ; C. C. P. 94 et s. 80. Change of domicile is ef- fected by actual residence in another place, coupled with the intention of the person to make it the seat of hisjprincipal es- tablishment.— C. N: 103. 81. The proof of such inten- ABSENTBES. 15 tion results from the declara- tions of the person and frona the circumstances of the case. — C. N. 104. 82. A person appointed to All a temporary or revocable Sublic office, retains his former omicile, unless he manifests a contrary intention.— C. N. 106. 83. A married woman, not separated from bed and board, has no other domicile than that of her husband. The domicile of an unemanci- pated minor is with his father and mother, or with his tutor. The domicile of a person of the age of majority interdicted for insanity is with his curator. — C. N. 108 ; C. C. 175, 207, 244, 290,:^. 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.— C. A. 109. 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 doniicile, all notifications, demands and suits relating thereto may be made at the elected domicile, and be- fore the judge of such domicile. The indication of a place of payment in any note or writing, wherever it is dated, is equiva- lent to such election of domicile at the place so indicated:— 52 V.,c. 48; C. C. P. 129,585. TITLE FOUETH. OF ABSENTEES GENERAL PROVISION. 86. An absentee, ^vithln the meaning of thi.s title, is one who having had a domicile in Lower Canada, has disappeared, without any one having re- ceived intelligence of his exist- 1 ence. CHAPTER FIRST. OF CURATORSHIP TO ABSENTEES. 87. If it be necpssary to pro- vide for the administration of the property of an absentee who nas no attorney, or whose attorney is unknown or refuses to act, a curator may be p- 1 pointed for that purpose.— C. N. 112 ; C. C. 317 et s. 88. The necessity for such appointment is determined, at the instance of those interested, on the advice of a family coun- cil called and composed in the manner provided in the title O^ Minority, Tutoi^ship and Emancipation, and homolo- |;ated by the court, or by one of its judges, or by the prothon- otary.— C. C. 250 et s.; C. C. P. 1331. 1.337. 89. Curators to the property of absentees make oath faith- fully to fulfil the duties of their office and to account.— C. C. 347a. 00. The curator is bound to 16 ABSENTEES. ilill 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 subicct.-C. C. 290, ets.; C.C.P. 1387, et s. 01. The powers of such cura- tor extend to acts of adminis- tration only ; he can nei- ther alienate, plede;e nor hypothecate the property of the absentee. 02. 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 ; li By his heirs being author- ized to take provisional posses- sion of his property, m the cases provided by law. CHAPTER SECOND. OF THK PllOVISIOXAL POSSES- SION OF THE HEIKS OF AHSENTKES. i 9;5. "Whenever a person has ceased to appear at his domi- j 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 j intelligence received, may ob- tain from the court or the judge authority to take provi i sional possession of his proper- 1 ty, on giving security for tlieir due adn)inistration of it. — C.N., 115 ; 60 v., c. 50 ; C. C. P. 1422, , -ets. I 04. Provisional possession | may bo authorized before the j expiration of such delay, if it i be eatablislied to the satisfac- tion of the court or the judge I that there are strong presump- tions that the al3sentee is dead.-C. N. 117 ; 00 V., c. 50. 05. In pronouncing on such demand, the court or the judge takes into account the reasons of the absence and the causes wluch may have prevented the reception of intelligence con- cerning the absentee. -C. N. 117; 00 v., c. 50. 06. Provisional possession is a trust which gives to those who obtain it, the administra- tion of the property of the ab- sentee, and makes them liable to account to him or to his heirs and legal represent- atives.- C. N. 125; C. C. 2039. 07. Those who have obtained f)rovisional possession a r e )ound to make an inventory before a notary of the mova- ble jjroperty aiid title deeds of the absentee (and to cause the immovable property to be visited by skilled persons for the purpose of ascertaining its condition. Their report is homologated by the court or the judge, and the costs are paid out of the absentee's pro- perty). The court or the judge which granted the possession niay, if there be ground for it, order tlie sale of the movables or of any part of them ; in which case the price of such sale is in- vested, as are also all rents, issues and profits accrued.— C. N. 126 ; 60 V., c. 50 ; C. C. P. 1387, et s. 08. If the ai)sence have con- tinued during thirty years from th'^ day of the disappear- ance, or from the latest intelli- gence received, or if a hundred years have elapsed since his birth, the absentee is reputed to be dead from the time of his disappearance or from the ABSENTOEB. It latest Intelligence received ; In consequence, if provisional pos- session have been granted, the sureties are discharged, the partition of the proper(;y may be demanded by the heirs or others having a right to it, and the provisional possession lie- con)es absolute — ('. N. 120. fM>. Not wi til standing the i)re- suniptions mentioned in the preceding article, the succes- sion of the al)sentee devolves from the day on which he is })roved to have died, to the heirs entitled at stich time to his estate ; and those who have been in the enjoyment of the absentee's propertv are bound to restore it. — C.C.* Wl. 100. If the alisentee re- appear, or if his existence be proved during the provisional possession, the, iJidgment grant- ing it, ceases to have effect. 101. If rhe al)sentee re- appear, or if his existence be ])roved, even after the expir- ation of tlie hundred years of life or of the thirty years of absence, as mentioned in article {)H, he recovers his property in the conilition in which it then is, and the price of what has been sold, or the property arisinu; from the investment of such price.- C.C 220:i, 22:i± 102. The children and direct descendants of the absentee, may likewise within the thirty years from the time at which the said jwssession becomes absolute, claim the restitution of his projierty, as mentioned •n the preceding article. 10:J. After the judgment authori;cing provisional posses- sit)n, persons having claims against the absentee can only enforce them agninst those who have been authorized to take possession. - C.N. 1(H. CHAPTER THiRt). OF THE EFFECT OF AHSEJTCE IN RELATION TO COXTtN'OEXT ui(;HTs WHICH may acchue TO THE AIJBE.STEE. 104. Whoever claims a right accruing to an absent(»e must prove that such absentee was ; living at the time the right accrued; in default of such i proof his demand is not admlt- , ted.-C. N. 135. i 105. If an absentee be called i to a succession, it devolves ex- I duslvely to those who would I have shared with him or to I (hose who would have suc- ceeded in his stead.— C. N. l'?8. ! lOO. The provisions of the two pivceding articles do not attect actions for the recover}' of inheritances and of other rights which actions belong to the absentee, his heirs and legal representatives, and are only extinguislied by the lapsje of time reciuired for prescription. -C. N. 107 ; C. C. 2203, 2232. 107. So long as the absentee does not reappear, or actions are not brougnt on his behalf, those to whom the succession has devolved make the profits received by them in gooff faith their own.- C. X. 138 ; C. C. Ill, 412. CHArTEK FOURTH. OK Till-; KFIKCTS OF AnsF:NCK IX IIEI.ATION TO MAK- KIACE. lOH. The presumptions of death arising from absence, whatever be its duration, do not applv in the case of mar- riage ; the husband or wife of the absentee caimot marry again witliout producing posf- 9 18 MARRIAGE. tive proof of the death of such absentee.— C. C. 118, 185. too. If there be community of property between the con- sorts, such community is pro- visionally dissolved, from the day of the demand to that effect by the presumptive heirs, after tne time required for obtaining authority to take possession of the absentee's property, or from the date of the action that the consort who is present brings against them, for the same purpose ; and in these cases, the liquidation and partition of the property of the commu- nity may be proceeded with on the demand of such con- sort, or of the persons author- ized to take provisional pos- session, or of any other parties interested.— C. C. 1310. no. In the cases provided for in the preceding article, the covenants and rights of the consorts, dependent on the dis- solution of the community, be- come effective and absolute. — C.C. 1310. 111. If the husband be the absentee, the wife may ob- tain possession of all the mat- rimonial profits and advan- tages resulting from the law or from her marriage contract ; but on condition of giving good and sufficient security to ac- count for and restore all that she shall have so received, should the absentee return.— C. C. 1404, 1438. 112. If the absent consort have no relations entitled to his succession, the consort who is present may obtain pro- visional possession of the prop- erty.— C. N. 140 ; C. C. 006, 636. CHAPTER FIFTH. OF THE CARE OF MINOR CHIL- DREN OF A FATHER WHO HAS DISAPPEARED. 113. If a father have dis- appeared, leaving minor child- ren 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 administration of their property, until a tutor is ap- pointed.— C. N. 141. 114. After the disappear- ance of the father, if the moth- er be dead or unable to ad- minister the property, a pro visional or a permanent tutor may be appointed to the minor children.-C. N. 142. TITLE FIFTH. OF MARRIAGE. iiiiN il 1 i' ! CHAPTER FIRST. OF THE QUALITIES AND CON- DITIONS NECESSARY FOR CON- TRACTING MARRIAGE. 115. A man cannot contract marriage liefore the full age of fourteen years, nor a woman before the full age of twelve years.— C. N. 144; C. C. 153, i.54. 116. There is no marriage when there is no consent. — C. N., 146 ; C. C. 148, 149. 117. Impotency, natural or accidental, existing at the time of the marriage, renders it MARRIAGE. 19 null ; but only if such inipo- tency be apparent and mani- fest. This nullity cannot be in- voked by any one but the party who has contracted with the impotent person, nor at any time after three vears from the marriapc-C. N.180, 813. 1 IH. A second raarriapce can- not be contracted before the dissolution of the first.— C. N. 147 ; C. C. 108, 130, 185, 206. 1 19. Children who have not reached the age of twenty-one years must obtain the consent of their father and mother be- fore contracting marriage : in case of disagreement, the con- sent of the father suffices.— C.N. 148; C.C. 137, 150, 151, 243. 120. If one of them be dead or unable to express his will, the consent of the other suf- flces.-C. N. 149. 121. A natural child who has not reached the age of twenty-one years must be authorized, before contracting marriage, by a tutor ad hoc duly appointed for the pur- pose. -C. N. 148, 149 ; C. C. 150, 151. 122. If there be neither father nor mother, or if l)Oth 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.— C. N. 122; C. C. 138, et s., 150, 151. 123. Respectful requisitions to the father and mother are no longer necessary. 124. In the direct line, mar- riage is prohibited between ascendants and descendants, and between persons connected by alliance, whether they are legitimate or natural.— C. N. 161 ; C.C. 152, 155. 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 be legitimate or natural ; but it is Eermitted between a man and is deceased wife's sister.— R. S. Q., art. 6230, and 45 V., C. c. 42. 126. Marriage is also pro hibited between uncle and niece, aunt and nephew. 127. The other impediments recognized according to the different religious persuasions, as resulting from relationship or affinity or from other causes, remain subject to the rules hitherto followed in the dif- ferent churches and religious jcommunities. The right, likewise, of grant- ing dispensations from such im- pediments appertains, as here- tofore, to those who have hitherto enjoyed it.-C. C. 129. CHAPTER SECOND. OF THE FORMALITIES RELATING TO THE SOLEMNIZATION OF marriagp:. 128. Marriage must be solemnized openly, by a compe- tent officer recognized by law. — C. N. 165 ; C.C. 156. 129. All priests, rectors, ministers and other officers authorized by law to. keep reg- isters of acts of Civil Status, are competent to solemnize marriage. But none of the officers thus authorized can be compeU?^ tQ 20 MARRIAGE. aolemnlze a marriage to which any impediment exUts accord- ing to the doctrine ana belief of his religion and the discipline of tile cliurch to vvhicli lie he- Jongs. -C. N. 75 ; C. C. 44, 127. t»0. The puiilic.'itions of bans, required by article 57 and 58, are made by the priest, min- ister or other officer in the churcli lo whicli the parties belong, at morning service, or if there i)e no morning service, at evening service, on tliree Sundays or holidays, with reasonal>le intervals'. If the parties bL'loog to 'iiffereut churches, these publications take place in onvh of such churclies.— C. N. m, lOiJ ; C. C. «0, 157. IJJI. If tlie actual domicile of the parties to be married has not been estal)lished by a residence of six months ' at least, the publications must also be made at the place of their last domicile in Lower Canada. -C. X. 107 ; C. C. (W. 1;I3. [Ff their lai^t domicile be out of Lower Canada, and the publications have not been made there, the oHicer who in that case solemni/cs the mar- riage is bound to Msceitain that there is no legal impediment between the parties.] 183. If the parties, or either of them, be, in .so far as regards marriage, under the authority of othei'K. the bans must be also published vA the p' ico of domi- c.'leof tV " "i^der whose power su.; .i h .ar -C. N. 1(38. t "-i: r')*» aU'.horitles who hb\< !: tneiioheld the ri itt to grail- Icci \sc' ' dispensations for marriage, jn.iy exempt from such imblicatioiis.— C.N. 109; C.C. 59, 59a. iJJ5. A marriage solemni/cd put of liower Canada between two persons, either or both of whom are subject to its laws, is valid if solemnized according to tlie fortnalities of the place where it is performed, provided that the parties did not go there with the intention of evading the law.— C. N. 170; C. C. 7. CHAPTER THIRD. OF OIM'OSITIONS TO MAltKlAtfE. llitt. The solemnizing of a marriage may be opposed by any person already married to one of the parties intending to contiact.-C. N. 172; C. C. 118, 185. 1.-57. The marriage of a mivor may l)e opposed by his father or, in default of the latter, by his mother.-C. N. 173; C. C. 119, 120. 1 :iH. In default of botli father and mother, the tutor or, in cases of emancipation, the curator may al.so oppose the marriage of' such miimr.--C. N. 175; (K), V. c, 50; C. C. 122; C. C. P. 1011. l;}9. If there be neither father nor mother, tutor nor curator, or if the tutor or cur- ator have consented to the marriage without taking the advice of a family couTicil, the grandfathers ana grandmoth- ers, the uncles and aunts and the rousins-german, who are of fall age, may oppose the mar- riage of their nunor relative; but only in the two following cases : 1. When a family council which, according to article 122, should have been consulted, has not been so ; 2. When the party to be mar- ried is insane. C. N. 174. 1 lO. When opposition is MARHlAGfit. 21 made under the ('iicuinftraiu'eH and by any of the persons men- tioned in the preceding article, if tlie minor have neither tutor nor curator, the opposant is bound t'j cause one to I e ap- pointed ; if the minor have al- ready a tutor or curator, who ims consented to the marriage without consulting a family council, ilie opposant must cause a tutor oth father and mother, the grandfathers and grandmothers ; 8. In default of the latter, the brothers or sisters, uncles or aunts, cr cousins-german of the age of majority ; 4. In default of all the above, those related or allied to such ])erson who are qualified to take j)art in the meeting of a family council, wliicli should be con- sulted as to the interdiction. 14*2. Wiien the opposition is founded on the insanity of tlie person about to be married, the opposant is bound to apply for the intertliction and to have it pronounced without dclav.— ('. N. 174 ; C. (^ 325 et s. 14;i. Whatever may V)o the quality of the opposant, it is his duty to adopt and follow up the tornialities and proceedings necessary to have his opposition broiight before tlie court and decided within the legal de- lays, a demand for 4t8 dismissal not being required ; in default of his so doing, the opposition is regarded as never having been mtide, and the marriage ceremony is proceeded with, notwithstanding.— C'. C. til, (52, (15, s. 7. 144. The Code of Civil Pro- cedure contains the rules as to the form, contents and notifica- tion of opi)ositions to marriage, as well as those relative to the peremption mentioned in the preceding article, and to the other proceedings recpiired. — C. N. 17(5; C.C. P. 11()5& s. 145. Kepealed l)v60 V., c. oO, 29. 14« Kepealed by (iO V., c. 50, 29, and placed In the Code ot Civil Procedure, arts. 1105 and 1112. 147. If the opposition is dis- missed, the opposants, other than the fatlu rand mother, are liable for danuiges according to circun)stances, without preju- dice to the condemnation to costs, in the manner stated in the Code of Civil l^ocednre (00 v., c. 50, s. 10.)- C. N. 179; C. C. P. lli:i. CHAPTER FOURTH. OF Ai rio.vs von annum ix(j MAKHIACK. 148. A Uiairijige coTit rncted without the fi« c coiisciit of both parties, of of (uie of them, can oniy be attacked by such jmrtics themselves, or l)y the one whose consent was not free. When there is error as to the person, the Hiarriage can only be attacked bv the ]»artv led into error.- C. N. bsO; C. C. llfi. 149. In the cases of the pre- ceding article, the party who has continued colutbitatlon dur- ing six months after having ac- 22 MARft[AOfi. ilh quired full liberty or herome aware of the error, cannot seek the nullity of the niarriaj^e.— C. N. 181. 150. A raarriaRe contracted without the consent of the father or mother, tutor or cura- tor, or without the advice of a family council, in cases where such consent or advice was necessary, can only be att icked by those whose consent or ad- vice was r. quired.— C. N. 182 ; C. C. 119 et s. 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 ihe marriage have { been either expressly or tacitly approved by those whose con- sent was necessary ; nor if six months have been allowed to elapse withouc complaint on their part since they became aware that the marriage had taken place.— C. N. 183. 152. Any marriage contract- ed in contravention of article 124, 125 and 12(5, may be con- tested either by the parties themselves, or by any of those having an interest therein. — C. N. 184 ; C. C. 155. 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 proper age ; 2 When the wife, under that age, has conceived before the termination of the six months. -C. N. 185 ; C. C. 115. 154. The father, mother, tutor, or curator, or the rela- tions who have consented to the marriage, in the crtses mentioned in the preceding article, are not allowed to seek the nullity of such marriage.— C. N. 186. 155. In the cases referred to in article 152, where the action for annulling the marriage be- longs lo all those interested, the interest must be existing and actual, to permit the exer- cise of the right of action by the grandparents, collateral relatives, children born of another marriage, and third persons.— C. N. 187. 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 ail existing and actual interest, saving the right of the court to decide according to the circumstances.— C. N. 191 ; C. C. 128. 157. If the publications re- quired were not made, or their omission supplied by means of a dispensation or license, or if the legal or usual intervils for the publica'ions or the solem- nization have no^ elapsed, the officer solemnizing the mar- riage under such circumstan- ces, is liable to a penalty not exceeding five hundred dollars. -C. N. 192 ; C. C. 57, 59, 130. 15H. The 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 pre- sent title. -C. N. 193. 159. No one can claim the title of husband or wife and MARRIAQB. tt crtses edinK ) seek vge — red to iction 3^6 be- csted. isting exer- ion by lateral rn of third which open- fore a )e con- them- e who actual t of the r to the I ; C. C. 3ns re- )r their ans of or if lis for solem- ed, the mar- mstan- ty not lollars. 30. posed le is in )y a'ly Aon of Ihim or I, as to mar- rules jct by le pre- the le and the civil effects 'of marriage, . unless he produces a certificate of the marriage, as inscribed In the registers of Civil Status, except in the cases provided for by article 51.- C. N. IM. 160. Possession of the status does not dispense tiiose who pretend to be husband and wife, from producing the certi- ficate of their marriage.— -C. N. 015. 161. When the parties are in possession of the status, and the certificate of their marriage is produced, they cannot (ie- mand the nullity of such act. -C. N. 196. 162. Nevertheless, in the case of articles 159 and KiO, if there be children issue of two gersons who lived publicly as usband and wife, and who are both dead, the legitimacy of such children cannot be con- tested 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.— C. N. 197 ; C. C. 230, 2;n. 163. A marriage although declared null, produces civil effects, as well with regard to the husband and wife as with regard to the children if con- tracted in good faith.— C. N. 201. 164. If good faith exist on the part of one of the parties only, the marriage produces civil effects in favor of such partv alone and in favor of the children issue of the marriage. -C. N. 202. CHAPTER FIFTH. OF THE OBLIGATIONS ARISING FROM MARRIAGE. 165. Husband and wife con tract, by the mere ffict of mar- riage, the obligation to maintain and bring up their children. — C. N. 203 ; C. C. 215. 166. Children are bound to maintain their father, mother and other ascendants, who are in want.— C. N. 205. 167 Sons-in-law and daugh- ters-in-law are also obliged, in like circumstances, to maintain their father-in-law and mother- in - law, but the obligation ceases ; 1. When the mother-in-law contracts a second marriage : 2. When the consort, through whom the affinity existed, and all the children issue of the marriage, are dead.— C. N. 2Gd. 168.— The obligations which result from these provisions are reciprocal.— C. N. 207. 160.— Maintenance is only granted in proportion to the wants of the party claiming it and the fortune of the party by whom it is due.— C. N. 208 ; C. C. P. 551, 594 s. 7, 599 s. 4. 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 the whole or any part of it, a discharge from or a reduction of such maintenance may be demanded.— C. N. 209. 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 in his house the party to whom such mairtenance is due.— C. N. 210. 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 maintenance is due, shall in I ! u MARUIAUE. llS.i that cane be exeniptt'd from payincc an uliinentary pension. -C.N. 211. CHAPTEll SIXTU. OF THK RESPKt TIVK KKJHTS AND DUTIKB OF UUHUAXD AND VVIFi:. 14 I^I.Vt .TII^, ■••» I Other fidelity, istaiice.— C. ^s . 17JI. Husband and wife mu tually owe each succor and assii •212. 174. A husband owes pro- tection to his wife ; a wife obe- dience to lier husband.- C. N. 213. 175. A wife is obliged to live with her husband, and to follow liim wherever he thinks fit to reside. The husband is obliged to receive her and to supply Tier with all the necessaries of life, according to his means and condition.-C. N. 214 ; C. C. 8'6, 191, 207. 176. A wife cannot appear in judicial pi'oceedings, with- out her husband or iiis au- thorization, even if she be a public trader or not common as to property ; nor can she, when separate as to property, except in matters or simple admmlstratlon.— C.N. 215 ; C.C. 210; C. C. P. 7S. 177. A wife, even when not common as to property, can- not give nor accept, alienate, nor ffispose of property, (titer vivos, nor otherwise enter into contracts or obligations, un- less her husband becomes a party to the deed, or gives his consent in writing ; saving the provisions contained in the act 25 Vict., c. (Hi. If, however, she be separate as to properly, she may do aiut make alone all acts and con- tracts connected with the ad- ministration of h«5r propertv. — C. N. 217 ; C. C. 210, (M8, /(i3, kMi, UHB, 1200, 1207, 131.S, 1120, U21, U22, 1424. 17M. If a husband refuse to authorize his wife to appear in judicial proceedings or to make a deed, tlie jiidge may give the necessary authoriz- ation. C. N. 21H : C". C. 210 04:{, 00(5, 12JKJ, 1207, 1421, 1424. 1711. A wife who is a public trader may, withoat the au- thorization' of her husband, obligate herself for all that re- lates to her commerce ; and in such case she also binds her husband, if there be conunu- nlty between them. She can- not become a public trader without such authorization, express or implied.i- C. N. 220 ; C. C. 120(5. 180. If a husband be inter- dicted or absent, the judge may authorize his wife, either to appear in judicial proceed- ings or to contract.— C. N. 222 ; C.C. 33(50, 1207. 181. All general authori- zations, even tliose stipulated by marriage contract, are only valid, in so far as regards the administration of the wife's property. C. X. 223. 1H3. A husband although a minor nuiy, iji all cases, autli- orize his wile who is of age; if the wife be a minor, the authorization of her husband, whether he is of age or a minor, is sufficient for those cases only in which an emancipated minor might act alone. C. N. 224; C. C. 314, 310 et s. 183. The want of authoriz- 1 Vide B. S, Q. 5502a (60 V,. c 49) as to regiatration necesaury when wife 8C|)ara(ed as to property, engaieg in coaim^rc^. flUPARATION FROM BED AND BOARD. ation hy Hu' linsband, where it is UfcrsHjiry, conHiitutes a cause of nnllily u)nch nothing; can cover, and wlucli in»iy be taken advantage of by all those who have an existing and actual interest in doing so.— C. N. 225. 184. A wife may nmke a will without the authorization of her husband. -C. N. 220 ; C.C. 8B2. CHAPTER SEVKNTH. OF THE DISSOLUTION OF MAR- HIAUK. I inn. Marriage can onlv be I dissolved by the natural death ; of one of the narties ; while I both live, it is indissoluble. — j C. N. 227 ; C. C. 108, IIH, \m, 20(1. TITLE SIXTH. OF SEPARATION FROM BED AND BOARD. CHAPTER FHIST. OF THK CAUSES OK SKI'AHATION FROM HED AND HOARD. IMfl. Separation from bed and board can only be demand- ed for specific causes : it cannot be based on the mutual consent of the parties.— O. N. 'Mi; C. C. P. IHK). 1H7. A husband may demand the 8ej)aration on the ground of his wife's adultery.— C. N. 221). IHH. A wife may demanaration on the ground of her husband's adultery, if he keep his concubine in their com- mon habitation.— C. N. 230. 1 HO. Husband and wife may respectively deniand this sepa- ration on the ground of outrage, ill usage or grievous insult com- mitted bv one toward the other. -C. N. 281 ; C. C. 199. 190. The grievous nature and sutliciency of such outrage, ill-u8age and insult are left to the disci^etion of the court, which, in appreciating them, muHt take into consideration the rank, condition and other circumstances of the parties. 191. The refusal of a hus- band to receive his wife and to furnish her with the neces- saries of life, according to his rank, means and condition, is another cause fpr which she may demand the separation. — C. C. 175. CHAPTER SECOND. ON THK FORMALITIES OF THK ACTION Foil SEPARATION FROM IIED AND BOARD. 193. Repealed by (50 V., c. 50, s. 11. Vide C. C. P. 1099, 1100. 19a. Repealed by (>0 V., c. m, s. 11. Vide C. C. P. 1099, 1100. 194. The wife who desires to obtain a separation from bed and board must apply by a peti- tion setting forth her reasons, and addressed to the judge, to be authorized to sue, and to be allowed to withdraw pending the suit to a i)lace wliich she in- dicates.— 60 V. c. 50 ; C. C. P. 1101. SBPARATION TROJA BED AND BOABD. 105. If the alleged wrongs he found suftlcient, the .judge, in according to the wife the authorization to sue, allows her to leave herhu.slmnd and to re- Hide elsewhere during the suit. -C. N. 268. lOO. The action for separa- tion from bed and board is ex- tinguished by a reconciliation of the parties taking place either since the facts whicti gave rise to the action or after the action brought.— C. N. 272. 197. In either case the action is dismissed. The plaintiff may neverthe- less i)ring another, for any cause wiiich has happened since the reconciliation, and may in such case make use of the previous causes in support of tne new action.— C. N. 273. 198. If the action be dis- missed the husband is obliged to take back his wife, and the wife is obliged to return to her husband, within such delay as the court by its judgment determines. 199.— 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 un- til a further day, which it ap- points in order to afford the parties sufficient time to come to an understanding and recon- ciliation.— C. N. 250. CHAPTER THIRD. OF THE PROVISIONAL MEASURES TO WHICH THE ACTION FOR SEPARATION FROM BED AND BOARD MAY GIVE RISE. 200.— The provisional care of the children remains with the father, whether plaintiff or defendant, unless the court or judge orders otherwise for the greater advantage of the children.-C. N. 267 : C. C. 243. aoi. A wife sued in separ- ation may leave her husband's domicile, and reside during the suit in a place indicated or ap- proved of by the court or Judge. aoa. Whether the wife is plaintiff or defendant, she may demand an alimentary pension, in proportion to her wants and tlie means of her husband ; the amount is fixed by the court, which also orders the husl)ann, if necessary, to deliver to the wife at the place to which she has withdrawn, the clothing she may require.— C. N. 268 ; C. C. P. 1101. 203. If the wife leaves the place of residence assigned to her without the permission of the court or judge, the hus- band may claim to be liberated from the payment of the ali- mentary pension ; he may even have her action dismissed, sav- ing her recourse, should she refuse to obey the order given her to return within a given delay to the place she has thus quitted.-C. N. 269. 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 articles 195 and 201, obtain per- mission from the court or judge to cause the moveable efiects of such community to be attached 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 SEPARATION FROM BED AND BOARD. 27 or their value wh«n required.- C. N. 270 ; C. ('. P. 1102. aOA. All ohliKHtion.s con- tracted by a Imshand, airectinK the coniinunity, and nil alienii- tlons made by him of the im- moveable property of such com- munity, HubHciiuent to the ren- dering of the order mentioned in artTclea 105 and 201, are de- clared null, if it be established that such obligationn or aliena- tions were contracted or made in fraud of the rights of his wife.-C.N. 271. CHAPTER FOURTH. OF THE EFFECTS OF SEPARA- TION FROM BED AND BOARD. 206. Separation from bed 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.— C. C. 118, 185. 207. The separation relieves the husband from the obliga- tion of receiving his wife, and the wife from that of living with l.er husband ; it gives the wife the right of choosing for herself a domicile other than that of her husband.- C. C. 83, 175 : C. C. P. 133. 208. Separation from bed and board carries with it separ- ation of property ; it deprives the husband of the rights which he had over the property of his wife, and gives to the wife the right to obtain resti- tution of her dowry, and of the property that she brought in marriage. Unless by the judgment they are declared forfeited, which only takes place in the case of adultery, the separation also gives the wife the right to claim the benellt of all the gifts and advantages conferred on her by tlui marriage contract ; saving the rights of survivor- ship, to which such separation does not give rise, unless the contrary has been specially stipulated. -C. N. M, 1452 ; C. C. 1310, s. 3, 1.322, 1404, n:iS. 20(). When community of property exists, the separation operates its dissolution, im poses on the husband the obli- gation of making an inventory, and gives to the wife in viisv of acceptance tho right to de- mand the partition of the pro- perty, unless l)y the judgment she has been declared to have forfeited this right. 210. The separation renders the wife capable of suing and being sued, and of contracting alone for all that relates to the administration of her property ; but for all acts and suits tend- ing to alienate her immoveable property, she recjuires the authorization of her husband, or, upon his refusal, that of a judge. -R. S. Q. 5788 ; C. C, 176 ets., 1318. 211. For whatever cause the separation takes place, the party against whom ir has been declared loses all the advan- tages granted by the other party.- C, X. 229, 14.')2. 212. The party who has ob- tained the separation retains all the advantages granted by the other, although they may have been stipulated to be re- ciprocal and the reciprocity docs not take place.— C. N. 300. 213. Either of the parties thus separated, not having suf- ficient means of subsistence, may obtain judgment against the other for an alimentary 28 t^ILlAflON. t;l ])eiisioTii, which is fixed by tliP court, according to the condi- tion, means and other circum- stances of the parties.~C. N. mi 214. The children are en- trusted to the party who has obtained the separation, unless the court, after ha vine;, if it think proper, consultea a fam- ily council, orders, for the greater advantage of the child- ren, that all or some of them J)e entrusted to the care of the other party, or of a third per- son.— C. N. 302. 315. Whoever may he en- trusted with the care of the childrcr>, the father and mother respectively retain the right of watching over t! eir mainten- ance and education, and are ob- liged to contribute thereto in proportion to their means.— C. N. 303 ; C. C. 165. 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 marriage coven- ants of their father and mother ; but these rights only become open in the same way and un- der the same circumstances as if there had been no such sepa- ration.— C. N. 304. 217. Husband ind wife thus separated, for any cause what- ever, may at any time reunite, and thereby put an end to the effects of the sepa!"\tion. By such reunion, he husband reassumes all his rights over the person and properly of his wife, the community of pro- j)erty is re-established of right, ;!.nd for the future is considered as never having been dissolved. -C. N. 309 ; C. C. 1320, 1321. TITLE SEVENTH. OF FILIATION. CHAPTER FIRST. OF THE FILIATION OF CHILDKKN WHO ARK LEGITIMATE OR CONCEIVED DU^UNG MAR- RIA(JE. 218. A child conc-civ d dur- ing marriage is legitinu.te, and is held to be the child of the husband. A child born on or after the one hundred and eightieth day after the marriage was solem- nized, or within three hundred days after its dl>solution, is held to have been conceived during marriage.— C. N. 312. 219. The husband cannot disown such a child even for adultery, ujiless its birth has been concealed from him;, in which case he is allowed to set up all the facts tending to estab- lish thcat he is not the father. — C. N. 313. 220. Neither can the hus- band disown the child on tlie ground of his impotency, either natural or caused by accident before the maniage. He may nevertheless disown it if, dur- ing the whole time that it may legally be presumed to have been conceived, he were, by reason of impotency not exist- FILIATION. 29 m bed leclared children f any of il them i coven- mother ; become and un- mces as >ch sepa- fife thus ^e vvliat- reunite, d to the 1. husband its over ty of his of pro- of right, msidered lissolved. 1321. cannot iven for irth has bim; in m1 to set toestab- ather. — Ihe hus- on tlie % either Eiccident |He may if, dur- it may DO have fere, by )t exist- ing at the tim(? of the marriage, of distance, or of any other cause, in the physical impossi- hilit\ of meeting his wife. — C. N. 812, :M8. 221. A child born before the one hutjdred and eiglitieth day after the marriage was solem- nized may be disowned by the husband.— C. N. 314. 223. Nevertheless a child born before the one hundred and eightieth day of the marr- iage cannot be disowned by the husband in the following cases : — 1. If he knew of the preg- uancv before tlie 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 ; 8. If the child be not declared viable. C. N. :U4. 223. In all the cases 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 ; 8. Within two months of the discovery of the fraud, if the birth luive been concealed from him.--C. N. 816. 22 4. If the husband die be- fore disowning the child, but still within the delay allowed for .so doing, the heirs' have two months to contest the legitim- acy of the child from the time he has taken possession of the property of the husband, or from the time that the heirs have been disturbed by him in their possession. - C. N. 817. 22.'>. Such disavowal, on the part of the husband or of his heirs, must be made by an action at law, directed against the tutor, or tutor nd hoc, ap- pointed to the child, if he be a minor; and the mother, if li\ ing, must l)e made a party to the act ion. -C. N. 318. 220. If the disavowed do not take place as prescribed in the present chapter, the child which might have been disowned is held to be legitimate. 227. A child born after the three hundredth day from the dissolution of the marriage is held not to be the issue thereof and is illegitimate.— C. N. 315. CHAPTER SECOND. OF THE EVIDENCE OF THE FILI- ATION Ol' LEGITIMATE CHILDREN. 228. The filiation of legitim- ate chMdren is proved by the acts of birth inscriijed in the registers of Civil Status.— C. N. 8li). 220. Iti default of such act, the uninterrupted possession of the status of a legitimate child is sumcient.-C. N. 320. 230. Such possession is es- tablished byusulficientconcurr- ence of facts, indicating the connection of tiliation and rela- tionship between the individ- ual and the family to which he claims to belong.— C. N. 321. 231. No one can claim a status contrary to that which his act of birth. acconij)anied with the possession C(»nf(nin- able to such act, gives him ; and reciprocally no one caii contest the status of him who has a i>ossession conformable to his act of birth.— C. N. 322 ; C. C. 102. 232. In default of the act of birth and of an uninterrupted possession, or if the child have 30 FILIATION. ill 1:1 been described either under false names, or as being the child of unknown parents, the proof of filiation may be made by testimony ; nevertheless this evidence can only be ad- mitted when there is a com- mencement of proof in writing, or when the presumptions or indications resulting from facts then ascertained, are sufficient- ly strong to permit its admiss- ion.-C. N. a23 ; C. C. 51, 56, 241. 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. — C. N. 324. 234. Proof of the contrary may be made by any means of a nature to establish I hat 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 N 325 235'. The action of a child to establish his status is impre- scriptible. 230. This action cannot be brought by the heirs of a child who has failed to bring it, un- less he died in minority or within five years after his ma- jority ; but they may continue the action already brought.— C. N. 329. CHAPTER THIRD. OF ILLEGITIMATE CHILDREN. 237. Children 1 . out of marriage, other thf the issue of an incestuous or adulterous connection, are legitimated by the subsequent marriage of their father and mother.— C. N. 331. 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. — C. N. 332. 239. Children legitimated by a subsequent marriage have the same rights as if they were born of such marriage.— C. N. 333. 240. The forced or volun- tary acknowledgment by the father or mother of their illeg- itimate child, gives the latter the right to demand mainten- ance from each of them accord- ing to circumstances. — C. N. 338 ; C. C. 169 et s. 768. 241. An illegitimate child has a right to establish judi- cially his claim of paternity or maternity, and the proof there- of is made by writings or testi- mony, under- the co iditions and restrictions set forth in articles 232, 233 and 234.— C. N. 340, 341. PATERNAL AUTHORITY. TITLE EiaHTH. OF PATERNAL AUTHORITY, 31 242. A child, whatever may be his age, owes honor and re- spect to his father and mother. -C. N. 371. 243. He remains subject to thteir authority until his nm- jority or his emancipation, but the father alone exercises this authority during marriage ; saving the provisions contain- ed in the act 25 Vict., c. 66.- C. N. 372, 373 ; C. C. 113, 119, 200. 244. An unemancipated minor cannot leave his father's house without his permission. ~C. N. 374 ; C. C. 83. 245. The father and, in his default, the mothei 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 education has been entrusted. -C. N. 375. TITLE NINTH. OF MINORITY, TUTORSHIP AND EMANCIPATION. CHAPTER FIRST OF MINORITY. 246. Persons of either sex remain in minority until they attain the full age of twenty- one years.— C. N. 388 ; C. C. 324. 247. Emancipation only modifies the condition of the minor ; it does not put an end to the minority, nor does it con- fer all the rights resulting from majority.— C. C. 314 et s. . 248. The disabilities, rights and privileges resulting from minority, the acts the minor may do and the suits he may bring, the cases in which he may demand to be relieved, the manner and time of making the demand, and other like questions, are determined in the third book of the present code, and in the Code of Civil Procedure. CHAPTER SECOND. OF TUTORSHIP. SECTION I. OS the Appointment of Tutors. 240. All tutorships are dative ; tliey are conferred on the advice of a family council, by a comjpetent court or by any judge ol such court, havinfc civil jurisdiction in the district 32 MINORITY, TUTORSHIP AND EMANCIPATION. where the minor lias his domi- cile, or by the prothonotary of Huch court.— C. N. 40.5; C. C. 922; C.C. P. i:^n ets., 1337. 250. The convocation of a family council may be demand- ed by all those related or allied to the minor, without regard to the degree of relationship, by the subrogate -tutor, by the minor himself in certain crises, by his creditors, and by all other persons interested.— C . N. 400; C.C. 208. 25 ] . 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 possiV)le, from both the paternal and the maternal line.-C.N. 407 ; C. C. 272. 252. With tlie exception of tlie mother, and other female ascendants during widowhood, the relations must be males, of the full age of twenty one yeai\s, and residing in the dis- trict where the appointtnen* of a tutor is to be made.— C.N. 408. 253. If, however, a sufficient number be not found in the district, they may be taken in othf'r 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 retpiired. -C.N. 40<». 254. Persons related or allied to the njinor, qualified to make part of the family council, and who have not been called, have a right to attend, and to give their aT( conformity with the preceding article, only when he is requested to do so by one of those at whose in- stance such council might have been called before a judge ; and in such case, the Cetitioner makes a declaration efore the notary, of the object and motives of his demann, in the same manner as if it were addressed to a judge. Of this declaration the notary must draw up an act in writing. 259. Family councils thus called by notaries, are com- posed In the same manner as those called before a judge. MINORITY, TUTORSHIP AND EMANCIPATION. 33 It is onlv in default of persons related or allied to ihe minor, that his fiiends are adnulted, and this default must be veri- fied by thi' notary, and men- tioMcd* in liis report. 1200. The declaration re- (piired by article 2oS is first read to the 'faudly council; the notary takes their advice and draws up an act in writing of their deliberiition, which act must mention the oppositions that were made, and the difler- ent opiinons which were j^iven, as also the (juality, place of res dence, and degree of re- lationship of those who com- posed tlte meeting. 20 1. In all cases where a family council is called and iield by a notary, whether delegated by a judge or pro- thonotary, accompanied with the acts and declarations that it is his duty to draw up. — C.C. 219, 2Si). a<»2. The court, judge or prothonotary receiving this report, may homologate or reject the pioceedings therein contained, which without ho- mologation, pro«ii)ce no etl'cct. They may likewise make any order relative to such proceed- ings that they deem advisable, in the same manner as if the fannly council had been called befoie item. S203. In all cases where a tutor has bc'.-n appointed out of court, the court may, on the petition of any one entitled to have a meeting of the family coiincil ca'led, and aftei- having lieard the tutor, cancel his appointment ami order a new one.- C. C. 1'. i:}10. *2«4. One tutor only is named to each minor, unless he has in;movablo property in places remote from one another, or in difTerent districts, in which cases a tutor may be appointed for each place or district wlierc- in such immovable property is sitiiated. These tutors are inde])endent of one another; each of them is only liable for that portion of the property which he has administered. The tutor of th' domicile of the minor has the care of his l)erson. Neverthelessjin certain cases, a separate tutor may be ap- pointed to the person of tlte minor. The mother or other female a-^cendant, who has remarried, may also be appoijited joint- tutor with her second huss and. -C. N. 417 ; Q. C. 2!S2, s. 8, 2.S:i. 205. A tutor acts and ad- nunisters, as such, from the time of his appointment, if it take place in his presence, otherwise from tlie time of his being notitied of it. C. X. 418 ; C. C. 281, 2t)l ; C. C. P. r.<)4 s. C. 200. Tntorshipisa ]). rsonal oflice which does not pass to the heirs of the tutor. Th» y are simply responsil>le for his ad- ministration. If they be of age, they are bound to continue such administration until a new tutor is aimointed. -'J. X. 419. SECTION II. 0/ Subrogate- Tn fo 1 s. 267. In every tut >rship there must be a subrotiate-tutor, whose appointment is made by the same act, and in the same manner, and is suliject to tlie same revision as tliat of tlie tutor. Mis duties consist in causing the act of tntorsliip to be registered, being present at the inventory, wasching over the administration of the t\itoi% 3 — 34 MINORITY, TUTORSHIP AND EMANCIPATION. ii!i!i:K I causing his removal if there be f^ound for it, and in acting for the interests of the minor whenever they are opposed to those of the tutor.— C. N. 420, 422 ; C. C. 280, 292, 293, 809, 1331, 1:3:^2, 2118 ; C. n. P. 1.331, 1337, 1342, 1351 268. The ;; abrogate - tutor does not of riyht replace the tutor, when the tutorship be- comes vacant, or when the tutor becomes incanable of act- ing bj' abso' '^" "V «ny other cause, but in 'jLchc • a. u*.'? it is his duty to havii •. . >y tutor appointed, and ..> dciavltof so doing, )'•:' is li>ble to j"^ rl j damages whic;, »i/ rekv '?• the minor from h. i.< u> / — C. N. 424- C C.2.50. 269. If during the tutorship a minor happen to have any in- terests to discuss judicially with his tutor, lie is for such case given a tuior ad hoc whose powers extend on'y to the matters to be so discussed. — C. C. P. 13:31, 135.5. 270. The functions of a sub- rogate-tutor cease in the same manner as those of a tutor. - C.N. 425. 271. The provisions con- tained in sections three and four of the present chapter, a p p 1 V to subrogate- tutors. — C. N". 42(>. SECTION III. OJ the Causes which Plxempf from Tutorship. 272. No one is bound to ac cept a tutorship, unless he has beesn called to the family council which elected him. 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.— C. N. 432. 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 when he has attained it. -C. N. 433. 275. Persons laboring under serious and abundant infirmity are exempt from being tutors ; they may even obtain their dis- charge if such infirmity super- vene after their appointment. — G. N. 434. 276. Two tutorships are for any person, a sufficient reason tor refusing to accept a third, .'her than that of his children. A husband or fatlier, who is already charged with one tutor- ship, is not bound to accept a second, unless it is that of his own children.— C. N. 435. 277. Those who have five leg- itinjate children are exempted from any tutorship but that of their own children. Chil- dren who have died leaving issue still living, are counted in this number.— C. N. 436. 278 The birth of children during tutorsliip does not au- thorize its abandonment.— C.N. 437. 279. If the person who has been elected by a family coun- cil be present, he is bound, under pain of forfeiting his grounds of exemption, to state them, in order that their valid- ity may be determined at once, when the proceeding takes place before a court, judge or prothonotary, or in order that they may be reported to the court, judge or prothonotary by the notary or ptrson delegated, if it be before either of these that the family council has MINORITY, TDTORSHIP AND EMANCIPATION. 35 been called.— C. N. 438; C. C. 201. iiHO. If the person elected he not present, u copy of the act of election is served upon him, and he is bound, within five (lays, and under pain of forfeiting: his grounds of ex- emption, to lodge them in the otlice of the court before which, or before the judge or pro- thonotary of which the proceed- ings were had, or in the hands of the notary or party dele- gated, if it be before eitlier of these that the family council was called, in order that the matter may be dealt with in conformity with the preceding article.-C. N. VM). 281. The decision given as to the validity of such grounds by the judge or the prothon- otary, cut of court, is subject to revision by the court, whose I judgment may also bt* appealed j from ; but during the litigation, I the person elected is obliged to administer provisionally ; and all his acts of administration are valid, even if he be after- wards discharged from the tutorship— C. N. 440; C. C. P. 52, s 2, 594, s. (5, 1810. 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 otlice, and the mother, who although a minor, has a right to the tutorship of her children, but is not hound 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 provided for in the last para- graph of article 2.&\, to the tutorship of their children, and grandchildren, but are not ound 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 por- tion of it.— C. N. 442-; C. C. 865. 283. Mothers and 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 mar- riage ; and if the minors have not been provided with another tutor prior to such marriage, the husbands of such mothers 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.— C. c. m\. 284. Condemnation to an in- famous punishment carries with it by law exclusion from tutorship ; it also entails re- moval from a tutorship pre- viously conferred.— C. N. 448 ; C. C. 80. 285. The following persons are also excluded from tutor- ship, and even may be deprived of it when they have entered upon its duties :— 1. Pel sons whose misconduct is notorious. 2. Those whose administra- tion exhibits their incapacity or dishonesty. — C. N. 244. 28fi. Actions for the re- moval of tutors may be brought before the court, by any one re- lated or allied to the minor, by the subrogate-tutor, or by any other person having an interest in such removal. — 0. N, 446, 44S. 36 MINORITY, TUTORSHIP AND EMANCIPATION. §m\ 287. The removal of a tutor can only be ordered upon the advice of a family council, which is composed in the same way as for his appointment, and is called in such manner as the court directs. 28». The judgment of re- moval must contain the grounds on which it is founded, and order the rendering of an account and the appointment of a new tutor, who is appoint- ed with the usual formalities so soon as the judgment be- comes executable either by acquiescence, by want of ap- peal in due time, or by its being confirmed in appeal.— C. N. 447. 289. 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. SECTION V. Of the Adnilni8tratio7i of Tutors. 200. A tutor has the care of the person of his pupil, and re- presents him in all civil acts ; He is bound to manage his pro- perty like a prudent adminis- trator, and IS liable for the damages which may result from bad management ; He can neither buy the pro- perty of his pupil, nor take it on lease, nor accept the trans- fer of any right or any debt against his pupil.— C. N. 450 ; CT C. 83, 1054, 1484 ; C. C. P. 1385. 201. 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. — C. C. 2-50, 265. 202. As soon as he has taken the oath, the tutor de- mands the removal of seals, if they have been affixed, and proceeds forthwith to the tak- mg of an inventory of the pro- perly of the minor, in presence of the subrogate-tutor ; If anything be due to him by the minor, the tutor must de- clare it in the inventory, on pain of forfeiting his claim. — C. N. 45 L ; C. C. 267 ; C. C. P. 1379 ets. 1387 ets. 203. Within the month which follows the closing of the inventory, the tutor causes all the moveable effects, except 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.— C. N. 4.52 ; C. C. P. 1404. 204. Within the six months which follow such sale, the tutor, after discharging the debts and other liabilities, must invest whatever money re- mains 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.—C. C. 981 (o) et s. 205. During the tutorship- he must likewise invest the ex- cess of the revenues over the expenses, as well as all capital sums w^hich have been reim- bursed and all other moneys which he has received, oi 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 on- lilNORITr, TaTORSniP and EliANCtPATION. 3^ (lition of the minor, to form a suitable investment. iiO«. In default of the tutor having made, within the de- lays, the investment required, he is bound to account to his pupil for interest on the sums which he oiight to have so in- vested, unless he can establish tliat such investment was im- possible, or unless, on his appli- cation, the judge or the pro- thonotary, upon the advice of a family council, has dispensed with the investment or pro- longed the delays.— C. C. 1()78; 8. :i 297. Without the authoriza- tion of the judge, or the pro- thonotary, granted on the ad- vice of a family council, the tutor is not allowed to borrow for the minor, nor to alienate or hyp jthecate his immoveable property ; nor ia he allowed to make over or transfer any capital sums belonging to the minor or his shares and interest in any financial, commercial, or manufacturing joint- stock company.— C. N. 457 ; C. O. 1009 er s. ; C. C. P. i;J41 et s. 2t>H. Such authorization can only be granted in cases of necessity or for an evident ad- vantage. In the case of necessity, the judge or prothonotary grants his authorization only wlien it is established by a summary account, submitted by the tutor, that the moneys, move- able 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 expedient.— C. C. :^la, aolft ; C. 0. P. 1348. 29». Repealed by 60 V. c. 50, s. i:i Vide C. C. P. 1.351, 135:1 aoo. The formalities required by articles 29H and 2J)9 for the alienation of the property of a minor, do not apply to cases where a judgment, on the de- mand of a co-proprietor, has ordered the licitation of un- divided property. But in these cases, the licitation can only be made in the form prescribed by law. Strangers are admitted to bid.-C. N. 400 ; C. C. 709. 301. A tutor cannot accept or renounce a succession, which falls to his pnpil, without au- thorization oeing granted on the advice of a family council. The acceptance can only be made under benefit of inven- tory. Accompanied by these formalities the acceptance or renunciation has the same effect as If made by a person of age. — C. N. 401 ; C. C. 643, 660 et s. 867 ; C. C. P. 1405 et s. 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 tlie tutor duly author- 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 he ques- tioned.— C. N. 462 ; C. C. 657. 30i$. Gifts made to a minor may be accepted by his tutor, or a tutor ad hoc, or by his father, mother, or other as- cendants ; such acceptance l)e- ing valid without the advice of any family council.— C. N. 463; C. C. 780, 'V92. 304. Actions belonging to a minor are brought in the name of his tutor. Nevertheless a minor of four- teen years of age may bring 38 MINORITY, TUTORSHIP AND EMANCIPATION. ■ m alone actions to recover his wa^es. He may also, with the author- ity of a judge, brinj; alone all other actions arising from the contract for the hire of his per- sonal services.— R. S. Q., art. 5789; 51-52 V., c. 22; C. C. P. 78; I2m. :i05. A tutor cannot demand the definitive partition of the immoveable property of the minor, but he can, even v.'ithout authori;cation, defend an action of partition brought against such minor.— C. C. GUI. 300. A tutor cannot appeal from a judgment until he is authorized by the judge, or the prothonotary, on the advice of a family council. 307. A tutor cannot transact in the name of the minor unless he is authorized by the court, the judge or the prothonotary, on the advice of a family coun- cil. Accompanied by these for- malities, transaction has the same effect as if made with a person of age.— C- N. 407 ; C. C. 1919 ; C. C. P. 1432. Section VI. Of the Account of Tutorship. 308. Every tutor is account- able for his administration when it has terminated.— C. N. 469. 300. Any tutor may be com pelled, even during the tutor- ship, on the demand of any one related or allied to the minor, i of the subrogate- tutor, or of j any other parties interested, to > produce from time to time a summary account of his admin- istration ; such account to be furnished without any judicial formality or costs.— C. N. 470. 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 ac- count. He is allowed all the expenses which he can justify, and of which the object was useful.-C. X. 471 ; C. C. 818 ; C. C. P. 570. 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.— C. N. 472 ; C. C. 767. 312. If the account give rise to contestations, they are pro- ceeded with and acijudicated upon in the manner provided for in the Code of Civil Proce- dure.— C. C. P. 566 et s. 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.— C. C. P. 833, s. 1. CHAPTER THIRD. OF EMANCIPATION. 314. Every minor is of right emancipated by marriage. -C. N. 476 ; C. C. 182. 315. An unmarried minor may, at his own request, or tliat of his tutor, or of any one re- lated or allied to him, be eman- cipated by any court, judge or prothonotary having jurisdic- tion to confer tutorship, on the advice of a family council called and consulted as in the case of MAJORITY, INTERDICTION, ETC. 39 tntoi«ship.-C. N. 478 ; C. C. 2oO et K. ; C. C. P. i:«l et a. :110. If the emancipation be granted out of court, it is sub- ject to revision, and may be an- nulled by the court to which the judRe or prothonotary who pronounced it belongs. 'From this iudgTuent an appeal lies.— C. C. P. 5i, s. 2, i;Jl(). ill 7. Whether emancipation results from marriage or is granted judicially, a curitor nmst be appointed to the eman- cipated minor.— C. C. 338 et s. ; c. c. P. rm, s. 6. 318. The account of the tntorsbip is rendered to an emancipited minor, with the avssistance of his curator.— C. N. 48(). 310. An emancipated minor may grant leases for terms not exceeding nine y< ars ; he may receive his revenues, give re- ceipts therefor and perform all acts of mere admmistration. He is not relievable from these acts, except in cases where per- sons of age would be so.- C. N. 481 ; C. C. 83, 182, 244, 247, 763, 907, 10()2, 1707. 320. He can neither bring nor defend a real action with- out the assistance of his cura- tor. -C. N. 482 ; C. C. P. 78. 321. An emancipated minot 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 maae with the assistance 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 10a5.— C. N. 483. 322. Moreover, he can nei- ther sell nor alienate his im- moveable property, nor perform any acts other than tnoae of mere administration, without observing the formalities pre- scribed for unemancipated minors. With respect to any obliga- tions which he may have con- tracted by purchase or other- wise, they may be reduced if excessive; the courts taking into consideration the fortune of the minor, the good or bad faith of the persons who have contracted with liim, and the utility or inutility of the ex- penditure.-C. N. 484 ; C. C. KMl. 323. A minor engaged in trade is reputed of full age for all acts relating to such trade.— C. N. 487 ; C. C. 1005. TITLE TENTH. OF MAJORITY, INTERDICTION, CURATORSHIP AND JUDICIAL ADVISERS. CHAPTER FIRST. OF MAJORITY. 324. Majority is fixed at the complete age of twenty-one years. At that age persons are capable of performing all civil acts.-C. N. 488 ; C. C. 240. CHAPTER SECOND. OF INTERDICTION. 325. A person of full age, or an emancipated minor, who is 46 MAJORITY, INTEIlDlCTrON, ETC. mn in iiii liiibitu.il s{a\A' of hnlit'cil- ify, iii.sanity or m.idnoss, niusi 1)0 iiiterfHctcd, cNcii thou-fli he huH lucid inturvals. C. N. IH!) ; 0. C. 1 12. li*2i\. Pf»r-ons who cotnrnlt acts of prodigality, which ^ivc reason to learthit (hey will dis- sipate; th(^ wholes of their pro perty, are also to he interdicttMl. 327. Every person has the right to demand the interdic- tion of any one i elated or allied to him. who is jjrodipil, mad, imbecile or insane. Husbancl or wife, likewise, may demund the interdiction the one of the otlier.-C. N. 400. S*2H. The demand for inter- diction mist be made iiefore the proper court, or I e fore one of tlu^ judges or the prolhonotary of such court ; it nnist contain a spccificat ion of the acts of im- belity, insanity, madness or prodigality. The applicant is obliged to prove these acts.-— C. N. 402, 4JW. 32 J>. The court, jndge or pro- thonotary before whom the de- man 1 1 is made orders a family council to Vje called, as in the case of tutorship, and lakes its advice as to the state of the person whose interdiction is sought ; but he who makes the demand cannot (orin ])art of tie familv council.— C. N. 404, 405; C. C. 2o(i et s. ; C. C. P. i;«l et s. SiiO. When the demand is made on account of imbecility, insfinity or madness, the de- fendant must be interrogated by the judge, attended by a clerk or assistant, or by the prothonotary ; the examiimtion is taken down in writing and conimnnicated to the family council. These intern)gatorles are not required if the i]»terdiction be sought on account of prodigal- ity ; but in this case t he defend- ant nnist be hcaid or have been Hunimoned to appear. C. N. 40(J. :i:n. If the demand fo- 'n- terdiction be rejected, the ; nuiy, if circuni'i'tances rei,..ife it, appoint a judicial adviser to the defendant. C. N. 400 ; C. C. :i4!) et s. .'W2. If the interdiction be l)ronounced out of court, it is subject to revision by the court, on petition of the person inter- dicted or any of his relations. The ju 'gment of the court is also subject to appeal.— C. C. P. 52, s. 2, VMO. 3:W. Every sentence or judg- ment of interdiction or for the appointment of an adviser is, at the instance of the a» Me- ant, notified to the defei t, and inscribed without dc y the prothonotary or cleik on the roll kept for that purpose, and publicly exposed in the ollice of each of tlu^ courts having power to interdict in the district.— C. N. 501. 334 Intordiction or the ap- pointtnent of an adviser takes eiT'ect from the day of tlie judg- ment, notwithstanding the ap- peal. All acts done suKsequently by the person interdicted for im- becility, madness or insanity are null ; the acts done by any one to V bom an adviser has been given, without the assist- ance of .such adviser are null, if injurious to him, in the same manner as those of minors and of persons interdicted for pro- dieality, according to article 087.- C. N. 502 ; C^. C. 2H2, s. 2. 843, 7H0, 702, H-i4, OHO, 1010, 1011 ; C. C. P. 594, s. 6. 335. Acts anterior to inter- diction for imbecility, insanity or madness may nevertheless MAJORITY, INTERDICTION, KTO. ^1 lie set {iwido, if the lauHe of siicli interdiction notoriously existed fit the time when tliese acts were done. C. N. oiK); C. C. ii'.Ul. luierdietion ceases with the causes wliicli n<'cessilated it. Nevertheless it euinot he removed without ohservinjj; the foiinalitit's prtserihed for oh- tainiug it. an rty or places Ins faniil^^ in trouble or distress, or trans- acts his business ])rejtn]icial!y to his family, his friends or his creditors, or who uses intoxi- cating ii(iuors to such an extent that he theieby incurs the danjjiier of ruiuiny; his lieallli or shortenin<2; his li'fe.'-R. S. Q, n7i)(). :i:i(ih. The demand in inter- diction is nuidc by a })etition, under oath, proseiied to any j one of the jndp;es of the superior I court, who alone shall have | power to act l)y any relations, | whether of blood or by alTinity, i or in default of relations, by any } friend of such habitual drunk- ard. The judpje may, for any of the reasons mentioned in the pre- ceding article, set forth in the petition and established before him to his satisfaction, pro- nounce the interdiction of such habitual drunkard and aiipoint a curator to him, tu maiuige Iuh an'airs, as in the case of one in- terdicted for prodigality. J< a drunkard, IS consideretl as beinjj; an ha- bitual drunkard within tlie meaning of this chapter.—///. tiiU\f/. The petition praying for the interdiction of any habitual drunkard is personally served upon him at a time when he is sober, or if at the time (»f the said service the person, who t' interdiction isdemanded, is not sober, the petition Is served tipon a reasonable per son of his family, at least eight days before tliat fixed for th(i appearance before the. judge for the purpose of the inteniictiun. .'$tiO^. The interdiction Is proceeded with, by suntmon- Ing befoie auf^h i"''^e a family council as in the- case of tutor- ships, under the jirovisions of this code, and by taking the opinion, under oath, of each person composing the family council, as to the truth of the fact of such person bein;j; an habitual drunkard and as to the necessity of such inter- diction; but the person making such demand in interdiction cannot form jiart of such family council. /f/.-C.C. 25()et s. 330/. The person, whose interdiction is thus demanded, may |)roduce before the .judge witnesses to contradict the allegations of the petition and rlio evidence of any of the mem- bers of the family council ; and Vi(|e R. S. Q. 56'i3 iis t) tha i?ale of intoxicating liquofd to habitual urunkarJs* 1 I 42 MAJORITY, INTERDICTION, KTO. 'k each party may retain an advo- cate to conduct the proceedings on hiH behalf and to examine the witnesses before the judge, who may require from the per- son instituting the demann in interdiction, further evidence of tlie facts alleged in the petition, in addition to that of the family council, -/rf. 330/7. in proceeding to the interdiction, the proof is taken orally or in writing, in the dis- cretion of the judge, and it is not necessary that the person, whom it is sought to interdict, be interrogated before the judge.— 7rZ. 336/1. The decision of the ju'lge is final and without appeal, whether he grants the interdiction or rejects th3 demand therefor.- Id. 336/. The judgment order- ing the interdiction may also order, if it hav^e b en prayed tor, that the person interdicted be confined in an establishment for haljitual drunkards, for such space of time as may be deemed necessary. — Id, 336;'. Such order may, if not then obrained, be applied for and obtained subsequently upon sufficient proof, upon petition presented to one of the judges of the superior court in the district in which the interdicted person has his domicile, by observing the form- alities prescribed in articles 336rf,3:^e, :M5/'and 2>'iVSg.-Id. 336A:. The judgment must mention the name of the establishment in which the person is to be confined, the duration of the confinement, the name or names of the per- sons who are to carry out the order, a certified copy whereof is given to the director of the establishment at the same time as the person is confined to his coxa.— Id. 336^. The order for confine- ment may be suspended or cancelled at any tin)e by one of the judges of the superior court, upon summary jjetition. accom- panied by sufficient proof that the person may, in his own interest and in thfil of his family, be relea<^id.--7f/. 336m. If liny demand in interdiction under this chap- ter be rejected, the same shall not be removed before the ex- piration of three months.— Id. 336?;. Any person interdict- ed as an habitual drunkard nefore me, at this' -Id, , at this^l 18 \ .1. S. C.J c JlTDfJE's ORDER CONVENINfi A FAMILY COUNCIL TO PROCEED TO THE INTERDICTION. Considering the foregoing petition and affidavit, let the relations, whether of blood or 44, MAJORITY, INTERDICTION, ETC. (i ■ '; ' ■ ■ ! ■ i ' .; i by nHinity, and, in default of such relations, the friends of the said K. F., in the said peti- tion mentioned, •ii)pear l)efore nie in chambers, in the coui-t house, in the city or toum, etc., ox the (lay of 18 at . . . .o'clock in the. . . . noon, for the purpose of proceeding upon the said petition. 18 J. S. C. -Td. CHAPTER THIRD. OF CITRATORSIflP. 337. There are two sorts of curatorship, one to the person, the other to property. J5;JS. The persons to whom curators are given ai'e : - 1. Emancipated minors', 2. Interdicted persons ; ii. Children conceived but not yet born. 33J>. With the exception of curators to habitual drunkards, curators to the person are ap- pointed with tiie I'ormaliries and according to tlie ruU's pre- scribed for the appointment of tutors. Curators to t he person are sworn before entering upon their duties.— K. 8. Q. o/Ul ; C. C. 250 ets. ; C. C. V. V.VAi el s. ; GO v., c. oO, 8. 14. il40. A curuior to an eman- cipated minor has no control over his person ; he is given in order to assist him in matters and proceedings in which he cannot act alone. This curator- ship ends with the minority. 341. A curator to an inter- dicted person is appointed by the judgnu'ut which pronounces the interdiction. 3-454. The husbantl, unless tliere are valid reasons to the contrary, must be appointed c\irator to his interdicteil wife. Tlie wife niay be curatrix to her husband.— C. C. ;W6o. 313. The curator to a person interdicted for imbecility, in- sanity or madness has over such person and his proper, y all the powers of a tutor over the per- son and property of a minor ; and he is bound towards hitp 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 pro- digalitv or habitual drunken- ness. -H. S. Q., 5702 ; C. C. 83 ; 344. No one, with the excep- tion of husband and wife, and ascendants and descendants, is obliged to retain the curator- ship of an inierdicted person for more than ten years ; at the exi)irati()n of that titne, the curator may demand and has a right to be ri'])laced.— C. N. .oOS, 345. The curator to a child conceived but not yet born, is bound to act for such cliild when its interests recjuire it ; he lias until its birth the adminis- tratioji of the propeity whicli is to belong to it, and afterwards he is bound to render an account of such administration. — C. N. •.m. 340. If during the curator- ship, the party subjected to it have any interests to discuss with his'curator, such party is given, for that case, a curator ;{ ; C. C. 87 et s. ; H72, 873, (k^o et s. ; 945 ; C. C. V. 5S1, 807 cts. :i:Wets. : 1410, 142(5 ets. ;$4 7<^ Curators to ijroperty nuist be sworn before enterinp; upon their duties.— 60 V., c. 50, s. iri. :14H. The provisions relating to curators to the property of absentees are contained in the title Of AhHenieoi. Those con- cerning curators to the property of extinct corporations, in the title Of Corpornfions. In the third book and in the Code of Civil Procedure are to be found t lie rules touching* the appoint- ment, powers and duties of tlie other curators mentioned in the preceding article, who must also be sworn. CHAPTER FOURTH OF .TUDTCIAL ADVLSERS. :549. A judicial adviser is given to those who, without l)eing absolutely insane or pro digal, are nevertheless of weak intellect, or so inclined to pro (ligality as to give reason to fear that they will dissipate their property or seriously impair their fortune.- C. N 513, 414. ;$."><». .Tudicial advisers are given by those who have power to interdict, on the demand of any person who has a right to deina;id interdiction, and ^vith the same f(n-malities.— C N.514 ; C.C P. 1331 KW. :J5t. If the powers of the judicial adviser be not defined by the judgment, the person to whom he is appointed is pro- hibited from pleading, trans- acting, borrowing, receiving moveable cajtital and giving a discharge therefor, as also from alienating or hypothecating his property without the assistance of such adviser. Th'" prohibition can only be removed in the .same manner that the aj^pointment has been made.-C. N. 513; C. C. 780, H:i4; C. C. P. 78. CHAPTER FOURTH (A). sam: of (kht.mn I'hopkkty hkia)nging to minors am) other incapaulk pkr.so.ns. tir*la. Tn the case of the sale of capital sums, such as shares or interest: in financial, com- mercial or manufacturing joint stock companies or public se- curities, belonging to minors, interdicted persons or absentees or to substitutions, the judge or the court, authorizing such sale upon the advice of a family council, may, if he or it deem it meet, order that the sale be made, at the current rate upon the stock exchange, by a broker or other peison appointed for tliat purpose, without adver- tisement or other formalities; and the judge or court in case he or it may deem the same ad- visable, may authorize during such delay as shall l>e deter- nnned, the gradual disposal of such securities at the (turrent rat(» upon the stock exchange. 'J'he person ajtpointed sliall make a report of all .sales by him jnade, and deposit it in the 46 CORPORATIONS. clerk's office where the author- ization for the sale has been deposited, with an attestation under oath, showing the luarlcet value of similar securities sold upon the stock exchange on the day of each sale.— R. S. Q., 5794 ; C. C. 297, 298; C. C. P. mm. 3516. Articles 298 and 299 of this Code, and tiie fifth title of the tliird part of the Code of Civil Procedure, do not apply to the sale of immoveable property or immoveable rights, l)eiong- ing to minors or persons incap- able of acting for themselves, nor to the sale> of the capital sums, shares or interest of such minors or persons, in any finan- cial, commercial or manufac- turing joint stock company, the real value of which does not exceed the sum of four hundred dollars. The sale may take place in the manner set forth in article (5016 of the Revised Statutes of Quebec- /t/; C. C. P. 1357. TITLE ELEVENTH. OF CORPORATIONS. k^- CHAPTER FIRST. OF THE NATURE AND CREATION OF CORPORATIONS, AND OF THEIR DIFFERENT KINDS. 352. Every corporation le- gally constituted is an arti- ficial or ideal person, whose existence and succession are perpetual, or sometimes for a fixed period only, and which is capal^le of enjoying certain rights atid liable to certain obli- gations. 353. Corpot ations are consti- tuted by act of parliament, by royal charter, or by prescrip- tion. Those corporations also aiv reputed to be legally consti- tuted which existed at the time of the cession of the country and which have been sinct; continued and recognized by competent authority.— C. C. 1889. 354. Corporations are aggre- gate or sole. Corporations aggregate are those composed of several mem- bers ; corporations sole are those consisting of a single individual. 355. Corporations are either ecclesiastical or religious, or they are lay or secular. Ecclesiastical corporations are aggregate or sole. They are all public. Secular corporations are either aggregate or sole. They are either public or pri vate. 350. Secular corporations are further divided into poli- tical and civil ; those that are political are governed by the public law, and only fall vvithin thecon'rol of the civil law in their relations, in certain re- spects, to individual members of society . Civil corporations constitut- ing, by the fact of their iucor poration ideal or artificial per- CORPORATIONS. 47 in cap- selves, capital of such ,' flnan- iiiufac- uy, the »es not unci red lace in article utes of 157. ate are •al meni- sole are I single e either ious, or lorations hey are hs are liblic or )rations ito poli- Lhat are by the |1 within law in lain re- kiibersof >nstitut- fcir incor jial per- sons, are as such governed by the laws affecting individuals ; saving the priviU'ges they enjoy and the disabilities they are subjected to. CHAPTER SECOND. OF THE HIHHTS, PKIVILEGES AND DISAHILITIKS OF COK- POK ATKINS. SECTION I. Of the Rights of Corporations. :J57. Every corporation has a corporate name, which is given to it at its creation or which hus since been recog- nized and approved by com- petent authority. Under such nan)e the corpor- ation is known and designated, sues and is sued, and (iocs all its acts .'id exercisf.s ail the rights which belong to it.— C. C. P. 81 . ;S58. The riglits which a corporation jnay exercise, be- sides those specially conferred by its title, or by the gent-ral laws applicable to its particular kind, are all those which are necessary to attain the object of its creation ; thus it may accpiire, alienate and possess property, sue and be s ;ed, con- tract, incur obligations, and bnd others in its favor. -C. C. 481. 839. For these objects, every corporation has the right to select from it members, otH- cers whose number and dcnoin inatioiis are determined i)y the instrument of its creation or by its by-laws or regulations. 80<). These oflicers repre- sent the corporation in all acts, contracts or suits, and bind 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 corpor- ation, or by the nature of the duties imposed. 3tJl. Every corporation has a right to make, for its internal government, for the order of its proceedings and for the man- agement of its affairs, by-laws and regulations which its mem- bers are bound to obey, provid- ed they are legally and regular- ly passed. SEcrriON II. 0/ the Privileges of Corpora tions. iJea. Beside the special privileges which may be grant- ed to each corporation by its title of creation or by special law, there aie others which re- sult from tlie fact of incorpora- tion and which exist of right in favor of all corporate bodies, unless taken away, restrained or modified by such title or by law. mm. The principal of these privileges is that which limits the responsibility of the mem- bers of a corporation to the in- terest 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. SECTION III. Of the Disdbilities of Corpora- tions. :{(J4. Corporations are sub- ject to particular disabilities Tf ' ■'■- 48 CORPORATIONS. !li>i!' ■which eitlier prevent oriestrain them from exercising ceiiiiin rights, povver.s, nrivireges, and functions, whicli niitnrul per- sons may enjoy and exercise ; these disabilities arise eitlier from their corporate chanicter or they are imposed by law. 305. In consequence of the disabilities which arise from their corporate character, they can neither be tutors nor cura tors, nor can t hey talce part in meetings of family councils ; ' They cannot be entrusted with the execution of wills or any other administration which necessitates tlie talcing (»f an oatli or imposes personal re- sponsibility. They cannot be suininontid personally, nor appear in court otherwise than by attorney. They cannot sne nor be sued for a'ssaults, battery or other violence to the person. They cannot serve as wit nesses nor as jurors l)efore the courts. Tliey can neither be guardians nor judicial sequestrators, nor can tliey l)e charged with any other functions or duties the exercise of which miglit entail imprisonment.- R. S. Q. 5795; C. C. J)08. 3G0. The disabilities arising from the law are : — 1. Those which are imposed on each corporation by its title, or by any law ap[>licaV)le to the class to which such corporation belongs ; 2. Those comprised in the general laws of the country re specting mortmains and bodies corporate, prohibiting them from acquiring inunoveable pro- perty or property so reputed, without the permission of the crown, except for certain pur- poses oidy, aiid to a fixed amount or value ; .*?. 'I'hose which result from the same general laws im- posing, for the alienation or hypothecation of immoveable property held in mortmain or belonging to corporate bodies, particular formalities, not re- (piired bv common law.— C. C. 7(j:i, 7.s(). Kit), ii(iii(< . All corporations \v' in pur- i fixed t from vs iui- tion or oveable nain or bodies, not ro- '.-C. C. iv t i o n s ihions of he law, tate ex- nt, have hey dis- luy real in, to ap J the ac- 1 estate, revenues the saine lich they S, Q. s are pro- on the ess they Lhorized oE crea- RD. CORPOK- riDATlON Corpov- are dis- legisla- dissolU' ■M 2. By the expiration of the term or the aceoin])Iishment of the ol»ject for wliicli lliey vvero f()rtue(l, or the happeninsj; of tlu* condi ion attached to their creation ; 3. By forfeitnre lej^ally in- eurrtci ; 4 By the natural de ith of all the nietid)ers, the diminution of their uuud)er, or hy any otiier cause of a nature to in- terrupt the corporate existence, when tlie ri;^ht of succession is not provided for in sucli cases : T). By the mutual consent of all tjje members, subject to the ui'xlilk'at'ons and under the circumstances hereinafter de tertniued ; (>. By voluntary liipiidation in the cases by law provided. — 11. S. Q. r,7U7 ; C. C. hS02 ; C. C. P. O-So. :J0J), l\e(']' siastical and sec- i ular c irporations of a public ! uiiture, other than those form- ; ed for the mutual assistance of their mem'icrs, cannot. l)e dis- solved by mutual consent with- out a formal and le.al sur- render or tiic HUthoi'ity of tin; le;j;isiature, as the case may be. The same rule applies to hanks, to r;iiluay, cinal, tele- uiraph, toll-bi'idfi;e and turnpike ( Duipaiiies, and j«;enerally to pi ivat«.' eorporations who have obtained {)rivile^-e« which are exclusive or exceed those re- sulting- by law from incorpora- tion. ;870. ]?ublic corporations tunned for the mutual assisi- auci' of their nuunbei's, a)id those of ;i private nature not included in the precedinj>' art- icle, nijiy be dissolved by mu- tual consent, on conforming to the conditions which may have hoen specially imposed oii them, an(i savinji the rights of third p.aties. SIXTION II. Of the L!(/u!fJnfioti of //«>• Af- fnirs of (Ji.ssoli'cd corpora- tions. :i7J. Saving the case of the voluntary litpiidation of Joint stock companies, a dissolved corporatitm is. for the li({ui(la- tion of its all'airs, in the same |)osition as a vacant succi'ssion. I'he creditors and others inter- ested have the same recourse against the property which be- longed to it, as may be exercised against vacant successions and the propertv belonging to them. — R. S. Q. 571KS. :$7i2. In order tO facilitate such ncourse, a oirator who r( presents such corporation and is seized of the property which lielonged to it, is av)pointed by the proper court with the foru)- aliti' s obst'r\t'd in the case of vacant estates. lili't. Such curator must be sworn ; he must give se- curity and make an inventory. He must also dispose of the moveables, and must procred to the sale of t he innnoveable property, and to the distribu- tion of the price between the cred'tojs and others entitled to it, in the manner prescribed for the discussion, distribution and division of the property of va- cant estates to Vvhich a curator has been appointeurpose of winding up the af- fairs ami of distributing the assets of tlje c o m p a n v . -K.S. Q. 571)1). 4 mm 50 BOOK SECOND. OF PROPERTY, OF OWNKRSIllP AND OF ITS DIFFERENT MODIFICATIONS. TITLE FIRST. OF THE DISTINCTION OF THINGS. >i i 1 ' r 1:! ■' ' 1 '^ i!' 374. All property, incorpor- eal, as well as corporeal, is moveable or immoveable. — C. N. 516. 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. 376. Lands eind buildings are immoveable by their nature.— C. N. 518. 377. Windmills and water- mills, built on piles and form- ing part of tne building, are &ho inmioveable by their nature when they are con- structed for a permanency.— C. N. 519. 378. Croj s uncut and fruits unplucked are also immove- able. According as grain is cut Jind as fruit is plucked, they become moveable in so far as regards the portion cut or plucked. The same rule applies to trees ; they are immoveable so long as they are attached to the ground by their roots and they become moveable &s soon as they are felled.— C. N. 520. 379. Moveablt! things which a proprietor has placed on his real property for a ptrmanency or which he has incorporated therewith, are itn moveable by their destination so long as they remain there. Thus, within these restric- tions, the following and other like objects are immoveable : 1. Presses, boilers, stills, vats and tuns ; 2. All u^^ensils 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.— C. N. 523. 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 plastt-r, lime or cement, or which cannot be removed with- out breakage, or without de- stroying or deter orating that part of the property to which they are attached. Mirrors, pictures and other ornaments are considered to have been placed permanently when without them the part of DISTINCTION OP THINGS. 51 the room they cover would remain incomplete or imperfect. - C. N. 525. a»l. Rif^lits of emphyteu- sis, of usufruct of immove- able things, of use and habit- ation, servitudes and rif^hts of actions which tend to obtain possession of an immoveal)le, are immoveable by reason ol the objects to which they are attached. -C.N. 52(5. :JH3. Ail moveable property, of which the law ordains or authorizes the realization, be- comes immoveable l)y deter- mination of law, either absol- utely or for certain purposes. Tlie law declares to be im- moveable the capital of un- redeemed constituted rents that were created before the pronmlp^ation of this code, as also all moneys produced by the redempti' n during their minority of constituted rents belonjj^injj: to nunors. Tbe same rule applies to all sums accruing to a minor from the sale of his immoveables dur- ing his minority, which sums remain immoveable so long as the nnnority lasts. The law declares to be im- moveable all sums given by as- cendants to their children, in con- templation of marriage, to be usf (1 in the purchase of real est.tle or to remain as private property to them only or to them and to their children.— C. C. WSoet 8. CHAPTER SECOND. OF MOVEABLES. HHii. Property is moveable by its nature or by determin- ation of law.— C.N. 527. 3H4. All bodies which can 1)6 moved from one place to anotlier, either by themselves, as animals, or by extrinsic force, as inanitnate things, are moveable by nature.— C.N. 528. :j«5. Boats, seows, ships, floating mills and floating baths, and generally all manu- factories not built on piles and not forming part of the realty, are moveable. -C.N. 5;^!. liHti. Materials arising from the demolition of a building, or of a wall or other fence, and those collected for the con- struction of a new one, are moveable so long as they are not used. Rut things forming part of a building, wall or fence, and which are only temporarily separated from it, do not cease to be immoveable so long as they are destined to be placed back again. — C . N . 5:^2. 3H7. Those immoveables are moveable by determination of law, of which the law for cer- tain purposes authorizes the mobiliz^ition, so are all oblig- ations and actions respecting moveable effects, including debts created or guaranteed by the province or by corporations, also, all shares or interests in financial, commercial or manu- facturing companies, although such companies, for the pur- poses of ttieir business, should own immoveables. These im- moveables are reputed to be moveable with regard to each partner, only so long as the company lasts.— C.N. 529 ; C.C. 1890 ets., 1470. 388. [Constituted rents and all other perpetual or life rents, are also moveable by determina- tion of law ; saving those re- sulting from emphyteusis, which are immoveable.] -C-. N.529. 389. No ground rent, or other rent, affecting real estate, can 52 DISTINCTION OF THINGS, Hit- l:ii' l>: li^it'. be created for u term exceeding nin('t)-niiie yearH, or tlie lives of three j)er.sons coiiS' cutively. Tliese tenus liaviiig expired, tlie creditor of any Kiidi rent u\i\\ exact the capital of it. Such rents although created for ninety nine yc^ars, or for the lives of I hree persons, are, at all times, redeemable, at the option of the debtor, in the san.e manner as constituted rents to which thev are assimilated. — C, N. m); *C C. 1787 et s. ; VMi IIOO. It is nevertheless com- f)etent for the parties to stipu- ate, in the title creatinfr these rents, that they shall be re- deemed at a certain titne aj^reed upjon, which cannot exceed thirty- years ; every stipulation extendinj? this term bein^- null with regard to the excess,-- C. N. n;^0. 301. All ground-rents, or other rents, affecting real e- state, created heretofore, for a term exceediufj; ninety-nine years or the lives of three per- sons, are redeemable at the option of the debtor or of the possessor of the immoveable charged.-C. N. 5:^0 ; C. C. 2248. 392, Rents created by em- phyteutic least; are not however subject to such redemption, nor those to v\ hich the creditor has only a conditional or a limited right, 393, Where the sum for which the redemption of rents, other than life-rents, may take place is neither tixed bv law nor validly agreed upon, the rents are redeemed l>y the repayment of the orijiinal price in capital, or of the value in money put by the parlies upon the things which formed the consideration of the rents so created If such price or such value do not ap- pear, rlie redemption is ellected by the paynu'ut of a sum suili- cient topioduce a like rent for the future, at the legal rate of interest at the time of the re- dem))tion. Special provisions concerning t he redemption of tlie rents sub- stituted for seigniorial riglits, are contained in chapter forty one of the Consolidated Statutes for liovver Canada. ^—C. N. 5:}0. 394, Life-ren^s and other tem))orary rents, at the termin- ation of which no reimburse- ment of the capital is to take place, are not redeemable at the option of either of the parti<'S alone. In the twelfth title of the third book, a mode is provided for the redemption of life rents, when it takes place forcibly under Judicial proceedings. Temporary rents, other than life-i-enls, and not subject to re- imbursement of the ca|tital, are estimated, in like case, in the same manner as life-rents. — C. C. 1914ets. ;C. C.P, 8051 395. Tiie word " moveables " employed alone in any law or act does not comprise money, preci(>u>< stones, viel)t8 due, books, medals, scientific, arti-t- ic or uiechanical instruments, body-linen, hor-es, carriages, arms, grain, wines, hay and othei* p^'ovisions, nor stock in trade.— C. N. 533 39«. The word "furniture" comprises only the rfioveabh s whiij!) are destined to furnish and ornament apartments, such as tapestry, beds, seats, mir- rors, clocks, tables, china and other objects of a like kind. It also comprises pictures and statues, but no collection^ q( ' Vide R. S. Q. 5505 et s. t)I8TINCTI()N or THINGS. ftr) |)irt iii'os wliich arc in galleries or particular rooms. As r(»;;ar(is cliiim, likewise, only thai which ft^rins part of the (l<'coni(ion of a room comes under the denomination of fur- niture,— C. X. o'A\, ;il>7 The expressions " move- able i)roperty." and "moveable tliini^s," comprise generally whatever is reniited moveable according; (o tne rules above estal)lished. In the sale or the gift of a " furnished house," the word " furnishf'd" comprises no other movt'ables than furniture, C. S.:^'^^. •AUH Tlie sale or gift of a house, witli all f hat it contains, does not comprise ready money, nor debts due or other rights tlie titles to which happen to be in the house. It comprises all (»ther moveable effects.— C X. CHAPTER THIRD ol' pjjopkktv in its ret-atioxvs \v;tii tuosk to whom it he- loncs oh who possess it. i{9!). Pioperty belojigs either to the Tuwu, or to municipal- ities or other corporations, or to individuals. That of the first kind is gov- erned by public or administra- tive law. That of the second is subject, in certain respects as to its ad- nnnistration, its acquisition and its alienation, to certain rules and formalities which are peculiar to it. As to individuals, they have the free di.sj)os;il of the things belonging to tluun, unol. SECTIO.s I. 0/ the B if /Jit of Acces.^ton Relation to Immoveable Property. m 414. Ownersliip of the soil carries with it owner.r>hip of what is above and what is below it. OWNERSHIP. 55 The pro|)ii«'tor may make up oiittii^ soil any plantations or In liitihlinKH Im> thinivs propci*, saving the exceptions estal)- lishetl in the title Of Heal Ser- vifwlea. He may make below it any J)uiidinj^s or excavations he lliinks prop* r, and draw from xiich excavations any products they nuiy yield, saving the modifications resulting from the laws and regulations relat- ing to n»ines, atul the laws and regulations of police. -C. N. -115. All buildings, planta- ( ions and works on any land or underground, are presumed to have been made by the proprie- tor at his own cost, and to be- long to him, unless the con- trary is proved ; without pre- judice to any right of property, t'ither in a cellar under tlie building of another or in any other part of such building, which a third party may have acquired or may acquire by prescription.— C.N. 558. 416. The proprietor of the soil who has constructed build- ings or works with materials which do not belong to him, must pay the value thereof ; he may also be condemned to pay liamages, if there be any, but t he proprietor of the materials lias no right to take them away. C. N. 554. •417. When improvements have been made by a possessor with his own materials, the right of the proprietor to such Muprovementa depends on eir nature and tne good or id faith of such possessor. If they were necessary, the loprietor of the land cannot ive them taken away ; he lust, in all cases, pay what Jiey cost, even when they no longer exist ; savln;.^ in the case of bud faith, the compen- sation of rents, isHjies and pro- fits. If they were not necessary, and were made by a possessor in good faith, the proprietor Is obliged to keep tliem, 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 aug- mented. If, on the contrary, the pos- sessor were in bad faith, the proprietor has the option either of keeping them, upon paying what they cost or their actual value, or of nermitting such possessor, if tne latter can do so with advantage to himself and without deteriorating the land, to remove them at his own expense ; otherwise, in each case, the injprovementa belong to the owner, without indemnification ; the owner may, in every case, compel the possessor in bad faith to remove them.-C. C. 411, 402, 582, 729, 958, 1540, 1(M0. 418. In the case of the third paragraph of the preceding article, if the improvements made by the possessor be so ex- tensive 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. 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 reim- bursed, he has a right to retain the property until such reim- bursement is made, without prejudice to his personal re- 66 OWNERSHIP. of t'ciith find iiiipHVceplihly course to obtain repayment ; saving the. cji.se of siirreiidor in uny liypothc'C.'iry action, vvliicli is spc'jially provided for in ihc title Of PriviU'(/es and Jli/fio- thrcs.—C. S. noo: C. C. 441,'7;^2, loHJ, imi, 207:i. 4 20. J)eposits augmentations gradually and formed on land cuntij2;uo\is to a sireani or river are called allu- vion. Whethert lie stream or river is or is n t navi^;al)le or floatable, the alluvion which is producecl becomes the properly of the owner of the adjacent land, subject in the former case, to tht! oblij;ation of leaxinu a foot- road or tow-path.— U. \. 55(5; C. C. 507. 4iil. As to ground left ilry by running Mater which in- sensibly withdraws from one of its banks by beating in upon the other, the ])roprietor of the uncovered ground gains such ground, and tiie proprietor of the opposite bank cannot re- claim tlie land he has lost. This right floes not exist as regards land roclainunl from the sea, which forms art of the public tlomain.— (\ .\. 5.57: C. C 4 0. 4212. Alluvion does not take place on the borders of lakes and ponds which are jirivate property ; neitherthepri.prietor of the lake nor ihe proprietor of the adjacent land gains or loses in conse(iuence of tlie watiU's happening to rise or fall above or below their ordinary level.— t'. N. 55«. 42«{. If a river or stream, whetluu" naviga'^le or not, carry away by a sudden force a con- siderable and distinguishable pjirt of an adjacant held and bf.ir it towards a lower or op- posite bank, the ju'oprietor of the pai't carried away may re- claim it; but he is obliged, on pain of forfeiting his right, ro do io within a yeai-, to be reck- oned from the })o.ssession taken of it by the jjroprietor of the land to which it h-is been united. — C. N. 55U. I 424. Islands, islets and I deposits of earth formed in the i beds of navigal)le and floatable ,' rivers and streams l)elong to the crown, if there be no title to the contrary. ex. 5f)0; C.C. 4i2rj>. Islands and deposits of earth, wliich are formed in rivers which .are not Tiavi^'able or floatable belong to the pro- pri(.'lors of the banks on the side wluuv the island is formed. If the island be not formed on one side onl}', it beloiigs to the proprietors of the banks on l)otli sides, divided by a line supposed to be drawn in liie middle of the river. -C.N. iifil ; C.C. 45M. 420. If a river or streani, by forming a new branch, c\it ano not lie pro- ly oocn- ](y the |)ori,ion been iiiYA ; and fish which Kc i"t^<^ another dove- \ cot, vvarnM) or pond booonio the property of hitn to whom such pond, Wiirren or dove-cot be- , l()ji;:;.s, pro\id"d they liave not been attracted there by fraud or artitice. Bees living in a state of free- dom are the projjorty of the person discovering them, wheth- er or not he be proprietor of (lie land on wliich they have established tliomselviis. Whenever a swarm of bees I'.aves a hive, the i)roprietor may reclaim them, so lonj^ as lu- can prove his rijj;hfc of prop trty therein, and he is entitled 1(» lake possession of them at any place on which they may settle, even if such place he on iho land of another juTson, [ in'ovidod, however, that he i notify the prcjpriotor of such j laud beforehand jnid com[)ens- 1 ate liim for ail damai!,es, and unless the swarm settles in a hive which is alread;, occupied, in which cases the })roj)riotor loses all ria;ht of i)ro|iorty in such swarm. If the proprietor of a s\v irtn of bees declines to follow such warm and anoth i- ptu'son undertakes the pur.>.ui(, such oiher person is substituted ill the rij.5hts of the proprietor. and every swai'm v>hich is not followed lieconies the property of the proprietor of the laud on w liich it settles, without regard lo the plao from which it c .amc. .'\.ny unpnrued swarm which lod,a;os on any property what- sf)cvei-, without settlin.u" thi-re- '•n, may be secured by the first coiner, unless the jiropi-ietor of I In- land objects. --H.S.Q 5H()U ; L'.N. 51)1. SKCTIOX II. I)/ flir liiifld of J (•(•-s.s' />>?>. in Relation to Movcabfe Property. 429. Tlie rijjcht of accession when it has for its object two moveable thin;;j;s, belonj^ing to two diirerent owners, is en- tirely snbordinote to the prin- ciples of natural equity. The following rules, wliich arc oliligatory in the cases where tJioy apply, serve as ex- a'nples in' the cases not pro- vided for, according to circum- stances. -C. N. otJo. 4:tO. When two things be- longing to different owners have been united so as to form a whole, although they are separ ibie and one can subsist without the other, the whole belongs to the o\\ utr of the thijig which forms the princi- pal i)art, subject totheobligM- tion of ])aying the value of the other thing to him to whom it belonged. C \. 5(5(5. 4:$ J. That part is reputed to be the j)rincip.il one to which the other has been united only for the use, ornament or com- pletion of the former.— C. N. 43-. !Iowev**r, when the Uiing united is much nioic valuable than the i)i-incipal thing, and has been employed without the knowledge of its owner, he m ly i"cquii'i' that the thing so united be separated in ortler to be returned lo him, al- though the thing to winch it has ben joined may thereby suffer sonu; injury.- C. N. 5()S,' 4;?:». If of two things united so as to form a whole, om- can- not bo considered as tl»e access- ory of the oilier, the more valu- able, or, if the values be nearly If 58 OWNERSnit. equal, the more considerable in bulk is deemed to be the princi- pal.— C. N. 56J). 434. If an artisan or any other person have made use of any material which did not be- long to him to form a thing of a new description, whether the material can resume its previous form or not, he who was the owner of it has the right to de- mand the thing so formed, on paying the price of the work- manship.- C. N. 570. 435. If, however, the work- manship be so important that it greatly exceeds the value of the material employed, it is then considered as the princi pal part, and the workman has a right to retain the thing on paying the price of the material to the proprietor.— C. N. 571. 436. When a person has made use of materials whicli in part belonged to him and in part did not, to make a thing of a different kind, without eitlier of the two materials being en- tirely destroyed, but in such a way that they cannot be sepa- rated without inconvenience, the thing is common to the two proprietors, in proportion, as respects the one, to the mate- rial belonging to him, and as respects the other, to the mat- erial belonging to him and to the price of the workmanship. -C. N. 572. 437. When a thing has been formed by the adniixture of several materials belonging to different proprietors, but of which neither can be looked upon as the principal matter, if the materials can be separ- ated, the owner, without whose knowledge the materials have boen mixed, may demand their division. If the materials cannot be separated without inconven- ience, the parties a('<|uire the ownership of the thing in com- mon, in pr(>])orti()n to the quan- tity, quality and value of the materials belonging to each. — C. N. 478. 438. If the material belong- ing to one of the proprietors be much superior in quantity and price, in that case the proprietor ot the material of superior value may claim the thing pro- duced Vjy the admixture, on paying to the other the value of his material.- C. N. 574. 439. When the thing re- mains in conmion among the proprietors of the materials from which it is made, it must be disj)osed of by licitation for the common benefit, if any one of them demand it.— C. N. 575 ; C. C. 089, 15«2. 440. In all cases where a proprietor whose material has been employed without his con- sent, to make a thing of differ- ent 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. — C. N. 57(5. 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 reim- bursed, may retain such object until he has been so reimbursed, without prejudice to his per- sonal remedv.— C. C. 419, 1994, s. 4, 2(H)1. 442. Persons who have em- ployed materials belonging to others and without their con- sent, may be condemned to pay damages if any there be.— C. N. 577. 59 TITLE THIRD. OF USUFRUCT, USE AND HABITATION. HI CHAPTER FIRST OF USUFRUCT. 44iJ. Usufruct is the right of tMijoying things of which an- oriier has the ownership, as tlie proprietor himself, but sub- ject to the obligation of pre- scrvin'j; the substance thereof. C. N. 578 ; C. C. 928, 220:3. 444. Usufruct may l)e estab- lished by law, or by the will of :i man. — C. N. 579. 445. Usufruct may be.estab- lished purely or conditionally, and may commence at once or from a certain day.— C. N. 580. 446. It may be established upon property of all kinds, moveable or immoveable. C. N. 581 ; C. C. 381. SECTION I. 'ff (he Eights of the Usufruc- tuary. 447. The usufructuary has tile right to enjoy every Wind of Iruits, whether natural, indus- trial or civil, which the thing subject to the usufruct can Iirnduce.— C. N. 582. 448. Natural fruits are those which are the spnntaneous pro "luce of the soil. The produce ;iu(l the increase of animals are also natural fruits. The industrial fruit of the ^"il are those obtained by the ^ iiltivation or working thereof. (\ N. .583; C.C. 478. *40. Civil fruits are the rent ol houses, interest of sums due ! and arrears of rents. The rent ! due for the lease of farms is I also included in the class of I civil fruits.— C. N. 584. ' 450. Natural and industrial i fruits attached by branches or roots, at the moment when the usufruct is open, belong to the usufructuary. Those in the same condition at the moment when the usu- fruct ceases belong to the pro- prietor 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 usu- fruct -C. N. .585; C. C. 14.53. 4.51. Civil fruits are con- sidered to be ticquired day by day, and belong to the usufruc- tuary in proportion to the du a- tion of his usufruct. This rule applies to rent from the lease of farms, as it does to the rent of houses and to other civil fruits. -C. N. .586. 4 53. If the usufruct comprise things which cannot be used without being consumed, such as money, grain, liquors the usufructuary has the right to use them, but subject to the obligation of paying tmck others of like quantity, quality and value, or their equivalent in moni^y, at the end of the usu- fruct. -C. N. .587. 45;i. The usufruct of a life- rent give? also to the usufruct- uary, during the period of his usufruct, the right to retain the fJO USUFRUCT, USE AND IIAi3IXATI0^J. I \ > wliole of the payments that lie has received a« payable in ad- vance, without being oy)li;i;ed to make any lestitution.- (J. X. oHH; C. C. 1910. 454. If the nsufrnct comprise things vvliich, without being at once consumed, deteriorate gra(hialiy l>y use, as linen or furniture, tlie usufructuary has tlie right to use them for the purpose for which they arc destined, and, at; the end of the usufruct, he is only obliged to restore them in the condition in which they may be, and not deteriorated by his fraud or fault. -C. N. 589. 455. The usufructuary can- not fell trees which grow on the land subject to the usu- fruct. Whatever he may re- quire for his own use must be taken from those which have fallen accidentally. If, how- ever, ajnong the latter there be not a sulhcient <|uantity of a suitable kind for the repairs to which he is obliged, and for the keeping in repair and the work- ing of the estate, he h.'is a right to fell whatever may be re- (juired for these purposes, con- formably to the us;ige of the place, or to the custom of pro- prietors ; he may even fell trees for fuel, if rhero be any of the kind generally used in the local- ity for- that purpose. — C. N. 590, 591, 592, 593. 45rt. Any fruit trees which die, even those which are up- rooted or l)roken by 8(cident, belong to the usufruct.\tary, l>ut he is obliged to replace them by others, unless the larger pro- portion haft been thus dcBtroy- ed, in which case he i- not ob- liged to replace them. -C. X. 594. 457. The usufructuary may enjoy his right by hiuiself, or huise it, and may even sell it oi* dispose of it gratuitously. If he leases it, the lease ex- pires with his usufruct ; never- theless the farmer or the tenant has a right and may l)e com- pelled to continue his enjoy- ment during the rest of the year which iiad been begun be- fore Uie usufruct expired ; sub- ject to the payment of the rent to the pr oprietor.-- -C. N. 595. 458. The usufructuaiy enjoys ;iny augmentation caused by alluvion to the land of which he has the usufruct. Bill his right does not extend to islands formed during the usufruct near the land which is subject to it and to which Mich islands belong. — C. X 596; C. C. 125. 450. H(! enjoys all rights o^ servitude, of passage, and gen- erally alt the rights of the pro- pricior in tlic same manner as the proprietor himsdf. -C. X. 597; C. (;. 94t). 400. Mines and (quarries are not comi)rised in the usufruct of land. The usufructuary may never- theless take therefrcMu all the materials necessary for the yv- pair and maintenance of the estate subject to his right. If, however, tluse quarries, before the oi)fning of the usufruct, have been worked as a source of rt'venu by the proprietor, the usufruci uary may continue such i woi king in the way in which it i lias been oegun.--C. X. 598 ; j C. C. 1274. 4<>1. The usufructuary has no right over the treasure I found, (luring the usufruct, on I the land which is subject to it. I -C. X.598; C. 0. 5S«?; 4(t2. The ])roprietor cannot, I by any act of his whatever, in- ;*ii UStJPRUCT, USE AND UABITATTON. fil jure the rights of Iho umifruct- ujiry. Ofi his side, the usnfrncf nury (■auiiot, at the cessation of the usufruct, claim nny iiuUMnnity for linprovernentH he has made, even when the vahie of the thintr is augmented tlieivby. He may, however, take away the mirrors, i)ictnres and other ociianients whicli he lias placed there, but subject to the obiiina- tioti of restoring the property to its former condition- C. N. :m : C. C. 417. SECTION II. Of' the Ob/if/ntions of the Usu- fructuary. 40.*?. The usufructuary takes the thiniis in the condition in \\hi(;h tiiey are ; but he can only enter into enjoyment of them after having caused ar. inventory of -• the moveable property, and a statement of the immoveal'les subject to the right to Ix' drawn up, in the presence of or after due notice niven to the ])roprietor, unliss tie is dispensed from doing so by the act const itiitiii'^ tlie usufruct.- C. N. m); C. C. P. KiST et s. Ai^4:. He giv(>s security to enjoy the usufruct as a prudent admiJiistraior, unless the act creating it exempts him from so doing; nevertheless the vend- or or donor who has reserved the usufruct is not obliged to ^ive security.— C.N. mi ; C. C. 1154. 4«5. If the usufructuary can- not give security, the immov*'- ;i'>les are leased, farmed, or -'■ijuest rated. Sums of money comprised in I lie usufruct are invested; pro- visions, and other moveal)le things which are consummable by use, are sold, and, the price produced is likewise invested. The interest of such sums of money, and t he rent from leases belong in these cases to the usufructunrv.-C. N. (102: C.C. 14.").~), 1H24, s. 1, 4««. In default o*" security the proprietor may nupilre that moveable ju-operty liable to l)e f.eteriorated l)y use, l)e sold in order that the price Uiay be invested and received as in the preceding article. Nevertheless the u.sufructu- ary may demand and the court may a;rant, according to circum- stances, that a portion of move- al)les necessary for his use may be left to him on the simple security of his oath, and sub- ject to ihe obligation of pro- ducing them at the expiration of the usufruct. — C.N. (508. 407. The delay to give secur- ity does not deprive the usu- fructuary of whatever fruits he is entitled to ; they are due to him from the nionu>rt tlie usu- fruct is open. —C.N. («)4. AiiH. 'hie usufructuary is only liable for the lesser repairs. For the greater rei)airs the pro- prietor remains liable, unless they result from the neglect of the lesser repairs since the commencement of the usufruct, in which c .se the usufructuai'y is also held liable.— C. N. ()().">; C.C\ U."i>. 4,irntion of dams, prop- walls and fences. All other repairs are lesser repairs. C.N . (iOO. 470. Neither the i>roprietor nor the usufructuary is obliged to rebuild wh tt has fallen into 62 USUFRUCT, USE AND HABITATION. Wmm decay or what has been de- stroyed by unforeseen events.— C.N. 607. 471. The usufructuary is liable, durinj? his enjoyment, for all ordinary charges, such as ground-rents and other annual dues and contributions encumbering the property when the usufruct begins. He is likewise liable for all charges of an extraordinary nature imposed thereupon since that time, such as assessments for the erection and repair of churches, public and municipal contributions and other like burthens.— C. N. 008, 009 ; C. C. 1458. 472. A legacy made by a test- ator of a life-rent or alimentary pension, must be entirely paid by the universal legatee of the usufruct, or by the legatee by general title of the usufruct ac- cording to the extent of his en- joyment, without any recourse in either case.— C. N. 010. 473. A usufructuary by par- ticular title is not liable for the , paymentof any part of the hered- itary debts, not even of those for which the land subject to the usufruct is hypothecated. If he be forced, in order to re- tain his enjoyment, to pav any of these debts, he has his re- course against the debtor and against the proprietor of the land.— C. N. Oil ; C. C. 785, 880, 887. 474. A general usufructuary or a usufructuary by general title must contribute with the proprietor to the payment of the | debts as follows : The immoveables and other I things subject to the usufruct { are valued, and thecontribution ; to the debts is fixed in propor- tion to such value. If the usufructuary advance the sum for which the proprie- tor must contribute, the capital of it is restored to him at the expiration of the usufruct, with- out interest. If the usufructuary will not make this advance, the proprie- tor has the choice either of pay- ing 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 suthci- ent portion of the property sub- ject to the usufruct to be sold. — C. N. 012 ; C. C. 870. 475. The usufructuary is only liable for the costs of such suits as relate to the enjoyment, and for any other condemnations to which these suits mav give rise. — C. N. 018. 470. If during the continu- ance of the usufruct, a third party commit any encroach- ments on the land, or otherwise attack the rights of the proprie- tor, the usufructuary is obliged to notify him of it, and in de- fault thereof he is responsible for all the damage which may result therefrom to the proprie- tor, in the same manner as he would be if the injury were done by himself.- C. N. 014. 477. If an animal only be the 8ul)ject of the usufruct, and it perish without the fault of the usufructuary, he is not bound to give back another, nor to pay its value. — C. N. 015. 47**. If the usufruct be created on a herd or flock, and it perish entirely by accident or disease, and without the fault of the usufructuary, he is only obliged to account to the pro- prietor for the skins or their value. If t he flock do not perish entire- Ij', the \isufructuary is obliged to replace the animals which USUFRUCT, USE AND HABITATION. 63 have perished, up to the nuni- l»erofthe increase.— C. X. 012. SKCTION III. Of the Termination of f'nict. Usu- 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 (juali- t ies of usufructuary and of pro- prietor ; By non-user of the right dur- ing; thirty years, and by pre- scription acquired by third per- sons ; By the total loss of the thing on which the usufruct is estab- lished.— C. N. 017 ; C. C. 1402, 1 im. 480. Usufruct n>ay also cease l)y reason of the abuse the usu- fructuary makes of his enjoy- ment either by committing waste on the property or by al- lowing it to depreciate for w.int of care. The creditors of the usufruct- uary may intervene in contesta tions, for the preservation of t heir rights ; they may olTer to repair the injury done and give security for the future. The courts may, according to the gravity of tlie circumstan- ces, either pronounce the ab- solute extinction of the usu- fruct, or only permit the entry of the proprietor inlo jiosses- sion of the object charged with it, subject to the obligation of annually paying to the usufruct- uary or to his representatives .1 fixed sum, until the rime \N hen the usufruct shall cease. C. N. 018; C. C. 1031,1404. 181. A usufruct which is granted without term to a cor- porjition only lasts thirty years. -C. N. Oil). 483. A usufruct granted un- til a third party reaches a cer- tain lixed age continues until such time, although the third person should die before that age.— C. N. 020. 183. The sale of a thing sub- ject to usufruct does not in any respect change the right of the usufructuary ; he continues to enjoy his usufruct, unless he has formally renounced it.— C. N. 021. 484. The creditors of the usufructuary may have his re- nunciation annulled, if it be made to their prsjudice. — C. N. (522 ; C. C. 1(W2 et s. 485. If only a part of the thing subject to the usufruct perish, the usufruct continues to exist upon the remainder. — C. N. (i2a 480. If the usufruct be e- stablished upon a building only, and such building be destroyed by fire or other accident, or fall from age, the usufructuary has n ) right to enjoy either the ground or the materials. If the usufruct be established on a property of which the building destroyetl formed part, the usufructuary enjoys the ground and the materials.— C. N. 024. CHAPTER SECOND. Ol'^ USi: AND HABITATION. 487. A right of use is a right to enjoy a thing l)elonging to another and to take the fruits thereof, hut only to the extent of the requirements of the user and of his family. When applied to a hous r^^Hi P e, H SERVlTirUEH. right of use is cjilled ri^ht of hal)ital,ion. -C. C. .'Wl. 4HH. W\y dcfd infer vivos or by last will . They cease in the same nmn- iK-r as usufruel . -C X. 0:^(i ; C. ('. 4711 et s 48U. These lights eaunot Vie exi'icised witliont previously giving security. an:«). 4»4. He who has a riglit of use can neither assign nor lease it to another -C. X itati«->n of the person to whom it is granted and liis fannly.- t;. X.' t)'13. 407. A riglit of habitation can neither be assigned nor leased. -C. X. tm. 41>«. H lie who has the use take all tlie fruits of tlie land, or if he occu))y the wliohj of the house, he is sub ect to the costs of ciiltivation, to the lesser re- pairs, and to the payment of all contiihut ions, like the usufruct- uary. H' he only take a portion of the frrnts, or if he only occupy a part of ti.chovi^e, lie conti'ibute.s in the pi oportion of his enjoy- ment.- C X. Olio. ^TITLE FOU RTH rWI^ / i lyi' OF rvli:AL SRKVITUDES. (JlONEKAl, fROVISIUXS. 400. A real servitude is a charge imj)osed on one real estate for the beialit of ar.- pther belonging to a ditFerent ' -C.X. <);{!>. proprietor.— C. X'. ()87 ; C. C. 500. It arises either from the natund position of the lU'operty. or from the law, or it is ». stabii'-hed by the act of man. r% SERVITUDES. 65 CHAPTER FIRST. OF SERVITUDES WHICH ARISE FROM THE SITUATION OF PROPERTY. 301. Lands on a lower level are subject towards thot.e on a higher level to receive such waters as How from the latter naturally and without the agency of man. The proprietor of the lower land cannot raise any dam to prevent this tlow. The proprie- tor of the higher lanii can do nothing to aggravate the servi- tude of the lower land.— C.N. <)40. 502. He who has a spring on his land may use it and dispose of it as he pleases.— C.N . g4i. 503. He whose land borders on a running s :eam, not forming part of the public domain, nuiy make use of it as it passes, for the utility of his land, but in such manner as not to prevent the exercise of the same right by those to whom it belongs ; saving the provisions contained in chapter .51 of the Consolidated Statutes for Lower Canada, or other special enactments. He whose land is crossed by such stream may use it within the whole space of its course through the property, but sub- ject to the obligation of allow- ing it. to take its usual course when it leaves his land.^— C.N. 644. 504. Every proprietor may oblige his neighbour to settle the boundaries between their contiguous lands. The costs of so doing are common. Abridged hif GO F., c. ol), s. 10 ; C.C.P. 1059 ets. 504CT. Boundaries may be determined either by nmtual consent between neighbours, and by their mere act, or with the intervention of judicial authority. If suit is taken, the costs are in the discretion of the court, ((k) v., c. .5(), s. 17).-C.N. 616. 503. Every proprietor may oblige his neighbour to make in equal portions or at common expense, between their respect- ive lands, a fence or other sutti- cient kind of separation accord- ing to the custom, the regu- lations and the situation of the locality.-C.N. 047, G4H. CHAPTER SECOND. OF SERVITUDES ESTABLISHED BY LAW 506. Servitudes established by law have for their object public utility or that of individ- uals.-C.N. 040. 307. Those established for public utility have for their object the foot-road or tow- path along the banks of navig- able or floatable rivers, the con- struction or repair of roads or other public works. Whatever concerns this kind of servitude is determined by particular laws or regulations. — C. N. 650 ;C. C. 420. 508. The law subjects pro- prietors to dirterent obligations with regard to one another in- dependently of any other stipu- lation.— C. N. 651. 509. Some of these obliga- tions are governed by laws con- cerning nmnicipalities and roads. The others relate to division wails and ditches, to cases Vide R. S* Q. 5535 as to rights of neigbbouriag proprietors. ifi 66 SERVITUDIS. m !| where a counter- wall is neces- sary, to views upon tiie pro- perty of a neigiibor, to tlie eaves of roofs, and to riglits of way. ~C. N. 652. SECTION I. Of Division Walls and Ditches, and of Clearance. » 510. Bothi in tnwn and coun- try, walls sfrvinj? for separation between buiirlings up to the re- quired heights, or between yards and gardens, and also be- tween enclosed fields, are pre- sumed to be common, if there be no title, mark or other lej-^al proof to the contrary.— C. N. 653. 611. It is a mark that a wall is not common when its summit is straight and plumb with tlie facing on one side, and on the other side exhibits an inclined plane ; and also when one side only has a coping, or moulding, 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 mouldings.— C. N. 654. 512. The repairing and re- building of the common wall are chargeable to all those who have any right in it, in propor- tion to the right of each.~C. N. 655. 513. Nevertheless every co- proprietor of a common wall may avoid contributing to its repair and rebuilding by aban- doning his share in the wall and renouncing his right of making use of it.— C. N. 656. 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 neighl)or has to force him to reduce the beam to the half thickness of the wall, in case he should himself desire to put beams in the same place, or to build a chimney against it.-C. N 657. 515. Every CO- proprietor may raise the common wall at will, but at his own cost, upon pay- ing an indemnity for the add- itional weight mi posed, and bearing for the future the ex- pense of keeping it in repair above the height which is com- mon. The indemnity thus payable is the sixth of the value of the superstructure. On these conditions such superstructure becomes the ex- clusive property of him who built it; but it remains, as to the right of view, subject to the rules applicable to common walls. -C. N. 658 ; C. C. 533. 516. If the common wall be not in a position to support the superstructure, he who wishes to raise it nmst have it rebuilt at his own cost, and the excess of thickness must be taken on his own side.- C. N. 659. 517. The neighbor who has not contributed to the super- structure may acquire the joint ownership of it, by paying half of the cost thereof, and the value of one half of the ground used for the excess of thick- ness, if there be any. — C. N. 660. 518. Every owner of. pro- perty ad^joinlng 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 common, and half the value of the ground on |^X,.t-';6»wg»^»-~^-v- SIRYITUDES. 6*7 which such wall is built.— C. N. 6(il. GIW. Onu neighbor cannot make any recess in the body of a common wall, nor can he apply or rest any work there, without the consent of the other, or on his refusal, with- out having caused to l)e settled by experts the necessary means to prevent the new work from being injurious to the rights of the other.— C. N. ()l)2. 320. Every person may oblige his neighbor, in incor- porated cities and towns, to contribute to the building and repair of the fence-wall separat- ing their houses, yards and gar- dens situated in the said cities and towns, to a height of ten feet from the ground or the level of the street, including the coping, and to a thickness of eighteen inches, each of the neighl)ors being obliged to fur- nish nine inches of ground ; saving that he for whom such thicljness is not sutlicient may add to it at his own cost and on his own land.— 0. N. 663. 521. When the ditTerent stories of a house belong to different proprietors, if their titles do not regulate the mode of repairing and rebuilding, it must be ilone as follows : — All the proprietors contribute to the main walls and the roof, each in proportion to the value of the story which belongs to him ; The proprietor of each story makes the floor under him ; The proprietor of the first story makes the stairs which lead to it ; the proprietor of the second story makes the stairs which lead from the first to his, and so on.— C. N. 664. 622. When a common wall or a house is rebuilt, the active and passive servitudes continue with regard to the new wall or to the new house, provided they are not rendered more on- erous, and provided the rebuild- ing i)e done l)efore prescription is ac«iuired.--C. N. (Km; C C i*(V^ et s f»2Jl. All ditches between neighboring properties are presumed to l)e common if there l)e no title nor mark to the contrary..— C. N. (KKJ. 524. When the embankment or the earth thrown out of a ditch is only on one side of it, it is a mark that the ditch is not common. — C. N. 667. 525. A ditch is presumed to belong exclusively to him on whose side the earth is throw n out.-C. N. ()tJ8. 520. A common ditch must lie kept at common expense. — C. N. (m. 527. Every he<et «reeu persons > \ 72 SBfPHYTSUSIS. i t of full atre and not privileged.— C. N. 706. 563. The thirty years com- mence to run for discontin- uous 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. -C.N. 707; C. C. 547. 564. The manner of exer- cising a servitude may be pre- scribed like the servitude itself and in the same way. — C. N. 708. 565. If the land in favor of which the servitude is estab- lished V)elongto several persons by undivided shares, the enjoy- ment by one hinders the pre- scription with regaid to the others.— C. N. 709. 566. If among the co-pro- prietors there be one against whom prescription cannot run, such as a minor, he preserves the right for all the others. — C. N. 710. .; TITLE FIFTH. OF EMPHYTEUSIS. iil SECTION I. General Provisions . 567. Emphyteusis or emphy teutic 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 ( larges an may \w agreed upon.— C.C. 881. 568. The duration of emphy - tetwis cannot ex/t'ed ninery- nine years, and must be tor more than nine. — C.C. 579, s. 1. 569 Kmphyteusis carries with it alienation ; so long as it lasts, the lessee enjoys all the rights attaclu'd to the (juality of a proprietor. He alone can constii;Ute it who has the frco disposal of his property. 570. The lessee who is in the exercise of his rights, may alienate, transfer and nypo- thecate 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 judicif'.l authorizaticKi and for- malities. 571. Immoveables held un- der emphyteusis may be seized as real properly, under execu- tion against the lessee by his creditors, who may bring them to sale with the formalities of a sheri ff 's sale . — C . C . P 7H1 , s. 3. 572. The lessee is entitled to bring a possessory action against all those who disturb him in his enjoyment, and even against the lessor.— C. C. P. low. SECTION IT. Of the Riifhts (tnd Ohlli/aiions of the Lessor and of t/ie Les- see. 573. The lessor is obliged to guarantee the lessee, and to EMPHTTEtlBIS. 73 secure him in the enjoyment of the immoveable leased, durinc the whole time legally agreea upon. He is also obliged to resume such immovealjle and to dis- charge the lessee from the rent or dues stipulated, in the case of the latter wishing to leave it, unless there is an agreement to the contrary,— C. C. 579, s. 4, 580. 574. On his part the lessee is bound to pay annually the em- phyteutic rent; if he allow three years to pass without doing so, ne may be judicially declared to have forfeited the immoveable, although there be no stipula- tion on that suliject.— C. C. 388, 392. 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 un- avoidable accidents which may have destroyed the harvest or hindered the enjoyment, or even for a loss of a part of the land. 576. The lessee is held for all the real rights and land charges t > which the property is subjected. 577. He is bound to make the improvements which he has undertaken, as well as all greater or lesser repairs. He may be forced to make them even before the expir itiou of the lease, if he neglect to do so, and the land suffer thereby any considerable deterioration. 578. The lessee has not the right to deteriorate the im- moveable lea^sed ; if he commit any waste which greatly dimin- ishes its va'ue, the lessor may have him expelled and con- demned to res x)re the things to their former condition. SECTION III. Of the Termination of Em- phyteusis. 579. Emphyteusis is not sub- ject to tacit renewal. It ends : 1. By the expiration of tlie time for which it was contract- ed, or after ninety-nine years, in case a longer term has been stipulated. 2. By forfeiture judicially pro- nounced 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. 580. The lessee is only al- lowed to abandon if he have satisfied for the past all the obligations which result from the lease, and particularly if he have paid or tenderedall arrears of the dues, and made the im- provements agreed upon. 581. At the end of the lease, in whatever way it happens, the lessee must give up, in good condition, the property received from the lessor, as well as the buildings he obliged himself to con struct, but he is not bound to repair those which he has erected without being obliged to do so. 582. As to improvements which the lessee ha.s made voluntarily, without being bound to do so, the lessor has the option of either keeping th«'m, upon paying what they cost of their actual valun, or permitting the lessee, if the lat- ter can do so with advantage to himself nnd without dete- riorating the land, to remove them at his own expense; other- t4 OWNERSHIP. wise, in each case, they belong, ' them, in conformity with the without indemnification, to the I provisions of article 417.— C. C. lessor, who may, nevertheless, 729. compel the lessee to remove | BOOK THIRD. ill OF THE ACQUISITION AND EXERCISE OF RIGHTS OF PROPERTY. GENERAL PROVISIONS. 583. Ownership in property is acquired by prehension or oc- cupation, by accession, by de- scent, by will, by contract, by prescription, and otherwise by the effect of law and of obliga- tions.— C. N. 711. 584. Things which have no owner are held to belong to the crown.— C. N. 713 ; C. C. 401, (m, 637. 585. There are things which have no owner and the use of which is common to all. The enjoyment of these is regulated by laws of public policy.— C. N. 714. 586. The ownership of a treasure rests with him who finds it in his property ; if he find it in the property of an- other, it belongs halt to him, and the other half to the owner of the property. A treasure is any buried or hidden thing of which no one can prove himself owner, and whicli is divscovered by chance. C. N. 716 ; C. C. 461. 587. The right of hunting aiid fishing is governed by par- ticular laws of public policy, subject to the legally acquired rights of individuals.— C. N. 715. 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 oc- cupancy, to the finder who has appropriated them.— C. N. 717. 589. Things once possessed, which are afterwards found at sea, or on the sea shore, or their price, if they have been sold, continue to be the pro- Eerty of the original owner, if e 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 preserva- tion.-C. N. 717. 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 by the federal statute respectirjg wrtcks, casualties and salvage. R. S. Q. 6231; R.S.C. 81;~C. N. 717. 591. The grass upon the beaches of the river St. liaw- renoe, which are not private propertv, is, in certain places, granted by special laws or par- ticular titles to the riparian iii r^ SUCCESSIONS. T6 proprietor, under the restric- tions imposed by law or by regular ions . In other cases, if the crown have not otherwise disposed of it, it belongs by right of occu- pancy to him who cuts it. 502. Things found in or upon the river St. Lawrence or the navigable portions of its tributaries, or upon the banks thereof, must be advertised and disposed of in the manner pro- vided by special laws. R. S. Q. 6232; R.S.C.,c. 55, s. 38. 503. Things found on the ground, on the public highways or elsewhere, even on the prop- erty of others, or which are otherwise without a known owner, are, in many cases, sub- ject to special laws, as to the public notices to be given, the owner's right to claim them, the indemnification of the finder, their sale, and the appro- priation of their price. In the absence of such pro- visions, the owner who has not voluntarily abandoned them, may claim thtim in the ordinary manner, subject to the payment when due, of an indemnity to the person who found and pre- served them ; if they be not claimed, they belong to such person by right of occupancy. Unnavigable rivers are for the purposes of this article, con- sidered as places on land.— C. N. 717. 504. Among the things sub- ject to the special provisions mentioned in the preceding article are : 1. Wood obstructing 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-ottice with dead-letters ; 4. Things siispected to have been stolen, remaining in the hands of officers of justice ; 5. Animals found straying.^ 505. Certain matters which come under the heading of the present book are incidentally treated in the books preceding or other objects beaches and the TITLE FIRST. OF SUCCESSIONS. GENERAL PROVISIONS. 506. Succession is the trans- '. mission by law or by the will of man, to one or more persons, of the property and the trans- missii)le rights aiid obligations of a deceased person. In another acceptation, the word "succession" means the universality of the things thus transmitted. 507. Abintestate succession is that which is established by law alone : and testamentary succession that which is deriv- ed from the will of man. The former takes place only in de- fault of the latter. Gifts in contemplation of iVidoalsoR.S.Q. 5537 et a- T6 snoosssiONs. death partake of the nature of testamentary successions. The person to whom either of these successions devolves is called heir.-C. C. 757, 864. 508. Abintestate succession is subdivided into legitimate succession, which is conferred by law upon relatives, and ir- regular succession, when, in default of relatives, it devolves upon persons not related.— C. N. 756, 766. 500. 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 ^^hich is transmitted and divided according to uniform rules, or the dispositions made by the proprietor. i—C. N. 732. CHAPTER FIRST. OF THE OPENING OF SUCCESSIONS AN D OF THE SEIZIN OF HEIRS. SECTION I. Of the Opening of Succ' 'oris. eOO. The place where suc- cession devolves is determined by the domicile.— C. N. llu. 60I. Successions devolve by natural death, and also by civil death.— C. N. 718 ; C. C. 35. 36, 99. 002. Successions devolve by civil death from the moment it is incurred.- C. N. 719. 60i). Where several persons, respectfully called to the suc- cession of each other, ])erisl) by one and the same accident, so that it is impossible to ascer- tain which of them died lirst, the presumption of survivor- ship is determined by circum- stances, and in their absence, by the considerations of age and sex, conformably to the rules contained in the following articles.- C. N. 720. 004. Where those who per- ished together were under fif- teen years of age, the eldest is presumed to have survived. ff they were all above the age of sixty, the youngest is presumed to have survived : If some were under the age of fifteen and others over that of sixty, the former are pre- sumed to have survived ; If some were under fifteen or over sixty years of age, and the others in the intermediate age, the presumption of survivorship is in favor of the latter,— C. N. 721. 605. 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, according to which the youngest is pre- sumed to survive ; But if they were of different sexes, the male is always pre- sumed to liav« survived. 0. N. 722. SECTION II. Of the Seizin of Heirs. 606. Abintestate successions pass to the lawful heirs in the order established by law ; in def iult of such heirs they de- volve to the surviving consort, and if there be none, (iiey fall to the crown,— C. N. 72;^ ; ' C. C. 112, 401, 636, mi. 607. The lawful heirs, when they inherit, are seized by law alone of the property, rights ' A« to sucoecsion dutiea or taxes') vide 55-56 7., c. 17 ; 67 V.» c. 16 : 58 v., c. 16 ; 5» V., c. 17. BUOOESBIONS. W and actions of the deceased, subject to the obligation of dis- charj?in^ all the liabilities of the succession ; but the surviving consort and the crown require to be judicially put in posses- sion, in the manner set forth in the Code of Civil Procedure.— C. N. 724; C. C. 638 ets., 2216; C. C. P. 1422 et s, CHAPTER SECOND. OF THK QUALITIES REQUISITE TO INHERIT. OOH. In order to inherit, it is necessary to be civilly in *?xist- ence at the moment when the succession devolves ; thus, the following are incapable of in- heriting : 1, Persons who are not yet conceived ; 2. Infants who are not viable when born ; 8. Persons who are civilly dead.-C. N. 725, C. C. 86, 105, 838, 900. 000. Aliens may inherit in Lower Canada in the same manner as British subjects. — C. N. 726; C. C. 25. 610. The following persons are unworthy of inheriting and, as such, are excluded from suc- cession : 1. He who lias been convicted of killing or attempting to kill the deceased ; 2. He who has brought against the decea.s«Ml a capital charge, adjudged to be calunmi- ous; 3. The heir of full age, who, being cogniza-it of the nmrder of the deci'ased, has failed to give judicial information of it. — C. N. 727 ;CC mi OH. The failure to inform cannot however be set up against the ascendants or de- scendants, or the husband or wife of the murderer, nor against the brothers or sisters, uncles or aunts, nephews or nieces of the murderer, nor against persons allied to him in the same degrees.— C. N 72H. 612. Any heir who is ex- cluded from the succession by reason of uti worthiness is bound to restore all the fruits and revenues that he has received since the succession devolved. -C. N. 729. OIJJ. 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.— C.N. 730. CHAPTER THIRD. OF THE DIFFERENT ORDEUS OF SUCCESSION. SECTION I. (jeneral Provisions. 014. 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. — C. N. 731. 013. Proximity of relation- ship is determiiH'd by the num- ber of generation^, each gener- ation fornung a degree.— C. N. 735 010. The succession of de- grees forjns the line. The succession of degrees between persons who descend one from the other is called the IB SUCOESSIONS. direct line ; that between per- sons who do not descend the one from the other, but from a common ancestor, is called the collateral line. The direct line is distinguish- ed into the direct descending, and the direct ascending line. The former connects the an- cestor with his descendants ; the latter connects the indi- vidual with his ancestors.— C.N. 736. Ot7. In the direct line the degrees are computed to be as many as there are generations between the per.sons ; thus the son is, with respect to the father, in the Hrst degree, the grandson in the second, and reciprocally as to the leather and grandfather in respect of ihe son and grandson.— C. N. 737. 618. In the collateral line the degrees are reckoned by the generations from one relation 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.-C. N. 71^8. SECTION II. Of Representation. 610. Representation is a fiction of law, the effect of which is to put the represent- atives in the place, in the degree and in the rights of the person represented.— C. N . 739 ; C. C. 613, est. 620. Representation takes f>lace without limit in the direct ine descending ; it is allowed whether the children of the deceased compete with the descendants of a predeceased child, or whether all the chil- dren of the deceased having died before him, the descendants 1 these children happen to be in equal or unequal degrees amongst themselves.- C. N. 740. 621. Representation does not take place in favor of ascen- dants ; the nearest in each line excludes the more distant.— C. N. 741. 622. In the collateral line re- presentation is admitted only where nephews and nieces suc- ceed to their uncle and aunt concurrently with the brother and sister of the deceased. — C. N. 742. 623. In all cases where repre- sentation is admitted, the par- tition is effected according to roots ; if one root have several branches, the sub-division is also made according to roots in each branch, and the members of the same branch divide among themselves by heads. — C. N. 743. 624. Living persons cannot be represented, but only those who are naturally or civilly dead. A person may represent him whose succession he has re- nounced.— C. N. 744. SECTION III. Of Successions Devolving to Descendants. 625. Children or their de- scendants succeed lo their father and mother, grand- fathers and grand -mothers, or other ascendants, without dis- tinction of sex or primo-geni- ture, and whether they are the issue of the same or of different marriages. They inherit in equal por- SUOOESSIONS. 19 tions 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. — C. N. 745 ; C. C. 620. SECTION IV. 0/ Successions Devolving to Ascendants. 626. If a person dying with- out issue, leave his father and mother and also brothers and sisters, or nephews or nieces in the first degree the ^ ccession is divided into two equal por- tions, one of which devolves to the father and mother, who share it equally, and the other to the brothers and sisters.neph- ews and nieces of the deceas- ed, accordinp' to the rules laid down in the following section. — C. N. 748 ; C. C. 631. 627. If, in the case of the preceding article, the father or mother had previously died, the share he or she would have re- ceived accrues to the survivor of them.— C.N 749. 628. If the deceased leave no issue nor brothers nor sisters, nephews nor nieces in ♦^he first degree, nor father nor mother, but only other ascendants, the latter succeed to him to the ex- clusion of all other collaterals. -C. N. 746. 629. In the case of the pre- ceding article the succession is divided equtilly between the as cendants of the paternal line and those of the maternal line. The ascendant nearest in de- gree takes the half accruing; to his line to the exclusion of all others. Ascendants in the same de- fjree inherit by heads in their ine -C, N. 746. 630. Ascendants inherit, to the exclusion of all others, property given by them to their 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, the price, if still due, accrues to such ascendants. They also inherit the right which the donee may have had of resuming the property thus given.-C. N. 747. SECTION v. 0/ Collateral Successions. 631. If the father and mo- ther of a person dying without issue, or one of them, have sur- vived him, his brothers and sisters, as well as his nephews and nieces in the first degree, are entitled to one half of the succession. C. N. 751; C. C. 626. 632. If both father and mo- ther have previously died, the brothers, sisters, and nephews and nieces in the first debtee of the deceased succeed to hitn, to the exclusion of the ascendants and the other collaterals. They succeed either in their own right, or by representation as provided in the second section of this chapter.— C. N. 750. 633. The division of the half or of the whole of the succes- sion coming to the brothers, sisttrs, nephews or nieces, according to the terms of the two preceding articles, is efFected in equal portions among them, if they be all born of the same marriayje ; if they be the issue of different mar- riages, an equal division is made between the two lines pateriia,! and maternal of the 80 8UOOI88IONB. .:l deceased, thono of the whole blood Hharing in each line, and those of the half blood sbarins each in his own line only. If there bf- brothers and sisters, nephews and nieces on one side only, they inherit the whole of the succession to the exclusion of all the rehvtions of the other line.-C. N. 752. 034. If the deceased, havinj^; left no issue, nor father nor mother, nor brothers, nor sis- ters, nor nephews nor nieces, in the first dejj;ree, leave ascen- dants in one line only, the near- est of such ascencfants takes one-half of the succession, the other lialf of wliich devolves to the nearest collateral relation of the other line. If, in the same case there be no ascendant, the whole succes- sion is divided into two equal portions, one of which devolves to the nearest collateral relation of the paternal 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 degree partake by heads.— C.N. 75a. 035. 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. | SECTION IV. Of I *'egular Successions. 030. When the deceased leaves no relations within the heritable degree, his succession belongs to his surviving con- sort.-C. N. 767; C. C. 112. 606, 598. 637. In default of a surviv- ing consort, the succession falls to the crown.— C. N. 768 ; C C 4(U, 606, 598. 038. In the case of the two preceding articles a statement of the property of the succes- sion, coining to the surviving consort or to the crown, nmst Ih) made, at their diligence, by nn'ans of an inventory or other equivalent instrument, before they can claim to be authorized to take possession.— r;. N. 760. 039. This possession must be demanded in the superior court of original Jurisdiction of the district in which the succes- sion opens, and the suit is prosecuted and adjiidicated upon in the manner and accord- ing to the forms determined in the Code of Civil Procedure.— C. N. 770; C.C. ($07, 2216; C. C. P. 1422 et s. 040. Whenever the pre- scribed 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.— C. N. 772. CHAPTER FOURTH. OF ACCEPTANCE AND RENUN- CIATION OF SUCCESSIONS. SECTION I. Of Acceptance of Successions. 041. No one is bound to accept a succession which has devolved to him.— C.N. 775. 042. A succession may be accepted purely and simply, or under benefit of inventory.— C. N. 774, 788, 789, 793 : C. C. 660 et 8. ; C. C. P. 1405 et s. SUOCESSIONS. 81 648. A married woman can- not validly accept a succeHslon without beinu authorized there- to by her huHband, or judicially accordiujr to the provi ions of chapter six, of the title ({f Mar- rut f/e. Successions which devolve to nnnors and interdicted persons cannot be validly accepted otherwi.-e than in confoj-nuty with the provisions contained In the titles which treat re- spectively of Minority aiul of Majoritv*-C. N. 770, 217, »U, 4t)2,4(W ;'C. C. 177 et s., :^1. :J02, 1281, I2>s7. 12S.S. 644. The etl'ect of acceptance reaches back to the day when the succession devolved.— C. X. 777. 645. Acceptance may be either express or tacit; it is express when a person as- sumes the title or (juality of heir in an autlientic or private act; it is tacit when the heir performs an act which neces- sarily implies his inten- tion to accept, and which he would have no right to perform except in his capacitv of heir. — C. N. 778. 646. Mere conservatory acts and those of supervision and provisional administration are not acts of acceptance, if the title and quality of heir have not been assumed. — C. N. 779 ; C. C. 66.5. 647. A gift, sale or transfer of his heritable rights made by a co-heir, either to a stranger or to all or some of his co-heirs, implies on his part, an accept- ance of the succession. The same presumption re- sults : 1. From the renunciation made, even gratuitously, by one heir in favor of one or more of his co-heirs. 2. From the renunciation made in favor even of all the co-heirs without distinction, if he receive the price of his re- nunciation. -C. N. 78(); C. C. (558, 1(M)1, ir)71)et s. 64H. When the person to whom a succession has devolved dies without having renounced or «'xpressly or tacitly accepted it, his luiirs may accept or re- ject it in his stead.— C. N. 781. 649. If such heirs do not agree to acc»'pt or to reject the siiccession, it is held to be ac- cepted uufler bem fit of inven- tory. -C. N. 782. 650. A per -on of full age cannot impugn his express or tacit acceptance of a succession, 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 succession has be- come absorbed or notably dim- inished by the discovery of a will which was unknown at the time of the acceptance.— C. N. 783 ; C. C. 991 et s. 650a. Letters of verification may be obtained in the case of a succession ab intestat, de- volving in this Province, hav- ing property situate outside of its limits or debts due by per- sons not residing therein. The procedure in such cas.e is regulated by the Code of Civil . Procedure.— R. S. O., 6801 ; C. C. P. 1411 et 8. SECTION II. Of RenunciaHon of Succes- sions. 651. Renunciation of a suc- cession is not presumed ; it is effected by a notarial deed, or by a judicial declaration which is recorded.— C. N. 784. 6 IMAGE EVALUATION TEST TARGET (MT-3) // % 1.0 I.I ill 1.8 L25 114 ill 1.6 i^ ^;. e^.\oy^ ;> % jr.-' y -%. '^' Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. MS80 (/16) 872-4503 ;\ ?^ 82 8U00188ION8. 652. An heir who renounces is deemed to never have been heir.- C. N. 785. 6S8. The share of a party re- nouncing accrues to his co- heirs. If he he alone, the wliole suc- cession devolves to the next in degree.— C. N. 78B. 654. 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 co-heirs have renounced, the ihildren take in their own right and in- herit by heads.— C. N. 787. 655. The creditors of an heir who renounces, to the pre- judice of their rights, may pro- cure the rescission of such re- nunciation, and afterwards ac- cept the succession themselves, in right of their debtor, and to 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 tlieir claims. It is not annulled in favor of the heir who has renounced.— C. N. 788 : C. C. 1031 et s. 656. An heir is never too late to renounce the succession, as long^ as he has not formal I v or tacitly accepted it.— C. N. 789. 657. An heir who has re- nounced a succession may nevertheless resume it, so long as it has not been accepted by another having a right to it ; but he 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 raaae while it was vacant.— C. N. 90 ;C C. 302. 658. No one can renounce the succession of a living; per- son, or alienate the contnigent rights he may claim therein, unit MS it is by cont'act of mar- riage.- C. N. 791 ;C. C. 1061. 650. Any heir who has ab- stracted or concealed property belonging to a suecesHiou for- feits the right of renouncing it ; notwithstanding his subse- quent renunciation he remains unconditional heir, without right to claim any share in' the property abstracted or conceal- ed.-C. N. 792 ; C. C. 670. SECTION III. 0/ the FormaMHea of Accept- ance, of Benefit of Inventory and its Effects, and of the Obligations of the Beneficiary Heir. 660. In order to obtain bene- fit of Inventory, the heir is lK>und to demand it by a peti- tion to the court or to one of the judges of the court of superior original jurisdiction of the diHtrict in which the suc- cesRion devolved ; this petition is proceeded and adjudicated upon in the manner and form required by the Code of Civil* Procedure.-C. N. 793; C. C. 301, 849 ; C. C. P. 1405 et s. 661. The judgment granting the petition must be registered in the registry office of the di- vision in which the succession devolved. 662. Such demand must be preceded or ft)l lowed by the makingof a faithful and exact inventory of the property of the succession, before no; aries, in the form and within the de- lays established by the rules of procedure. -C. N. 794 ; C. C. P. 1387 et 8. BUOOESSIONB. 83 668. The beneficiary heir is also bound, if the majority of the creditors or other persons interested lequire it, to give good and sufficient security for the value of the moveable pro- perty comprised in the inven- tory, and for whatever moneys, arising irom the sale of im- moveables, he may then or thereafter have in his hands. In default of such security, tlie court may, according to cir- cumstances, adjudge tlie lieir to have forfeited the benefit of in- ventory, or order that the moveables be sold and that the proceeds, as well as the other moneys of the succession which he may have in hand, be depos- ited in court to be appliea in discharging the liabilities of the succession. C. N. 807. 664. The heir is allowed three months to make the in- ventory, counting from the time when the succession de- volved. 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. -C. N. 796 ; C. C. 874. 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 incirring the presumption of having accept- ed ; but such sale must be made publicly, and after the notices and publications requir- ed by the rules of procedure.— C. N; 796 ; C. C. 646. 666. During the delays for mftkin^the inventory and de- liberating, the heir cannot be compelled to assume the qual- ity, nor can any sentence l>e ob- tained against him ; if he re- nounce at or before the expir- ation of the delays, the lawful costs he has incurred up to that time are chargeable t<> the sue- cession.-C. N. 797; C. C. 2238, C. C. P. 177, 8. 1, 178. 667. After the expiration of the al)ove 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 circumstances. — C. N. 798. 668. Costs 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 in-.ufla- cient, whether by reason of the situation of the property or of the contestations which have arisen ; if he make no such f)roof, he remains personally iable for the costs.- C. N. 799. 660 The heir, nevertheless, after the expiration of the de- lays granted oy article 664, and even of that given by the judge under article 667, still retains the power of making an inven- tory and of becoming benefi- ciary heir, if he have not other- wise performed any act of heir- ship, or if he have not t)een con- denmed, in his quality of un- conditional heir, by a judg- ment which has liecome final.— C. N. 800. 670. An heir who is guilty of concealment, or who know- ingly or fraudulently has omit- tca to include in tlie inventory any efiects of the succession, forfeits the benefit of inven- tory.-C. N. 801 ; C. C. 659. 671. The effect of beneflt of 84 8U00B88I0NS. inventory is to give the heir the advantage :— 1. or l)eing liai)le for the debts of the Huccedsion only to the ex- tent of the value of the pro- perty he haH received from it ; 2. Of not confounding his private property with that of the succession, and of retaining against the succeMsion the right of demanding payment of his own claims —C. N. 802 ; C. C. «78, 1156, 8. 4, 2237 ; C. C. P. 1410. 672. The beneficiary heir is charged to administer the pro- perty of the Huccession and must render an account of his administration to the creditors and legatees. He cannot he compelled to pay out of his Erivate property unless he has een put in default to produce his account and has failed to fulfil this obligation. After the verification of the account he cannot be compelled to pay out of his private pro- perty except to the extent of the sums remaining in his hands.— C. N. 803. 678. In his administration of the property of the succession the beneficiary heir is bound to exercise al! the care of a pru- dent administrator.— C. N. SM. 074. If the i)eneficiAry heir causes the moveables of the succession to be sold, the sale must be made publicly and after the notices and •publications reouired by the rules of pro- ceaure. If he produce them in kind, he is liable only for the depre- ciation or the deterioration caused by his negligence.— C. N. 805 ; C. C. P. im. 075. With regard to the im- moveables, if it become neces- sary to sell them, ttie sale and the distribution of the price arising from it, are proceeded with, in the manner and form followed with respect to the property of vacant successions, according to the rules laid down in the following section.— C. N. 806; C. C. P. 1400,1428. 07e. The l)eneficiary heir, before disposing of the property of the succession, and after having made the inventory, gives notice of liis quality in the manner establishea in the Code of Civil Procedure. After two months from the giving of the first notice, if there oe no actions, ueizures or judicial contestation^, by or between the creditors or legatees, the beneficiary heir may pay the creditors and legatees as they present them- selves. If there l)e actions, seizures, or contestations of which he has received judicial notice, he can only pay according to the directions of the court.— C. N. 808 ; C. C. P. 1406. 677. The Ijeneftclary heir may at all times :— 1. Renounce t^ie benefit of in- ventory, either judicially or by a notarial deed, to become un conditional heir, upon giving the same notices as when he accepted ; 2. Kender a final account in court, upon giving the same notices as when lie accepted and anv other notices the court may airect, in order to be freed from his administration, whether he has legally paid, by order of the court or extra- 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 obtained from the court he may retain in kind any property re- SUOOMIIONS. 85 id m le n i. r, -y e e e if T r T r maining in his hants which forms part of the succession.— C. N. 808. 67». The beneficiary heir may likewise, with the con- sen i of all parties interested, render an amicable account without judicial formalities. 070. If the discharge lie based upon the payment by the beneficiary heir of all the debts, without, however, his having' paid oui to the extent of what he received, he is not liberated as regards creditors who pre- sent themselves within three years from the discharge, and show satisfactory cause for not having come forward within the required delays, but he is bound to satisfy them so long as he has not paid out the full value of what he received.— C. N 809. 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 detri- ment, unless the latter proves that they might have been paid by using due diligence, with- out his being left answerable towards other creditors who received in lieu of the claimant. ,C. N. 800. 081. The expenses of seals, if any have been affixed, of the inventory, and of the account, are chargeable to the succes- sion.— C. N. 810. 682. The form and contents of the account which the bene- ficiary heir must render are regulated by the Code of Civil Procedure.— C, C. P. 567 et s. 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 un- oonditiouaily. BBCTION IV. 0/ Vacant Successions. 684. After the expiration of the delays for making the in- ventory and for deliberatin.; if no one come forward to claim a succession, if there be no known heirs, or if the known heirs have renounced, such succes- sion is deemed vacant.— C. N. 811 : C. C. 401. 685. Upon the demand of any party interested, a curator to such succession is named by the court or by one of the judges of the court of original juris- diction of the district in which it devolves. This appointment is made in the manner and form prescrib- ed by the Code of Civil Pro- cedure.— C. N. 812; C. C. 847 et s. ; C. C. P. 13:^8, 1420 et s. 686. Such curator gives notice of his quality, is sworn and forthwith proceeds to the n)aking of the inventory; he ad- ministers the property of the succession, exercises and pro- secutes all the rights pertaining to it, answers all claims brought against it. and renders an ac- count of his administration.- C. N. 8ia ; C. C. 2237. 687. After the appointment of the curator, if an heir or legatee appear wiio 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 posses- sion, by means of an action brought before the proper tri- bunal. 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 86 8V001881OII8, beneficiary heirs, apply to cura- tors of vacant successions.— C. N. 814. CHAPTER FIFTH. OF PARTITION AND RETURNS. SECTION I. Of the Action of Partition and its Form. 089. No one can be compelled to remain in undivided owner- ship; a partition may always be demanded notwithstanding any prohibition or agreement to the contrary. It may however be agreed or ordered that the partition Hhall be deferred during a limited time if there be any reason of utility which justifies the de- lay.-C. N. 815. 600. Partition may be de- manded even though one of the co-heirs enjoys separately a part of the propert ' of the succes- sion, If there hj.ve iieen no act of partition, nor a sufficient possession to acquire prescrip- fion.-C. N. 816. 691. 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 he may be compelled to join in it, and in such case the partition is ef- fected judicially, and with the formalities required for the alienation of the property of minors. The tutor or curator may how- ever demand the final partition of the moveables, and the pro- visional division of the Im- moveables of the succession. — C. N. 817 ; C. C. 305. 602. A h'lsband may without the concurrence of his wife, demand the partition of the moveables and immoveables which have accrued to her an i have fallen into the com- munity. As to things which are excluded from it, the hus- band cannot demand their partition without the concur- rence of his wife ; he may how- ever, if he has a right to enj -^ her property, demand a provi- si(mal (livision. Theco-l'.eirs of the wife can- not demand a definitive parti- tion without suing both hus- band and wire.— C. N. 818 ; C. C. 1292, 1208, 1416, 1417. 693. If all the heirs be of full age, be present, and agree, the partition may be effected in such form and by such act as the parties Interested deem proper. If any of the heirs be absent or unwilling, if there be among them minors or interdicted per- sons, in all such ca»es the parti- tion can only be effected Judi- cially, and the rules laid down in tne succeeding articles are to be followed. If there be several minors represented by one tutor and having adverse interests, a special and separat • tutor must be given to each, to repr^-sent him in the partition.— C. N. 810, pas ; C. C. P. 1039. 604. The action of parti tion and the contestations which arise in it are submitted to the court of the place where the succession devolves, if it de- volve in Lower Canada ; if not, to the court of the place w here the property is situate, or of the domicile of the defendant. 8U00BI8ION8. 8T It is before this tribunal that licitations and the proceedinss connected with them are to be eflfected.-C. N. 822 ; C. C. eOO ; C. C. P. 102. 605. In the action of par- tition and its incidents, the same proceedings are had as in ordinary suits, saving any mo- difications introduced by the Code of Civil Procedure.— C. N. 823 ; C. C. P. 1037 et s. eoe. 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 officially appointea. The report of the experts must declare the grounas of the valuation, it must indicate whether the thing estimated can be conveniently 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.— C. N. 824 ; C. C. P. 302 et u. 1040. e07. Each of the co-heirs may demand his share in kind of the moveable and immove- able property of the succension ; nevertheless, if there be seiz- ing or opposing creditors, or if the majority of the co-heirs deem a sale necessary to dis- charge the liabilities of the succession, the moveable pro- perty is publicly sold in the ordinary manner.— C. N. 828 ; C. C. P. i:i99 et s. 008. If the immoveables cannot conveniently be di- vided they must be sold by licitation before the court. Nevertheless the parties, if they be all of full age. may con- sent to the licitation being made before a notary upon the ohoioe of whom they agree.— C. N. 827 ; C. C. 1562, 1363 ; C. C. P. 1045, 1046. 600. After the moveable and immoveable property have been estimated, and sold if there be cause for it, the court nay 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 are to proceed before such notary, to the accoun to which they are bound to- wards one another, to the for- mation of the general mass, the composition of the shares and the fixing of the compen- sation to be furnished to each of the copartitioners.— C. N. 828; C. C. P. 410, 1044. TOO. Bach co-heir returns into the mass, according to the rules hereinafter laid down, the gifts made to him and the sums in which he is indebted.— C. N. 829; C. C.712ets. 701. If the return be not made in kind, the co-heirs en- titled to it pretake an equal portion from the mass of the succession. These pretakings are made as much as possible in objects of the same nature and quality as those which are not returned in kind.-C. N. fm. 702. After these pretakings, the parties are to proceed to the formation, out of what re- mains in the mass, of as many shares as there are partitioning heirs or roots.— C. N. 831, C. C. P. 1040. 708. In the formation and composition of the siiares, the separation of immoveables into small parcels and the division of industrial establishments is to be avoided as much as pos- sible; it is also proper to put into each share if possible, the li ^ SnOOMBIOHB. 9ftine quantity of moveables, immoveableH, rights and cre- dits, of tlie same nature and value. -C. N. 832. 704. The inequality of shares in kind, when it is unavoidable, is to be compeuHated by pay- ment of the ditference eilhet in rent or in money.— C. N. 833. 70a. The shares are to be formed by one of the co-heirs if they can ajj^ree amongst them- selves in the choice, and if he who is chosen accept the ottice ; in tlie oppOHite cane the shares are to be formed by an expert appointed by the court, and are afterwards to be drawn by lot. -C. N. 834. 706. Before proceedinjj to draw, each copartitioner is allowed to propose his objec- tions as to the formation of the shares.— C. N. 835. 707. The rules laid down for the division of the masses to be apportioiu'd are also to be observed in the subdivisions of the pariitiouing roots.— C. N. 836. 708. If in the operations referred to a notary, contesta- tions arise, he nmst draw up a statement of the difficulties and of the respective allegations of the parties, and submit them for tlie decision of the court that appointed him. These in- cidents are proceeded upon according to the forms pre- scribed by the laws of procedure -C. N. 837. 709. Where licitation takes place by reason of there being amongst the heirs, absentees, interdicted i)ersons, or minors, even emancipated, it can only be effected judicially, and with the formalities prescril)ed for the alienation of the property of minors.— C. N. 460, 819, 830 ; C. C. P. 1341 et 8. 1404. 710. Every person, even a relation, who is not entitled to succeed to the deceased, and to whom one of the co-heirs has assigned his right in the suc- cession, may be excluded from the partition, either by all the co-heirs or by one of them, on being reimbursed the price of such assignment.— C N. 841. 711. After t e partition, each of the parties has a right to be put in pusscssion of the titles belonging to the objects which have fallen to him. The titles to a divided pro- perty remain with him who has the greatest share in it, subject to the obligation of giving the use of them, when required, to the copartitioners interested therein. The titles common to the whole inheritance are delivered to him whom the hi'irs have chosen to be the depositary of them ; su'«iect to the obligation of giving the use of them to the other copartitioner.^ whenever required. If they disagree in the choice, it is made by the judge.- C. N. 842. SKCTION II. Of Returns. 712. Every heir, even the beneficiary heir, coming to a succession, must return to the general mass all that he has received from the deceased by gift inter vivos, directly or in- directly ; he cannot retain the gifts made nor claim the lega- cies bequeat lied l)y the deceased, unless sue) gifts and legacies have heen ^iven him expressly by preference and beyond hi* share, or with an exemption from return.- C. N. 843 ; C. C. 1468. gnOOlBBlONt. 89 7 IS. The heir may, never- theleHs, by renouncing the sue- ce8Hioi«. retain the gifts or claim the legacies made to him. -C. N. 845. 714. A donee who at the time of the gift was not an heir, but who at the time when the succession devolves is en- titled to succeed, is liound to return the gift, unless the test- ator has exempted him from doing so.— C. N. 846. 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 re- turned. The father coming t>o the suc- cession of the donor or testator is bound to return them.— C. N. 847. 710. 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.— C. N. 848. 717. The obligation to return th«^ gifts and legacies made during the marriage, either to the consort who is entitled to succeed, or to the other consort alone, or to both, depends upon the interest of the heir who is capable of succeeding and the advantages he derives there- from according to the rules laid down in the title concerning marriage covenants, as to the eflfect of gifts and legacies made to the consorts ouring marriage.— C. N. 849 ; C. C. 1272 et s. 718. Return is only made to the succession of the donor or testator.— C. N. 850. 710. Whatever has been laid out for the establishment of one of the co-heirs, or for the: pay- ment of his debts, must be re* tumed.-C. N. 861. 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. — C. N. 852. 721. The same rule applies to the proflts 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,— C. N. 853. 722. The proflts and interest of the things subject to be re- turned are due only from the day when the succession de- volves.— C. N. 856; C. C. 601, 602. 723. Returns are due only from co-heir to co-heir ; they are not due to the legatees nor to the creditors of the succession. -C. N. 857. 724. Returns are effected either m kind or by taking less. — C. N. 858 ; C. C. 701. 725. The return of moveable property is only made by taking less ; it cannot l)e returned in kind, -C. N. 8(\8. 726. The return of money received is also made by taking less in the money of the succes- sion. In case of insufficiency, the donee or legatee may dis- Eense with the return of money, y abandoning a proportionate value in the moveable property, or in default of moveible pro- perty, in the immoveables of the succession.— C. N. 860. 727. An immoveable given or bequeathed, which has per- ished by a fortuitous event, and without the fault of the donee or legatee, is not subject to be returned.— C. N. 855. 728. As to immoveables, the 1: si 90 8UC0USIOII8. donee or legatee may at his option return them in all cases, either in kind or by taking less according to valuation.— G. N. 858, 869, 860. 720. 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 necessary, conformably to the rules estAblished by article 417, and those which were unneces- sary, according to article 582.— C. N. 861. TSiO. 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 for- tuitous event, and without his or their participation.— C. N. 863. 731. When the return is made in kind, if the immove- able returned be hypothecated or encumbered, the co-parti- tioners may require the aonec or legatee to discharge it from such hypothec or incumbiance ; if he fail to do so, he can only return by taking less. The parties may however agree that the return shall be made in kind ; this is effected without prejudice to the claims of the hypothecary creditors, which are charged in the parti- tion of the succession to the party making the return.— C. N. §85 ; * \ C. 2021. 782. The co-heir who returns an immoveable iu kind may re- tain possession of it until he is eflfectively reimbursed the sums due to him for disbursements and ameliorations.— C. N. 867. 788. 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 re- turned in kind, whether thev have been given or bequeathea, are to be estimated aci*.ording to their value at the time of the partition, according to the con- dition in which they were at the time of the gift, or, as to legacies, at the time when the succession devolved ; regard being had to the provisions con- tained in the preceding articles. -C. N. 880, 861. 784. Ine moveable things found in the succession, and those which are returned as being legacies, are likewise es- timated according to their con- dition and value at the i ime of the partition, and those which are returned as having been given, according to their condi- tion and value at the time of the gift.— C. N. 868. SECTION III. Of Payment of Debts, 785. An heir who comes alone to the succession is liound to discharge all the debts and liabilities. The same rule applies to a universal legatee. A legatee by general title is held to contribute in proportion to his share in the succession. A particular legatee is bound only in case of the insufflciency of the other property, and is also subject to hypothecary claims against the property bequeathed ; saving his re- course against ttiose who are held personally.— C. N. 870, 871 ; 8U00I88I01I8. 91 C. C. 472 et 8., 876 et h., 880 et 8., 1122 et M., 1136, 1137, 2290, 2231; C. C. P. 605, 606. 786. Iftherebeneveralheir8 or several universal legateeH, the\ contribute to the payment of tne debts and charges each in proportion to his share in the succession.— C. N. 870, K71. 787. 4 legatee under gen- eral title, who talces concuc; rently with the heirs, contri- butes to the debts and charges in the same proportion.— C. N. 871. 788. The obligation result- ing from the preceding articles is personal to the heir and uni- versal legatees, or legatees under general title ; it gives a direct action against each of them respectively, to the par- ticular legatees and to the cre- ditors of the succession.— C. N. 873. 780. In addition to the per- sonal action, the heir and uni- versal legatee or legatee under general title, are held hypothe- carily for whatever claims alT'ect the immoveables included in their share ; saving their re- course against those who are personally liable for their share according to the rules applinable to warranty.— C. N. 871. 878. 740. An heir or universal legatee, or a legatee under geii- eral title, who, not being per- sonally bound, pays the hypo- thecary debts charged upon the immoveable included in his share, becomes subrogated in all the rights of the creditor against the other co-heirs or co- legatees for their shares; con- ventional subrogation cannot in such a case have a greafer etTect ; saving the rights of the beneficiary heir as creditor.— C. N. 875. 741. A particular legatee who pays an hvpotheoary debt for which he is not liable in order to free the immoveable bequeathed to him. has his recourse 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. -C. N. tf74; C. C. 880. 742. In the event of heirs or legatees exercising their recourse against their co-heirs or colegatees, by reason of an hvpotherary debt, the liabilitv of such as are insolvent is di- vided rateably among all the others, in proportion to their respecfive shares.— C. N. 876 ; C. C. 749. 748. 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 pro- f>erty exists in the hands of the atter, or upon the price of the sale, if It be yet unpaid.— C. N. 878, 880 ; C. C. 879, 1990, 2106. 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 cred- itors of the succession.- C N. 8S1. 745. The creditors of the succession and those of the copartitioners have a right to be present at the partition if thev require it. If the partition be made in fraud of their rights, they may attack it in the «ame mannei as any other act made to their detriment.— C. N. 865, 882 ; C. C. 1031 et R. ■uooBsnoift. BBCTIOIf IV. Of the effects of partition and of the warranty of shares 740. Each copartitioiier is deemed to have iiihcriti'd alone and directlv all the thin^N com- (>rlsed in hiH Hhare, or which he laH obtained bv licitation, and to have never hud the owner- ship of the other property of the succession.— C. N. 88:^. 747 Every act having for Its object to put an end to in- division aniongHt co-heirs and legatees is deemed to be a |)ar- tltion, althouKh it should pur- port to l)e a sale, an exchange, a transaction, or have receiverl any other name.— C. N. 880. 748. The copartitioners are res|)ectlvely warrantors to- wards each other for all distur- bances or evictions proceeding from a cause anterior to the partition. Such warranty does not take place if the kind of eviction Nutrered have l)een excepted by some provision of the act of partition ; it ceases if the party suffer eviction through his own fault.— C. N. 884; C. C. li)08 et s. 749. Each of the coparti- tioners is personallv bound, in Sroportion to his share, to in- emnify his co-heir for the loss caused to him by the eviction. If one of the copartitioners be Insolvent, the portion for which he is liable must be divided rateably among all the solvent co-heirs, according to their re- spective shares.— C. N. 885; C. C. 742, 2U14 2104, 2105. 750. There is no warranty against the insolvency of the debtor of a claim which has fallen to one of the co-heirs, if such insolyency do not occur until after the partition. Never- theless, there is an action of warranty in the case of a rent, when the debtor of it has be- come Insolvent at anv time since the partition ; unless the loss arises from the fault of the f)arty to whum the rent was al- otted The insolvency of debtors \\'hich exists at tite time of the partition gives rise to warranty in the wiuie manner as eviction. -C. N. 880 : C. C. 15T7. 8Kt:TION V. Of Rescission in Matters in Partition. 751. Partitions may be re- scinded for the same causes as other contracts. Rescission on the ground of lesion takes place in tiie case of miitors only, according to the rules declared in the title Of Obligations. The mere omission of an ob- ject belonging to the succession does not give rise to the action of rescission, but only gives a right to a supplement of the act of partition. -C. N. 887, 88»; C. C. 1001 et s. 752. When it becomes ne- cessary to decide whether there is lesion, the value of the ob- jects at the time of thepartition IS to be considered.— C. N. 890 ; C. C. im. 734. 753. The defendant in an action of rescission of partition may arrest its progress and pre- vent the bringing of another, by otfering and delivering to the piaintiflT the supplement of his share in the succession, either in money or in kind. — C. N. 891. 93 TITLE SECOND. OF GIFTS INTER VIVOS AND BY WILL. CHAPTER FIRST. OBNERAL I'UOVIHIONH. , 754. A pcrHon cannot dinpoHe of hiH property by gratuitoUN title, other wine than by gift inter vivos or by will — C. X. 803. 755. Gift inter vivos in an act by which the donor dlvcHt.s himself, by prrntiiltous title, of the owne hImd of a thing, in favor of the uouee, whotte ac- ceptance is requinite, and ren- ders the contract perfect. This acceptance niakcH it irrevocable, saving the case^ pixivided for by law or a valid resolutive con- dltlon.-C. N. H94. 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, niaKes 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 purporting to be made in his lifetime is of no effect.-- -C. N. 895. 757. Certain gifts may be made irrev()cal)ly inter luvos in a contract of marriage, to take etFect, however, only after death. They partake of gifts inter vivos and of wills ana are treated of specially in the sixth section of the second chapter of this title.— C. N. 897; C. C. 607. 758. Every gift made so as to take «'ff irt only after death, which is not valid as a will, or as permitted in a contract of marriage, is void.— C. N. 948, 9-n. 759. The prohibitions and restrictions as to the capacity for contracting, alienating or acquiring, established else- where in this code, apply to gifts inter vivos and to wills, with the moditlcations con- tained in the present title. 700. Gifts inter vivos or by will may be conditional. An inipoKsible condition, or one contrary to good morals, to law, or to public 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 coti- dition is considered as not written, and does not annul the dispoHition.-C. N. 900, 1172; C. C. 13, 831. CHAPTER SECOND. OF (1IIFT8 inter vivos. SECTION II. Of the Capacity to Give and to Receive by Gift inter vivos. 701. All persons capable of disposing freely of their pro- perty, may do so by gift intrr vivos save the exceptions es- tablished by law. -C. N. 902. 702. Gifts purporting to be inter vivos are void, as pre- sume^ All gifts of future prjperty by such act 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. Tne prohibition contained in this article does not extend to gifts made in a contract of mar- riage.-C. N. 943 ; C. C. 768. 770. 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 be- fore him. A resolutive condition may in all cases be stipulated, either in favor of the aonor alone, or of third persons. The right to take back, or any other resolutive right, is ex- ercised in cases of gift in the same manner and with the same effects as the right of redemption in the case of sale. -C. N. 951, 952 : C. C. 154fi et s. 780. A gift may oonsist of a person's whole property, and it IS then universal ; or of the whole of the moveable or im- moveable property, of the whole of the property of the matrimo- nial community or of any other universality, or of an aliquot fjortion of such property, and is n such cases a gift by general title; or it may be limited to things particularly described, and is then a gift by particular title. 781. The abandonment or- the partition of present pro perty is considered as a gift inter vivos, and is subject to the same rules. The same disposition cannot be made in contemplation of death in an act inter vivos, ex- cept by means of a gift inserted in a contract of marriage, such as is treated of in the sixth sec- tion of this chapter.— C. N. 1075; C. C. 758. 782. It may be stipulated that a gift inter vivos shall be suspended, revoked, or re- duced, under conditions which do not depend solely upon the will of the donor. If the donor reserve to himself the rifiht todispoi^e ol or to take GIFTS INTER VIVOS AND BY WILL. 99 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 r«»mainder, but is void as to the part reserved, which con- tinues to belong to the donor, except in gifts by contract of marriage.- C. N. 940, 947 ; C. C. 824. 783. All gifts inter vivos stipulated to be revocable at the mere will of the donor are void. This does not apply to gifts made by contract of marriage. — C. N. 944, 947 ; C. C. 824. 784. Gifts inter vivos of pre- sent property are void if they are made subject to the con- dition of paying other debts or charges than those which exist at the time of such gifts, or than those to come, the nature and amount of which have been ex- pressed and defined in the deed or in the statement annexed to it. This article does not apply to gifts by contract of marriage. — . N. 945, 947 ; C. C. 82.5. 785. The causes of nullity and prohibitions declared in the last three preceding articles and article 778, take effect notwith- standing all stipulations or re- nunciations by which it may be sought to evade them. 786. Unless some special law requires it, a deed of gift need not be accompanied by a statement of the n)oveable pro- perty given ; the legal proof of its nature and quantity de- volves upon the donee.— C. N. 948, 1085. 787. Gifts inter vivos do not bind the donor nor produce any effect until after they are ac- cepted. If the donor be not present at the acceptance, they take effect only from the day on which he acknowledges or is notifled of it.— C. C. 755. 788. The acceptance of a gift need not be in express terms. It may be inferred from the deed or from circumstances, among which may be counted the presence of the donee to the deed, and his signature, v, This acceptance is presumed in a contract of 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. 780. 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, saving their right to be relieved ; tutors, curators and ascendants may accept in behalf of minors, as laid down in the title 0/ Minority, Tutor- ship and Emancipation, and curators appointed to interdict- ed persons may also accept for such persons. The persons who compose a corporation or administer for it nay also accept gifts in its be- half. -C. N. 93:3, 934, 935; C. C. 177, 303. 790. In gifts inter vivos in favor of children born and to be born, where such gifts may l>e made, the acceptance by those who are born, or by a qualified person for them, holds good for the others not yet born, if thev av.iil themselves of it.— C. C. 772, 778. 791. The acceptance maybe subsequent to the deed of gift ; but it must be made during the lifetime of the donor, and whilQ ,' M % !-(. 4 M a ■- ii /:V' 98 GIFTS INTER VIVOS AND BT WILL. he is still capable of giviiif^.— C. N. 9A2 ; C. C. 771. 792. Minors and interdicted persons cannot be relieved from the acceptance or repudiation made in their name by a quali- fied person, if it have l)een pre- viously autliori/ed l)y a jud^e, uiK)n the advice of a family council. With these formalities the acceptance is asefiectual as if it were made by a person of age, in the full exercise of his rights. -C. N. 942. 703. Deeds of K'ft may be executed subject to acceptance, without the aoneel)einK therein represented. An acceptance purporting to be made by the notary or other person not au- thorized, does not render the gift void, but it is without effect, and the confirmation by the donee can only avail as an a(;ceptance from the time at which it takes place. 704. Gifts cannot be accept- ed after the death of the donee by his heirs or representatives. -C. C. 771. SECTION 111. Of the Effect of Gifts. 795. Gifts inter vivos of pre- sent property when they are accepted, divest the donor of and vest the donee with the ownership of the thing given, as in sale, without any delivery being necessary.— C. N. 938 ; C. C. 777, 1472. 796. Gifts do not by the mere e'!ect of law give rise to any obligation of warranty on the part of the donor, who is deem- ed to give the thing only in so far as it belongs to him. Nevertheless if the cause of eviction arise from the indebt- edness or the act of the donor, he is obliged, though he have acted in good faith, to reim- burse the donee who has paid to free himself ; unless the latter be bound to make such payment in virtue of the deed of gift, either l)y law or by agreement. Warranty \o a greater or less extent may l)e stipulated in gifts, as in anv other contract. C. C. 1509, 1510, 1.57H. 797. A universal donee inter vivos of present property is per- sonally 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 per- sonally liable for such debts in proportion to what he receives. -C. C. 780, 825. 798. Nevertheless the donee, by whatsoever title, ni.ty, if the things given be sufficiently par- ticularized in the gift or if by have made an inventory, free himself from the debts of the donor by rendering an account and giving up all that he has received. If he be sued hypothecarily only, he may, like any other possessor, free himself by aban- doning the immoveal)le hypo- thecated, without prejudice to the rights of the donor, towards whom he may be liound to make the payment. 799. A donee by particular title inter vivos is not person- ally liable for the debts of the donor. In case of an hypothe- cary action he may abandon the immoveable charged, like any other purchaser. .SOO. The obligation to pay the debts of the donor may be extended or limited by the deed of gift, subject to the legal pro- hibitions concerning future and uncertain debts. The right of the creditor in GIFTS INTER VIVOS AND BY WILL. 99 such case against the donee per- Honallv, beyond that which re- sults from the hiw, is governed by the rules set forth an to dele- gation and indication in mat- ters of payment in the title Of Obligations.— C. C. 7H4, 1173 et «. 801. The exception of par- ticular things, wliatever may be their number or value, in a universal gift of a gift by general title, does not exonerate the donee from payment of the debts. 802. The cre property from that of the donee, wheii- ev.T the latter is liable for the debt, according to the rules laid down in the preceding title as the inscription in the offices of the courts, which is abolished. Gifts of immovables must be registered in the office of the division in which they are situ- ate ; gifts of moveable pro- perty, in the oltice of the divis- ion where the donor resided aO th ' time of the gift.— C. N. 939 ; c. c. 941, nm. H05. The ettect of the regis- tration of gifts inter vivos and of the neglect of such registra- tion, is regulated, as to immove- ables and real rights, by the general laws concerning tne re- gistration of such rights. Beyond this the registration of gifts is re(|uired particularly in the interest of the heirs and the legatees of the donor, his creditors and all others inter- to such separations in matters j ested,according to the following of succession. -C. C. lUSK), rilOG. i rules. 80;J. 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 in- solvency. In the case of insolvent traders, gifts made by them within three months previous to the assignment, or the writ of attachment, in compul- 800. All gifts inter vivos, of ' moveable or imuioveable pro- t perty, even those which are re- in nneratory, must be registered; save the exceptions contained in the two following articles. The donor himself cannot svt up the want ot registration, neither can the donee or his heirs ; but it may be set up by any person entitled to do so under the general registry laws, by the heir of the donor, by his univer- sal or his particular legatees, by his creditors, even thougli they sory liquidation, are voidable, be posterior and not hypothe- as presumed to be fraudulent. -C. C. 1032 et 8. SECTION IV. 0/ registration as regards gifts inter vivos in particular. 804. Registration of gifts inter vivos In the offices estab- lished for the registration of ^real rio'hts, takes the place of cary,4ind by all other persons in- I terested in having the gift de- clared void.-C. N. 941; C. C. I 777. 2098. 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 re- gistry laws. AlT other jifts In contracts of marriage, even between future 100 GIFTS INTER YIYOS AND BT WILL. consorts, or in contemplation of death, and all other gifts in the direct line, remain subject to rep;istration in the uame man- ner as gifts in general.— C. C. 038. 808. Gifts of moveable ef- fects whether universal or particular, are exempt from registration when they are fol- lowed by actual delivery and public possession by the donee. ~C. C. 938. 800. Gifts are subject to the rules concerning registration of real rights contained in the eighteenth title of this book, and are no longer subject to the rules which governed inscrip- tions in the prothonotary s office. 810. The donor is not liable for t'lC consequences of the want of registration, although he has bound himself to effect it. Married women, minors and interdicted persons cannot be relieved from the failure to re- gister the gift, but they have their recourse against those who neglected to effect such re- gistration. Husbands, tutors, adminis- trators, and others whose duty it is to attend to such registra- tion, cannot avail themselves of the absence of it.— C. N. 940, 941, 942. 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 pan of the donee ; 2. By means of the resolutive 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.— C. N. 953, 956. 812. In gifts, the subse- auent birth of children to the onor does not constitute a re- solutive condition, unless it is so stipulated.— C. N. 960, 966. 813. Gifts may be revoked by reason of ingratitude, with- out a stiiHilation to that effect :— 1. If the donee have at- tempted the life of the donor ; 2. If he have been guilty to- wards him of ill-usage, crimes or grievous injuries ; 3. If he refuse him mainte- nance, regard being had to the nature of the gift and the cir- cumstances of the parties. Gifts by contract of marriage are subject to this revocation, and so are remuneratory or onerous gifts in so far as they exceed the value of the services or of the charges.— C. N. 955, 956, 959. 814. The demand of revo- cation on the ground of in- gratitude must be made with- in a year from the date of the offence imputed to the donee, or within a year from the day when such offence became known to the donor. Such revocation 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 himself, or unless in the second case, the donor died within a year after the offence was com- mitted or became known to him.— C. N. 955, 957. 815. Revocation on the ground of ingratitude does not prejudice alienations made by the donee, nor hypothecs or GIFTS INTIB VIV08 AND BT WILL. 101 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 he 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 time of the demand.— C. N. 955, 956, 958. 816. Gifts cannot be revoked bv reason of the non-fulfllment of obligations entered into by the donee, as charges or other- wise, unless the revocation is stipulated in the deed; and such revocation is subject in all respects to the same rules as the dissolution of sale in de- fault of payment of the price, without the necessity oi any preliminary condemnation ob- liging the donee to the fulfil- ment of his obligations. The stipulation of all other resolutive conditions when legally made has the same etfect in gifts as in other con- tracts. -C. N. 953, 956; C. C. 1536 et s. SECTION VI. Of Gifts by Contract of Mar riage. Whether of Present Property or Made in Contem- plation of Death. 817. The rules concerning gifts inter vivos apply to those which are made by contract of marriage, with such modifica- tions as result from special pro- visions.— C. N. 1081, 1092. 818. Fathers and mothers, and other ascendants, relations in general, and even sirangers, may, in a contract of marriage, give to the future consorts or to one of them, or to the chil- dren to be born of their mar- riage, even with substitu- tion, the whole or a portion of their present property, or of the property they may leave at their death, or of both together.— C. N. 943, 10H2, 1084, 1089 ; C. C. 772. 819. Subject to the same rules, when particular excep- tions do not apply, future con- t.ort8 may likewise, by their contract of marriage, give to each other, or one to the other, or to the children to be bom of their marriage, property either present or future.— C. N. 943, 1091. 820. Owing to the favor of marriage, and the interest which future consorts may have in arrangements made in favor of third persons, it is lawful for relations, for strang- ers, and for the future consorts themselves, to make in a con- tract of marriage, wherebv the future consorts or their children are benefited by the same donor, all gifts whatsover of present property to third par- ties, whether relations or strangers. For the same reasons, the as- cendants of a future consort may, in a contract of marriage by which he also is benefited, make gifts in cbntemplation of death in favor of his brothers or sisters. All other gifts in contemplation of death made in favor 01 third parties are void. -C. N. 943. 821. Gifts of present pro- perty by contract of marriage are, like all others, subject to acceptance inter vivos. The 102 GIFTS INTER VIVOS AND BY WILL. acceptance is prenumed in the caseH mentioned in the second section of this chapter. Third parties not. present to the deed may accept separately, either before or after the marriage, jrifts made in tlieir favor.--C. N. 1087 ; C. C. 788. 822. Gifts by contract of marriage of present or future property are valid, even as re- gards third parties only in the event of the marriaue taking place. If the donor of the third party, who has accepted the gift, die before the marriage, the gift is not void, but remains suspended by the condition tliat the marriage will take place.— C. N. 1088. 823. Gifts of present pro- perty by contract of marriage cannot be revoked by the donor, even as regard tliird parties benefited who have not yet ac- cepted, unless for legal grounds, or by reason of a resolutive con- dition validly stipulated. Gifts in contemplation 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 dis- pose of the given property by gift inter vivos or by will, un- less it is in small amounts, by way of recompense or other- wise. He remains, neverthe- less, 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 contempla- tion of death be universal, he may acquire and possess pro- perty and dispose of it under the foregoing restrictions, and may contract, otherwise than by gratuitous title, obligations which affect the property thus given.-C. N. 1083; C. C. 898 030. 824. It may be stipulated that a gift, either of present properly or in contemplation of death, made in a contract of marriage, shall be suspended, revocable, reducible, or subject to chan>^eable or indeterminate reservations and rights of re- sumption, althotigli the effect of tlie 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 l)eneflt of the gift to the exclusion of the heir c>f the donor.- C. N. 944, 940, 1086, 10H9, 1093 ; C. C. 782, 783. 823. Gifts by contract of marriage may be made subject to the charge of paying the debts due i»y 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 stipulation to that effect, for the whole or in proportion to what he receives.~C. N. 947, Um ; C. C. 7H4. 820. The donee, however, after the death of the donor, in gifts made wholly in contem- plation of death, and so long as he has not otherwise accepted, may free himself from the debts by renouncing the gift, after making an inventory and ren- dering an account, and by giv- ing back any property of the donor remaining in his posses- sion, or which he may have alienated or mixed up with his own. 827. In cumulative gifts of present and future property the 0IFT8 INTKB VIVOS AND BT WILL. 103 don(»e may also, after the death of the donor and ho lon^ a8 he hat) not accepted otherwise the ?;ift in contemphition of death, ree himself from the debts of the donor other than tliose for which he 18 liable under the ^ift inter vivos, by renouncing in the same manner the gift in contemplation of death, to re- strict himself to the present property given him.— C. N. 1(>84. H28. 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 retiirning the pro- perty given in tlie manner pro- vided in respect of gifts in general.— C. C. 798. 820. Notwithstanding the rule which excludes representa- tion in the matter of legacies, gifts in contemplation of death made in favor of future consorts or of one of them, by their as- cendants 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 be born of the mar- riage, unless it is otherwise provided. The gift becomes extinct if when the donor dies neither the consorts or consort benefited, nor any children of theirs be living.-C. N. 1082. 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.-C. N. ml. CHAPTER THIRD. OF WII.LS.> SECTION I. Of the CapacUy to give and to receive by will. 83 1 . Ev.»ry person of full age, of sound intellect, and capalile of alienating his property, mav dispose of it freely by will, without disiinction a« to its origin or nature, either in favor of his consort, or of one or more of his children, or of anj^ other person capable of aecjuinng and possessing, and without re- serve, restriction, or limitation; saving the prohibitions, restric- tions, and causes of nullity mentioned in this code, and all dispositions and conditions con- trary to public order or good morals.- C. N. 901; C. C. 13, 7(50. H32. The capacity of married women to dispose of property by will is established in the first book of this code, in the title 0/ Marriage.-C. N. 905; C. C. 184. 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 N. 1^)3, 90i. «34. Tutors and curators cannot bequeath property for the persons under their con- trol, either alone, or conjointly with such persons. l*ersons interdicted for im- becility, insanity or] madness cannot dispose of property by will. The will of a prodigal ^ Ai. 906 ; C. C. (K)tt, 000 et s. H30. As regards testament- ary dispositions, the legal pre- sumptions of undue intluencc and want of will, arising from the relation of priest or min- ister, physician, advocate or attorney, in which the legatee stands toward the testator, have been destroyed by the introduction of the absolute freedom of disposing of pro- perty by will. Presutiiptions in these cases are to be estab- lished as in all others. —C. N. «09;C. C. 769. 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 coiicil, 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 ac- cording to the rules hereinafter laid down, as universal le- gacies, legacies by general title, or as particular legacies.— C. N. 967. 841. Two or moje persons cannot make a will by one and the same act, whether in favor of third persons or in favor of one another. — C. N. 968. GIFTS INTIR V[V08 AND BT WILL. 10(( 842. Wills may be made ; 1. Ill notarial or authentic form ; 2. In the form required for holograph wills ; 3. Ifi writing and in presence of witnesses, in the form de rived from the laws of England. -C. N. 909. 848. Wills in notarial or authentic form are received be- fore two notaries or before :i 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 presence of the other or by the notary In presence of the witnesses. Mention is made in the will of the observance of the for- malities.-C. N. 972 ; C. C. 12(W. 844. Authentic wills must be niJide as originals remaining with the notary. The witnesses must be named and described in the will. They must be of the male sex, of full age, and must not be civilly dead, nor sentenced to an in- famous punishment. Aliens may serve as wit- nesses. The clerks and servants of the notaries cannot. The date and place of its execution must be stated in the will.-C. N. 971, 972, 975, 880; C. C. 36, s. 4. 845. A will cannot be ex- ecuted before notaries who are related or allied to the testator or to each other, in the direct line, or in the degree of brothers, uncles, or nephews. The witnesses, however, may be— related or allied to the testator, to the notary, or to one another. 846. Legacies made in favor of the notaries or witnesses, or to the wife of any such notary or witnesfi, 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 binetlted nor com- pensated bv the will may serve as witnesses to its execution. 847. Wills in authentic form cannot lie 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- ten by themselves and handed to the notary, before or at the execution of the will. Deaf mutes and such persons as cannot hear the will read, must read it themselves, and aloud, as regard those who are only deaf. A written declaration that the deed contains the will of the testator and Is prep^red in accordance with his instiuc- tlons, niaj be substituted for the same declaration by word of mouth, when it is required. Mention must be made of the observance of those exceptional formalities and of their cause. If the deaf mutes and othei*s cannot avail themselves of the provisions of this at tide, they cannot make wills in the au- thentic form. 848. Further and special provisions exist for the district of Gaspe, to remedy the want of not-iirles for the execution of wills as well as of other acts. Saving these provisions of a local nature, ministers of re- ligion cannot replace notaries In the execution of wills ; neither can they serve other- wise than as ordinary wit- nesses. 106 aifTS INTIR VITOB AND BT WILL. 840. Wills made in Lower Canada or elsewhere by military men in active Hervice out of garrison, or bv mariners during voyageH, on hoard hIiId or in hoHmtal, which would no valid in England hh rcgardn their form, are likewiHe valid in Lower Canada.- (5. N. W81. H50. Holograph wilKs muNt be wholly written and .signed by the tcMtator. and re({uiie neither notarieN nor wltncHses. Thev are 8ubjt?ct to no particu- lar form. Deaf nmtes who ar« suf- ficiently educated, may make holograph wills, in the isame manner as other persons who know how to write.— C. N. U7(». 851. Wills made in the form derived from ihe laws of England, wliether they aired moveable or immoveable pro- perty, nmsL be in writing and signed at the le of understanding the meaning of a will and the manner of mak- ing one, and all other persons, whether literate or not, whose Infirmity has not rendered them incapable of so under- standing or of expressing their intentions, may dispose of pro- perty l>y will in the form de- rived from the laws of England provided their intention and the acknowledgment of their signature or mark are mani- fested in i)resence of witnes^e8. 853. In wills nuide 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 re- lations of such witness, in the first degree, are void, but do not annul the other provisions of the will. The competency of testa- mentary executors to serve as witnesses to such wills, is sub- ject to the .same rules as in wills in authentic form. 854. In holograph wills, and in wills made in the form derived from the laws of Eng- land, whatever comes after the signature of the testator is looked upon as a new act, which in the former case nmst 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 come after the last as witnessing the whole of the will preceding such signature. In wills made in either of the forms menrioned in this arti- cle, date and place, need noc be mentioned on pain of nullity. The judges or courts nmst de- cide in each case whether their absence creates any presump- tion against the will or renders uncertain any of its particular provisions. The will need not he signed upon each page. 855. The formalities to OIFTB INTIR VIYOB AND BT WILL. 107 which wills are subjected by the provisions of the present sec- tion must he observed on pain of nullity, unless there is some ptirticular exception on the sub- ject. Nevertheless, wills purport- ing to be mtide in one form, which are void as such in conse- quence of the Inobservance of some formality, may be valid as made in another form, if they contain all the requisites of the latter. -C. N. 1101 ; C. C. 1221. SKCTION III. 0/ the Probate and Proof of Wills. 856. Thcoriginals and legally certified copfes of wills made in authentic form make proof in the Hame manner as other au- thentic writings. 857. Holograjh wills and those made in the form derived from the laws of England, nmst be presented for prolmte to the couit exercising superior ori- ginal jurisdiction in the district 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- ceivea the depositions in writ- ing and under oath of witnesses competent to give evidence, and these depositions remain athxed to the original will, to- g ether with the judgment, if it ave 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- 1 meat, which copies are authen- ! tic and give effect to the will until it is set aside upon contes- tation. If the original of the will be deposited with a notary, the court or judge or the prothono- tary, caus<'H such original to l)e delivered up.- C.N. 1007: C.C.F. laOT, 1430. Hft8. The heir of the deceased need not be summoned to the prolmte thus made of the will, except it is so ordered in partl- cul r cases. The functionary who takes the probate takes cogniisance of all tiiat relates to the will. The probate of wills d<»es not prevent their contestation by persons intereHted. 850. The acknowledgment of a will bv the heir or bv any in- terested, person has its eflVct against him, as regards his right to contest its validity subsequently, but does not pre- vent the probate and the de- positing of the will with the prothonotary in the i)roper manner, in so far as concerns other parties interested. 8«0. ^Vhen the minute or the original of a will has been lost or destroyed by a fortuitous event, after the death of t he tes- tator, or has been withheld without collusion, by an advers- ary or by a third party, the will may be proved in the manner provided in such cases for other acts and writings in the title Of- Obligations. If the will have been destroy- ed or lost before the death of the testator without the fact ever having como to his know- ledge, it may be proved in the same manner as if the accident had occurred after his death. If the testator knew of the destruction or loss of the will and did not provide for such destruction or loss, he is held to t;r J t 1 108 GIFTS INTBR VIVOS AND BY WILL. have revoked it, unless he sub- flequently manifest his inten- tion of maintaining its provis- ions.— C. C. 892, 8. 3, 1233, s. 6. sei. In cases where, in con- formity with the preceding article, a non-producea will may be judicially proved, a probate of it may also be obtained, upon petition to that effect and posi- tive proof both of the facts which justify such a proceeding and of the contents of the will. In such case probate of the will is held to be established accord- ing to the proof deemed suffi- cient, and to whatever modifi- cations may be found in the judgment. 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.— C. C. P. 312. SECTION IV. Of Legacies. § \.— Of legacies in general. 863. Testamentary disposi- tions of property constitute legacies, either universal, or by general title, or by particular title. -C. N. 1102; C. C. 873. 864. The property of a de- ceased person whicii is not dis- posed of by will, or concerning which the disposition of his will are wholly without effect, re- mains in his abintestate succes- sion, and passes to his lawful heirs.— C. C. 597. 863. When a legacy made subject to another legacy lap- ses, 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- position, charged ':*xinn the heir or legatee to whom the lapsed legacy accrues.— C. C. 900 et s. 866. The legatee may always repudiate the legacy so long as he has not accepted it. The acceptance may be either ex- press or implied. Acceptance may be implied from the same acts as in a>b in testate succes- sion. The right to accept a legacy, not previously repudi ated, passes to the heirs and other legal representatives of the legatee, in the same manner as heritable rights derived from the law alone.— C. C. 645 et s. 867. Tutors and cujLators may accept legacies, subject to the same restrictions as in the case of abintestate successions. The capacity of minors and of persons interdicted for prodi- gality, to accept legacies for themselves, is governed by the rules established for the accept- ance of successions. — C. C. 301, 643. 868. Accretion takes place in favor of the legatees in case of lapsed legacies, when such lega- cies 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 co legatee in the thing bequeathed. Directions 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 with- out deterioration is bequeathed by the same act to several per- sons separately. The right to accretion applies also to gifts inter vivos maae in favor of several persons jointly, when some of the donees do m GIFTS INTER VIVOS AND BT WILL. 109 not accept.— C. N. 1044, 1045; C. C. 900 eta., 964. 800. A testator may name lef^atees who shall be merely fiduciary or simply trustees for charitable or other lawful pur- poses within the limits permit- ted by law ; he may also deliver over his property for the same objects to his testamentary ex- ecutors, or effect such purposes by means of charges imposed upon his heirs or legatees. 870. Payment made in good faith to the ostensible heir, or to a legatee who is in possession 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 so— C. C. 1145. 871. Fruits and Interest aris- ing from the thing bequeathed accrue to the benefit of the lega- tee from the time of the death of the testator, when the latter has expressly declared in the will his intention to that effect. Life-rents or pensions, be- queathed by way of mainten- ance, 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.— C. N. 1015. 872. The rules concerning le gacies and the presumptions of the testator's intention, as well as the meaning ascribed to cer- tain terms, give vva^ to the for- mal or otherwise sufficient ex- pression of such intention, given in another sense or with a view to different effects. The testator may derogate from these rules in all that is not contrary to public order, to good morals, to any law qca- taining a orohibition or some other applicable declaration of nullity, or to the rights of cre- ditors and third persons.- C. C. 13. § 2.- -0/ universal legacies and legacies by general title, 873. Universal legacies are testamentary dispositions by which the testator gives to one or to several persons the whole of the property he leaves at his death. Legacies are only by general ti'xAc when the testator be- queaths an aliquot part of his property, as a half, a third, or a universality, such as the whole of his moveable or immoveable property, or the whole of the private property excluded from the ntatrimonial community, or an aliquot part of any such whole. All other legacies are by par- ticular title. The exception of particular things, whatever may be their number or value, does not de- stroy the character of universal legacies, or of legacies by general title. -C. N. lOOa, 1010. 874. The legatee has the same delays as the heir to make an inventory and to deliberate. If he have not assumed his quality within the delays, and he afterwards sued for the debts or charges attached to his legacy, he is not freed from the costs by his renunciation, any more than the heir would be. — C. C. 664 et s.; C. C. P. 177, s. 1. 875. The liability of a uni- versal legatee, or of a legatee by general title, or V)y particular title, for the deV)ts and hy- pothecs, is explained in the title Of Successions and in cer- tain respects, in the present r- * ■ j • 110 OIPTS INTEA VIVOS AND BY WILL. section, and also in the title 0/ iiaufruct.—C. C. 472 et s., 735 et s. 876. The legatee of a usu- fruct bequeathed as a universal legacy, or as a legacy by general title, is personally liable to- wards the creditors for the debts of the succession even for the principal, in proportion to what he receives ; he is hy- pothecarily liable for whatever claims affect 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 the rules set forth in article 474.— C. C. 472 et s. 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 higacies, without prejudice to the personal or hypothecary action of the ci'editors against those who are legally subject to the right claimed, and saving the recourse of the latter against those upon whom the testator imposed the obliga- tion. 878. Universal legatees and legatees by general title cannot, after acceptance, free them- selves from personal liability for the debts and legacies im- posed upon them by law or by the will, without haying ob- tained benefit of inventory ; tlipy are in this respect, pnd in all that concerns their aumin- istration, the rendering of their account and that discharge from liability, subject to the same rules as the heir, and to the obligation of register- ing. I^egatees by particular title upon whom the will imposes debts and charges of uncertain extent, may, in the same man- ner as the heir and universal legatee, accept only under bene- fit of inventory. -C. C. 660 et s.; C. C. P. 140.5 et s. 879. The creditors of a suc- cession have a right to the se- paration 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. C. 74:3, 1990, 2106. . . ' :r'-fo7 §3. ■Of legacies by particular title. •i*VtJ - 880. The debts of a testator must in all cases be paid in pref- erence to his legacies. Particular legacies are paid by the heirs, or universal leg- atees, or legatees by general title, each in the proportion for which he is liable, as in the con- tribution to the debts, and the legatee has a right to demand the separation of property. If the legdcy be imposed upon one particular heir or legatee, the personal action of the leg- atee by particular title does not extend to the others. The right to a legacy does not carry with it a hypothec upon the property of the succession, but the testator, whatever may be tlie form of. the will, may se- cure it by a special hypotheca- tion requiring, as regards the rights or third parties, that the will be registered.— C. N. 1017 ; C. C. 472, 743, 2110 et s. 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 be- longs to the heir or legatee charged with the payment of it* n:-fsl GIFTS INTER VIVOS AND BY WILL. Ill The legacy is however valid, and is equivalent to the charge of procuring the thing or of paying its value, if such appear to have been the intention of the testator. In such case, if the thing bequeathed l)elong to the heir or the legatee charged with the payment of it, whether the fact was known or not to the testator, the particular leg- atee is seized of the ownership of his legacy.— C. N. 1021. 882. If the thing be(iucathed belonged to the testator for a Eart only, he is presumed to ave bequeathed only the part which belonged to hini even when the remainder belongs to the heir or principal legatee, unless his intention to the con- trary is manifest. The same rule applies to the bequest made by one of the consorts of a thing belonging to the community ; saving the right of the legatee to the whole of the thing bequeathed under the circumstances enumerated in the title concerning marriage covenants, and generally in the case of the following article.— C. C. 129:^. 883. If the testator since the making of the will have be- come, wholly or in part, owner of the thing bequeathed, the legacy is valid as regards what- ever remains in his succession, notwithstanding the provisions contained in the preceding article ; exempting the case in which the thing remains in the succession only by reason of the nullity of a subsequent vo- luntary alienation of it by the testator.— C. N. 1021 ; C. C. 897. 884. When a legacy by par- ticular title comprises a uiu- versality of assets and liabUi- ties, as for example a certain succession, the legatee of such universality is held personally and alone for the debts con- nected with it, without pre- judice to the rights of the creditors against the heirs and universal legatees or legatees by general title, who have their recourse against the particular legatee. 885. In the case of insuffl- cien(;y of the property of the succession 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. Leg- atees of a certain and deter- minate object take ic without being bound to contribute to the payment f f the other legacies which have no prefer- ence over theirs. 880. To obtain the reduction of particular legacies, the cr(*ditors 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 share only, in proportion to the value of his legacy, but, the particular legatees m.ay free themselves by '.giving up the particular legacies or their value. 887. Creditors of the suc- cession, in the case of reduc- tion of particular legacies, have a preferable right to the thing be(|ueathed, over the creditors of the legatee, as in the case of separation of property. A particular legatee suffering such reduction has his r» course against the heirs or legatees ■ -'U ; ■ 112 GIFTS INTER VIVOS AND BY WILL. who are personally liable, and is substituted by law in all the rights of the creditor thus paid. 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 des- tination and the circumstances it may be presumed that the testator intended it to form a mere dependency, constituting with the immoveable bequeath- ed but one and the same pro- perty. Buildings, embellishments and improvements are deemed to be adjuncts of the thing be- queathed.— C. N. 1019. 889. If before or since the will, the immoveable bequeath- ed have been hypothecated for a debt of the testator remaining 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 l)ound 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, affect at the same time the par- ticular legacy and the property remaining in the succession, the benefit of division may reciprocally be claimed.— C. N. 1020 ; C. C. 741. 800. A legacy made in f 'vor of a creditor is not deemed to be in compensation of his claim, nor ti^&t in favor of a servant in compensation of his wages. -C. N. 1023. §4.-0/ the seizin of legatees. 891. Legatees by whatever title, are by the death of the testator, or by the event which gives effect to the legacy, seized of the right to the thing bequeathed, in the condition in which it then is, together with all its necessary dependencies, and with the right to obtain payment, and to prosecute all claims resulting from the legacy without lieing obliged to obtain* legal delivery. SECTIO^ V. ,J?) 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 expressly 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.— C. N. 1035 ; C. C. 756, 860. 893. ThQ revocation of a will GIFTS INTER VIVOS AND BT WILL. 113 or of a legacy may also be de- manded : — 1. On the ground of the com- plicity 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 legatee hindered the revocation or modification of the will ; 2. By reason of the resolutive condition ;— Without prejudice to the causes for which the validiiy of the will or legacy may be impugned. The subsequent birth of chil- dren to the testator does not affect the revocation. Enmity springing up between him and. the legatee does nol, establish a presumption of re- vocation.^C. N. 1040, 1047 ; C. C. 610. 894. Subsequent wills which do not revoke the preceding ones in an express manner, an- nul only such dispositions therein as are inconsistent with or contrary to those contained in the later wills.— C. N. 105^. 805. A revocation contain- ed in a subsequent will retains its full effect, although such will should remain inoperative by the reason of the incapacity of the legatee or of his refusal to accept. A revocation contained in a will which is void by reason of informality, is also void.— C. N. 1037 ; C. C. 1221. 806. In the absence of ex- press dispositions, the circum- stances and the indications of the intention of the testator de- termine whetlier, upon the re- vocation of a will which re- vokes another will, the former will revives. 807. Every alienation by the testator of the right of ownership in the thing be- queathed, even in a case of necessity, or by forced means, or with right of redemption re- set ved, or by exchange carries with it, unless he has other- wise provided, a revocation of the will or legacy for all that has been thus disposed of, even though, if it were voluntary, the alienation be void. The revocation subsists al- though the thing should after- wards have returned into the hands of the testator, unless he appears to have intended the contrary.-C N. l(m ; C. C. 883. 808. A person cannot, other- wise than by the eHect 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 re- voke his testamentary disposi- tions. Nor can a person sub- ject the validity of anv future will to formalities, expressions or signs not required by law, or to other derogatory clauses. — C. C. 823. 800. Heirs cannot be ex- cluded from successions, unless the act excluding them is clothed with all the formalities of a will. 000. Every testamentaiy disposition lapses if the person in whose favor it is made do not survive the testator.— C. N. 10:i9 ; C. C. 838, 805, 868. 001. Every testamentary disposition made under a con- dition which depends on an un- certain event, lapses if the legatee die before the fulfilment of the condition.-C. N. KMO. 002. Conditions which are intended by the testator to suspend only the execution of a disposition, do not prevent the legatee from having an ac- 8 i- i ^' 11 114 OIPTS INTER VIVOS AND BY WILL. IH' ^1! i' 1 Mi quired right transmissible to his heirs.— C. N. 1041. 003. A legftcy lapses if the thiriK bequeathed perish totally during the lifetime of the testa- tor. The loss of a thing bequeathed which happens after the deaCh of the testator falls upon the legatee, "except cases wherein the heir or other holder may be responsible according to the rules applicable generally to things which form the subject of obligations." C. N. 1042. 004. A testamentary disposi- tion lapses when the legatee repudiates it or is incapable of receiving under it.— C. N. 1043. SECTION VI. Of Testamentary Executors. 005. A testator may name one or more testamentary ex- ecutors, or provide tor the man- ner in which they shall be ap- pointed ; he may also provide for their successive replace- ment. Heirs or legatees may law- fully be appointed testamentary executors. Creditors of the succession may be executors without for- feiting their claims. Single women or widows may also be charged with the execu- tion of wills. The courts and judges cannot appoint nor replace testament- ary executors, except in the cases specified in article 924. If there be no testamentary executors, and none have been appointed in the manner in which they ma.y be, the execu- tion oftne will ' -evolves en- tirely upon the neir or the legatee who receives the suc- cession.— C. N. 1025 ; C. C. 923. 006. Married women cannot accept testamentary executor- ship without the consent of th'ir husbands. Single women and widows who marry while they are testa- mentary executors, do not for- feit their office by mere opera- tion of law, even though they liave entered into comnmnity of property with their hus- bands, but they require the consent of the latter to continue the exercise of such office. A testamentary executrix, separated as to property from her husband, either oy contract of marriage or by judgment, nniy, if he refuse the consent necessary for her to accept or to exercise the office, obtain judical authorization as in the cases provided for in article 178. — C. N. 1029 ; C. C. 177. 907. Minors cannot act as testamentary executois even with the authorization of their tutors. Nevertheless, emancipated minors may do so, provided the executorships be of small im- p rtance in proportion to their nieans.— C. N. 10:%. 008. The incapacity of cor- porations to execute wills is de- clared 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 them solely by the appt-llation which belongs to them in their corpor- ate capacity. The same rule applies to per- sons designated by the title GIFTS INTER VIVOS AND BY WILL. 115 Which belongs to their office or position, and to their succes- sors.- C. C. m5. 909. Subject to the i)reeed- ing provisions, persons w ho can- not obligate tlieniselves cannot be testanientarv executors.— C. N. 102S. OlO. No person can be com- pelled to accept the oftice of tes- tamentary executor. Its duties are performed gra- luitously, unless the testator has pro ided for their remuner- ation. If a legacy made in favor of a testamentary executor have no other cause than such remuner- ation, and he do not accept the office, t'le legacy lapses by reason of the failure of the con- dli ion. If he accept the legacy thus made, he is presumed to have accepted the execiitorship. Testamentary executors are not bound to be sworn : nor to give security unless they have accepted with that condition. • They are not liable to coercive imprisonment. C. C. 981o et s, ; C. C. P. 833, s. 6. 911. A testaiuentary execu- tor who has accepted the office cannot renounce it without the authorization of the court or of a judge, which may be granted for sufficient cause ; the heirs and legatees and other execu- tors, if there be any, being pre sent or having been duly called. Difference of opinion between an executor and the majority of his co-executors, as to the exe- cution of tlie will may consti- tute a sufficient cause. 912. If several lestamentarv 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 manner, if severa have accepted, but some or one only of them survive, or retain the office, they or lie may act alone until the others are re- placed, in the cases admitting of it, unless the testator has ex- pressed himself to the contrary. 913. If there be several joint testamentary executors, with the same duties to perform, they have all equal powers and mtist act together, unless the testator has otherwise or- dained. Nevertheless if any of them be al)sent, those who are in the place may perform alone acts of a conservatory nature and others requiring dispatch* The executors m ty also act generally as attorneys for each other, unless the intention of the testai or appears to the con- trary and subject to the respon- sibility of the one who grants the power. The executors can- not delegate generally the exe- cution of the will toothers than their co-executors, but they may be represented by attorney for determinate acts. Executors exercising these joint powers, are jointly and severally bound to render one and the' same account, unless the testator has divided their functions and each of them has kept within the scope assigned to him. They are responsible only each for his share for the pro- perty of which they took pos- session in their joint capacity, and for the payment of the balance due, saving the distinct liability of such as are author- ized to act separately. — C. N, 1033. 914. The expenses iucuiTed h,- 1. )' .'!■ t 116 GIFTS INTER VIVOS AND BY WILL. by the te«taineiitary executor in the fulfllment of his duties are borne by the succession.— C. N. 10:^4. 015. A testamentary exe- cutor niay, before the prolmte of the will, perform acts of a conservatory nature or which require dispatch, provided he obtains -such probate without delay, and furnishes proof of it when required. 016. 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 en- tirely. This discharge does not re- lease him from the payment of what remains in his hands, unless the testator intended to leave him the disposition of the Eroperty without responsi- ility, or that the terms of rhe will otherwise import the re- lease from payment. 017. If, having accepted, a testamentary executor refuse 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 fulfiling the duties of his office, he ma^ he removed b> the court having jurisdiction. 018. Testamentary execu- tors, for the purposes of the execution of the will, are seized as legal depositaries of the moveable property of the suc- cession, and may claim pos- session of it even against the heir or legatee. This seizin lasts for a year and a day reckoning from the death of the testator or from the time when the executor was no longer prevented from taking possession. When his duties are at an end, the testamentary executor must render an account to the heir or legatee who nceives the succession, and pay him over the balance ren.aining in his hands.-C. N. 1026, 1031. OlO. The testamentary exe- cutor must cause an inventory to be made after notifying the heirs, legatees, and other inter- ested persons to be present. He may, however, perform im- mediately all acts of a con- servatory nature or which re- quire despatch. He attends to the obsequies of the deceased. He procures the probate of the will and its registration when necessary. If the validity of the will be contested he may become a party to support it. He pays the debts and dis- charges the particular legacies, with the consent of the heir or of the legatee who receives the succession, or, after calling in such heir or legatee, with the authorization of the court. In the case of insufficiency of moneys for the execution of the will, he may, with the same consent, or with the same authorization, sell moveable property of the succession to the amount required. The heir or legatee may however pre- vent such sale by tendering the amount required for the exe- cution of the will. The testamentary executor may receive the debts due and may sue for their recovery. He may be sued for whatever falls within the scope of his duties, saving his right to call in the heir or the legatee.— C. N, GIFTS INTTIR VIVOS AND BT WILL. in 1031 ; C. C. 857 ct s.; C C. P. ia64, 1387 et s., 1430. 920. The powers of a testa- mentary executor do not pass by mere operation of law to his heirs or other successors, who are however bound to rendi-r an account of his administra- tion, and of whatever they may themselves have actually ad- ministered.- C. N. 1032. 921. The testator may modi- fy, restrict or extend the pow- ers, the obligations and the seizin of the testamentary executor, and the duration of his functions. He may con- stitute the testamentary exe- cutor an administrator of his property, in whole or in part, and may even give him the power to alienate it with or without the intervention of the heir or legatee, in the manner and for the purposes deter- mined by himself. 022. A testator cannot ap- point tutors to minors nor cur- ators to persons requiring their assistance or to substitutions. If he have assumed to ap- point persons to such offices, the speciHc powers given to the Eersons thus named, and which e might have conferred upon them without such designation, may however be exercised by them as executors and admin- istrators ot the will. The testator may oblige the heir or the legatee, in certain cases, to take the advice or to obtain the sanction of the tes- tamentary executors, or of other persons. — C. C. 249. 923. The testator may pro- vide for the replacing of testa- mentary executors and ad- ministrators, even successively and for as long a time as the execution of the will shall last, iwhether by directly naming and designating those who shall replace them himself, or by giving them power to ap- point sul>stitutes, or by indi- cating some other mode to be followed, not contrary to law. -C. C. 905. 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- f)ose may be exerci.sed judicial- y, the heirs and legatees in- terested being first duly noti- fied. When testamentary execu- tors 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 judjjes and the courts may likewise exercise the powers necessary to do so, provided It appears that the testator intended the execution and administrat ion of the will to continue independently of the heir or of the legatee.— C. C 905. :. .--i .■: .' • -^ ■ ',;-■•■ -^.i: CHAPTER FOURTH. OF SUBSTITUTIONS. SECTION I. Rules Concerning the Nature and Forms of Substitutions 925. There are two kinds of substitutions : Vulgar substitution is that by which a person is called to take the b3uefic oC the disposi 1 1 L h! 118 Ql1ft8 INtIR VIVOS AND BY WILL. tion in the event of Its failure in respect of the person in whose favor it is first made. BMduciary sul)Htitution is that in whicli the person receiving the tiling is charged to deliver it over to another either at his death or at some other time. Substitution takes its ett'ect by operation of law at the time flxea upon, without the neces- sity of any delivery or othei act on the part of the pi rson charged to deliver over.— C. N. H9B, m, 1048. 020. Fiduciary substitutions inclndo vulgar substitutions without any expressions to that effect l)eing necessary. Whenever the vulgar is ex- pressly joined to the fiduciary, to meet particular cases, the substitution is called compen- dious. When the term siihstitution is used alone, it applies to the fiduci iry, wi*-h the vulgar at- tached to it, unless the nature or terms of the disposition indi- cate the vulgar alone.— C. C. 938. 927. The person charged to deliver over is ca'led the insti- tute, and the one wlio is en- titled to take after him is called the substitute. When there are several degrees in the sub- stitution, the substitute who receives under the obligation of deliv^eringover becomes in turn an institute with regard to the substitute who comes next. 928. A substitution may exist although the term usu- fruct be used to express the right of the institute. In gen- eral the whole tenor of the act and the intention which it sufli- ciently expresses are consid- ered, rather than the ordinary acceptation of ptrticular words, in order to determine whether there is substitution or not. — C. C. 443. 929. Substitutions may be created by gifts inter vivos, 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 persons is governed in each case by the nature of the act. The disposition which creates the substitution may i)e con- ditional like any other gift or legacy. Su hist itu tion s may be ap- pended to dispositions th«t are either universal, or by general title, or by pfirticular title. The substitute need not be pri sent at the gift inter vivos which creates the substitution In his favor ; he need not even have l^en born nor conceived at the time of the act.-C. C. 772. 9;SO. Substitutions made by contract of marriage are irre- vocable like gifts made in the sa»ne manner. Substitutions made by other gifts inter vivos may l>e re- voked by the donor, notwith- standing the acceptance by the institute for himself, so long as they have not opened ; unless they have been accepted by the substitute, or in his behalf, either formally or in an equi- valent manner, as in gifts in general. The acceptance made for themselves by institutes, even when they are strangers to the donor, also renders irrevocable the substitution in favor of their children born or to be born. The revocation of a substi- tutio I, when it is allowed, can- not prejudice the institute nor GIFTS INTKR VIVOS AND BT WILL. 119 e e his heirs by dt'privinff them of the posMible benefit or the lapse of the substitution, or other- wise. On tlie contrary, and although tlie substitute might have reeeivtd but for the re- vocation, such revocation goes to the profit of tlie institute and not of the grantor, unless the latter has made a reservation to that effect in the act creat- ing the sul)stitution. Substitutions by will may be revolted like all other testa- mentary dispositions. OJll. Moveable property as well as inmiove ibles may be the subject of substitutions. Unless corporeal moveables are subjected to a different dis- position they must be puVjlicly sold and their price be inv« sted for the purposes of the substi- tution. Ready money must also be invested in the same manner. The investment must in all cases be made in the nunc of the substitution.— C. C. 943, 95:}, s. 5, 981 (o). 932. Substitutions created by will or by gift infer rii-os cannot exten I to more than two degrees exclusive of the institute :— C. N. 1049. 033. The rules concerning legacies in general also govern in matters of substitution in so far as they are applicable, save in excepted cases. Substitution by gift inter vivos, 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 sulv ject to the rules which belongs to gifts inter vivos. An acceptance by the first in- .stitute under the gift is nu(R- cleiit for the substitutes, if thev avail themselves of the disposi- tion, and if it had not been validly revoked. If the gift inter vii^o.s lapse in consequence of repudiation or for want of acceptance on the part of thcl unborn, are represented in all inventories and partitions b^' a curator to the substitu- tion, appointed in the manner establisKed as regards tutors. The curator to the sui)stitution atti'iids to the interest of such substitutes and represents them in all oases in wiiieh his intervention is re(|uisite or proper. Tne institute who negh'ctN to sjx>Mition. \U ^i< 4^'Mis wHv> ar^" compet- vMil to demand tK\^ appoint ment of a tutor to {^ minor of the sanie family, m,v also demand the nomination of u curator to the substittitkm. K. S. Q.,art. 5.S02 ; C. N. U»W, 10.5(), ia57 ; C. C. 250 et s.. :U1 et s., 922 ; C. C. P. 1H:U, i:i40. 94\>perty comprised in the sH,\stitution as well as a valuatiN'vn of the moveable etfvctN, if they have not already Ix'on iiK-luded as such and valued likewise in a general in- ventory of the property of the succession, inane by otner per son^i. All persons interested must either be present or have been notified to that etFeet. 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 substi- tutes when they are not obliged to deliver over, to cause such inventory to be made at the expense of the institute, after 122 OnrTS INTER VIVOS AND BY WILL. i{ is notifying him, and all others interested, to be present. So long as the institute fails to have such inventory and valuation made he is deprived of the fruits.— C. N. 105S, 105 >, 1060 ; C. C. P. 1387 et s. 947. The institute performs all the acts that are necessary for the preservation of tlie property. He is liable on his own ac- count for all rights, rents, charges and arrears falling due within his time. He makes all payments, receives moneys due and reimbursements, invests capit; ' sums and exercises be- fore tue courts all the powers necessary for these purposes. For the same purposes he makes the necessary advances for law expenses and other necessary disbursements of an extraordinary nature, the amount of which is refunded to him or his heirs, either in whole or in part, according to what appears to be equitable at the time when he delivers over. If he has redeemed rents or paid the principle of debts due, without having I een charged to do so, lie and his heirs have a right to be paid back, at the same time, the moneys so dis- bursed, without interest. If vsuch redemption or pay- ment have been made in anti- cipation without sullicient rea- son, and would not have been demandable at the time of the opening, the substitute need not, until the time when they would have become exigible, do more than pay the rents or in- terest.-C. C. P. 946. 948. The rules concerning indivision set forth in the title Of Successions, apply equally to substitutions, save the pro- visional nature of the partition while they last. In the case of forced sale of immoveables, or any other law- ful alienation of the property comprised in a substitution, and in the case of redemption of rents or capital sums, the institute, or the testamentary ex«'Cutors authorized to ad- minister in his place, are bound to invest the price, in the inter- est of the substitutes, with the consent of all parties inter- ested ; or upon the refusal of such parties, the investment is made under judicial authoriza- tion, obtained after due notice to thetn being given.— f'. C 943, UHl (o) et s. 949. The obligation o< de- livering over the property of the substitution in an undimin- ished state, and the nullity of all his acts in contravention thereof, do not prevent the institute from hypothecating or alienating such property, without prejudice to the rights of the substitute who takes it free from all hypon^hecs, charges or servitudes, and even from the continuation of lease, iinless his right has been prescribed according to the rules contain- ed in the title Of Prescription, or unless a third party has a right to avail himself of the wants of registration of the substitution.-C. C. 2205, 2207. 950. Forced sales under ex- ecuiion, or bv licitation, are likewise dissolved in favor of fie substitute by the opening of the substitution, if it have been registered, unless the sales comes within one of the cases mentioned in article 953. — C. C. P. 781, 7a5, 951. The institute cnnnot compound as to the ownership of the property in such a man- ^^nVi^M GIFTS INTER VIVOS AND BY WILL. 123 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. — C. C. 351 *session of it, even against the donees or legatees for whose benefit the trust was created. This seizin lasts only for the time stipulated for the duration of the trust ; and while it lasts, the trustees may sue and be I sued an dtake fill judicial pro- GIFTS INTER VIVOS AND BY WILL. 127 ceedings for the affairs of the trust.— Id. 98 Ic. The donor or testator creating the trust, may provide for the replacing of trustees as long as the trust lasts, in case of refusal to accept, of death, or other cause of vacancy, and indicate the mode to Be fol- lowed. When it is impossible to re- place them under the terms of the document creating the trust or when the replacement is noi provided for, any judge of the superior court may appoint re- placing trustees, after notice to the benefited parties,— /r?. 9Hld. Trustees dissipating or wasting the property of the trust, or refusing or neglectitig to carry out the provisions of the document creating the trust, or infringing their duties, may be removed by the superior court — Id. 98 le. The power of a trustee do not pass to his heirs or other successors, but the latter are bound to render an account of his administration. — Id. 981/. When there are several trustees, the majority may act, unless it be otherwise provided in the document creating the trust.— Id. 981fir. Trustees act gratuit- ously, unless it be otherwise provided in the document creat- ing the trust. All expenses incurred by trustees in the ful- filment of their duties, are borne by the trust.— ArZ. 981/}. Trustees are obliged to execute the trust which they have accepted, unle- OF CONTRACTS. n-S SECTION I. Of the Requisites to the validity of contracts. 084. There are four re- quisites to the validity of a contract : — Parties legally capable of con- tracting. Their consent legally given. Something which forms the object of the contract. A lawful cause or consider ation.— C. N. 1108. § 1.-0/ tfie legal Capacity to contract. , 085. All persons are capable of contracting, except those whose incapacity is expressly declared by law.— C. N. 1123. 086. Those legally incapable of contracting are :— Minors in the cases and ac- cording to the provisions con- tained in this code. Interdicted persons. Married women, except in the cases specified by law. Those who, by special pro- visions of law, are prohibited from contracoing by reason of their relation to each other, or of the object of the contract. Persons insane or suffering a terapprary derangement of in- tellect arising from disease, ac- cident, drunkenness or other cause, or who by reason of weakness of understanding are unable to give a valid consent. Persons civilly dead.— C. N. 1124 ; C. C. 36, 177 et s., 210, 319 et s., 334, 335, 351, 1105, 1318, 1422, 1483. 087. The incapacity of mi- nors and of persons interdicted 9 :y-.:-\ f 130 OBLIGATIONS. for prodigality, is established in their favor. Parties capable of contract- ing cannot set up the incapacity of the minors or of the inter- dicted persons with whom they have contracted.— C. N. 1126 ; C. C. 334. %2.—0/ Conaent. 988. Consent is eithei ex- press or implied. It is in- validated by the causes de- clared in the second section of this chapter. § S.—0/the Cause or Considera- tion of Contracts. 080. A contract without a consideration, or with an un- lawful consideration has no effect ; but it is not the less valid though the considemtion be not expressed or be incor- rectly expressed in the writing which is evidence of the con- tract. -C. N. 1131, 1132. 000. The consideration is unlawful when it is prohibited by law, or is contrary to good morals or public order. -C. N. 1133 ; C. C. 13. § i.—Of the object of contracts. {See Chap. F.— " Of the ob- ject of obligations.) SECTION II. Of causes of Nullity in con. tracts. 001. Error, fraud, violence or fear, and lesion are causes of nullity in contracts ; sub- ject to the limit ations and rules contained in this code.— Ct Ct 650,^258. § I.— Of Error. 002. Error is a cause of null- ity only when it occurs in the nature of a contract itself, or in the substance of the thing which is the object of the con- tract, or in some thing which is a principal consideration for making it.-C. N. 1110; C. C. 148, 1921 ; C. C. P. 785, 1007. § 2.-0/ Fraud. 003. 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 con- tracted without them. It is never presumed and must be proved.— C. N. 1116; C. C. P. tJ68, 784, 1007. § 3.— Of Violence and Fear. 004. 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 person. -C. N. 1109, nil. 005. The fear whether pro- duced by violence or otherwise must be a reasonable and pres- ent fear of serious injury. Tb« age, sex, character and condi- tion of the party are to be taken into consideration.— C. N. 1112. 006. Fear suffered by a con- tracting party is a cause of nullity whether it is fear of in- jury to himself, or to his wife, children or other near kindred, and sometimes when it is a fear of injury to strangers, accord- ing to the circumstances of the case.— C. N. 1113. 007. Mere reverential fear of a father or mother, or other as- cendant, without any violence having been 9xerQisQ4 or OBLIGATIONS. 131 threats made, will not invali- date a contract.— C. N. 1114. 008. 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 nf nullity ; but it is, if the forms of law be used or threatened for an un- just and illegal cause to extort a consent. OOO. A contract for the pur- po!9e of delivering the party making it, or the husband, wife or near kinsman of such party from violence or threatened in- jury, is not invalidated by reason of such violence or threats ; provided the person in whose favor it is made be in good faith, and not in collusion with the offending party. 1000. Error, fraud, and vio- lence or fear are not causes of absolute nullity in contracts. They only give a right of action, or exception, to annul or rescind them.— C. N. 1117. • % i.— Of Lesion. 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 ; C. C. 751 et s. 1002. Simple lesion is a cause of nullity in favor of an unemancipated minor against every kind of act when not aided by his tutor, and when so aided, against every kind of act other than acts of administration ; and in favor of an emancipated minor against all contracts which ex- ceed his legal capacity, as established in the title 0/ MxnoHty^ Tutorship ami Emancipation; subject to the exceptions specially expressed in this code.-C. N. 1305 ; C. C. 1707, 789. IOCS. The simple declara- tion made by a minor that he is of the age of majority forms no bar to his obtaining relief for cause of lesion.— C. N. 1307. 1004. A minor is not re- lie vable for cause of lesion, when it results only from a casual and unforeseen event.— C. N. 1300. 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.-C. N. 1308; C. C. 321, 323. lOOO. A minor is not re- lievable from the stipulations contained in his marriage con- tract, when they have been made with the consent and as- sistance of those whose consent is required for the validity of his marriage.— C. N. 1309 ; C. C. 763, 1267. 1007. A minor is not re- lievable from obligations re- sulting from his offences and quasi-offences.— C. N. 1310. 1008. A person is not re- lievable from a contract made by him during minority, when he has ratified it since attain- ing the age of majority.— C. N. 1311 ; C. C. 1214, 1235, s. 2. lOOO. Contracts by minors for the alienation or incum- brance of their immoveable property made with or without the intervention of their tutors or curators, unattended with the formalities required by law, may be avoided without proof of lesion. lOlO. When all the formal- ities required with respect to minors or interdicted persons for the alienation of immover able property, or the partitioD f tiP^HP 132 OBLIGATIONS. of a Huccesslon, have been ob- served. Much contracts, and acts have the same force and ert'ect as if they had been executed by persons of the age of majority and free from interdiction. — C. N. 1314 ; C. C. 2i)7 et H b., 693, IW ; C. C. P. i:Wl et lOll. When minors, inter- dicted persons or married women are admitted in those 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. -C. N. 1312 ; C. C. 1140. 1012 Persons of the age of majority are not entitled "^o re- lief from their contrr for cause of lesion only.— C. '3 ; C. C. 650. SECTION III. 0/ the Interprftation of con- tracts. 1013. When the meaning of the parties in a contract is doubtful, their common inten- tion must be determined by in- terpretation rather than by an adherence to the literal mean- ing of the words of the con- tract. -C. N. 1156. 1014. When a clause is sus- ceptible of two meanings, it fnust be understood in that in which it may have some effect rather than in that in which it can produce none.— C. N. 1157. 1015. Expressions suscept- ible of two meanings must be taken in the sense which agree best with the matter of the contract.— C. N. 1158. • 1016. Whatever is doubtful must be determined according to the usage of the country where the contract is made — C. N. 115»: C. C. H. 1017. The customary clauses must be supplied in contracts, although they lie not ex- pressed. -C. N. 1100. lOlH. All the clauses of a contract are interpreted the one by the other, giving to each tfie meaning dcrivi'd from the entire act.— C. N. 1101. lOlO. In cases of doubt, the contract is interpreted against him wiio has stipulated and in favor of him who has contracted the obligation.- C. N. 1102. 1020. However general the terms may be in which a con- tract is expressed, they extend only to the things concerning which it appears that the parties intended to contract.— C. N. 1163. 1021. When the parties in order to avoid a doubt whether a particular case comes within the scope of a contract, have made special provisions for such case, the general terms of the contract are not on this account restricted to the single case specified.— C. N. 1164. SKTION IV. Of the Effect of Contracts. 1022. Contracts produce obligations, and sometimes have the effect of discharging or modifying other contracts. They have also the effect in some cases of transferring the right of property. They can bt set aside only by the mutual consent of the Earties or for causes established y law.-C. N. 1134. 1023. Contracts have effect oiiiy between the contracting OfiLlOATlONB. 133 parties ; they cannot affect third persons, except in tlio caHCH provided in the articles of tlie fifth section of this chapter.-C. N.lKio. 1024. The ol)Iigation 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.— C. N. 11:^5. 1025. A contract for the alienation of a thing certain and determinate makes the fmrchaser owner of the thing )y the consent alone of the Earties, although no delivery e made. The foregoing rule is subject to the special provisions con- tained in this code concerning the transfer and registry of vessels. The safekeeping and risk of the thing before delivery are subject to the general rules contained in the chapter Of the effect of ohligaf ions and Of the exfii ^tion of obi if/at ions in this title.— C. N. 15Ki ; C. C. 777, 795, 1003, KM, 1472, 1596. 1026. If the thing to be delivered be uncertain or inde- terminate, the creditor does not become the owner of it until it is made certain and de- terminate, and he has been legally notified that it is so.— C. C. 1()60, 1474. 1027. The rules contained in the two last preceding arti- cles, apply as well to third per- sons as to the contracting par- ties, subject, in contracts for the transfer of immoveable property, to the special provi- sions contained in this code for the registration of titles to and claims upon such property. But if a party oollge himself successively to two perKons to deliver to each of them a thing which is purely moveable prop- erty, that one of the two who has l)een put in actual posses- sion is preferred and remains owner ot the thing although his title be posterior in date; pro- vided, however, that his posses- sion be in good faith.- C. N. 1141 ; C. C. 1472, 209H. 8E(^TION V. •' < Of the Effect of coutrncta irith regard to ffiiril Persona. 1028. A person cannot, by a contract in his own name, bind any one but himself and his heirs and legal representatives ; but he may contract in his own name that another shall per- form an obligation, and in this case he is liable in damages if such obligation be not per- formed by the person indicated. -C. N. 1119, 1120. 1020. 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 an- other ; and he who makes the stipulation cannot revoke it. if the third person have signified his assent to it.— C. N. 1121. 1030. A person is deemed to have stipulated for himself, his heirs and legal representatives, unless the contrary is ex- pressed, or result from the na- ture of the contract. — C. N. 1122. 1031. Credi*.ors 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 exclu- sively attached to the person. — i j i 134 OfiLIOAflONS. ! * C. N. 1166; C.C. 480, 655, 745, 1315; C. C. P. 827, 1094. SECTION VI. 0/ the Avoidance of contracts and paymenta 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 section.— C. N. 167; C. C. 484, 655, 745, 803, 2023. 1033. A contract cannot be avoided unless it is made by the debtor with intent to de- fraud, and will have the effect of injuring the creditor. 1034. A gratuitous contract is deemed to be made with in- tent to defraud, if the debtor be insolvent at the time of making it. 1035. An onerous contract made by an insolvent debtor with a person who knows him to be insolvent is deemed to be made with intent to defraud. 1030. Every payment by an insolvent debtor to a creditor knowing his insolvency, is deemed to be made with intent to defraud, and the creditor may be compelled to restore the amount or thing received or the value thereof, for the bene- fit of the creditors according to their respective rights. 1037. Article 1037 is re- pealed by the federal act res- pecting the Revised Statutes of Canada.— R. S. Q. 0233 ; 49 V., (Can.) c. 4, s. 5^ Schedule A.). 1038. An onerous contract made with intent to defraud on the part of the debtor, but in good faith on the part of the person with whom he contracts Is not voidable; saving the special provisions applicable in cases of insolvency of traders. — C. C. 803, 2023, 2085, 2090. 1030. No contract or pay- ment can be avoided, by reason of anything contained in this section, at the suit of a subse- quent creditor, unless he is sub- rogated in the rights of an anterior creditor R. S. Q., 6234, 49 V. (Can.) c. 4, s. 5, schedule A. 1040. No contract or pay- ment can be avoided by reason of anything contained in this section at the suit of any indi- vidual creditor, unless such suit is brought within one year from the time of his obtaining a knowledge thereof. If the suit be by assignees or representatives of the creditors collectively, it must be brought within a year from the time of their appointment. CHAPTER SECOND. OF QUASI-CONTRACTS. 1041. 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. -C. N. 1371. 1042. A person incapable of contracting may, by the quasi- contract which results from the act of another, be obliged to- ward him. ^ SECTION I. ' Of the Quasi-Contract Nego- tiorum. Oestio. 1043. He who of his own accord assumes the manage- ment of any business of an- oblioatioks. 13& e other, without the knowledge of the latter, is obliged to con- tinue the management wliich he has begun, until the busi- ness is completed or the person for whom he acts is in a condi- tion 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.— C. N. 1372. 1044. He is obliged to con- tinue his management although the person for whom he acts die before the business is ter- minated, until sucli time as the heir or other legal representa- tive is in a condition to take the management of it.— C. N. 1373. 1045. He is bound to exer- cise in the management of the business all the care of a prudent administrator. Nevertheless, the court may moderate the damages arising from his negligence or fault, according to the circumstances under which the management of the business has been assumed.— C. N. 1374. 1046. He whose business has been well managed, is boand to fulfil the obligations that the person acting for him has contract''d in his name, to indemnify him for all the personal liabilities which he has assumed, and to reimburse him all necessary or useful expenses.- C. N. 1375. SECTION II. Of the Quaai-Contract result- ing from the Reception of a thing not due. 1047. He who receives what is not due to him, through error of the law or of fact, is bound to restore it ; or if it cannot be restored in kind, to give the value of it. If the person receiving be in good faith, he is not obliged to restore the profits of the thing received .-C. N. 1376; C. C. 1140. 1048. He who pays a debt believing himself by error to be the debtor, has a right of re- covery against the creditor. Nevertheless that right ceases when the title has in good fairh been cancelled or has become in- effective irv consequence of the payment ; saving the remedy of him who has paid against the true debtor.— (J. N. 1377. 1040. If the person receiving 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.— C. N. 1378 ; C. C. 411, 412. 1050. If the thing unduly received be a t! ing certain, he who has received it is bound to restore 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. -C. N. 1379 ; C. C. 1150, 1200. 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.— C. N. 1380. 1052. He to whom the thing is restored, is bound to repay to the poBsessor, although he were i ' ^ I ^fi tl M 136 OBLIOATIONd. in bad faith, fche expenses which have been incurred for its preservation.— C. N. 1381, CHAPTER THIRD. OP OFFENCES AND QUASI- OFFENCES. 1053. Every person capable of discerning right from wrong is responsible tor the damage caused by his fault to another, whether by positive act, im- prudence, neglect or want of skill.i-C. N, 1382, TSSS ; C. C. 1007, 1106, 1294, 2201, 2262. 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 de- cease, the mother, is responsible for the damage caused by their minor children ; Tutors are responsible in like manner for their pupils ; Curators or others having the legal custody of insane persons, for the damage done by the latter ; Schoolmasters and artisans, for the damage caused by their pupils or apprentices ' while under their care. The responsibility attaches in the above cases only when the person subject to it fails to establish that he was unable to prevent the act which has caused the damage. Masters and employers are rCvSponsible for the damage caused by their servants and workmen in the performance of the work for which they are employ id.— C. N. 1384. 1055. The owner of an anim;il 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 bis service. The owner of a building is responsible for the damage caused by its ruin, where it has happened from want of repairs or from an original defect in its construction.— C. N. 1:^8.5, 1.386. 1050. In all cases where the person injured by the commis- sion of an offence or a quasi- offence dies in consequence, without having obtained in- demnity 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 v^uasi-offence, or his reprcvsentatives, all damages occasioned by such death. In the case of a duel, action may be brought in like manner not only against the immediate author of the death, but also against all those who took part in the duel, whether as seconds or as witnesses. In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity, and the judgment proportion of which each IS determines the such indemnity to receive. These actions are indepen- dent and do not prejudice the criminal proceedings to which the parties may be subject.— C. C. 2262. c 1 I 1< n b ' Vide R. S. Q. 5&50 et i>. as to damages to immoveables. h OBLIGATIONS. 137 ■m CHAPTER FOURTH. OF OBLIGATIONS WHICH RESULT , FROM THE 0PP:RATI0N OF LAW SOLELY. 1057. Obligations result in certain cases from the 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 obligations of tutors and other administrators who cannot refuse 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'. The oblig.ations which in cer- tain cases arise from fortuitous events ; And others of a like nature. — C. N. 1370. . . CHAPTER FIFTH. OF THE OBJECT OF OBLIGATIONS. 1058. Every obligation must have for its object something which a party is obliged to give, or to do, or not to do.— . N. 1126. 1059. Those things only which are objects of commerce can become the object of an ob ligation.-C. N. 1128 ; C. C. 1486. 1060. An obligation must have for its object sotnething determinate at least as to its kind. The quantity of the thing may be uncertain, provided it be capable of being ascertained. — C. N. 1129 ; C. C. 1026, 1151, 1474. loei. Future things maybe the object of an obligation. But a person cannot renounce a succession not yet devolved, nor make any stipulation with regard to it, even with the con- sent of him whose succession is in question ; except by mar- riage contract. — C. N. 1130; C C 6.i8 loeb. The object of an ob- ligation must be something possible and not forbidden by law or good morals.— C. C. 13. CHAPTER SIXTH. OF THE EFFECT OF OBLKIATIONS. SECTION I. , ;I General Provisions. I 1063. An obligation to give involves the obligation to de- liver the thing and to keep it safe until delivery.— C N. 1136; C. C. 1150, 1200. 1064. The obligation to keep the thing safely obliges the per- son charged therewith to keep it with all the care of a prudent administrator.— C. N. 1137. 1065. Every obligation rend- ers the debtor'liable in damages in case of a breach of it on his part. , The creditor may, in cases which admitof it, demand also a specific performance of the obligation, and that he l)e authorized to execute it at the debtor's expense, or that the contract from which the obliga- tion arises be set aside ; subject to the special provisions con- tained in this code, and without prejudice, in either case, to his claim for damages.— C. N. 1142, 1144 ; C. C. 777. 138 OBLIGATIONS. be undone, if the nature of the case will permit ; and the court may order this to be effected by its officers, or authorize the in- jured party to do it, at the ex- pense of the other.— C. N. 1143 ; C. C. P. 608. SECTION II. Of Defaults. 1067. The debtor may be put in default either by the terms of the contract, when it con- tains 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 verb- al.- C. N. 1139. 1068. The debtor is also in default, when the thing which he has obliged himself to give or to do could only have been given or done within a certain time which he has allowed to expire.— C. N. 1146. 1060. In all contracts of a commercial nature in which the time of performance is fixed, the debtor is put in default by the mere lapse of such tir.ie. SECTION III. 0/ the Damages resulting from the Inexecution of Ob- ligations. 1070. Damaf^es are not due for the inexecution of an obliga- tion until the debtor is in de- fault under some one of the pro- visions contained in the articles of the preceding section ; except the obligation be not to do, when he who contravenes it is liable for damages by the fact of the contravention alone.— C. N. 1146, 1145. 1071. The debtor is liable t© pay damages in all cases in which he fails to establish that the inexecution of the obliga- tion proceeds from a cause which cannot be imputed to him, although there be no bad faith on his part.— C. N. 1147. 1072. The debtor is not li- able to pay damages when the inexecution of the obligation is caused by a fortuiious event or by irresistible force, without any fault on his part, unless he has obliged himself thereunto by the special terms of the con- tract. -C. N. 1148 ; C. C. 17 s. 24. 1073. The damages due t** the creditor are in general th® amount of the loss that he ha^ sustained and of the profit o\ which he has been deprived *» subject to the exceptions and modifications contained in the following articles of this sec- tion.— C. N. 1149. 1074. The debtor is liable only for the damages which have been foreseen or might have been foreseen at the time of contricting the obligation, when his breach of it is not accompanied by fraud.— C. N. 1150, 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. C. N. 1151. 1076. When it is stipulated that a certain sum shall be paid for damages for the inexecution of an obligation, such sum and no other, either greater or less, is allowed to the creditor for such damages. OfiLtOATIOMS. 139 1066. The creditor, without prejudice to his claim for dam- ages, may require also that anything which has been done in breach of the obligation shall But if the obligation have been performed in part, to the benent of the creditor and the time for its complete perform- ance be not material, the stipu- lated sum may be reduced ; unless there be a special agree- ment to the contrary.— C. N. 1152, 1231 ; C. C. 1131 et s. 1077. The damages result- ing from delay in the payment of money, to which the debtor is liable, consist only of interest at the rate legally agreed upon by the parties, or, in the absence of such agreement, at the rate fixed by law. These damages are due with- out the creditor being obliged to prove any loss. They are due from the day of the default only, except in the cases where by law they are due from the nature of the obligation. This article does not affect the special rules applicable to bills of exchange and contracts of suretyship.— C. N. 1153; C. C. 313, 1060, nil, i;«0, 1366, 1534, 1714, 1724, 1785, 1840. 1078. Interest accrued from capital sums also bears interest. 1. When there is a special agreement to that effect. 2. When in any action brought such new interest is specially demanded. 3. When a tutor has received ought to have received or interest upon his pupil and the moneys of has failed to invest it within the term prescribed by law.— C. N. 1154 ; C. C. 296. CHAPTER SEVENTH. OP DIFFERENT KINDS OF OBLIG- ATIONS. SECTION I. Of Conditional Obligationa. 1079. An obligation is con- ditional when it is made to depend upon an event future and uncertain, either by sus- E ending it until the event appens, or by dissolving it accordingly as the event does or does not happen. When an obligation depends upon an event which has actu- ally happened, but is unknown to the parties, it is not conditi- onal. It takes effect or is defeated from the time at which it is contracted.— C. N. 1168 ; C. C. 2051, 2236 ; C. C. P. 196, s. 1, 800. 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 impossible is also void.-C. N. 1172 ; C. C. 13, 760. i081. 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 depen- i ^ ^,— :-!♦ 140 OfiLIOATtONfl. ii dent on his will, the obligation is valid.-C. N. 1174 ; C. C. 782, 824. 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 hns be- come certain that it will not be fulfilled.-C. N. 1170. 1083. When an obligation is contracted under the condition that an event will not happen within a fixed time, such con- , dition is fulfilled by the expira- tion of the time without the event having occurred. It is equally so if before the time has expired it becomes certain that the event will not happen. If there be no time fixed, the con- dition is not deemed fulfilled, until it is certain that the event will not happen.— C. N. J177. 1084. A conditional obliga- tion becomes absolute when the party bound under the condi- tion prevents the fulfilment of it.-C. N. 1178. 1085. The fulfilment of the condition has a retroactive ef- fect from the day on which the obligation has been contracted. If the creditor be dead before the fulfilment of the condition, his rights pass to his heirs or legal representatives.— C. N. 1179 ; C. C. 901, 902. 1086. The creditor may, be- fore the fulfilment of the condi- tion, do all acts conservatory of hTs rights.— C. N. 1180. 1087. When the obligation has been contracted under a suspensive condition, the debtor is bound to deliver the thing which is the object of it, upon the fullfiment of the con- dition. If, without the fault of the debtor, the thing have alto- gether perished or can no i 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, with- out diminution of price. If the thing be deteriorated by the fault of the debtor, the creditor may either exact the thing in the state in which it is, or demand the dissolution of the contract, with damages in either case.— C. N. 1282. 1088. A resolutive condi- tion, when accomplished, ef- fects of right tiie dissolution of the contract. It obliges each party to restore what he has received, and replaces things in the same state as if the con- tract had not existed ; subject nevertheless to the rules estab- lished in the last preceding article with respect to things which have perished or have been deteriorated.— C. N. 1183 ; C. C. 2038. SECTION II. Of Obligations with a Term. 1080. A term differs from a suspensive condition in as much as it does not suspend the oblig- ations, but only delays the exe- cution of it.-C. N. 1185 ; C. C. 902. 1090. That which is due with a term of payment cannot be exacted before the expiration of the term; but that which has been paid in advance volun- tarily and without error or fraud cannot be recovered.— C. N. 1186; C. C. 2236; C. C. P. 196, s. I. lOOl. The term is always presumed to be stipulated in favor of the debtor, unless it results from the stipulation or OBLIGATIONS. 141 the circumstances that it has also been agreed upon in favor of the creditor.— C. N. 1187 ; C. C. 1163, 8. 5. 1002. 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. — C. N. 1188; C. C. P. 802. SECTION III. Of Alternative Obb'gations. 1003. The debtor in an al- ternative obligation is dis- charged by giving or doing one of the two things which form the object of his obligation ; but he cannot compel the creditor to accept a part of one of these things and a part of the otiier. -C. N. 1189, 1191. 1004. The option belongs to the debtor unless it has been expressly granted to the credi- tor.— C. N. 1190. 1005. An obligation is pure and simple, although contracted in an alternative form, if one of the two things promised could not be the object of the obliga- tion.— C. N. 1192. 1006. An alternative obliga- tion becomes pure and simple if one of the things promised per- ish, or can no longer be deliv- ered, even through the fault of the debtor. The value of such thing cannot be offered 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 re- mained last.— C. N, 1193. 1007. When, in the cases provided for in the last preced- ing article, the option has been granted by the contract to the creditor : Either one of the two things has perished or can no longer be delivered, and then, if it be without the fault of the debtor, the creditor shall have the one which remains, but if the debt- or be in fault, the creditor may demand the thing which re- mains 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 ret;ard to both or either of them, tlie creditor may demand the value of the one or of the other at his option. — C. N. 1194. 10»8. If both things have perished, the obligation is ex- tinguished in the cases and subject to the conditions pro- vided in article 1200.— C. N. 1195. 1009. The rules contained in the articles of this section apply to cases where the alter- native obligation comprises more than two things, or has for its object to do or not to do something.— C. N. 1196. SECTION IV. Of Joint and Several Oblig- ations. § 1.— Or' joint and several in- terest 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 th« debtor.— C. N. 1197. 1101. The debtor has the option of paying to either of the joint and several creditors, 80 long as he is not prevented i ,i . -1.! it' rt 142 OBLIGATIONS. bv a suit instituted by one of them. Nevertheless, if one of the creditors release the debt, the debtor is discharged for the part only of such creditor. The same rule applies to all cases in which the debt is extinguished otherwise than by actual pay- ment ; subject to the rules applicable to commercial partnerships.— C. N. 1198. 1102. The rules concerning the interrviption of prescription in relation to joint and several creditors are declared in the title Of Prescription.— C N. 1199 ; C. C. 22J0. § 2.-0/ 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 thing, in such manner that each of them singly may be compelled to the performance of the whole obligation, and that the performance by one discharges the others toward the credi- tor.-C. N. 1200. 1104. An obligation maybe 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 can be allowed a term which is not granted to the other.— C. N. 1201. 1105. An obligation is not presumed to be joint and sev- eral ; it must be expressly de- clared to be so. This rule does not prevail in cases, where a joint and several pbligation arises of ri^ht by virtue of some provision of law. Nor is it applicable to com- mercial transactions, in which the obligation is presumed to be joint and several, except in cases otherwise regulated by special laws.- C. N. 1202 ; C. C. 881m., 1712, 1726, 1772. 1864. 1 lOO. The.obligation arising from the common offence or quasi-offence of two or more persons is joint and several. 1107. The creditor of a joint and several obligation may apply for payment to any one of the codebtors at his option, without such debtor having a right to plead the benefit of division.— C. N. 1203; C. C. 1945 et 8. 1108. Legal proceedings taken against one of the co- debtors do not prevent the creditor from taking similar proceedings against the others. — C. N. 1204. 1100. If the thing due have perished or can no longer be delivered, through the fault of one or more of the joint and several debtors, or after he or they have been put in default, the other codebtors are not dis- charged from the obligation to pay the price of the thing, but the latter are not liable for damages. The creditor can recover dam- ages only from the codebtors through whose fault the thing has perished or can no longer be delivered and those in de- fault.-C. N. 1205. 1110. The rules concerning the interruption of prescription in relation to joint and several debtors are declared in the title Of prescHption.—C. N. 1206; C. C. 22.31, 2239. 1111. A demand of interest made against Qne of the joint OBLIGATIONS. 143 %'i n and several debtors causes in- terest to run against them all. — C. N. 1207. 1112. A joint and several debtor sued by the creditor may plead all the exceptions which are personal to himself as well as such as are common to all the co-debtors. Ho cannot plead such ex- ceptions as are purely personal to one or more of the other codebtors.— C. N. 1208; C. C. 1179. 1183, 1184, 1191. 1113. When one of the co- debtors becomes heir or legal representative of the creditor, or when the creditor becomes heir or legal representative of one of the co-debtors, the con- fusion extinguishes the joint and several debt only for the Sart and portion of such co- ebtor.— C. N. 1209. 1 114. 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 the others for the whole debt.— C. N. 1210 ; C. C. 1119. 1115. A creditor who re- ceives separatelv the share of one of his co-debtors, so speci- fied in the receipt and without reserve of his rights, renounces the joint and several obligation with regard only to such co- debtor. The creditor is not deemed to discharge the debtor from his joint and several obligation when he receives from him a sum equal to the share for which he is bound, unless the receipt specifies that it is for his share. The rule is the same with re- gard to a demand made against one of the co-debtors for his share, if the latter have not acquietced io tke d^Tqand, or \t a judgment of condemnation have not intervened.— C. N. 1211. 1116. The creditor who re- ceives separately and with- out reserve the share of one of the co-debtors in the ar- rears or interest of the debt, loses his joint and several right only for the arrears and inter- ests accrued and not for those which may in future accrue, nor for the capital, unless the separate payment has been con- tinued durmg ten consecutive years.- C. N. 1212. 1117. The obligation con- tracted jointly and severally toward the creditor is divided of right among the co-debtors, who among themselves are obliged each for his own share and portion only.— C. N. 1213. 1118. The co-debtor of a joint and several debt, who has' paid it in full, can only recover from the others the share and portion of each of them, even though he be specially subrogated in the rights of the creditor. If one of the co-debtors be found insolvent, the loss occa- sioned by his insolvency is di- vided by contribution among all the others, including him who has made the payment. — C. N. 1214. 1110. In case the creditor have renounced, his joint and several action against one of the debtors, if one or more of the remaining co-debtors be- come insolvent, the shares of those who are insolvent are made up by contribution by all the other co-debtors, except'the one so discharged whose part in the contribution is borne by the creditor.-C. N. 1215 ; C. C. 1114. 1120. If the matter for whicli the debt has been con' 'I'M H •' 1} I \- 144 OBLIGATIONS. tract^d jointly and severally concern 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. — C. N. 1216 ; C. C. 19U. SECTION V. Of Divisible and Indivisible Obliyations. 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 in- tellectually.— C. N. 1217. 1122. A divisible obligation must be performed between the creditor and the debtor, as if it were indivisible. The divisi- bility takes effect only with their heirs or legal representa- tives, who, on the one hand, cannot enforce the obligation, and on the other, are not held for the pjerformance of it, be- yond their respective shares as representing the creditor or the debtor.— C. N. 1220; C. C. 1137, 1149, 2230, 2231. 1123. The rule established in the last preceding article is suoject to exception with re- spect to the h^irs and legal re- presentatives of the debtor, and the obligation must bo per- formed as if it were indivisible, 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 obligation. 3. When it results either from the nature of the contract or of • the thing which is . the object of it, or from the end proposed by it, that the inten- tion of the contracting parties was that the obligation should not be performed in parts. In the first case, he who possesses the thing due,— in the second case, he who is alone charged,— and in the third case, each of the coheirs or legal representatives, mjiy be sued for the whole thing due ; saving in all cases the recourse of the one sued against the others.— C. N. 1221. 1124. An obligation is in- divisible :— 1. When it has for its object something which by its nature, is not susceptible of division, either materially or intellectu- ally ; 2. When although the object of the obligation is divisible by its nature, yet from the char- acter given to it by the contract, this object becomes insuscep- tible not only of performance m parts but also of division.- C. N. 1217, 1218. 1125. The stipulation of joint and several liability does not give to an obligation the character of indivisibility. — C. N. 1219. 1126. Each one of those who hav^e contracted an indi- visible obligation is held for the whole, although the oblig- ation have not been contracted jointly and severally.— C. N. 1222. 1127. The rule established in the last preceding article prevails also with regard to the heirs and legal representatives of him who has contracted an indivisible obligation.— C. N. 1223 ; C. C. 2231. 1 128. The obligation to damages resulting from ?£I OBLIGATIONS. 145 non-performance of an indi- visible obligation is divisible. But if tne non-performance have been caused by the fault of one of the co-debtors, or of one of the co-heirs or legal repre- sentatives, the whole amount of damages may be dcMnanded of such co-debtor, heir or legal representative.— C. C. 1136. 1 ISO.— Each co-heir or legal representative of the creditor may exact in full the execution of an indivisible obligation. He cannot alone release the whole of the debt, or receive 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 in- divisible thing without making allowance for the portion of him who has made the release or who has received the value.— C. N. 1224 ; C. C. 2230. 1130. The heir or legal representative of the debtor sued for the whole of an in- divisible obligation may de- mand delay to make the co- heirs or other legal represen- tatives, parties to the suit, un- less the debt is of such a na- ture that it can be discharged only by the one so sued, who may in such case be condemn- ed alone, saving his recourse for indemnity against the other8.-C. N. 1225; C. C. P. 177 8. 8. SECTION VI. Of Obligations with a Penal Clause. 1131. A penal clause is a secondary obligation by which a person, to assure tne per- formance of the primary obli gation, binds himself to a penalty in case of its inexecu- tion.-C. N. 1226. 1132. The nullity of the primary obligation for any other cause than want of interest, carries with it that of the penal clause. The nullity of the latter does not carry with it that of the primary obligation.— C. N. 1227. 1133. The creditor may enforce the performance of the primary obligation, if he elect so to do, instead of demanding the stipulated penalty. But lie cannot demand both, unless the penalty has been stipulated for a simple delay in the performance of the primary obligation.-C. N. 1228, 1229. 1134. The penalty is not in- curred 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. 1 135. The amount of penalty cannot be reduced by the court. But if the obligation have been performed in part to the benefit of the creditor and the time fixed for its complete per- formance be not material, the penalty may be reduced ; unless there is a special agreement to the contrary.— C. N. 1152, 1231 ; C. C. 1076. 1 136. 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 maj[ be demanded in full against him who has contra- vened it, or against each one of them for his share and portion, and hypothecarily for the whole ; saving their recourse against him who has caused 10 ■V^ fi ffr! 0BLI0ATI0N8, ■nf-r |5 . ttttpeOAlty to be 80 incurred.— CrNriffl2; C. C. 1128. 11S7. When the primary QbUoation contracted under a penluty is divisible, the pen- alty is incurred only by that qne of the heirH or other legal representativeH of the debtor woo contravenes the obligation, and for the part only for which he 1a held in the primary oblig- ation, without there being any action against those who have executed it. This rule suffers exception when, the penal clause having been added with the intention that the payment could not be made in parts, one of the coheirs or other legal repre- sentatives has prevented the execution of the obligation *nr the whole ; in this case he is liable for the entire penalty and the others are liable for their respective shares only, saving their recourse against him.— C.N. 1218,1233; C. C. 1122. CHAPTER EIGHTH. OP THE EXTINCTION OF OBLIGATIONS. \ SECTION I. ' Oeneral Pv " 1188. ^,. be comes ex ^ Bypayi it; By novai.Dn ; By release ; By compensation ; By confusion ; By the performance of it be- coming impossible ; By judgment of nullity or resoia^ion ; By tiie tilGBct of the resolutive ^naltioii whiph has be^p e3(^ 01 plained In the preceding chapter ; By prescription ; ay the expiration of the time limited by law or by the parties for its duration ; By the death of the creditor or debtor in certain cases ; By special clauses applicable to particular contracts which are explained under their respective heads.— C. N. 1234. SECTION II. 0/ Payment. § I.— General provisions. 1 130. By payment is meant not only the delivery of a sum of money in satisfaction of an obligation, but the per ormance of anything to which the parties are respectively obliged. 1140. Every payment pre- supposes a debt ; what has lieen paia where there is no debt may be recovered. There can be no recovery of what has been paid in volun- tary discharge of a natural obligation.-C. N. V£Vi; C. C. 1047 et s., 1927. 1141. Payment may be made by any person, although he be a stranger to the obligation, and the creditor may be put in default by the offer of a stranger to perform the obligation on the part of the debtor without the knowledge of the latter, but it must be for the advant- age of the debtor, and not merely to change the creditor, t1 t the performance of the o bication is so offered.— C. N. ^ >, 1237. 1142. If the obligation be to t something which the credi- t r has an interest in having uone by the debtor himself^ th^ OBLIOATIONS. 14T . \ '*'} obligation cannot be performed by u 8tranger to it without the consent of the creditor. 1148. Payment to be valid must be 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 payment have been made by one who was not the owner nor capable of alienating it. —C. N. im 1144. Payment must be made to the creditor or to some one having his authority, or authorized oy a court of justice, or by law, to receive it lor him. Payment made to a person who nas no authority to receive It is valid, if the creditor have ratified the payment or profited by it.-C. N. 1239. 1 1 45. Payment made in good faith to the ostensible creditor is valid, although it be after- wards established that he is not the rightful creditor.— C. N. 1240 ; C. C. 870. 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.— C. N. 1241 ; C. C. 1011. 1147. Payment made by a debtor to his creditor to the pre- judice of a seizure or attach- ment is not valid against the seizing or attaching creditors, who may, according to their rights, constrain the debtor to pay a aecond time ; saving, in such case, only his remedy against the creditor so paid.^ g. N, 1242 ; C. C. P, 680, 1 149. A creditor cannot be compelled to receive any other thing than the one due to him, although the thing offered be of greater value than the thing due.-C. N. 1?43. 1140. 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 instalments without the con- sent of the creditor.— C. N. 1244. C. C. 1122. 1150. The debtor of a cer- tain specific thing Is discharged by the 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 previously to the deterioration, he was not in default.-C. N. 1245. 1151. If the object of the obligation be a thing determ- ined In kind only, the debtor cannot be required to give a thing of the best quality, nor can be offer in discharge one of the worst. The thing must be of merch- antable quality.— C. N. 1246; C. C. 1026, 1080, 1474. 1152. Payment must be made in the place expressly or Impliedly indicated by the obli- gation. If no place be so indicated, the payment, when it is of a certain specific thing, must be made at the place where the thing was at the time of con- tracting the obligation. In all other cases payment must be made at the domicile of the debtor; subject, never- theless, to the rules provided Vinder tl)e titles relatinj^ to par- ; I : I ;! I ^^BWa-B^^SPS 'U l48 OBLIGATIONS. ticular contracts.— C. N. 1247 ; C. C. 85, 1164, 1165, 1533, 1809, 2219. 1153. The expenses attend- ing payment are at the charge of the debtor.— C. N. 1248; C. C. P. 589. § 2.-0/ Payment with Subrop;a- Hon. 1154. Subrogation in the rights of a creditor in favor of a I hird person who pays him, is either conventionai or legal.— C. N. 1249; C. C. 740, 741, 1118, 1950, 1959, 1986, 1987, 20.52, 2070, 2127 ; C. C. P. 692, 816. 1155. Subrogation is con- ventional ;— 1. When the creditor, on re- ceiving payment from a third Eerson, subrogates him in all is rights against the debtor. This subrogation must be ex- press 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 subrogating the lender in the rights of the creditor. It is necessary to the validity of the subrogation in this case, that t' e act of loan and the acquittance be notar- ial or be executed before two subscribing witnesses ; that in %he act of loan it be declared that the sum has been borrow- ed for the purpose of paying the debt, and that in the acquit- tance it be declared that the payment has been made with the moneys furnished by the new creditor for that purpose. This subrogation takes effect without the consent of the cre- ditor. If the act o)' loan and the ac- quittance be executed before witnesses, the subrogation takes effect against third per- spn^ frQn\ the date only of their registration, which is to be made in the manner and accord- ing to the rules provided by law for the registration of hypo- thecs.-C. N. 1250. 1156. Subrogation takes place by the sole operation of law 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 pays 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 paving it ; 4. In favor of a beneficiary heir who pays a debt of the suc- cession 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 commu- nity. -C. N. 1251. 1157. The subrogation de- clared in the 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 miy enforce his rights for whatever remains due, in preference to him from whom he has received payment in part. -C. N. 1252. § 3.-0/ the Imputation Payments. of 1158. A debtor of several debts has the right of declaring, when he pays, what debt he means to discharge.— C. N. 1253. OBLIGATIONS. 14? 1150. A debtor of a debt v/hich bears interest or produces reiiv, cannot without the con- sent of the creditor impute any payment wliich he makes, to the discharge of the capital, in preference to the arrears of in- terest or of rent. Any payment made on the capital and inter- est, but which is not entire, is imputed first upon the interest. — C. N. 1254. 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 different debt, except upon grounds for which contracts may be avoided.— C. N. 1255. 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 inten'st in paying. If of several debts one alone be actually payable, the payment must be imputed in discharge of such debt, al- though it be less burdensome than those which are not actu- ally 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 proportionately on each. — C. N. 1256. § 4.—0 Tender and Deposit. 1162. When a creditor re- fuses to receive payment, the debtor may make an actual tender of the money or other thing due ; and in any action afterwards brought for its re- covery he may plead and renew the tender, and if the thing due be a sum of money, may deposit the amount ; and such tender, or such tender and deposit, if the thing due be a sum of money, are equivalent, with respect to the aebtor, to a pay- ment made on the date of the first tender ; provided that from the date of the first tender the debtor continue always ready and willing to deliver the thing or to pay the sum of money. Whenever any person desires to pay any sum of money and is prevented from doing so by reason of the refusal of his creditor or of the absence of his creditor from the place where the debt is payable, such person may deposit such sum in the genera! deposit office for the Province, in accordance with the provisions of the law re- specting judicial deposits ; such deposit frees the debtor from the payment of interest from the date thereof, provided that the creditor present had with- out lawful right refused to accept the offers. — R. S. Q. 5804; C. N. 1257; C. C. 1823, 8.2; C. C. P. 583ets. 1 163. It is necessary to the validity of a tender : 1. That it be made to a creditor legally capable of re- ceiving payment or to some one having authority to receive for him. 2. That it be made on the part of a person legally capable of paying. 3. That it be of the whole sum of money or other thing payable, and of all arrears of rent and interest, and all liquidated costs, with a sura for costs not liquidated, saving the right to make up any deficiency in the same. m oiiti^Atio^H, 11 I! I: 4. That, if it be of money, it be made in coin declared by law to be current and a legal tender. 5. That the term of payment have expired if stipulated in favor of the creditor. 6. That the 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 obligation or by law, payment should be made.— C. N. 1258. 1 164. If, by the terms of the obligation or by law, payment is to be made at the domicile of the debtor, a notification in writing by him to the creditor that he is ready to make pay- ment has the same effect as an actual tender, provided that in any action afterwards brought the debtor make proof that he had the money or thing due ready for the payment at the time and place when and where the same was payable.— C. C. 1152. 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 deliver- able and be from its nature difiBcult of transportation, the debtor must indicate b^ lis tender the place where it is and the day and hour when he is ready to deliver it at the place where payment ought to be made. If the creditor fail in the former case to take the thing away, or in the latter to signify his willingness to accept, the debtor may, if he think fit, re- move the thing to any other place for safe-keeping at the risk of the creditor.— CTN. 1264. 1 166. 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.— C. N. 1261 ; C. C. P. 588. 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 other third per- sons.-C. N. 1262 1168. The mode in which tenders and deposits must be made is provided in the Code of Civil Procedure. ■ I SECTION III. Of Novation. 1160. 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 sub- stituted for a former one who is discharged by the creditor. 3. When by the effect of a new contract, a new creditor is substituted for a former one toward whom the debtor is dis- charged. -C. N. 1271. 1170. Novation can be ef- fected only between persons capable of contracting.— C. N. 1272. 1071. Novation is not pre- sumed. The intention to effect it must be evident.— C. N. 1273. 1172. Novation by the sub- stitution of a new debtor may OBLIGATIONS. 161 be effected without the concur- rence of the former one.— C. N. 1274. 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 tlie debtor who makes the delegation.— C.N. 1275 :C. C. 800. 1174. The simple indication by the debtor of a person who is to pay in his place, or the simple indication by the cre- ditor of a person who is to re- ceive in his place, or the trans- fer of a debt with or without the acceptance of the debtor does not effect novation.— C. N. 1277. 1175. A creditor who has discharged his debtor by whom delegation has been made, has no remedy against such debtor, if the person delegated become insolvent, unless there is a special reserve of the remedy.— C. N. 1276. 1176. The privileges and hypothecs which attach to an ancient debt do not pass to the one which is substituted for it, unless the creditor has ex- pressly reserved them.— C. N. 1278. 1177. When novation is ef- fected by the substitution of a new debtor, the original privi- leges and hypothecs cannot be transferred to the property of the new debtor ; nor can they, without the concurrence of tlie former debtor be reserved upon the property of the latter.— C. N. 12^. 1178. When novation is ef- fected between the creditor and one of joint and several debtors, the privileges and hypothecs which attach to the ancient debt can be reserved only upon the property of the codebtor who contracts the new debt. 1170. Joint and several debtors are discharged by no- vation effected between the creditor and one of the co- debtors. Novation effected with re-^ spect to the pr.ncipal debtor dis- charges his sureties. Nevertheless, if the creditor have stipulated in the first OMe, for the accession of the co- debtors, and in the second, for that of the sureties, the ancient debt subsists if the codebtors or the sureties refuse to accede to the new contract.— C. N« 1281. 1 180. The debtor consenting to be delegated cannot oppose to his new creditor the excep- tions which he might have set up against the party delegating him although at the time of the delegation he was ignorant of such exceptions. The foregoing rule does not apply if at the time of the dele- gation nothing be due to the new creditor, and is without prejudice to the recourse of the debtor delegated against Uko party delegating him. SECTION IV. 0/ Release. 1 181. The release of an oblig- ation may be made either ex- pressly or tacitly by persons legally capable of alienating. It is made tacitly when the creditor voluntarily surrenders to his debtor the original title of the obligation, unless there is proof of a contrary intention. -C. N. 1282 ; C. C. 1101, 1129. ■■ m OfiLIOATtONS. 1182. The surrender of a thin^ given in pledge does not create a presumption of the re- lease of the debt for which it was pledged.— C. N. 1283. 1183. The surrender of the original title of an obligation to one of joint and several debtors is available in favor of his co- debtors.— C. N. 1284. 1184. An express release granted in favor of one of joint and several debtors does not discharge the others ; but the creditor must deduct from the debt the share of him whom he has released.— C. N. 1285. 1185. An express release granted to the principal debtor discharges his sureties. If granted to the suretj, it does not discharge the principal debtor. If granted to one of several sureties it does not discharge the others, except in cases in which the latter would have a recourse upon the one released and to the extent of such re- course.— C. N. 1287. 1186. That which the cre- ditor receives from a surety as a consideration for releasing him from his suretyship is not imputed in discharge of the principal debtor, or of the other sureties, except as regards the latter, in cases in which they have a recourse upon the one released, and to the extent of such recourse.— C. N. 1288. SECTION V. 0/ Compensation 1 187. When two persons are mutually debtor and creditor of each other, both debts are ex- tinguished by compensation which takes place between them in the cases and manner hereinafter declared. — C. M. 1289 ; C. C. P. 217. 1188. Compensation takes f)lace by the sole operation of aw between debts which are equally liquidated and de- mandable and have each for object a sum of money or a cer- tain quantity of indeterminate things of hhe same kind and quantity. So soon as the debts exist simultaneously they are mu- tually extinguished in so far as their respective amounts corre- spond.-C. N. 1290 ; C. C. 2246. 1180. Compensation is not prevented by a term granted by mdulgence for the payment of one of the debts.-C. N. 1292. 1 1 00. Compensation takes place whatever be the cause or consideration of the debts or of either of them, except in the following cases : 1. The demand in restitution of a thing of which the owner has been unjustly deprived ; 2. The demand in restitution of a deposit ; 3. A debt which has for object an alimentary provision not liable to seizure.— C. N. 1293 ; C. C. P. 599 s. 4. 1101. The surety may avail himself of the compensation which takes place when the creditor owes the principal debtor. But the principal debtor can- not set up in compensation what his creditor owes to the surety. A joint and several debtor cannot set up in compensation what the creditor owes to his co-debtor except for the share of the latter in the joint and several debt.-C. N. 1294. 1102. A debtor who accepts purely and simply an assign- ment made by the creditor to a OfiLIQATtONS. 153 third person, cannot afterwards set up against the assignee tlie compensation wliich iie might, before the acceptance, have set up against the assignor. An assignment not accepted by the debtor, but of wliich due notification lias been given to him, prevents compensation only of the debts due by the assignor posterior to such noti- fication.— C. N . 1205. 1103. When the two debts are payable at different places compensation cannot be set up without allowing for the ex- penses of remittance.— C. N. 1296. 1104. When compensation by the sole operation of law is prevented by any of the causes declared in this section, or by others of a like nature, the party in whose favor alone the cause of objection exists, may demand the compensation by exception ; and in such case the compensation takes place from the time of pleading the excep- tion only. 1105. When there are sever- al debts subject to compensa- tion due by the same person, the compensation is governed by the rules provided for the imputation of payments.— C. N. 1297 ; C.C. 1159, 1161. 1106. Compensation does not take place to the prejudice of rights, acquired by third parties.— C. N. 1298. 1 107. He who pays a debt which is of right extinguished by compensation cannot after- wards in enforcing the debt which he has failed to set up in compensation avail himself, to the prejudice of third parties, of the privileges and hypothecs attached to such debt, unless there were just grounds for his ignorance of its existence at the time of payment.— C. N. 1299 ; C. C, 2081 s. 5. SECTION vr. Of Confusion. 1108. When the qualities of creditor and debtor are united in the same person there arises a confusion which extinguishes the obligation ; nevertheless in certain cases when confusion ceases to exist, its eft'eets cease also.— C. N. 1300 ; C. C. 671 s. 2, 966. IIOO. The confusion which takes place by the concurrence of the qualities of creditor and principal debtor in the same person, avails the sureties. That which takes place by the concurrence of the qualities of surety and creditor or of surety and principal debtor does not extinguish the principal obliga- tion.-C. N. 1301 ; C. 1113, 1957. SECTION VII. Of the Performance of the Ob- ligation becoming impossible. 1200. When the certain sp.cific thing which is the ob- ject of ail obligation perishes, or the delivery of it from any other cause impovssible, without any act or fault of the debtor, and before he is in default, the obligation is extinguished ; it is also extinguished although the debtoi be in default, if the thing would equally have per- ished in the possession of the creditor ; unless in either of the above mentioned cases the debtor has expressly bound himself for fortuitous events. The debtor must prove the fortuitous event which he al- leges. The destruction of a thing stolen or the impossibility of delivering it does not discharge iU 06LiaA([«l0N^. :' ) him who stole the thing, or him who knowingly received it, from the obligation to pay its value.— C. N. 1302 ; C. C. 1050. 1201. When the perform- ance of an obligation has be- come impossible, without any act or fault of the debtor he is bound to assign to the credit- or such rig its of indemnity as he may possess relating to the obligation.— C. N. 1303. 1202. When the perform- ance of an obligation to do has become impossihle without any act or fault of the debtor and l)efore he is in default the oblig- ation is extinguished and both parties are liberated ; but if the obligation be beneficially per- formed in part, the creditor is bound to the extent of the bene- fit actually received by him. CHAPTER NINTH, OF PROOF. '.'! , , SECTION I. ■ • General Provisions. 1203. The party who claims the performance of au obliga- tion must prove it. On the other hand he who alleges facts in avoidance or extinction of the obligation must prove them ; subject nevertheless to the special rules declared in this chapter. 1204. The proof produced must be the best of which the case in its nature is susceptible. Secondary or inferior proof cannot be received unless it is first shown that the best or primary proof cannot be pro- duced. 1203. Proof maybe made by writings, by testimony, by pi'e- sumptions, by the confession of the party or by his oath, ac- cording to the rules declared in this chapter and in the manner provided in the Code of Civil Procedure.— C. N. 1316. 1206. The rules declared in this chapter, unless expressly or by their nature limited, apply in commercial as well as in other matters. When no provision is found in this Code for the proof of facts concerning commercial matters, recourse must be had to the rules of evidence laid down by the laws of England. SECTION II. 0/ Proof by Writings. § l.—Of authentic writings. 1207. The following writ- ings, executed or attested with the requisite formalities by a public oflBcer having authority to execute or attest the same in the place where he acts, are authentic and make proof of their contents, without any evidence of the signature or seal appended to them, or of the otticial character of such officer being necessary, that is to say : Copies of the acts of the Imperial Parliament, of the Province of Canada and of the Parliament of the Dominion of Canada, and copies of the Edicts and Ordinances, and of the Ordinances of the Province of Quebec, and of the statutes and Ordinances of the Province of Lower Canada, and of the statutes of Upper Canada, printed by the printer duly authorized by Her Majesty the O^LIOAlriONS. M Queen, or by any of her prede- cessors ; Copies of acts of the Legisla- tures of the provinces forminK the Dominion of Canada, or of any of the provinces or terri- tories, hereafter admitted into the Dominion, printed by a Queen's printer, or otlier printer by authority, lor the Govern- ment of any of the said pro- vinces or territories. Letters-patent, commissions, proclamations and other instru- ments issued by her Majesty the Queen, or by the executive Government of the Province of Canada or of the Dominion of Canada. Letters-patent, orders in council, commissions, procla- mations and other instruments issued by the Government of this Province. Copies of official documents, proclamations or announce- ments, printed by a Queen's printer, or other printer by authority for the Government of a province of the Dominion of Canada and of the provinces or territories hereafter ad- mitted into th3 Dominion. Official annouiicements in the Canada Gazette and in the Quebec Official Gazette pub- lished by authority. The records, registers, jour- nals and public documents of the several departments of the Executive Government and of the Parliament of the Province of Canada, and of the Dominion of Canada as well as those of the Executive Government and Legislature of this Province ; The records and registers of courts of justice and of judicial proceedings in the Province ; The books and registers of a public character required by law to be kept by official per- sons in the Province ; The books, registers, by-laws, records and other documents and papers of municipal corpor- ations and of other corpora, ions of a public character in this Province ; Official copies and extracts of and from the books, documents and writ ings above mentioned, and certificates and all other writings included within the legal intendment of this article, altiiough not enumerated. — R. S. Q., 5805. 120H. A notarial instrument received before one notary alone is authentic if signed by all the parties. If the parties or any of them be unable to sign, it is neces- sary, to the authenticity of the instrument, that the consent gi\ ^»' to the instrument by the party thereto who does or can- not sign be received in the presence of a subscribing wit- ness. The witnesses may be of either sex, and must be not less than twenty-one years of age, of sound mind, without inter- est in the instrument, not cii'illy dead, and not deemed infamous by law. Aliens and married women (except the wife of the notary receivmg the instrument) may act as witnesses. This article is subject to the provisions contained in the next following article, and to those relating to wills. It does not apply to the cases men- tioned in Article 2380, when a notary aloae is sufficient. — 56 V. c, 39, s. 1 ; C. C. 36 s. 4, 843 et s. 1209. Notifications, sum- monses, protests and services, by which a reply is required. li-M 156 OttLIOATlONS. may be made by one notary, whether the party in whose name they are mude has or has not signed the deed. Such instruments are authen- tic and make proof of their contents until contradicted or disavowed. But nothinjj; inserted in any such instrument, as the answer of the party upon wliorn the same is served, is proof against him, unless it be signed by such party. With the exception of the notificcitions, summonses, pro- tests and services which pre- cede, all other notifications, summonses, protests and ser- vices may be made by an ordinary notarial deed signed in the office of the notary or elsewhere. In such case it is sufficient for the notary to serve a copy of such deed upon the person to be so notified, summoned or protested, or at his domicile. It is not necessary to deliver to the adverse party a copy of the proces-verhal of service ; such proces-verbal may be drawn up and signed after- wards.— /f7. r.807 ; C. C. P. 586. 12 lO. An authentic writing makes complete proof between the parties to it and their heirs and legal representatives : 1. Of the oDligation expressed in it ; 2. Of what is expressed in it by way of recital, if the recital have a direct reference to the obligation or to the object of the parties in executing the instrument. If the recital be foreign to such obligation and to the object of the parties in executing the instrument, it can serve only as a commence- ment of proof.— C. N. 1319, 1320. 12^11. 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. C. C. P. 225 et s. 1212. Counter-letters have effect between the parties to them only ; they do not make proof against third persons.— C. N. 1321. 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 contains over and jibove the primordial title, or dill'erent from it, does not make proof against it.— C. N 1387, 1214. The act of ratification or con'irmation of an obligation which is voidable does not make proof, unless it expresses the substance of the obligation, the cause of its being voidable and the intention to cover null- ity.— C. N. 1338 ; C. C. 1235, s. 2. § 2.-0/ copies of Authentic Writhigs 1215. Copies of notarial instruments, certified to be true copies of the original, by the notary or other public officer, who has the legal custody of such original, are authentic and make proof of what is contained in the ori- ginal.— C. N. 1334. 1210. Extracts duly certi- fied and delivered by notaries or by the prothonotaries of the superior court from the origin- als of authentic instruments lawfully in their custody are authentic and make proof of their contents ; provided such OBLIGATIONS. 157 extracts contain the date, place of exeoutino and nature of the instrument, the names and description of the parties to it, the name of tlie notary hefore whom it was received, the clauses or parts of clauses extracted at full leii,!j;th, and that mention be made of the day on which the extract is de- livered and be noted on the, originals.— C. N. 1339; C. C. 2132. 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, pro- vided that such copy be at- tested by the notary or other public officer with whom the authentic copy has been de- posited by judicial authority for the purpose of granting: copies thereof, as provided in the Code of Civil Procedure.--C. N. i:i35 ; C. C. P. 1327, et s. 1218. Copies of notarial in- struments and of extracts therefrom, of all authentic documents, 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 registered at full length, when such copies bear the certificate of the registrar, are authentic evidence of such documents, if the originals have been de- stroyed by fire or other acci- dent, or otherwise lost.— C. N. 1336. 1210. If in such cases the original document be in the possession of an adverse party . or of a third party, without collusion on the part of the per- son who relies upon it, and it p^aaot be produced, the copy certified as in the preceding article makes proof in like manner. Ji '.i.—OC certain wriliiuja exe- cutrd out oj Lower Vnnucln. 1220. The certillcate of the secretary of any foreign state or of the Kxecutive (iovei nment thereof, and the original docu- ments and copies of documents hereinafter enumerated, exe- cuted out of Lower Canada, \wiikeprimd facie proof of the contents thereof without any evidence being necessary of the seal or signature aftixed to such otigiual or copy, or of the authority of the officer granting the same, namely : 1. Exemplifications of any judgment or other judicial pro- ceeding of any court out of Lower Canada, under the seal of such court, or under the signature of the otlicer having the legal custody of the record of such judgment or other judicial proceeding; 2. Exemplifications of any will executed out of Lower Canada, under the seal of the court wherein the original will is of record, or under the sig- nature of the judge or other ofhcer having the legal custody of such will, and the probate of such will under the seal of the court. 3. Copies of the exemplifica- tioii of such will and of the pro- bate thereof certified by the prothonotary of any court in Lower Canada, in whose office the exemplification and pro- bate iiave been recorded, at the instance of an interested party and by the order of a judge of such court ; such probate is also received as proof of the death of the testator ; 4. Certiflcrvtes of n^arriage, { 158 OBLIQATIONS. baptism or birth, and burial of persons out of Lower Canada, under the hand of the clersy- man or public officer who officiated, and extracts from any register of such marriasre, baptism or birth and burial, certified by the clergyman or {mblic officer having the egai custody thereof ; 5. Notarial copies of any power of attorney executed out of Lower Canada, in the pres- ence of one or more witnesses and authenticated before the mayor of the place or other public officer of the country where it bears date, the original whereof is deposited with the notary public m Lower Canada granting the copy ; 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 public officer of the country where it bejirs 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 de- posited in the same cause. The original powers of af torney mentioned in the pre- ceding paragraphs numbers five and six, are neld to be duly proved ; but the truth of the exemplifications, probates, cer- tificates or extracts, and the original powers of attorney mentionea in this article, may be denied and proof thereof be reouired in the manner pro- viaed in the Code of Civil Pro- cedure,— C, C. P. 209, § 4.-0/ Private Writings, 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.-C. C. 855. 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 efTect in making proof between the parties thereto, and be- tween their heirs and legal re- presentatives, as authentic writings.— C. N. 1322. 1223. If the party against whom a private writing is set up do not formally deny his writing or signature in the manner provided in the Code of Civil Procedure, it is held to be acknowledged. His heirs or legal representatives are only obliged to declare that they do not Know his writing or signa- ture—Amended by 60 v., c. 50, 8. 18 ; C. N. 1324 ; C. C. P. 208. 1224. In the case of formal denial by a party of his writing or signature, or in the case of a declaration by his heirs or legal representatives that they do not know it, proof must be made in the manner provided in the Code of Civil Procedure. — C. N. 1324. 1225. Private writings have no date against third persons, but from the time of their re- gistration, or from the death of one of the subscribing parties or witnesses, or from the day that the substance of the writ- ing has been set forth in an authentic iui^trumeat. Th§ OBLIGATIONS. 159 date may nevertheless be estab- lished against third persons by legal proof. -C. N. 132H; C.C. 1281. 1226. The rule declared in the 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 Iwar date, in the absence of proof to ihe contrary. 1227. Family registers and papers do not make proof in lavor of him by whom they are written. They are proof against him. 1. In all cases 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 fterson in whose favor an ob- igation is declared to exist.— C N 1831 1228. What is written by the creditor on the back or up- on any other part of the title which has alv/ays remained in ^is possession, though the writing be neither signed nor dated, is proof against him when it tends to establish the discharge of the debtor. In like manner what is writ- ten 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.— C. N. 1332. 1220. 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 pay- ment so as to take the debt out of the operation of the law res- pecting the limitation of ac- tions, SECTION III. Of Testimony. ^. .: 12«0. Repealed by 00 F., c. 50, s. 19. Vule a C. P. Jil2 et a. 1231. Repealed by m Vic, c. 61), 8. JfK Vide C. C. P. 312 €t s. 1232. Repealed by Hit V.. c. 50, 8. UK Vide C. C. P. 312 et h. 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 value in question does not exceed fifty dollars ; 3. In cases in which real prop- erty is held by permission of the proprietor without lease, as pro- vided in the title Of Lease and Hire ; 4. In cases of necessary de- posits, or deposits made by travellers in an inn, and iu other cases of a like nature ; 5. In cases of obligations arising from quasi-contracts, o'lences, and quasi-offences, and all other cases in which the party claiming could not pro- cure proof in writing; 6. In cases in which the proof in writing has been lost by un- foreseen accident or is in the possession of the adverse party or of a third person without col- lusion of the partv claiming and cannot be produced ; I'l 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 partv. The whole, nevertheless, sub- ject to the exceptions and limi- tations specially declared in this .section, and to the provi- sions contained in article 1600. -C. N, 1341 : C. C. 232, et s., 860, I $ \ I' :i 160 OBLIQATIONfl. 120fi, 1281, l(k«), 1677, 1816, 2260, H. 7 ; C. C. P. 312 et h. 12:i4. Tehtinioiiy cannot in any case, be received to contra- dict or vary the terms of a valid written instrument. — C. N. 1341. 12:i5. In commercial matters in vvhicli the suin of money or value in (juestion exceeds lifty dollars, no action or exception can be maintained against any party or his representatives un- less there Is a writing signed by tlie former, in the following cases : 1. Upon any promise or ac- knowledgmeiit whereby a debt is taken out of the operation of tlie law respecting the limita- tion of actions ; 2. Upon any promise or ratifi- cation made oy a person of the age of majority, of any obliga- tion contracted during his min- ority ; 3. Upon any representation, or assurance in favor of a person to enable him to obtain credit, money or goods thereupon ; 4. Upon any contract for the sale of goods unless the buyer has accepted or received part of the goods or given something in earnest to bind the bargain ; The foregoing rule applies althougii the goods be intended to be delivered at some future time or be not at the time of the contract ready for delivery.— C. C. 1567. 1230. 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, neverthe- less, prove by testimony a pron^ise made by the debtor to pay such balance, when it does not exceed fifty dollars.— C. N. 1344. 12:i7. If in the same action several sums be demanded which united form a sum ex- ceeding fifty dollars, proof by testimony may be received if tlie debts have arisen from dif- ferent causes or have been con- tracted at diflTerent times, and each were orginally for a sum less tlian fifty dollars.— C. N. 1345. SECTION IV. Of Presumptions. 123H. Presumptions are ei- ther estal)lished by law or arise from facts which are left to the discretion of the courts.— C. N. 1349. i230. Legal presumptions are tliose wliich are specially attached l)y law to certain facts. Tliey exempt from making other proof those in whose favor tliey exist ; certain of them may be contradicted by other proof ; others are presumptions juris et dejurc and cannot be contra- dicted.~C. N. 1352. 1240. No proof is admitted to contradict a legal presump- tion, wlien, on the ground of such presumption, the law annuls certain instruments or disallows a suit, unless the law lias reserved the right of mak- ing proof to the contrary, and saving what is provided with respect to the oaths or judical admissions of a party.— C. N. 1352. 124 1 The authority of a final judgment {res judicata) is a presumption Juris et dejure ; it applies only to that which has been the object of the judg- ment, and when the demand is fonnded on the same cause, is OBLIGATIONS. 161 between the same partioR acting in the same qualitieH, and is for the same thing as in tlie action adjudKefl upon.— C. N. 1351 ; C. (;. 1920. 1242. Presumptions not es- tablished by law are left to the discretion and judp;ment of the court.— C. N. 1353. BKCTION V. Of Admissions 124:i. Admissions are extra- judicial or judicial. They can not be divided against the party making them.— C. N. 1354. Nevertheless, an admissioit may be divided in the following cases, according to circum- stances, and in the discretion of the court : 1. When it contains facts which are foreign to the issue ; 2. Wlien the part of the ad mission objected to is improb- able or is invalidated by indi- cations of fraud or of bad faith, or by contrary evidence. 3. When the facts contained in the admission have no con- nection with each other.— (50 V. c. 50, 8. 20. 1244. An extra-judicial ad- mission must be proved by writing or the oath of the party against whom it is set up, ex- cept in the cases in which, according to the rules declared in this chapter, proof by testi- mony is admissible. — C. N. 1355. 1245. A judicial admission is complete proof against the party making it. It cannot be revoked unless it is i)roved to have been made through an error of fact.— C N. i:j5(j; C. C.P. 354, ets.,350. SECTION VI. Of the Oaths of Parties. 1240. Renealed by 60 V., c. 50, s. 21; Vide C. C. P. 371, 372. § l.—Of the decisory oath. 1247. Repealed by GO V., c. r,0, 8. 21; Vide C. C. P. 371, 1248. Repealed by 60 V., c. .50, s. 21 ; Vide C. C. P. 371, 372. 1240. Repealed by 60 V., c. 50 8. 21; Vide C. C. P. ./7i, 372. 1250. Repealed by GO V., c. 60, s. 21; Vide C. C. P. 371, 372 1251. Repealed by 60 V., c. 50, s. 21; Vide C. C. P. 371, 372. 1252. Repealed by GO V., c. 50 8. 21, ' 125a Repealed by 60 V., c. 50, 8. 21. 1254. Repealed by 60 V., c. 50 8. 21. ' IZsis.' Repealed by 60 V., c. 50, 8. 21. 1256. Repealed by 60 V., c. 50, s. 21. . . 11 I: ,1 i\i ! -i 'V'-''- • ':■ rri^:f L-* t ■.,'-*.-/ -.■.•it •, iii-^-^iJi^ V, ijA^^ c rf . I I 162 TITLE FOURTH. OF MARRIAGE COVENANTS AND OF THE EFFECT OF MARRIAGE UPON THE PROPERTY OF THE CONSORTS. CHAPTER FIRST. GENERAL PROVISIONS. 1257. All kinds of agree- ments may b© lawfully made in contracts of marriage, even those which, in any other act i7ite7'' vivos, would be void ; such as the renunciation of succes- sions which have not yet de- volved, the gift of future property, the conventional appointment of an heir, and other dispositions in contem- plation of death.--C. N. 1387; C. C. 1413. 1258. All covenants con- trary to public order or bo good morals, or forbidden by any prohibitory law, are, however, excepted from ine above rule.— C. N: 13K7 ; C. C. 13, 1384. 1259. Thus the consorts can- not derogate from the rights in- cident 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 as- sociation, nor from the rights conferred upon the consorts by the title of Paternal Authority and the title of Min- ority, Tutorship and Emanci- vation in the present code.-- C. N. 1388 ; C. C. 1384. 1200. If iiO covenants 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 customs of the country, and particularly to the legal community of property, and to the customary or legal dower in favor of the wife and of the children to be born of their marriage. From the moment of the celebration of marriage, these presumed a^'eeinents become irrevocably the law between the parties, and can no longer be revoked or altered.— C. N. 1393. 1261. In the case of the preceding article, the com- munity is established and governed in accordance with the rules set forth in the second chapter, and those relating to dower are laid dov\n in the third chapter in the present title. 1262. Community of prop- erty, which the consorts are free to exclude by stipulation, may be altered or modified at pleas- ure, by their contract of mar- riage, and is called, in such case, conventional community, the principal rules concerning which are ct^utained in the second chapter of this titl' 1263. Legal or customary dower, which the parties are likewise at liberty to exclude, may also be altered or modified at pleasure, by the contract of marriage, and i.s called in such case, prefixed or conventional dower, the most ordinary rules concernin^^ which are contained in the first section of the third chapter of this title. MARRIAGE COVENANTS, ETC. 163 1204. All marriage coven- ants must be made in notarial form, and before the solemniz- ing of marriage, upon which they are conditional. Contracts of marriage made in certain localities, for which an exception has been created by special laws, are exempted from the necessity of biMiig in notarial form. — C. N. IHSM. 1265. After marriage, the mirriage covenants contained in the contract cannot be alter- ed, (even by the donation of usufruct which is abolished,) nor can the consorts in any other manner confer b.netits inter vivos upon each other, except in conformity with the provi- sions of the law, under which a husband may, subject to certain conditions and restric- tions, insure his life for his wife and children.— R. S. Q. 68091 ; C. N. 1395 ; C. C. 770. 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. N. 1396, 1397. 1267. Minors capable of con- tracting marriagi' may validly make, in favor of their future consorts or children, all such agreements or gifts as the con- tract admit'j of, provided they are ass'^ .^d by their tutors, if they have any, and by the other persons whose consent is neces- sary to the validity of the mar- riage : the benefits which they confer in such contracts upon third parties axe subject to the rules which apply to minors in general.-C. N. 1398 ; C, C. 763, 1006. CHAPTER SECOND. OF COMMUNITY OF PROPEKTY. 1268. There are two kind?, of community of property . legal community, the rules gov- erning which are contained in the lirst section of this chapter, and conventional community, the principal and most usual conditions of which are de- clared in the second section of the same chapter. 1260. Community, whether legal or conventional, com- mences from the day the mar- riage is solemnized ; the parties cannot stipulate that it whall commence at any other period. -C. xV. 1399. SECTION I. 0/ Legal Community. 1270. Legal community iti thai which the law, in the ab- sence of stipulation to the con- trary, establishes between con- sorts, by the mere fact of their marriage, in respect of certain dcvscriptions of property, which they are presumed to have intended to subject to it. 127 t. 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 men- tion is made of it, when it is not expressly nor impliedly ex- cluded, and also when there is no marriage contract. In all * I I i I ■=, '■ ' R* S. Q- vide 5580 et. a., as to Life Insuranoe by Husbands and Pareats. ' 164 MARRIAGE COVENANTS, ETC. I I'' cases it is governed by the rules set forth in the following articles.— C. N. 1400 ; C. C. 1260. §1.— What things compose the Assets and Liabilities of the Community. 1272. The assets of the com- munity consist : 1. Of all the moveable pro- perty which the consorts pos- sess on the day when the mar- riage 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 mf»rriage, or from pro- perty which has accrued to them during marriage, by any title whatever. 3. Of all the immoveables they acquire during the mar- riHge. C. N. 1401. 1278. All immoveable ire deemed to be joint acquests of the community, if they be not proved to have belonged to one of the consorts, or to have been in his legal possession, pre- viously to the marriage, or to have fallen to him subsequent- ly by succession or other equivalent title.— C. X. 1402. 1274:. Mines and quarries are subject as regards com- munity, to the rulei-. laid down concerning them, in the title Of Usufruct, Use and Occuputioti. The product of such mines and quarries as vre opened dur- ing the marriage, upon the private property of one of the consorts, does not fall into the community; but such as were opened and worked previously to the marriage, may continue to be worked for the benefit of the community.— C. N. 1408; C. C. 460. 1 275. The immoveables which the consorts possess on the day when the marriage is solenmized, or which fall to them during the continuance by succession or an equivalent title, do not enter into the com- munity. Nevertheless, if after the con- tract of marriage in which com- munity is stipuUited, and be- fore the marriage is solemnized, one of the consorts purchase an immoveable, the immoveable purchased in such interval, falls into the comnmnity ; unless the purchase has been made in exe- cution of some clause of tlie contract, in which case it is regulated according to the agreement.— C. N. 1404. 1270 Gifts by contract of marriage, those which are in contemplation of death includ- ed, gifts during marriage and legacies, made l»y ascendants of one of the consorts, either to the consort entitled to inherit from them or to the other, are deemed, as regards immove- able^, 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 m'lde to both con- sorts jointly. All gifts . nd legacies thus made to the consorts jointly, or AfARRIAGE COVENANTS, ETC. 165 to one of them, by others than ascendants, come under the contrary rule, and fall into the community, unless thev have been expressly excluded.~C. N. 1405. 1277. Immoveables aband- oned or ceded to one of the consorts, by liis father or mother, or any other ascendant, either in satisfaction of debts due him by the latter, or sub ject to the payment of the debts due by the donor to strangers, do not fall into the community ; saving compensation or indem- nity.— C. N. 140(5. 1278. Immoveables acquired during marriage, in exchange for others which belong to one of the consorts do not enter into the community, and are substi- tuted in the pl.ice and stead of the immoveables thus alien- ated ; saving coni})ensation if a difference have been paid. — C. N. 1407. 1270. A purchase made dur- ing marriage, under title of licit- ation, or otherwise, of a portion of an immoveable, in which one of the consorts owned an undivi- ded share, does not constitute a joint acquest ; saving the right of the comnmnity to be indem- nified for the aniouut with- drawn from it, to make such purchase. Where the husband, alone and in his own individual name, acquires by purchase or by ad- judication, part or the whole of an immoveable, in which the wife owned an undivided share, she has the option, at the dis- solution of the community, either of abandoaing the im- moveable to the community, which then becomes her debtor for her share in the price, or of taking back the immoveable and refunding to the commu- nity the price of the purchase. -C. N. 1408. 1280. The liabilities of the community consist : — 1. Of all the moveable debts due by the consorts on the day when the ma.rijige was solem- nized, or by the successions which fall to them during its continuance ; saving compensa- tion for such as are connected with immoveables which are the private property of one or other of the consorts ; 2. Of the debts, whether of capital sums, arrears, or inter- est, contracted by the husband during the community, or by the wife, with the consent of the husband ; saving compensa- tion in cases where it is due ; 8. Of the arrears and interest only of such rents and debts as are personal to either of the two consorts ; 4. Of the repairs which at- tach to the usufruct of such im- moveables as do not fall into the conmmnity; 5. Of the maintenance of the consorts, of the education and support of the children, and of all the other charges of mar- riage.— C. N. 1409; C. C. 1396 et s. community is moveable debts the wife before in so far as they a.*e established by an authentic act anterior to the marriage, or by an act which before that event had acquired a certain date, either by means of regis- tr.it .on or of the death of one or wiore of its signers, or other sufficient proof except in com- mercial matters, in which proof Miay he made according to the provisions of articles 12;W, 12^14 and 12;W). Creditors of the wife, who 1281. The liable for the contracted by marriage, only !!■ •i- 166 MARRTAGIC COVENANTS, KTO. I claim under acts the date of which has not been established as above stated, cannot sue her for their payment, before the dissolution of the community. The husband who claims to have paid a debt of this nature, for his wife, cannot demand re- payment of it either from her or from her heirs.— C. N. 1410 ; C. C. 1225. 1282. Debts due by a suc- cession composed of moveable property only, which has fallen to the consorts during mar- riage, are entirely chargeable to the community.— C. N. 1411. 1283. Debts due by a suc- cession composed of immove- ables only, which falls to one of the consorts during mar- riage, are not chargeable to the community ; saving the right of the creditors to he paid out of the immoveables of the suc- cession. Nevertheless, if such suc- cession haTC fallen to the hus- band, the creditors have a right to be paid either out of his pri- vate property or even out of that of the community ; saving, in the second case, tlie com- Eensation due to the wife o^ er heirs. 1284. If a succession com- posed of immoveables only have fallen to the wife, and she have accepted it with the consent of her husband, the creditors have a right to be paid out of all the Eroperty which belongs to her : ut if she have accepted it only under judicial authorization, upon the refusal of her hus- band, the creditors, in case the property of the succession proves insufficient, have no re- course upon her other property until the dissolution of the community. -C. N. 1413 ; C. C. 643. 1285. When a succession which has fallen to one of the consorts consists partly of moveable property and partly of immoveables, the debts due by such succession are charge- able to the community to tne extent only of the portion of the debts to the payment of which the moveable property is liable to contribute, regard being had to the value of such property as compared with that of the immoveables. Such contributory portion is determined according to the in- ventory which the husband is bound to make, either in his own right, if the succession concern him personally, or as directing and authorizing the actions of his wife, if the suc- cession be one that has fallen to her.-C. N. 1414. 1286. In the absence of an inventory, and in all cases where the omission to make one is prejudicial to the wife, she or her heirs may, at the dissolution of the community, sue for lawful compensation, and even make proof, either by deeds and private writings, or by Witnesses, and, if necessary, by general rumor, of the description and value of the inoveable property not in- ventoried.— C. N. 1415. 1287. The provisions of article 12:^5 do not deprive the creditors of a succession com- posed partly of moveable pro- perty, and partly of immove- ables of their right to be paid out of the property of the com- munity, whether the succes- sion has accrued to the hus- band, or has fallen to the wife and has been accepted by her with the consent of her hus- band ; the whole, subject to the respective compenjsations. MAtlRtAGfi COVENANTS, ISTC. 167 The same rule applies if the succession have been accepted by the wife under judicial authorization only, and the moveable property belonging to it have, nevertheless, been mixed up with those of the community without a previous inventory.— C. N. 1416. 1288. If the succession have been accepted by the wife un- der judicial autliorization only, upon the refusal of the hus- band, and an inventory have been made, the creditors can sue for their payment, only out of the property, whether move- able or immoveable, of such succession, and, if it should prove insufficient, they must for the remainder await the dissolution of the community. C. N. 1417. 1289. The rules established by article 1282 and the articles which follow it, govern the debts attached to a gift, as well as those which attach to a suc- cession.— C. N. 1418. 1200. Tlie creditors have a right to be paid the debts con- tracted by the wife, with the consent of the husband, either out of the property of the com- munity, or out of that of th^ husband or of the wife ; saving the compensation due to the community, or the indemnity due to the husband. —C. N. 1419, 1426. 1201. All debts which the wife contracts, only in virtue of a general or special power of attorney from her husband, are chargeable to the community ; and the creditors cannot prosecute their payment either against the wife or against her personal property.— C. N. 1420. § l.—Of the Administration of the Community and of the effect of the acts of either con- sort, in relation to the con- jugal association. 1202. The husband alone administers the property of the community. He may sell, alienate, or hypothecate it without the concurrence of his wife. He may even alone dispose of it, either by gifts or otherwise inter vivos, provided it is in favor of persons who are legally capable, and without fraud.— C. N. 1421, 1422 ; C. C. 205, 692, 1393. 1203. One consort cannot, to the prejudice of the other, bequeath more than his share in the community. The bequest of an object belonging to the community is subject to the rules which ap- ply to the bequest of a thing of which the testator is only part owner. If the thing have fallen into the share of the testator and be found in his succession the legatee has a right to I he whole of it.-C. N. 1423 ; C. C. 882, 883. 1204. Peoiniary condemna- tions, incurred by the husband for criminal offences or misde- meanors, may be recovered out of the property of the commun- ity. Those incurred bv the wife can be recovered only out of her property, and after the dissolution of the community. -C- N. 1424. 1205. The criminal condem- nation, of one of the consorts, whicli causes civil death, affects only his share iu the comu m- jty and his private property.— C. N. 1425; C. C. 35. 1204t). Acts done by the wife without the consent of her hus- 168 MARRIAGE COVENANTS, ETC. m l band, even when she is judi- cially authorized, do not affect the property of the community beyond the atnount of the benefit it derives from them, unless she contracts as a public trader, and for the purposes of her trade.-C. N. 1426; C. C. 179. 1207. A wife cannot without judicial authorization, obligate herself nor bind the propcty of the community, even for the jurpose of releasing her hus- mnd from prison, or of estab- ishing their common children, n the case of his absence.— C.N. 1427 ; C. C. 187 et. s. 1298.— The husband has the administration of all the private property of his wife. He may exercise, alone, all the moveable and possessory actions which belong to his wife. He cannot, without her con- sent, dispose of the immove- ables which belong to her. He is responsible for all de- teriorations which his wife's private property may suffer for want of conservatory acts. — C. X. 142S ; C. C. 692, 1393, 1394. 1299. Leases of the wife's property, made by her husband alone, cannot exceed nine years; she is not bound, after the dis- solution of the community, to maintain those which have been made for a longer term. — C. N. 1429. 1300. liCases of property of the wife, for nine years or tor a shorter term, which have been made or renewed by the hus- band alone more than a year in advance of the expiration of the pending lease, do not bind the wife, unless they come into operation before the dissolution of the community.— C. N. 1430. 1301. A wife cannot bind herself either with or for hei* husband, otherwise than as being comnion as to property ; any such obligation contracted by her in any other quality is void and of no effect.- C. N. 1431 ; C. C. 1374. 1:I02. A husband who con- tracts obligations for the indi- vidual affairs of his wife has a recourse against her property in order to obtain the reim- bursement of what he is obliged to pay by reason of such obliga- tions.-C. N. 1432 ; C. C. 13(5(5. 1303 If an immoveable or other object belonging ex- clusively to one of the con- sorts be sold, and the price of it be paid into the com- nmnity and be not invested in replacement, or if the com- munity receive any other thing which belongs exclusively to one of the consorts, such con- sort has a right to pre take such price or the value of the thing which has thus fallen into the community. — C. N. 1433. 1304. If, on the (Contrary, moneys have been withdrawn from the community and have been used to improve or to free from incumbrance an immove- i.ble belonging to one of the consorts, or have been applied to the payment of his individual debts, or for his exclusive bene- fit, the other consort has a right to pretake by way of compensa- tion, out of 'the property of the community, a sum equal to the moneys thus appropriated. — C. i\.1433; C. C. ll."56, s. 5. 1305. The replacement is perfect, as regards the husband, whenever, at the time, he de- clares that he makes the pur- chase with money arising from the alienation of an immove- able which belonged to himself alone, or for the purpose of re- MARRIAGE COVENANTS, ETC. 169 placing? such immoveable. — C. N. 1434. 1800. Tlie declaration of the husband, that the purchase is made with moneys arisinj^ from an immoveable sold by his wife, and for the purpose of replaeinpj it, is not sufficient, if such re- placement have not been form- ally accepted by the wife, ei- ther by the deed of ])urcliase itself, or by some other sulise- quent act made before the dis- solution of the community. — C. N. 143.5. 1:J07. The compensation for the price of an immoveable be- lonajin^ to the husband can be claimed only out of the mass of the community ; that for the price of an immoveable belong- ing to the wife, may be claiined out of the private property of the husband, if the property of the community prove insuffi- cient. In all cases, such compensa- tion consists in the price brought by the sale and not in the real or conventional value of the immoveable sold.— C. N. 1480. i;i08. If the consorts have jointly benefited their common child, without mentioning the pr.jportion in which they each intended to contribute, they are deemed to have intended to contribute equally, whether such benefit has been furnished or promised out of the effects of the community, or out of the private property of one of the consorts ; in the latter case, such Cdusort has a right to be indtninitied 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 time of the gift.— C. N. 1438. 130<>. A nv benefit conferred by the husband alone upon a common child Is chargeable to the community, and if the wife accept the community she bears one half, unless the husband has declared expressly that he charged himself with the whole or with more than the half of such benefit.— C. N. 1439. i^ ',i.--Of the Dismlnfion of the Cninm^inity and nf its Con- f imiatioii in certain cases. 1.-0/ the Dissolution of the Co)mnunity. I.'JIO. The community is dis- solved : 1. By natJiral death ; 2. By civil death ; 3. By separation from bed and board ; 4. By separation of property ; .5. By the absence of one of the consorts in the cases and within the restriction set forth in articles 109 and 110.— C. N. 1441 ; C. C. 36, 20H, 20!). 1311. Separation of property can only be obtained judicially, when the interests of the wife .are imperiled and tlie disordered state of the husband's affairs 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 volnntarv separations are null ((50 v., c.'.tO, s. 22).— C. N. 1443 ; C. C. P. 1000 et s. 1312. Separation of prop- erty, although judicially order- ed, has no effect, so long as it has not been carried into execu- tion in the manner stated in the Code of Civil Procedure. ((iO V., c. 50, s. 23.) -C. X. 1444 ; C. C. P. lOH.S. 1313. The judgment of sep- aration as to property must be inscribed in the manner pre- lt \ no MAttRlA^E COVENANTS, ETC. i; 1 scribed in the Code of Civil Pro- cedure. (60 v., c. 50, s. 24.)- C. N. 1445; C. C. P. 1097. 1314. The judgment which declares the separation of prop- erty has a retroactive eftect to the day of the institution of the action.— C. N. 1445. 131 4rt. The wife who sues for separation may accept or renounce the conniiunity, ac- cording to circumstances, and if the husband fails to make an inventory, she may, upon being authorized, liave one made, if she has not renounced. If she accepts, the partition is eflected in the manner provid- ed in the title Of Marriage Covenants.— 60 V. cap. .50 s. 25. 1314&. The wife's renunci- ation of the community must be registered in the registrv office of the division in which the husband was domiciled at the time when the suit was brought, or, if the husband was not then domiciled in the pro- vince, in the registry office of the division in which the con- sorts had their last common domicile before the institution of the action.— /6itZ. 1314c. When the reprises of the wife consist of moveable property, the husband may oblige her to invest the pro- ceeds thereof, or a portion of the same, in the purchase of immoveables. — Ibid. 1314rf. If the husband gives up immoveables to his wife in payment of her reprises, she must apply for and obtain a judgment of confirmation of the deed by which he does so, ac- cording to the formalities pre- scribed in the Code of Civil Procedure.— /6jV:?. 1314e 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 ma^ take back from the 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 commnnity, or a community by general m m "■tf 'M J >"! ' m 5t U I ns MABBIAQI OOYBNANTS, ETC. a title, shall exist between them.-G. N. 14»7 ; C. C. 1282, 1413. 1414. § \.— Of the Clause of Realiza- tion. 1885. By the clause of real- ization the parties exclude from the community, either wholly or in part, the move- able property which would otherwise fall into it. When they stipulate that they will reciprocally put into the community moveable pro- perty to the extent of a certain sum or of a determinate value, they aie, by such stipulation alone, presumed to have re- served the remainder.— C. N. 1500 ; C. C. 1272, s. 1, 1435. 1886. 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.— C. N. 1501. 1887. 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 cer- tain value. It is sufficiently substanti- ated, as regards the wife, by the discharge which the hus- band gives cither to her or to those who made the endow- ment. If such contribution be not claimed within ten years the wife is presumed to have made it ; saving the right of proving the contrary.— C.N. 1502. 1888 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 pro- perty which he brought into it at the marriage or which accrued to him after it, over and above what he bound him- self to bring into the com- munity.— C. N. 1503. 1889. In the oase of the pre- ceding article, the moveable property which accrues to either consort during marriage must be established by an in- ventory or some other equiva- lent title. As regards the husband, in default of such inventory or title, he forfeits his right to take back the moveable pro- Serty which has fallen to nim uring the marriage. As regards the wife, on the contrary, she or her heirs are, in such case, admitted to make proof either by titles or by witnesses, or even by common rumor, of the moveable pro- perty, thus accrued to her.— C. N. 1504 : C. C. 1286. § 2.-0/ the Clause of Mobiliz- ation. 1800. The clause of mobil- ization is that by which the consorts, or either of them bring into the community the whole or a portion of their im- moveables, whether present or future.— C. N. 1505 ; C. C. 1435. 1301. Mobilization is either general or special. It is general when the con- sorts declare their intention of being in community as to all their property, or that all suc- cessions falling to them shall belong to the community. It is particular when they have only undertaken to bring into the community some de- terminate immoveables. 180a. Mobilization may be either determinate or inde- terminate. I MARRIAGE COVINANTS, ITO. 179 It is determinate, when the consort declares that he brings as moveable into the com- munity, a certain immoveablcf either wholly or to the extert of a certain sum. It is inde- terminate when the consort simply declares that he brings into the community his im- moveables to the extent of a certain sum.— C. N. 1506. 1803. The effect of deter' minate mobilization is to con' vert the immoveable oi im' moveables affected by it into community property, as move- ables themselves would be. When the immoveable or immoveables of the wife are contributed as moveable in whole, the husband may dis- pose of them as of the other effect's of the community and alienate them entirely. [f 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.— C. N. 1507 ; C. C. 1202, 1208. 1304. Indeterminate mob' ilization 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 alien- ate, in whole or in part, the immoveables subjected to in- determinate mobilization, but he may hypothecate them to the extent of such mobilis- ation.- C. N. 1508 ; C, C. 1298. ItfOS. The consort who has contributed an immoveable as movea^ ^e, has a right, when the rai vition takes place, to re- tain it, on account of his share, at the price it is then worth, and his heirs have the same right.— C. N. 1509. §3.-0/ the Clause of Separ- ation of Debts. ISOe. The clause by which the consorts stipulate tnat they will separately pay their per- sonal debts, obliges them to ac- count to each other respective* ly, at the time of the dissolu- tion of the community, for such debts as are established to have been paid by the community in discharge of the consort who was liable for them. This obligation is the same, whether an inventory has been made or not ; but if the move- able property brought in by the consorts have not been de* termined by an inventory or an authentic statement anterior to the marriage, the creditors of either consort without regard to any distinctions that may be claim'ed, have a right to be paid out of such property as well as out of all the other property of the community. The creditors have the same right with regard to such moveable property as may have fallen to the consorts during the community, if likewise it have not been determined by an inventory or authentic state- ment. -C. N. 1510; C. C. 1280 1307. When either of the consorts brings into the com- munity a certain sum or a de- terminate object, such a con- ^1i -Si m ■ If m :'■ ^ M VH 180 MARRIAGE COVENANTS, ETO. J tribution implien a tacit agree- ment that it Is not encumbered with debts anterior to the mar- riage, and he must account to the other for all such incuni- bi .nces as lessen its value. — C. N. 1511. 180H. The clause of separ- ation of debts does not prevent interest and arrears which have accrued since the marriage from being chargeable to the community.- C. N. 1512 ; C. C. 1280, s. 3. 1800. When the community 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 consort has a right to an indemnity, to be taken from the share in the community which belongs to the indebted consort, or from his private property ; and in case of insumciency, such in- demnity may be prosecuted, by way of warranty, against the parties who made the declar- ation that such consort was free and clear. This right of warranty may even be exercised by the hus- band during the community, if the debt have originated with the wife ; saving, m such case, the right of the warrantor to be reimbursed by the wife or her heirs, after the dissolution of the community.— C. N. 1513. %i.—Of the right given to the wife of taking back free and clear what she brought into the Community, 1400. The wife may stipu- late, that in case of renunci- ation of the community, she shall take back the whole or part of what she broup^ht into Tt either before or smce the marriage ; but such stipulation cannot extend beyond things formally specified, nor to other persons than those who are designated. Thus, the right of taking back the moveable property brought in l>y the wire at the time of the marriage, does not extend to similar property ac- crued to her during the mar- riage. Thus, the right given to the wife does not extend to tlie children ; and that given to the wife and to the children, does n&t extend to her ascendant or collateral heirs. In all caHCS, the wife can only take l)ack her contributions after deduction has been made of such of her private debts as have been paid out of the com- munity. §5.-0/ Conventional Preciput, 1401. The clause Ijy which the surviving consort is author- ized to pretake, before any par- tition, a certain sum or a cer- tain quantity of moveable effects in kind, does not take effect in favor of the surviving wife who does not accept the community ; unless l)y the con- tract of marriage such right is reserved to her, even when slie renounces. Excepting the case of such reservation, preciput can only be tandonTng to the heirs of the Imsband both the property and the debts.— C. N. 1524. 141 . When the consorts stipulace 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 commun- ity by the person they repre- sent. Such a stipulation is but a simple marriage covenant, and is noi subject to the rules and formalities applicable to gifts.— C. N. 1523. § 1,—Of Community by General Title. 1412. The consorts may es- tablish by their contract of marriage a general community of their propertv tioth moveable and immoveable present and future, or of all their present property only, or of their future property only.— C. N. 1526. Provisions common to the Articles of this Section. 1418. The above articles do not confine to their precise pro- visions the stipulations of which conventional community is susceptible. The consorts may make any other covenants, as mentioned in articles 1257 and 1384.— C. N. 1627. 1414. Conventional com- munity remains subject to the rules of legal community in all cases where they have nut been implicitly or explicitly departed from by the contract.— C. N. 1628. g S.—Of Covenants excluding Community. 14 IS. 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 : I.— Of the Clause simply exclu- ding 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 l>e contributed bv her to her husband to enable him to bear the charges of mar- riage.— C. N. 1530 ; C. C. 176 et s. 1417. The husbzind retains the administration of the move- able and immoveable property of his wife, and as a conse- quence the right to receive all the moveable property she brings with her or which accrues to her during the mar- riage ; saving the restitution he is i90und to make after its dis- solution, or after a separation of property judicially pro- nounced.- C. N. 1531 ; C. C. 092. 1418. If, amongst the move- able 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 i UAX&UQM OOVlNANtS, ltd. m the husband is bound to give back their value according to the valuation.— C. N. 1532. 1419. The husband, with regard to such property, has all the rights and is subject to all the obligations of a usufructu- ary. -C. N. 1633. 1420. The clause which declares that the consorts marry without community, does not prevent its being agreed that the wife, for her support and personal wants, shall receive her revenues in whole or in part, upon her own acquittances.— C. N. 1534. 1421 . The immovealiles of the wife which are excluded from the community in the cases of the preceding articles are not inalienable. Nevertheless they cannot be alienated without the consent of the husband, or, upon his refusal without judicial author- ization.— C. N. 1535. II.— 0/ the Clause of Separa- tion of Property, 1422. When the consorts have stipulated by their con- tract of marriage that they shall be separate as to pro- perty, the wife retains the en- tire administration of her pro- perty, moveable and immove- able, and the free enjoyment of her revenues.— C.N. 1536; C. C. 170 ct s. 1318. 1423. Each of the consorts contributes to the expenses of marriage according to the covenants contained in their contract, and if there l>e none and the parties cannot come to an understanding upon the subject, the court determines the contributory portion of each consort according to their respective means and circum- sUnces.-C. N. 1637 ; C C. 1317. 1424. Toe wife cannot in any case, nor by virtue of any stipulation, alienate her im- moveables without the special consent of her huslmnd, or, on his refusal, without being judic- ially authorized. Every general authorization to alienate immoveables, which is given to the wife either by the contract of marriage or subsequently, is void.— 0. N. 1638 ; C. C. 181. 1425. When the wife who Is separated as to property has left the 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 tlien existing, and is not accountable for those which, up to such time, have been consumed — C. N. 1539. CHAPTER THIRD. OF DOWER. SECTION I. General Provisions. 1426. There are two kinds of dower, that of the wife and that of the children. These dowers are either legal or customary, or prefixed or conventional. 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. C. 1260. 1428. Prefixed or conven- :\: ''Vi\ ■'\ ■'; I' 184 MABRIAOl 00VINANT8, ITO. tional dower <8 that which the partlen have agreed upon, bv the contract of marriaKC.— C. C. 1263. 1429. Conventional dower excludes cuNtoinary ; it i» how- ever lawful to Htipulate that the wife and the children Hhall have the right to take either the one or the other, at their option. 1480. The option made by the wife, after the opening of the dower, binds the children, who muHt remain Hati.sflea with whichever dower she has chosen. If she die without having made the choice, the right of making it passes to the chil- dren. 1431. If there be no contract of marriage, or if in that which has been made, the parties have not explained their inten- tions on the subject, custom- ary 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. 1432. Dower whether con- ventional or customary is not regarded as a bonetlt subject to the formalities of gifts, out as a simple marriage covenant. 1433. The right to conven- tional dower accrues from the date of the contract of mar- riage, and the right to cus- tomary dower from the date of the celebration, or from the date of the contract if there be one in which it is stipulated. 1434. Customary dower con- sists in the usufruct for the wife, and the ownership for the children, of one half of the im- moveables which l)elong 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. -C. C. U.>4. 143a. immoveables which the husband has contributed as movtiable under a ciauKc of mobilization, in order to bring them into the community, are not subject to customary dower. Neither are immoveables by Action composed of moveable objects which the husband has reserved to himself by the clause of realisation in order to exclude them from the com- munity. 1430. The customary dower resulting from a second mar- riage, when there are children liorn of the flrst, consists in a half of the immoveables, not alTected by the previous dower, which belong to the husband at the time of the second mar- riage, or which accrue to him during such marriage from his father or mother or other as- cendantH. The rule is the same for all subsequent marriages which the husband uuxy contract, when there are children of pre- vious marriages. 1437. 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 porlion of the moveable or immoveable property which constitutes it according to the contract of marriage. The parties may, however, modify this dower at will ; they may stipulate, for example, that it shall belong to the wife in full ownership, to the ex- clusion of the children, and without return, or that the dower of the latter shall be MARRIAGE C0VCMANT3, BTO. 185 difToront from that of their laothfU'. 14:iH. Dowor, whether cus- tomary or coiivontional, in a rl^ht of Hiirvlvorshlp which opotiH by the nat^anil death of the huHband. It may, however, i)e opened and become exigible l»y the civil deatli of tlic iiiisliaiid, or by separation from lied and b »ard, or separation of propi'rty only, if 8uch eflect result from the tepins of the contract of marriage. It may likewise l)e demanded in the case of the al)senoe of the husband, under the circum- stances and conditions ex- pressed in articles lOhind 110. - C. C, m, s. H. 20.^, VM2. 14»9. If the wife be alive at the time of the opening of the dower, she enters immediately upon the enjoyment of her usufruct ; the children cannot take possession of the property until after her deatli. If tfie 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 husl)and no children or grand chihlren issue of the marriage be living, the dower is extinguished anti the property remains in the suc- cession of the husband. 1440. Conventional dower is taken from the private property of the husband. 1441. The wife and the children are seized of their respective rights in the dower from the time it opens, with- out the necessity of a judicial demand ; such a demand is, however, necessary against subsequent purchasers, in order to give rise, as regards them, to the fruits of the immoveables and the interest of the capital sums which they haveac. 1 442. Customary dower, and convenlional dower, when it consists of immoveables, is a real right, and is governed by t he law of the place where the immovealtles subject to it are situited. C. C. «, s. 1. 1443. Neither the alienation by the husliand of ImmoveableH 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, aflect in any manner the rights of the latter or of the children, unless she has ex- pressly renounced in con- formity with the following article. Such alienation and charges are e(iually without effect, as regards lx)th 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 ; sui)ject to tlie same exception. 1*444. The wife who is of age may, however, renounce her right of dower, whether customary or conventional, upon such immoveables as her husband sells, alienat' or hypothecates. ('he renunciation may be made either in the act by which the husband sells, alienates or hypothecates the immoveable, or by a separate and subse- quent act. 144^1. Such renunciation has the eirect of discharging the immoveable affecte'd by dower from any claim which the wife may have upon it under that title, and neither she nor her if, • 1 p i Ill il !:,' I8d MARRlAGiS COV:fiNA^TS, £T0. heirs can exercise against any other property of the husband any recourse to be indemnified or compensated for the riglit thus abandoned ; notwith- standing the provisions of this title or any otlier provisions of this code respecting tlie re- placements, indemnities or compensations which consorts or other parties owe to each other in cases of partition. 1440. As to the dow er of the children, it can be exercised only upon immoveables subject to the dower of their mother which have not been alienated or hypothecated by their father during the continuance of the mairiage with her renunciation made in the manner prescribed in article 1444. Children who have attained the age of majority may, after the death of their mother, re- nounce their dower in all cases in which the latter could have doiKi so herself, and in the same manner with the same effect. 1447. Sales under execution, judgments in confirmation of title, and adjudications in forced licitations, when they take place before the opening of tine customary dower, whether such dower results fiom the law alone, or has been stipulated, do not affect immoveables subject to dower. Nevertheless if the sale under execution take place at the suit of a creditor whose claim is anterior 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 grice, are bound to bring It ack if the dower accrues, and cannot receive the moneys without giving security if the (lower be apparent upon the proceedings. When, as in the first case mentioned in this article, the dower is not extinguished by the sale or the judgment of c >nfirmation, the party to whom the property iias been adjudicated or who has ob- tained the judgment may like- wise, 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 creditors are not collocated un- less they give security to bring back whatever portion of the dower they may receive. If the creditors refuse to give secu- rity the person to whom the pro- perty 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. C. 2116; C. C. P. 781, 785. 1448. If the dower which is not yet open be the conven- tional dower, whether it con- sists in an immoveable or in an hypothecary claim, it is subject 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 cases ; saving to the parties interested their rights and recourse and the securities to which they may be entitled. Conventional dower when open is subject to the ordinary rules. -C. C. P. 800. 1449. The purchaser of an immoveable which is subject to m MARRtAOB COt^ENANtS, tTO. 161 iO. i ^n or hypothecated for dower can- not prescribe as^ainst either the wife or the children so long as such dower is not open. \ Prescription runs against children of full age, during the life-time ot their mother, from the period when the dower opens.— C. C. 2235. SECTION II. Particular provisions as to the Dower of the Wife, 1450. The conventional dower of the wife is not incom- patible with a gift of usufruct mide to her by the husband ; she enjoys under such gifts the property comprised in them, and takes her dower from the remainder without diminution or confusion. 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 representatives of her hus- band, has all the rights and actions which belong to the other creditors of the succes- sion. 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 enjo/. The widow and the heirs have reciprocally an action to obtain this partition, in the case of refusal on the part of either. — C. C. 689 et s. ; C. C. P. 1037 et s. 1453. The dowager, like other usufructuaries, has a ri^ht to the natural 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 pro- duce them. The same rule applies to those who enter into tiie enjoy- ment of the ownership of such immoveable, after the extinc- tion of the usufruct.— C. C. 450. 1454. The dowager, as long as she remains a widow enjoys the dower, whether customary or conventional, upon giving the security of her oath to re- store it ; but if she remarry, she is bound to give the same security as any other usufruc- tuary.— C. C. 464. 1455. If the wife who has remarried cannot give the ne- cessary security, her usufruct becomes subject to the pro- visions of articles 465, 466 and 467. 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 antici- pation. 14r57. Leases made by her du.in^ the term of her enjoy- ment expire with her usufruct ; nevertheless, the former or lessee has a right, and may be obliged, to continue in occupa- tion during the remcainder of the year which had begun when the usufruct expired, subject to the payment of the rent to the owner.'— C. C. 457. 145H. The dowager, like any other usufructuary, is liable for all the ordinary or extraordi- nary charges which affect the immoveable subject to dower or which may be imposed upon it during the term of her enjoy- ment, as set forth in the title Of Usufruct, of Use and Habi- tation.— C U. 471. . 1 i 188 MVaRrAQB ooVENAyrs. Etc. 1450. She is liable oniy for tlie lesser repairs ; for the greater repairs, the owner remains liable, unless they have been necessitated by the fault or negligence of the dowager.— C. C. 4()H et. s. 1460. The dowager, like every other usufructuarv, 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 children, as regards the property itself, in cases where the usufruct of the wife does not take place. If they do not take the prop- erty until after the expiration of the usufruct, or if at that time there be no dowable children, the succession of the wife is answerable, in the first case to such children, and in the second case to the heirs of the husband, according to the rules which relate to the enjoyment and the obligations of the usufructuary under par- ticular title. 1401. If nevertheless, dur- ing the marriage, considerable additions have been made to the thing, the wife cannot en joy them without paying the excess of value, if her dower consist in ownership, or the in- terest of such excess, if it be in usufruct. She may however demand the removal of such .additions if it can be efl'ected with ad- vantage and without deterior- ating the thing. If they cannot be removed the wife may for the purpose of paying the excess of the value, obtain a licitation. Dowable children who take the property without their mother having had the usufruct of it, fall under the same rules with regard to such additions. If during the marriage, the thing subject to dower have suffered deterioration, to the benefit of the huslmnd or of the community, the wife and the cidldren who claim dower are entitled to compensation. 1402. The dower of the wife is terminated like any other usufruct by the causes enume- rated in article 479. 1403. The wife may be de- prived 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 re- concil iation must not have taken place ; the heirs in such case, can only continue the action commenced, if it have not been abandoned. 1404. The wife may also be declared to have forfeited her dower by reason of the abuse she has made of her enjoyment,* under the circumstances and modifications set forth in article 480. 1405. If the wife be declared to have forfeited her usufruct for any of the causes above mentioned, or if, affer the opening of the dower, she re- nounce it simply and absolutely, the dowable children take the property from the time of the renunciation, or of the for- feiture, if it take place after the opening. SECTION III. Particular provisions as the Dower of Children. to 1400. The children entitled to dower are those who are born of the marriage for which it was constituted. Children of the consorts who were born SALE. 189 before the marriage, but are legitimated by it, are deemed to be children of tlie marriage ; so are those who were con- ceived at tlie time of their father's death and are liorn afterwards ; and so are also the grandchildren whose father being a child of tlie marriage, died i)efore the opening of tlie do ver. Those children only can claim dower who were capable of suc- ceeding to their father at the time of his death. 1467. A child who assumes the quality of heir to his father, even under benefit of inventory, 'Jan have no share in the dower. 1408. In order to be entitled to dower, the child is bound to return into the succession of his father all such benefits as he has received from him, in marriage or otherwise, or to take less in the dower. 1400. The dowered children are not bound to pay the debts which have been contracted by their father since the marriage: as to those which were con- tracted previously, they are only liable hypot liecarily for them, with a recourse against the other property of their father. 1470. When a conventional dower consists in a sum of money to be paid once for all, it is to all intents deemed move- able. 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 children and grandchildren en- titled to it, in the same manner as if it had fallen to them by succession. The shares of those who re- nounce remain in the succes- sion, an«l do not increase the shares of the other children who take dower. TITLE FIFTH. OF SALK. CHAPTER FIRST. GENERAL PROVISIONS. 1472. Sale is a contract by which one party gi ves a thing to the other for a price in money which the latter obliges himself to pay for it. It is perfected by the consent alone of the parties, although the thing sold be not then delivered ; subject nevertheless to the provisions contained in article 1027 and to the special rules concerning the transfer of registered vessels. — C. N. 1582, loS^; C. C. 1025, 2098, 2850 et s. 147:t. The contract of pale is subject to the general rules relating to contracts and to the eltects and extinction of obliga- tions declared in the title Of Obliyations, unless it is other- wise specially provided in this code.-C. N. i5H4. 1474. When things move- able are sold by weight, number or mea'iure, and not in the lump, the st^le Is not perfect 190 SALE. < '. until they have been weighed, counted or measured ; but the buyer may demand the delivery of them or damages according to circumstances.— C. N. 1585; C. C. 1028, 1060, 1151. 1475. The sale of a thing upon trial is presumed to be made upon a suspensive condi- tion, when the intention of the parties to the contrary is not apparent.— C. N. 1588. 1476. A simple promise of sale is not eauivalent to a sale, but the creditor may demand that the debtor shall execute a deed of sale in his favor ac- cording to the terms of the promise, and, in default of so doing, that the judgment hall be equivalent to such deed and have ali its legal effects ; or he may recover damages according to the rules contained in the title Of Obligations.- C.N. 1589. 1477. If a promise of sale be accompanied by the giving of earnest, each of the contracting 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.— C. N. 1590; C. C. 12.35, 8. 4. 1478. A promise of sale with tradition and actual possession is equivalent to sale. — C. N. 1589. 1470. The expense of the title deed and other accessories to a sale is borne by the buyer, unless it is otherwise stipu- lated.— C. N. 1593. 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 Of Registration of Real Rights. 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. CHAPTER SECOND. OF THE CAPACITY TO BUY OR SELL. 1482. The capacity to buy or sell is governed by the gen- eral rules, relating to the capacity to contract, contained in chapter first, of the title Of Obligations.— C. N. 1594; C. C. 985 et s. 1483. Husband and wife cannot enter into a contract of sale witli each other. — C. N. 1595. 1484. The following persons cannot become buyers, either by themselves or by parties in- terposed, that is to say :— Tutors or curators, of the pro- perty of those over whom tney are appointed, except in sales by juaicial authority. Agents, of the property which they are chargea with the sale of. Administrators or trustees, of the property in their charge whether of public bodies or of private persons. Public oflicers, of national property, the sale of which is made through their ministry. The incapacity declared in this article cannot be set up by the buyer; it exists only in favor of the owner and others having an interest in the thing sold.— C. N. 1596 ; C. C. 290, 1706 ; C. C. P. 660, 748. 1485. Judges, advocates, at- torneys, clerks, sheriffs, bailiffs and other officers connected with courts of justice can not become buyers of litigious rights which fall under the SALS. 191 jurisdiction of the court in which they exercise their func- tions.— C. N. 1597 ; C. C. 1583. CHAPTER THIRD. OF THINGS WHICH MAY BE SOLD. 1480. Everything may be 8old which is not exrluded from being an object of commerce by its nature or destination or by special provision of law.— C. N. 1598 ; C. C. 1059. 1487. The sale of a thing which does not belong to the seller is null, subject to the ex- ceptions declared in the three next following articles. The buyer may recover damages of the seller, if he were ignorant that the thin&r did not belong to the latter.— C. N. 1599, 1488. The sale is valid if it be a commercial matter, or if the seller afterwards become owner of the thing. 1480. If a thing lost or stolen be bought in good faith in a fair or market, or at a pub- lic sale, or from a trader deal- ing in similar articles, the own- er cannot reclaim it, without reimbursing to the purchaser the price he has paid for it.— C. N. 2280 ; C. C. 2J68. j 1 490. If the thing lost or ! stolen be sold under the an- | thority of law, in cannot be re- \ claimed.— C. C. P. ms, 200oa. CHAPTER FOURTH. OF THE OBLIGATIONS OF THE SELLER. SECTION I. General Provisions. 1491. The principal obliga tions of the seller are : 1. The delivery, and, 2. The warranty of the thing sold.— C. N. 1603. ' SECTION II. 0/ Delivery. 1402. Delivery is the trans- fer of a thing sold into the power and possession of the buyer.- C. N. Um. 1493. The obligation of the seller to deliver is satisfied when he puts the i)uyer in actual possession of the thing, or consents to such possession l)eing taken by him, and all hindrances thereto are re- moved. -C. N. 1605; C. C. 1165. 1494. The delivery of in- corporeal things is made by the delivery of the titles, or by the use which the buver makes of such things with the consent of the seller —C. N. 1607. 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.— C. N. 1608. 1496. The seller is not obliged to deliver the thing if the buyer do not p.ay the price, unless a term has been granted for the payment of it. — C N. 1612. 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 i)ecome insolvent, so that the seller is in imminent danger of losing the price, un- less the buyer gves security for the payment at the expiration of the term.— C. N. 1613. 1498. The thing must be de- livered in the state in which it was at the time of the sale, sul>- ject to the rules relating to de- terioration contained in the title Of Obligations. From the time of sale ^U the 1 192 SALI. profits of the thirifi^ belong to the buyer.- C. N. 1614. 1400. The obligation to de- liver the thing comprises its accesMoricH and all that has been designed for its perpetual use.— C. N. 1015 ; C. C. 1574. 1500. The seller is obliged to deliver the full quantity sold as it is specified in the contract, subject to modifications here- inafter specified.— C. N. 1618; C. C. P. 780. 1501. If an immoveable be sold with a statement, in what- ever terms expressed, of its superficial contents, either at a certain rate by measurement, or at a single price for the whole, the seller is obliged to deliver the whole quantity specified in the contract; if such delivery be not possible, the buyer may obtain a diminu- tion of the price according to the value of the quantity not delivered. If the superficial contents ex- ceed the (juantity specified, the buyer must pay for such excess of quantity, or he may at his option give it back to the seller.— C. N. 1617, 1618, 1619. 1502. In either of the cases stated in the last preceding article, if the deficiency or ex- cess of quantity be so great in comparison with the quantity specified, that it may be pre- sumed the buyer would not have bought if he had known it, he may abandon the sale and recover froni the seller the price, if psiid, and the expenses of the contract, without pre- judice in any case to his claim for damages.- C. N. 1618, 1619, 1620 ;C. C. P. 78.5. 1503. The rules contained in the last two preceding articles do not apply, when it pi earl j^ appears from the de- scription of the immoveable and the terms of the contract that the sale is of a certain deter- minate thing, without regard to its quantity by measure- ment, whether such quantity is mentioned or not. 1504. The action for supple- ment of price on the part of the seller, or for diminution of price, or for vacating the con- tract, on the part of the buyer, is subject to the general rules of prescription.— C. N. 1622; C. d 2210. 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 les-s than slated and in the other grea' ar, 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.— C. N. 1623. SECTION III. ' 0/ Warranty. General Provisions. 1506. The warranty to which the seller is obliged in favor of the buyer is either legal or conventional. It has two objects: — 1. Eviction of the whole or any part of the thing ; 2. The latent defects of the thing.- C. N.1625. 1507. Legal warranty is im- plied by law in the contract of sale without stipulation. Never- theless the parties may, by special agreement, add to the obligations of legal warrantv, or diminish its effect, or exclude it altogether.-C. N. IQfJ, SALE. 193 ir, the § l.—Of Warranty against Eviction. 1508. The seller is obliged by lave to warrant the buyer against eviction of the whole or any part of the thing sold, by reason of the act of the former, or of any right existing at the time of the sale, and against incumbrances not de- clared and not apparent at the time of the sale.— C. N. 1626. 1500. Although it be stip- ulated that the seller is not obliged to any warranty, he is nevertheless obliged to a warranty against his personal acts. Any agreement to the contrary is null.— C. N. 1628. 15 10. In like manner, when there is a stipulation excluding warranty, the seller in case of eviction* is obliged to return the price of the thing sold, un- less the buyer knew at the time of the sale the danger of eviction or had bought at his own risk.— C.N. 1629; C.C. 1576. 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.— C. N. 1630 ; C. C. 2236. 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. 1513. The seller is obliged to make restitution of the whole price of the thing sold, al- though, at the time of the eviction, it be found to be diminished in value, or de- teriorated, either by the neglect of the buyer, or by a fortuitous event ; unless the buyer has derived a profit from the deterioration caused by him, in which case the seller may deduct from the price a sum equal to such profit.— C. N. 1631, 1632. 1514. If the thing sold be found, at the time of eviction, to have increased in value, either by or without the act of the buyer, the seller is obliged to pay him such increased value over the price at which the sale was made.— C. N. 16:^. 1515. The seller is obliged to indemnify the buver, or to cause him to be inaemnified, for all repairs and useful ex- penditures made by him upon the property sold, according to their value.— C. N. 1634. 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. — C. N. 1635. 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 import- ance in relation to the whole that he would not have bought without it, he may vacate the sale. 1518. If in the case of evic- tion of a part of the thing or things sold as a whole, the 13 . i 194 SALE. A 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. -C. N. Ift}?. 1510. If the property sold be charged with a servitude not apparent and not declared, of such importance that it may be presumed the buyer would not have bought, if he had been informed of it, he may vacate the sale or claim indemnity, at his option, and in either case may bring his action as soon as he is informed of the existence of the servitude. -C. N. 1638. 1620. Warranty against eviction ceases in case the buyer fails to call in the seller within the delay prescribed in the Code of Civil Procedure if the latter prove that there ex- isted sufficient ground of de- fence to the action of eviction. -C. N. 1640 ; C. C. P. 177, s. 4. 183 et s. 1521. The buyer may enforce the obligation of warranty when, without the interventipn of the judgment, he abandons the thing sold or admits the incumbrance upon it, if he prove that such abandonment or admission is made by reason of a right which existed at time of sale. § 2.-0/ Wat'ranty against latent Defects. 1522. The seller is obliged by law to warrant the buyer against such latent defects in the thing sold, and its acces- sories, 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.— C. N. 1641. 15U3. The seller is not bound for defects which are apparent and wliich the buyer might have known of himself. — C. N. 1642. 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. — C. N. 1643. 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. 1526. The buyer has the option of returning the thing and recovering the price of it or of keeping the thing and re- covering a part of the price ac- cording to an estimation of its value.— C. N. 1644. 1527. If the seller knew the defect of the thing, he is obliged not only to restore the price of it, but to pav all dam- ages suffered by the buyer. He is obliged in like manner in all cases in which he is le- gally presumed to know the de- fects.-C. N. 164.5. 1528. If the seller did not know the defects, or is not legally presumed to have known them, he is obliged only to re- store the price and to reimburse to the buyer the expenses ca,used by the sale.- C. N. 1646. 1520. If the thing perish by reason of any latent defect which it had at the time of the sale, the loss falls upon the seller who is obliged to restore the price of it to Uie buyer and SALE. 195 by ;ct he he ire id otherwise to indemnify him as provided in the two iast pre- ceding articles. If it perish bv the fault of the buyer or by a fortuitous event, the value of the thing in the condition in which it wa8, at the time of the loss, must be deducted from his claim against the seller.— C. N. 1647. 1530. The redhibitory action, resulting from the obligation of warranty against latent defects, must be brought with reason- able diligence, according to the nature of the defect and the usage of the place where the S'lle is made.— C. N. 1648. 1031. In sales made under process of execution there is no obligation of warranty against latent defects.— C. N. 1649. ' CHAPTER FIFTH. OF THE OBLIGATIONS OF THE BUYER. 1532. The principal obliga- tion of the buyer is to pay the price of the thing sold.— C. N. 1650. 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 ^hing.— C. N. 1651. 1534. 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 terra be stipulated for the payment of the price, the interest is due only from tbe 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.— C. N. 1652. 1535. If the buyer be dis- turbed in his possession or have 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 untd the seller causes such disturbance to cease or gives security, unless there is a stipulation to the contrary.— C. N. 1653. 1536. The seller of an im- moveable cannot demand the dissolution of the sate by rea- son of the failure of the buyer to pay the price, unless there is a special stipulation to that effect.— C. N. 1654. 1537. The stipulation and right of dissolution of the sale of an immoveable, by rea.son of non-payment of the price, are subject to the rules relating to the right of redemption con- tained in articles 1547, 1548, 1640, 1550, 1551, 1552. The right can in no case be exercised after the expiration of ten years from the time of sale.— C. C. 816, 2100, 2102, 2248. 1538. The judgment of dis- solution by reason of non-pay* ment of the price is pronounced at once, without any delay be- ing granted by it for the pay- ment of the price ; nevertheless the buyer may pay the price with interest and costs of suit at any time before the render- ing of the judgment. 1530. The seller cannot have possession of the thing sold, upon the dissolution of the sale by reason of non-payment of the price, until he has repaid to the Duyer such part of the price as he has received, with the s:-.i; I' 196 SALE. l\\l M i costs of all necessary repairs, and of such improvements as have increased the value of the thing, to the amount of such in- creased value. If these im- provements be of a nature to be removed, he has the option of permitting the buyer to re- move them. 1540. The buver is obliged to restore the thing with the fruits and profits received by him, or such portion thereof as corresponds with the part of the price remaining unpaid. He is also answerable to the seller for the deteriorations of the property which have been caused by his fault. 1541. The seller is held to have abandoned his right to re- cover the price when he has brou{^ht an action for the dis- solution of the sale by reason of the non-payment of it. 1542. A demand of the price by action or other legal proceed- ing does not deprive the seller of nis right to obtain the dissol- ution of the sale by reason of non-payment. 1543. In the sale of move- able things the right of dissolu- tion by reason of non-payment of the price can only be exercis- ed while the thing sold remains in the possession of the buyer, without prejudice to the seller's right of revendication as pro- vided in the title 0/ Privileges and Hypothecs. In the case of insolvency such right can only be exercised during the thirty days next after the delivery. (R.S.Q. 5811, 54 V. cap. 39.)— C. N. 1654 ; C.C. 1998, 1999, 2000. 1644. In the sale of move- able things the buyer is obliged to take them away at the time and place at which they are deliverable. If the price have not been paid the dissolution of the sale takes place, in favor of the seller, of right and without the intervention of a suit, after the expiration of the day agreed upon for taking them away, or if there Xte no such agi'ecment, after the buyer has been put in default in the manner provided in the title 0/ Obligations ; without prejudice to the seller's claim for damages.— C. N. 1657 ; C.C. 1165. CHAPTER SIXTH. OF THE DISSOLUTION AND OP THE ANNULLING OF THE CON- TRACT OF SALE. 1545. Besides the causes of dissolution and of nullity al- ready 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 the redemp- tion.— C. N. 1658. SECTION I. '^ ' Of the Right of Redemption, 1540, The right of redemp- tion stipulated bv the seller entitles him to take back the thing sold upon restoring the price of it, and reimbursing the buyer the expenses of the sale and the costs of all necessary repairs, and of such improve- ments 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 obliga- tivis.-C. N. 1659, 1673 ; C. C. 2001 s. 9, 2101, 2102. 1547. When the seller takes SALS. 197 back the property under hin ri^ht of redemption, he receives it free from all incumbrances with which the buyer may have charged it— C. N. 1073 ; C. C. 1665. 1S48. The right of redemp- tion cannot be stipulated for a term exceeding ten years. If it be stipulated for a longer period, it is reduced to the term of ten years.— C. N. 1660 ; C. C. 2248. 1540. The stipulated term is to be strictly observed. It cannot be extended by the court.— C. N. Um. 1050. If the seller fail to bring a suit for the enforcement of his right of redemption with- in the stipulated term, the bu}'er remains absolute owner of the thing sold.— C. N. 1662. 1551. The term runs against all persons, including those otherwise incapable in law, re- serving to the latter such re- course as they may be entitled to.— G. N, 1663. 1552. The seller of immove- able property may exercise his right of redemption against a second buyer, although the right be not declared in the second sale.— C. N. 1664. 1553. The buyer of a thing subject to a right of redemption holds all the rights which the seller had in the thing. He may prescribe as well against the true proprietor as against those having claims and hypo- thecs on the thing.— C. N. 1665. 1554. He may set up the benefit of discussion against the creditors of the seller.— C. N. 1666 ; C.C. 2066, 2067 ; C. C. P. 177 8. 5, 190. 1555. If the buyer of an un- divided part of an immoveable subject to the right of redemp- tion become afterwards the buyer of the whole property, upon a sale by licitatton insti- tuted against him, and such right be not purged, he may oblige the seller who wishes to exercise it to take back the whole property.— C. N. 1667. 1550. If several persons sell conjointly, and by one contract, an immoveable which is their common property, with a right of redemption, each of them can exercise his right for the part only which belonged to him.-C. N. 1««. 1557. The rule declared in the last preceding article applies also if one seller of an immove- able have left several heirs ; each of the co-heirs can exer- cise the right of redemption for the part only which he has in the succession of the seller.— C. N. 1669. 1558. In the case stated in the two last preceding articles the buyer may, if he think fit, compel the co-vendor or the co- heir to take back the whole of the property sold with the right of redemption, and in default of his so doing, he may cause the suit of such co-vendor or co-heir for a part of the property to be dismissed.— C. N. 1670. 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 belonged to him, and the buyer cannot oblige him to take back the whole. -C. N. 1671. 1560. If an immoveable have been sold to several buyers, or to one buyer who leaves several heirs, the right of redemption can be exercised against each of the buyers or ' '/i 198 SALt. 11 co-heirs for his part only ; but if there have been a partition of the property among the co-heirs the risht may be exercised for the whole property a>(ainst any one of them to whom it has falien.-C. N. 1672. SECTION II. ' 0/ the Annulling of Sttle for cause of Lesion . 1561. The rules relating to the avoiding of contractH for cause of lesion are declared In the title Of Obligations.— C. N. 1674 ; C. C. 1001 et s. SECTION II (A). Of He-entry upon Abandoned Lands. iseia. Repealed by 60 K., c. 50, s. 26. 15eift.-/6tU CHAPTER SEVENTH, OP SALE BY LICITATION. 1562. If a thing, either moveable or immoveable, held in common by several proprie- tors cannot be partitioned con- veniently and without loss, or if in a voluntary partition of a Kroperty held in common there e a part which none of the co- proprietors is able or willing to take, a public sale of it is made to the highest bidder, and tlie Erice is divided among them. — i. N. 16S6 ; C. C. 439, 698, 709 ; C. C. P. 1045. 1563. The manner and for- malities of proceeding in sales by licitation are declared in the Code of Civil Procedure.— C. N. 1688 ; C. C. P. 1045 et 8. CHAPTER EIGHTH. OF SALE BY AUCTION. 1564. Sales by auction or public outcry are either forced or voluntary. The rules relating to forced sales are declared in chapters seven and eleven of this title, and in the Code of Civil Pro- cedure. 1565. The voluntary sale by auction ot goods, wares, mer- chandUe or etlects cannot be made by any person other than a licensed auctioneer, subject to the following exceptions : 1. The sale of goods or effects belonging to the Crown or seized by a pul)lic officer under judgment or process of any court or as i)eing forfeited ; 2. The sale of goods of minors by forced or by voluntary licit- ation ; 3. The sale of property, at any l)azaar lield for religious or charitable purposes, or the sale of property for religious pur- poses : 4. The sale of goods and effects belonging to deceased persons or to any dissolution of community, or to any church ; 5. The sale of personal prop- erty, grain, or cattle for non- commercial purposes by the inhabitants of the rural dis- tricts, removing from the local- ity ; 6. The sale at exhibitions of farm animals exhibited by agri- cultural societies ; 7. Sales for municipal taxes under municipal laws.— R. S. Q. 5813. This article is modified by the following sections of the Revised Statutes of the Pro- vince (53 F., c. 16, s. 2). **943. The following property SALS. 199 And efTcctH need not be Hold by a lio/UHed auctioneer, and HaleH thereof by auction, are exempt from the duty nuMitioned in Article W.ib, to wit : - " The moveable and immove- able property of the Crown - those Hold by authority of jus- tice -those Hold tbrough con- fiscation, thoNe of a oeceascd per. ion— those belon^in>< to any dissolution of connnunity, or to any church, or which are sold at any bazaar held for religions or charitable purposes, or which are sold in payment of munici- pal taxes uncfer the Municipal Code, or any other law regula- ting municipalities. " Moveable and immoveable property, grain and cattle sold for noncommercial purposes by the inhabitants of the rural districts removing from the locality, and the property of minors sold by forced or volun- tary licitation." " Farm animals exhibited by agricultural societies at an ex- hibition and sold during the time of such exhibition." 'M)43a. The following property and etfects sold by auction and outcry in this Province, and adjudged to the highest and last bidder therefor, must be sold to a licensed auctioneer, to wit : " All moveable and immove- able property, ef!*ects, goods and stock in trade, as well as the assets of a person who has made an assignment under the law respecting the abandon- ment of property. " The curator of the property of any person who has made an abandonment of . his property under the law, may however, himself sell such property at auction, by taking out an auctioneer's license. 'MM:ib. Sales by auction of immoveable property, and sales by auction of household furni- ture and eiVects in use, inclu- ding therein pictures, paint- ings, and books, under th(> ^tre- ceding article, shall l>e subject to a duty of one per cent on the amount thereof, which duty shiill be paid by the auctioneer to the Collector of Provincial Ueveniie, out of the proceeds of the sab*, at the cost of the stdler, unless an express stipulation be made, in the conditions of sale, that such duty shall l>c pai(l by the buyer, in which case the duty shall be added to the price." (53 V., c. 1(L) 15(IO. A sale by auction con- trary to the provisions con- tained in the last preceding article, is not null ; it merely subjects the contravening par- ties to the penalties iniposea by law. 1507. The adjudication of a thing to any person on his bid or oiler, and the entry of his name in the sale-book of the auctioneer completes the sale to him, and iie becomes owner of the thing, subject to the conditions of sale an- nounced by the auctioneer, notwithstanding the rule con- tained in article 12^15. The con- tract from that time is govern- ed by the rules applicable to the contract of sale. 150H. If the purchaser do not pay the price at which the thing was adjudged to him, in conformity with the condi- tions of sale, the seller may, after having given reasonable and customary notice thereof, again expose the thing to sale by auction, and if at the resale the price obtained for the thing be less than that for which it was adjudged to the first pur- ■i 200 SALS. I i ' i 4' 1 chaser, 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 allowed to bid at such resale. CHAPTER NINTH. OF THE SALE OF REGISTERED VESSELS. 1500. Special provisions con- cerning the sale of registered ships or vessels are contained in the fourth book of this code in the title Of Merchant Ship- pmgr.-C. C. 2359ets. CHAPTER TENTH. OF THE SALE OF DEBTS AND OTHER INCORPOREAL THINGS. 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 between the seller and buyer by the completion of the title if au- thenic, or the delivery of it, if under private signature.^— C.N. 1689. 1571. The buyer has no pos- session available against third persons until signification of the act of sale has been made, and a copy of it delivered to the debtor. He may, however, be put in possession by the ac- ceptance of the transfer by the deotor, subject to the special provisions contained in article 2127.— C.N. 1690 ; C.C. 1174, 1192 ; C. C. P. 692. 1571rt. "Whenever, in the case of a sale of a debt or a right of action, the debtor has left or has never had his domi- cile in this Province, the signi- fication of the sale required by article 1571 may be eftected, by publishing a notice of said sale, twice in the French language, in a newspaper published in the French language, and twice in the English language, in a newspaper published in the English language in the dis- trict in which the debt was contracted or in which the action may be instituted ; and in default of either of such newspapers in such district, then in similar newspapers of the nearest locality. The delivery of a copy of the deed of sale required by the said article 1571 may be ef- fected, by leaving such copy for the debtor in the hands of the prothonotary of the district in which the debt was con- tracted or of the district in which the action may be brought.— R. S. Q., 5814 ; 54 V., cap. 40. 15716. "Whenever in either of the cases mentioned in the K receding article, an action has een brought against the debt- or, the service of the action, in the manner prescribed by arti- cle 68 (2) of the Code of Civil Pro- cedure, is a sufficient significa- tion of the deed of sale, if in the order published in virtue of the said article, the sale is mentioned and described ; and the filing of a copy of the deed of sale together with the return > "Vide R- S. Q- 5610 et 8. as to the sale and voluntary transfers of oonstit- uted rents replacing seigneurial rights. ^ Article 196 of the present Code of Civil Procedure. SALE. 201 ler :he has bt- in rti- ro- Bca- in of is md ed rn ktit- of the action, is a sufficient de- livery thereof to the debtor. -Id. 1571c. Whenever a whole class of rents or debts collec- tively are sold, the signification of the sale required by article 1571 may be effected by causing the deed of sale to be published in the manner prescribed by article 1571a, and the delivery of the copy may be effected by depositing a copy of the deed of sale in the office of the pro- thonotary of the district in which the succession opc;ied, or in which the la- ds are situ- ated charged with such debts, or of the district in which is or was the chief place of business of the original creditor. Such publication and deposit, once made, shall be a sufficient signification and delivery vith respect to each debtor individu- ally.— Jd. SCHEDULE. FORM OF NOTICE. In connection with article 1571a. To {name and designation of the debtor). Notice is hereby given you that the debt {or right of action) which {name of the selling creditor) had against you by virtue of {desci'iption of the title on which the debt or the right is founded) has been sold and conveyed to (name, designation and residence of the purchas- ing creditor) by virtue of an in- strument {before notaries or by private writing) executed at the day of in the year in the presence of {witness or the name of the notary).— Id. 1572. If before the signifi- cation of the act by one of the parties to the debtor he have paid to the seller, he is dis- charged.-C. N. 1091. 1573. The two last preced- ing articles do not apply to bills, notes or bank checks pay- able to order or to bearer, no signification 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 abso- lutely or subject to a con- dition-C. C. P. 666, (567. 1574. The sale of a debt or other right includes its acces- sories, such as securities, pri viliges and hypothecs.— C N. 1692, 1615 ; C. C. 1988, 2127. 1575. Arrears of interest accrued before the sale are not included in it as an accessory of the debt. 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 is without warranty. Subject, nevertheless, to the exception declared in article 151().-C. N. 1693. 1577. When the seller by a simple clause of warranty obliges himself for the solvency of the debtor, the warranty ap- plies only to his solvency at the time of sale, and is limited in amount to the price paid by the buyer.-C. N. 1694, 1695 ; C. C. 750. 1678. The preceding articles i. J'i: ?^ ^0^ SAte. I of this chapter apply equally to transfers of debts and rights of action against third persons by contract other than sales, ex- cept gifts to which article 1576 does not apply.— C. C. 796. SECTION II Of the Sale oj 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 ; C. C. 647, 658. 710, 1061. 1580. If the seller have re- ceived the fruits or revenues of any property, or the amount of any debt, or sold anything making part of the succession, he is bound to reimburse the same to the buyer, unless they have been expressly reserved. — C. N. 1697. 1581. The buyer, besides his obligations common to the contract of sale, is obliged to reimburse the seller for all debts and expenses of the suc- cession paid to him, to pay him the debts which the succession may owe him, and to discharge all debts and obligations of the succession for which he is liable ; unless there is a stipu- lation to the contrary.— C. N. 1698. SE( TION III. Of the Sale of Litigious Rights. 1582. When a litigious right is sold, he against whom it is claimed is wholly discharged by paying to the buyer the price and incidental expenses of the sale, with interest on the price from the day that the buyer has paid it.-C. N. 1699 ; C. C. 1485. 1583. A right is held to oe 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. 1584. The provisions con tainedin article 1582 do not ap- ply : 1. When the sale has been made to a co-heir or co-pro- prietor of the right sold ; 2. When it has been made to a creditor in payment of what is due to him ; 3. When it has been made to the possessor of a property subject to the litigious right ; 4. When the judgment of a court has been rendered aflRrm- ing the right, or when it has been made clear by evidence and is ready for judgment. — C. N. 1701. CHAPTER ELEVENTH OF FORCED SALES AND TRANS- FERS 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 satisfaction of such judgment, the property moveable or immoveable of his debtor, except only the articles specially exempted by law ; subject to the rules and form- alities provided in the Code of Civil Procedure.— C. C. 1490, 1531, 2268, s. 4 ; C. C. P. 598, 599. 1586. Injudicial sales under execution, the buyer, in case of eviction, may recover from the debtor the price paid with interest, and the incidental ex- penses of the title ; he may also recover, from the creditors who ^m SAtt. 203 have received it, the price with interest ; saving to the latter their exception of discussion of the property of the debtor. — C. C. P. 668, 7»4, 785, 831. 1587. The last preceding article is without prejudice to the recourse which the buyer has against the prosecuting creditor, by reason of inform- alities in the proceedings, or of the seizure of property not ostensibly belonging to the debtor. 1588. The general rules concerning the elfect of forced judicial vsales in the extinction of hypothecs and of other rights and incumbrances, are declared in the title Of Privileges and Hypothecs, and in the Code of Civil Procedure.— C. C. 950, 953, s. 2, 1447, 2081, s. 6 ; C. C. P. 781. 1580. In cases in which im- moveable property is required for purposes of public utility, the owner may be forced to sell it or be expropriated by the authority of law in the manner and according to the rules pre- scribed by special laws.^— C. C. 1500. In the case of sales and expropriations for purposes of public utility, the party acquiring the property cannot be evicted. The hypothecs and other charges are extinguished, saving to the creditors their re- course upon the price and sub- ject to the special laws relating to the matter.(')— C. C. 953, s. 1, 2081, s. 6. 1501. The rules concerning the formalities and proceedings 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 applicable to the contract of sale, when these are not inconsistent with special laws or any article of this code.(i) SECTION II. •'■^{r- Of the giving in Payment, 1502. The giving of a thing in payment is equivalent to a sale of it, and maKes the party giving liable to the same warranty. The giving in payment, nevertheless, is perfected only by the actual delivery of the thing. It is subject to the provisions relating to the avoidance of contracts and payments con- tained in the title 0/ Obliga- tions. SECTION III. 0/ Alienation for Rent. 1503. The alienation in per- petuity of immoveable property for an annual rent, is equiva- lent ro a sale. It is subject to tlie same rules as the contract of sale in so far as they can be maHe to apply. 1504. The rent may be pay- able either in money or in kind. Its nature and the rules to which it is subject are declared in the articles relating to rents contained in the second chapter of the first title of the second book.— C. C. 389 et s., 1792, 1908, 2007. 1505. The obligation to pay the rent is a persotjal liability ; the purchaser is iit)t discharged from it by abandonment of the property, nor is he discharged oy reason of the destruction of the property by a fortuitous event or by irresistible force. I ^ Vide R. S. Q. 5754a et s. (51 V. c. 38) as to Expropriatioiu. 204 TITLE SIXTH. OF EXCHANGE. • 1596. Exchange is a con- tract by whicli the parties respectively give to each other one thing for another. It is effected by consent, in the same manner as sale.— C. N. 1702, 1703 ; C. C. 1472. 1507. 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.— C. N. 1704. 1508. The party who is evicted of the thing he has re- ceived in exchange has the option of demanding damages or of recovering the thing given by him— C. N. 1705. 1500. The rules contained in the title Of Sale apply equal- ly to exchange, when not in- consistent with any article of this title.— C. N. 1707. I'" % fc!.. TITLE SEVENTH. OF LEASE AND HIRE. CHAPTER FIRST. , GENERAL PROVISIONS. ' 1 eOO. The contract of lease or hire has for its object either things or work, or both com- bined.-C. N. 1708. lOOl. The lease or hire of things is a contract by which one of the parties, called the lessor, grants to the other, called the legsee, the enjoyment of a thing during a certain time, for a rent or price which the latter obliges himself to pay.-C. N. 1709. 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 himself to pay.— C. N. 1710. 1603. The letting out of cattle on shares is a contract of lease or hire combined with a contract of partnership.— C. N. 1804, 1818 ; C. C. 1698 et s. 1004. 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 0/ Obligations. — C. C. 319, 985 et s. :r^ LEASE AND HIRE. 205 : CHAPTER SECOND. OF THE LEASE AND HIRE OP THINGS. SECTION I. General Provisions. 1005. All corporeal things may be leased or hired, except such as are excluded bv their special destination, and those which are necessarily con- sumed by the use made of them.-C. N. 1713. 1006. Incorporeal things may also be leased or hired, ex- cept such as are inseparably at- tached to the person. If at- tached to a corporeal thing, as a right of servitude, they can only be leased with such thing. -C. N. 631, 634 ; C. C. 494, 497. 1007. 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 other of them.— C. C. 1642, et s., 1646, et s. 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 pro- perty. Such holding is regarded as an annual lease or hire termin- ating on the first day of May of each year, if the property be a house, and on the first day of October, if it be a farm or rural estate. It is subject to tacit renewal and to all the rules of law ap- plicable to leases. Persons so holding are liable to ejectment for non-payment of rent for a period exceeding three months, and for any other causes for which a lease may be rescinded.— C. C. 1323, s. 3, 1624, s. 2, 1642, 1653, 1657. 1600. 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 such lease was made, if less than a year, and the lessee can- not thereafter leave the pre- mises, or be ejected from them, unless notice has been given with the delay required by law. — C. N. 1738, 1759 ; C. C. 1657, 1658. 1010. When notice has been given the lessee cannot claim the tacit renewal, although he has continued in possession.— C. N. 1739. 1011. The surety given for the lease does not extend to the obligations arising from the prolongation of it by tacit re- newal.— C. N. 1740 ; C. C. 1935. SECTION II. Of the Obligations and Rights of the Lessor. 1612. The lessor is obliged by the nature of the contract : 1. To deliver to the lessee the thing leased. 2. To maintain the thing in a fit condition for the use for which it has been leased. 3. To give peaceable enjoy- ment of the thing during the continuance of the lease.— C.N. 1719. 1613. The thing must be de- livered in a good state of repair 206 LEASE AND HIRE. ! l ':i! !i.l '■fc in all respects, and the lessor is obliged, during the lease, to make all necessary repairs, ex- cept those which the tenant is bound to make, as hereinafter declared.— C. N. 1720. 1014. 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.— C. N. 1721. 1015. The lessor cannot, during the lease, change the form of the thing leased.— C. N. 172:3. 1010. The lessor is not obliged to warrant the lessee against disturbance bv the mere trespass of a thira party not pretending to have any right upon the thing leased ; saving to the lessee his right of damages against the trespasser, and subject to the exceptions declared in the following article.— C. N. 1725. 1017. If the lessee's right of action for damages against the trespasser be ineffectual, by reason of the insolvency of the latter, or of his being unknown, his rights against the lessor are regulated according to article 1660. 1018. If the disturbance be in consequence of a claim con- cerning tne right of property, or other right in and upon the thing leased, the lessor is oblig- ed to suffer 5, induction in the rent, nroporin .,r:I t,o the dimi- nution ir i^bc z- >yiTO!ent of the thing. ^^ • 1 :n>y aarnages ac- corainj' « <''(ju!:. stances, pro- vided tw i sscr x ''tuly noti- fied of the d'Si'ii'v.i ^^e by the lessee ; and upon any action brought by reason of such claim, the lessee is entitled to be dis- missed from the cause, upon declaring to the plaintiff the name of the lessor.- C. N. 1726, 1727 ; C. C. Ift49. lOlO. 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 up- on the property leased.— C. N . 2102 ; C. C. 1094, s. 8. 2005 ; C. C. P. 646. 1020. In the lease of houses the privilegd right includes the furniture and moveable effects of the lessee, and if the lease be of a store, shop or manufactory, the merchandise contained in it. In the lease of farms and rural estates the privilej^ed right includes everything which serves for the labor of the farm, the furniture and moveable effects in the house and depen- dencies, and the fruits produced during the lease.— C. N. 2102. 1021. The right includesalso the effects of the undertenant, in so far as he is indebted to the lessee.— C. N. 1753 ; C. C. 1639. 1022. It includes also move- able effects belonging to third persons, and being on the prern ises by their consent, expressed or implied, for sums which have become due by the lessee prior to the notification given to the lessor of the property rights of third persons or before the knowledge acquired by the lessor of such rights of third persons, but not if such effects be only transiently or accident- ally on the premises, as the baggage of a traveller in an inn, or articles sent to a work- man to be repaired, or to an auctioneer to be sold. The notification in due time to the lessor shall avail against a subsequent acquirer of the leased premises.— -61 V., c. 45. ,9 LEASE AND HIRE. 207 1623, In the exercise of the privileged rieht the lessor may seize the tuings which are subject to it, upon the premises, or within eight days after they are taken away. If the things consist of merchandise, they can be seized only while they continue to be the property of the lessee.— C. N. 2102; C. C. 953. 1024. The 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 the premises leased, if a house, with sufficient furni- ture or moveable effects, and, if a farm, with sufficient stock to secure the rent as required by law,— unless other security be given ; Secondly. When the lessee commits waste upon the premises leased ; Thirdly, When the lessee use the prem- ises leased for illegal purposes, or contrary to the evident in- tent for which they are leased ; 2. To recover possession of the premises leased in all cases where there is a cause for res- cission, and where the lessee continues in possession, against the will of the lessor, more than three days after the ex- piration of the lease, or without paying the rent according to stipulations of the lease, if there be one, or according to article 1608, when there is no lease ; 3. To recover damages for violation of the obligations arising from the lease or from the relation of lessor and lessee. He has also a right to join with any action for the pur- poses above specified, a demand for rent, with or without at- tachment, and attachment in recaption when necessary. — C. N. 1752, lim, 1729 ; C. C. 1«37, 1646 ; C. C. P. «52 et. s., 1152 et. s. 102n. The judgment rescind- ing the lease by reason of the non payment of the rent is pro- nounced 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 render- ing of the judgment. SECTION III. 0/ the Obligations and Rights of the Lessee. 1626. The principal obliga- tions of the lessee are : 1. To use the thing leaded 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.- C. N. 1728. 1627. The lessee is respon- sible for injuries and loss which happen to the thing leased dur- ing his enjoyment of it unless he proves that he is without fault.-C. N. 1732. 1628. He is answerable also for the injuries and losses which happen from the acts of persons of his family or of his subtenants.— C. N. 1735. 1620. When loss by fire oc curs in the premises leased, there is a legal presumption in favor of the lessor, that it was caused by the fault of the lessee or of the persons of whom he is responsible ; and unless be proves the contrary he is 208 LEASE AND HIRE. 1^! i 'i ii for ■*! !■ answerable to the lessor such loss.— C. N. 1733. 1630. The presumption against the lessee declared in the last preceding article ex- ists in favor of the lessor only, and not in favor of the proprie- tor of a neighboring property who suffers loss by Are which has originated in the premises occupied by such lessee. 1031. If there be two or more lessees of separate parts of the same property, each is answer- able for loss by fli;e, according to the proportion of his rent to the rent of the whole property ; unless it is proved that the Are began in the habitation of one of them, in which case he alone is answerable for it ; or some of them prove that the Are could not have begun with them, in which case they are not answer- able. -C. N. 17;M. 1032. If a statement have been made between the lessor and lessee, of the condition of the premises, the latter is obliged to restore them in the condition in which the state- ment shews them to have been ; with the exception of the changes caused by age or irre- sistible force.— C. N. 1730. 1033. If no such statement as is mentioned in the preceding article have been made, the lessee is presumed to have re- ceived the premises in good condition, and is obliged to re- store them in the same condi- tion ; saving his right to prove the contrary.— C. N. 1731 . 1034. If during the lease the thing leased be in urgent want of repairs, which cannot be deferred, the lessee is obliged to suflTer them to be made, whatever inconvenience they may cause him and although he may be deprived, during the making of them, of the enjoy- ment of a part of the thing ; If such repairs became neces- sary before the making of the lease he is entitled to a diminu- tion of the rent according to the time and circumstances ; and in anv case, if more than forty days be spent in making such repairs, the rent must be diminished in proportion to time and the part or the thing leased of which he has been de- prived. If the repairs be of a nature to render the premises unin- habitable for the lessee and his family, he may cause the lease to be rescinded.— C. N. 1724. 1035. The tenant is obliged to make certain lesser repairs which become necessary in the house or its dependencies, dur- ing his occupancy. These re- f)airs, if not specifled in the ease, are res;ulated bv the usage of the place. The follow- ing, among others, are deemed to be tenant's repairs, namely, repairs : To hearths, chimney-backs, chimney-casings and grates ; To the plastering of interior walls and ceilings ; To floors, when partially broken but not when in a state of decay ; To window-glass, unless it is broken by hail or other inevit- able accident, for which the tenant cannot be holden ; To doors, windows, shutters, blinds, partitions, hinges, locks, hasps and other fastenings.— C. N. 1754. 1030. The tenant is not obliged to make the repairs deemed tenant's repairs when they are rendered necessary by age or by irresisible force.— C. N. 1755. 1037. In case of ejectment LEASE AND HIRE. 209 or rescission of the lease for the fault of the lessee, he is obliged to pay the rent up to the time of vacating the pre mises and also damages, as well for loss of rent afterwards, dur- ing the time necessary for re- letting, as for any other loss resulting from the wrongful act of the lessee.— C N. 1700. 1688. The lessee has a right to sublet, or to assign his lease, unless there is a stipulation to the contrary. If there be such a stipulation, it may apply to the whole or a part only of the premises leased, and in either case it is to be strictly observed.— R. S. Q., 6236 ; 49 V. Can , c. 4, s. 5, sche- dule A ; C. N. 1717 ; C. C, 1646. 1639. The undertenant is held towards the principal lessor for the amount only of the rent which he may owe at the time of seizure ; He cannot set up payments made in advance ; Payments made by the under- tenant, either in virtue of a stipulation in the lease, or in accordance with the usage of the place, are not deemed to be made in advance.— C. N. 1758 ; C. C. 1621. 1640. The lessee has a right to remove bef6re the expiration of the lease, the improvements and additions which he has made to the thing leased, pro- vided he leaves it in the state in which he has received it ; nevertheless if the improve- ments or additions be incor- porated with the thing leased with nails, lime or cement, the lessor may retain them on paying the value. 1641. The lessee has a right of action in the ordinary course of law, or by summary proceed- ing as provided in the Code of Civil Procedure ; 1. To compel the lessor to make the repairs and ameliora- tions stipulated in the lease, or to which he is obliged by law ; or to obtain authority to make the same at the expense of such lessor ; or, if the lessee so de- clare his option, to obtain the ^'escission of the lease in default of such repairs or ameliorations being made ; 2. To rescind the lease for failure on the part of the lessor to perform any other of the obligations arising from the lease or devolving upon him by law; 3. To recover damages for violation of the obligations arising from the lease, or from the relation of lessor and lessee. -C.C. P. 1152ets. SECTION IV. Rules particular to the Lease and Hire of Houses. 1642- The lease or hire of a house, or part of a house, when no time is specified for its dura- tion, is held to be annual, ter- minating on the first day of May of each year, when the rent is at so much a year. For a month, when it is at so much a month ; For a day when it is at so much a day. If the rate of the rent for a certain time be not shewn, the duration of the lease is regu- lated by the usa.re of the place. -C. N. 1758; C. C. 1608, 1657, lCw8. 1643. The lease of move- ables for furnishing a house or apartments, when no time is indicated for its duration, is governed by the rules contain- 14 210 LEASE AND HIRE. l1 !■ l-l ed in tWe last preceding article, and when these do not apply, is deemed to be made for the usual duration of leases of houses or apartments according to the usa^e of the place.— C.N. 1757. 1644. The cleansinj? of wells and of the vaults of privies is at the charj?e of the lessor, if there be no stipulation to the contrary.— C. N. 1756. 1045. The rules contained in this chapter, relating; to houses, extend also to ware-houses, shops and manufactories, and to all immoveable property other than farm and rural estates, in so far as they can be made to apply. SECTION V. Rules particular io the Lease and Hire of Farms and Rural Estates. 1046. He who cultivates lands on condition of sharing the produce with the lessor can neither sublet nor assign his lease, unless the right to do so has been expressly stipulated. If he sublet or assign without such stipulations, the lessor may eject him, and recover damages resulting from the violation of the lease.— C. N. 176;^ 1764. 1647. The lessee is obliged to furnish the farm with suf- ficient stock and the imple- ments necessary for its culti- vation, and to cultivate it with reasonable care and skill.— C. N. 1766. 1648. If the farm be found to contain a greater or less quantity than that specified in the lease, the rights of the parties to an increase or ^iminutiQU of the rent are govr erned by the rules on that sub- ject contained in the title Of Sale.-V- N. 1765; C. C. 1500, et s. 1640. The lessee of a farm or rnral estate is bound to give notice to the lessor, with reasonable diligence, of any en- croachment made upon it ; in default of so doing he is liable for damages and expense. — C. N. 1768 ; C. C. 1618. 1050. If the lease be for one year only, and, during the year, the harvest be wholly or in great part lost by a fortu'tous event or by irresistable force, the lessee is discharged from his obligation for the rent in proportion to such loss.— C. N. 1770. 1051. If the lease be for a term of two or more years, the lessee is not entitled to claim any reduction of rent in the case stated in the last preced- ing article. -C. N. 1769. 1652. When the loss hap- pens after the harvest is sepa- rated from the land, the lessee is not entitled to any reduction of the rent payable in money. If the rent consist of a share in the harvest, the lessor must bear his proportion of the loss, unless the loss is caused by the fault of the lessee, or he be in default of delivering such share. -C. N. 1771. 1053 The lease of a farm or rural estate, when no term is specified, is presumed to be an annual lease, terminating on the first day of October of each year, subject to notice as here- inafter provided.— C. N. 1774 : C. C. 1608, 1657. 1054. The lessee of a farm or rural estate must leave, at the termination of his lease, the manure, and the straw and other substances intended for LKA8E AND HIRE. 211 manure, if he have received them on taking posHession ; if he have not so received them, the owner may nevertlieless retain them on paying their value.-C. N. 1778. SECTION VI. Of the termination of the Lease or Hire of Things. 1555. The contract of lease or hire of things is terminated in the manner common to ob- h'gations, as declared in the eighth chapter of the title Of Obligations, in so far as the rules therein contained can be applied, and subject to the special rules contained in this title. 1056. It is also terminated by rescission in the manner and • for the causes declared in articles 1B24 and 1641 (R. S. Q., 6237 ; 49 V. Can. c. 4, s. 5. sched- ule A.) 1657. When the term of a lease is uncertain, or the lease is verbal, or presumed as pro- vided in article 1608, neither of the parties can terminate it without giving notice to the other, with a delay of three months, if the rent be payable at terms of three or more months ; if the rent be payable at terms of less than three months, the delay is to be regulated according to article 1642. The whole nevertheless sub- ject to th.at article and to articles 1008 and 1653.— C. N. 1736. 105H. The lease, if written, terminates of course, and with- out notice, at the expiration of the term agreed upon.— C. N. 1737. 1050. The contract of lease QV hire of things is teriQinate4 by the loss of the thing leased. -C. N. 1741. lOAO. If, during the lease, the thing be wholly destroyed by irresistible force, or a fortuitous event, or taken for purposes of public utility, the lease is dis- solved of course. If the thing be destroyed, or taken in part only, the lessee may, according to circumstances, obtain a re- duction of the rent or the dis- solution of the lease ; but in either case, he has no claim for damages against the lessor.— C. N. 1722 ; C. C. 1617. 1061. The contract of lease or hire of things is not dissolved by the death of the lessor or lessee.— C. N. 1742. 1662. The lessor cannot put an end to the lease, for the pur- pose of occupying himself the premises leased, unless the ri^ht to do so has been specially stipulated, and in such case the lessor must give notice to the lessee according to the rules contained in article 1657 and the articles therein referred to ; unless it is otherwise stipu- lated.— C.N. 1761. 1663. The lessee cannot by reason of the alienation of the thing leased, be expelled before the expiration of the lease, by a person who becomes owner of the thing leased under a title, derived from the lessor ; unless the lease contains a special stipulation to that effect and be registered. In such case notice must be given to the lessee according to the rules contained in article 16.57 and the articles therein referred to ; unless it is other- wise specittlly agreed.— C. N. 1743;C.C. 2128, 2129. 1664. The les.see who is ex- pelled under a stipulation to that effect is npt) entitled Xq b : Ml ! '' ■;* .^ 212 LEASE AND HIRE. 1 1 ■\\ ':l - ! i j 1 ■ recover damageN, unleHs the right to do HO is expressly reserved in the lease. 1005. When property sold subject to the riRnt of redemp- tion is taken back by the seller, in the exercise of such right, the lease made by the buver Is thereby terminated and the lessee has his recourse for dam- ages upon the buyer only. CHAPTER THIRD. OF THE LEASE AND HIRE OF WOKK. SECTION I. General Provisions. 1660. The principal kinds of work which may be leased or hired are : 1. The personal services of w^orkmen, servants and others ; 2. The work of carriers, by land and by water, who under- take the conveyance of persons or things ; 3. That of builders and others who undertake works by esti- mate or contract.'— C. N. 1779. SECTION II. •' Of the Lease and Hire of the personal service of workmen, servants and others. 1667. The contract of lease or hire of personal service can only be for a limited term, or for a aeterminate undertaking. It may be prolonged by tacit renewal.— C. N. 1780. 1668. It is terminated by the death of the party hired or his becoming, without fault, unable to perform the services agreed upon. It is also terminated by the death of the party hiring, in some cases, according to circum- stances.— C. N. 1795. 1660. In any action for wages by domestics or farm servants, the master may. In the absence of written proof, otrer his oath as to the condi- tions of the engagement and as to the fact of tne payment accompanied by a detailed statement ; but such oath may be refuted in the same manner as any other testimony.— R.S.Q. 5815.— C. N. 1781. 1670. The rights and oblig- ations arising from the lease or hire of personal service are subject to the rules common to 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. C. 1994, s. 9, 2006, 2009, s. 9, 2260. s. 6, 2261, s. 8, 2262, s. 3 ; M. C. 624. 1671. The hiring of seamen is subject to certain special rules provided in the Imperial laws respecting Merchant Ship- ping ana the Federal acts re- specting the hiring of seamen ; and the hiring of boatmen, commonly called voyageura, by the provincial act respecting voyageurs. — R. S. Q., 6238, R. S. C, c. 74 and 75. SECTICN III. Of Carriers. 1672. Carriers by land and by water are subject, with re- spect to the safe-keeping of things entrusted to them, to the same obligations and duties 1 R. S. Q. 5614 et s. contain special provisions as to wasters and servantSi voyapeurt tind fishermen. mm tlASl AND filftl* 213 r^nts, an innkeepers, declared under the title Of J)epottU.—V. N. 1782 ; C. C. 1813 et 8. l«7a. They are obliged to receive and convey, at the tiniCN fixed by public notice, all per- Bons applying for pa.s»Hge, if the conveyance of pasHengern be a part of their accustomed busi- neHH, and all goods odered for transportation ; unless, in either case, thei'c is a reason- able and sufliclent cause of refusal. 1074. They are liable, not only for what nas been received in the carriage or vessel, but also for what has been delivered to them at the port or place of deposit, to be put in their car- riage or vessel.— C. N. 1783. 1675. They are liable for the loss or damage of things en- trusted 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.— C.N. 1784. 1076. 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 knowledge thereof, carriers are lialile whenever it is proved that the damage is caused by their fault or the fault of those for whom they are responsible. 1677. Thev 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 extra- ordinary value, contained in any package received for trans- portation, unless it is declared that the package contains such money or other articles. The foregoing rule, neverthe- less, does not apply to the personal baggage of travellers when the money or the value of the articles lost is only of a moderate amount and suitable 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. -C. C. 181({ ; C. C. P. 372. 167H. If by reason of a for- tuitous event, or irresistible force, the transportation and delivery of the thing l)e not made within the stipulated term, the carrier is not liable in damages for the delay. 1079. The carrier has a jght to retain the thing transported until he is paid for the caiTiage or freight of it.— C. N. 2102 : C. C. 2U01, s. 1. 1«80. 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 t'e 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- come known to the claimant. 1681. The conveyance of persons and things by railway IS subject to certain special rules, provided in the Federal and Provincial acts respecting railways.— R. S. Q., 6238; R. S. C, c. 109 ; C. N. 1786. 1682. Special rules relating to the contract of atfreightnient and the convevance of pas- sengers in merohant vessels are contained in the fourth book.— C. N. 1786 ;C. C. 2413, 2461. SECTION IV. Of Work by Estimate and Contract. 1683. When a party under- takes the construction of a 11 I 214 LEASE AND HIRE. building or other work by esti- mate and contract, it may be agreed, either that he shall furnish labor and skill only, or that he shall also furnish materials.— C. N. 1787. 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 man- ner whatsoever, before de- livery, falls upon himself, un- less the loss is caused by the fault of the owner or he is in default of receiving the thing. -C. N 1788. 1085: If the workman fur- nish only labor and skill, the loss of the thing befor «» delivery does not fall upon b.im, unless it is 'caused by his fault.— C. N. 1789. 1680. 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- ceived, 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.— C. N. 1790. 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 pro- portion to the work done.— C. N. 1791. 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 w ^rk, and the builder are jointly and severally liable for the 10SS.-C. N. 1792, 2270 ; C. C. 2259. 1680. 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 oc- casioned by defect or error in the plan furnished by him. 1600. When an architect or builder undertakes the con- struction of a building or other works by contract, upon apian and specifications, at a nxed price, he cannot claim an ad- ditional sum upon the ^ round 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 thereof agreed upon with the proprietor, or unless the agreement upon these two points is established by the de- cisory oath of the proprietor.— R. S. Q. 5816, 51-52 V. c. 22 ; C. N. 1793 ; C. C. 1233, s. 9. 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 have been begun, or indemnifying the workman for all his actual expenses and labor, and paying damages ac- cording to the circumstances of the case.— C. N. 1794. 1002. 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 work- man were an inducement for making the contract, it may be cancelled at his death by the party hiring him.— C. N. 1795. LEASE AND HIRE. 215 C. ease and I by his ound > the vork- '■ for ay be Kthe 95. 1603. In the latter case stated in the last preceding article the owner is bound to pay to the legal representa- tives of the workman, in pro- portion to the price agreed upon in the contract, the value of the work done and materials furnished, in case such work and materials are useful to him. -C. N. 1776. 1694. The contract is not terminated by the death of the party hiring the work, unless the performance of it becomes thereby impossible.— C. N. 1742, 1605. 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 0/ Privileges and Hypothecs, and the title 0/ Reg ist ration of Heal Rights. -C. N. 2103; C. C. 2009, s. 7, 2013 et 8.,*2103. 1606. 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 contract- ors with respect to such work. C.N. 1799. 1607. The workmen who are employed by the contractor in the construction of a building or other works have no direct action against the owner. — C N. 1798. SECTION IV (a). 0/ Payment of Workmen. 1607a. Every builder or con- tractor, whether chief or sub- contractor, who employs work- men by the day or by piece work, iSjO carry out a contract, must keep a list showing the names and wages or price of the work of such worknien ; and every payment to them made must be attested by the signature or cross of such workmen affixed thereto, in presence of a witness, who also sigLs it.— R. S. Q., art. 5817. 16076. It shall be lawful for every workman who is unpaid to produce, in the presence of a witness, to the proprietor who gave the work out to contract, his claim in duplicate in the form of Schedule B, and from the time such claim shall be so produced, the sum then due up- on the price or value of the con- tract shall be deemed to be seiz- ed in the hands of the proprie- tor »rora^a up to the amount of the claim of the workman. Five days after the production of such claim, if the claim of the workman have not been paid, the latter may pro- ceed judicially against the con- tractor who employed him, making the proprietor a party to the suit. Payments made to the pro- prietor after the production of the claim cannot be opposed to the workman's claim. 1607c. Several unpaid work- men may join in the same claim. — Id. , • 1607rf. In case of an assign- ment by the contractor to a third party of the price of the work, the claim of the work man has, with respect to such third party, the same effect as it would have had with respect to the contractor if no such as- signment had been made.— /d. 216 LEASE A^D illtlti. ii o M Eh 8 a o g 1^ o l-H O o 1^ O "to „-8 5 «flO M I fa O S o fa o ^ ft S3 1 = ^1 1 ^ (U 5 a " ; ' r • !:.••;'■. /' :V ^ o • o ^c3 f • t .' . '. • : 1 1 .■■ ;•' ''„■■-' "' • »■; I: * U m a» A »M- .rffv (• 'j*j TITLE EIGHTH. OF MANDATE. t. 'if :*i ■ :, i 'J :i 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- man- datary, who by his acceptance obliges himseli to peiiorm it. The acceptance may be im- plied from tne acts of the man- datary, and in some cases from his feilence.— C. N. 1794. 1702. Mandate is gratuitous unless there is an agreement or an established usage to the con- trary. -C. N. 1986. 1 703. The mandate may be either special, for a particular 218 MANDAtS. ii t; 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 acts of ownership other than acts of administration, the mandate nmst be express. — C. N. 1987, 1988. 1704. The mandatary can do nothing beyond the authority given or implied by the man- date. He may do all acts which are incidental to such authority and necessary for the execution of the mandate.— C. N. 1989. 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 from the nature of such pro- fession or calling. 1706. An agent employed to buy or sell a thing cannot be the buyer or seller of it on his own account.— C. N. 1596 ; C. C. 1484. 1707. Emancipated minors may be mandataries, but in such cases the action of the mandator against the minor is subject to the general rules re- lating to the obligations of minors.— C. N. 1990. 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.— G. N. 1990. CHAPTER SECOND. OF THE OBLIGATIONS OF THE MANDATAPY. -. ( SECTION I. Of the obligations of the Man- datary toward the Manda- tor. 1709. The mandatary is obliged to execute the man- date which he has accepted, and he is liable for damages resulting from his non-execu- tion of it while his authority continues. He is obliged, after the extinc- tion of the mandate, to do whatever is a necessary conse- quence 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.- C. N. 1991 ; C. C. 1729. 1710. The mandatary is bound to exercise, in the execu- tion of the mandate, reasonable skill and all the care of a pru- dent administrator. Nevertheless, if the mandate be gratuitous, the court may moderate the rigor of the liabil- ity arising from his negligence or fault, according to the cir- cumstances.— C. N. 1992. 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 MANDATE. 219 may repudiate the acts of the substitute. The mandatary is answerable in like manner when he is em- powered to substitute, without designation of the person to be substituted, and he appoints one who is notoriously unfit. In all these cases the man- dator has a direct action against the person substituted by the mandatary.— C. N. 1994. 1712. When several manda- tories 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 stipulated — C. N, 1995. 1713. The mandatary is bound to render an account of his administration, and to de- liver and pay over all that he has received under the author- ity of the mandate, even if it were not due ; subject never- theless to his right to deduct therefrom the amount of his disbursements and charges in the execution of the mandate. If he have received a deter- minate thing he is entitled to retain it until such disburse- ments and charges are paid.— C. N. 1993 ; C. C. 1723, 2001, s. 4. 1714. He is bound to pay in- terest upon the money of the mandator which he employs for his own use, from the day of so employing it, and upon any remainder due to the mandator, from the time of being put in default.— C. N. 1996. ^M ;■ SECTION II. \ .^ Of the Obligations of the Man- datary toward Third Per- sons. 1715 The mandatary acting in the name of the mandator and within the bounds of the mandate is rot personally liable to third persons with whom he contracts, except in the case of factors hereinafter specified in article 1738, and in the cases of contracts made by the master of a ship for her use. — C. N. 1997 ; C. C. 2395 ; C. C. P. 757. 1716. A mandatary who acts in his own name is liable to the third parly with whom he con- tract<, without prejudice to the rights of the latter against the mandator also. 1717. He is liable in like manner when he exceeds his f)owers under the mandate, un- ess he has given the party with whom he contracts sufficient communication of such powers. — C. N. 1997. 1718. He is not held to hare exceeded his powers when he executes the mandate in a manner more advantageous to the mandator than that speci- fied by the latter. 1710. He is held to have exceeded his powers, when he does alone any thing which, by the mandate, he is charged with doing conjointly with another. CHAPTER THIRD. OF THE OBLIGATIONS OF THE MANDATOR. SECTION. I. 0/ the Obligations of the Man- dntor toward tfie Mandat- ary. 1 720. The mandator is bound to indemnify the mandatary for all obligations contracted by him toward third persons, within the limit of his powers ; N|: 220 liAvihAtt. and for acts exceeding such Eowers, whenever they have een expressly ortacitly ratified. — C. N. 1998. 1721. The mandator or his legal representative is bound to indemnify the mandatary for all acts done by him within t' limit of his powers, afte/ the extinction of the mandate by death or other cause, when he is ignorant of such extinction. — C. C. 1760. 1722. The mandator is boa n HI to reimburse the expenses an . charges which the mandatary has incurred in the execution of the mandate, and to pav him the salary or other compensa- tion to wliich he may be en- titled. When there is no fault im- putable to the mandatary, the mandator is not released from such reimbursement and pay- ment, although the business has not been successfully ac- complished : nor can he reduce the amount of the reimburse- ment upon the ground that the expenses and charges might have been made less by himself. — C. N. 1999. 1723. The mandatary hi.s a privilege and right of preference lor the payment of the expenses and charges mentioned in the last preceding article, upon the things placed in his hands and upon the proceeds of the sale or disposal thereof.— C. C. 1743, 2001, s. 4. 1724. The mandator is obliged to pay interest upon money advanced by the man- datary in the execution of the mandate. Ti»e interest is com- puted from the day on which the money is advanced.— C. N. 2001. 1725. The mandator is ob- liged to indemnify the man- datary who is not in fault, tot losses caused to him by the ex- ecution of the mandate.— C. N. 20(K). 1 726. If a mandate be given by several persons, their ob- ligations toward the mandatary are joint and several.— C. N. 2002. SECTION II. Of the Obligations of the Man- dator toward Third Fer- tiOIS. ^ :*"T, The mandator is lou .a in favor of third persons for a"? t'!« "cts of his man- Jtti-ary, a ' *u execution and A'itl '■! *^] I, vvers of the man- date, exce;! t > ritt case provid- ed for in ariicle 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. — C. N. 1998. 1728. The mandator or his legal representative is bound toward third persons for all acts of the mandatary, done in execution and within the pow- ers of the mandate after it has been extinguished, if its ex- tinction be not known to such third persons. -C. N. 2009 ; C. C. 1758. 1720. The mandator or his legal representative is bound for acts of the mandatary done in execution and within the powers of the mandate after its extinction, when such acts are a necessary consequence of a business already begun. He is also bound for acts of the mandatary done after the extinction of the mandate by death or cessation of authority m MANDATE. 221 in the mandator, for the com- pletion of a business, wliere loss or injury mi^ht have been caused by delay.— C. C. 1709. 1 730. The mandator is liable to third parties who in Kood faith contract with a person not his mandatary, under the belief that he is so, when the mandator has jsfiven reasonable cause for such belief. 1731. He is liable for dam- ages caused by the fault of the mandatary, according to the rules declared in article 1054. CHAPTER FOURTH. i * OF ADVOCATES, ATTORNEYS AND NOTARIES. 1732. Advocates, attorneys and notaries are subject to the general rules contained in this title, in so far as they can be made to apply. The profession of advocate and attorney is regulated by the provisions contained in the act intituled : An Act respecting the Bar of Lower Canada, and that of notary by an act intituled : An Act respecting the Notarial Profession. 1733. The rules concerning the duties and rights of advo- cates and attorneys, in the ex- ercise of their functions before the several courts of Lower Canada, are contained in the Code of Civil Procedure, and in the rules of practice of such courts respectively. 1734. The rules of prescrip- tion relating to advocates, at- torneys and notaries are con- tained in article 2260. CHAPTER FIFTH. OF BROKERS, FACTORS AND OTHER COMMERCIAL AGENTS. 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 trans- actions. He may be the mandatary of both parties and bind both by his acts in the business for which he is engaged by them. 1736. A factor or commis- sion merchant 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 called a commission. 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. 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 principal be known or not. The principal is not liable on such contracts to third parties, un- less it is proved that the credit was given to both principal and factor, or to the principal alone.-C. C. 1715, 1727. 1739. Any person may con- tract for the purchase of goods with any agent entrusted with their possession or to whom the same have been consigned, and may receive the same from such agent and pay him the price thereof, and such con- tract and payment is binding upon the owner of the good.s, notwithstanding the purcl^aser ,i5 % 222 MANDATE. has notice that he is contract- ing only with an agent. 1740. Any agent entrusted with the possession of goods, or of the documents of title thereto, is deemed the owner thereof for the following pur- poses, that is to say : 1 . To make a sale or contract, as mentioned in the last pre- ceding article ; 2. To entitle the consignee of goods consigned by such agent, to a lien thereon for any money or negotiable security advancea or given by him to or for the use of such agent, or received for him by such agent for the use of the consignee, 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, lien or security, made in good faith with such agent, 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 re- spect thereof ; 4. To make such contract binding upon the owner of the goods and all other persons interested therein, notwith- standing the person claiming such pledge or lien had notice that he was contracting only with an agent.— C. C. 2001 s. 4. 1741. In case any person having a valid lien and security on any goods or documents of title or negotiable security in respect of a previous advance upon a contract with an agent, gives up the same to such agent, upon a contract for the pledge, lien or security of other goods or of another document or security, by such agent deliver- ed to him in exchange, to b^ hel4 upon the sevme l|eQ ai^ the goods, document or secur- ity so given up, then, such new contract, if in good faith, is deemed a valid contract, made in consideration of a present advance in money within the provisions of this chapter, but the lien acquired under such new contract, on the goods, document or security, deposited in exchange, cannot exceed the value of the goods, document or security, so de- livered up and exchanged. 1 742. Such contracts only are valid as are mentioned in this chapter, and such loans, ad- vances and exchanges only are vaild 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. 1743. Loans, advances and exchanges in good faith, though made with notice of the agent not being the owner, but without notice of his acting without authority, bind the owner and all other persons interested in the goods, documents or secur- ity as the case may be . 1744. No antecedent debt owed by an agent entrusted with the possession of goods or the documents of title thereto, can be the subjectof any lien or pledge of such goods or docu- ments, nor can the agent for any purpose relating to such p^oods deviate from the orders or authority received from his principal . 1745. Bills of lading, ware- house-keeper's or wharfinger's receipts or orders for delivery of goods, bills of inspection of potash or pearl-ash, and all other documents used in the ordinary course of business, as proof of the possessipn or qoh- Tmirw ^ MANDATE. 223 trol of goods, or purporting to authorize, either by endoi'se- nient or by delivery, the pos- sessor of Jiny such document to transfer or receive goods tiiere- by represented, are deemed documents of title within the provisions of this chapter. 1746. Any agent possessed of any document or title, whether derived immediately from the owner of the goods, or obtained by reason of the ngent having been entrusted with the possession of the goods, or of any document or title thereto, is deemed to be entrusted with the possession of the goods represented by such document of title. 1747. Any contract pledging or giving a lien upon any docu- ment 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, whether the same be in his actual custody or be held by any other person for him or subject to his control. 1748. When a loan or ad- vance is made in good faith, to an agent entrusted with and irf possession of goods or docu- ments of title, on the faith of any contract in writing to con- sign, deposit, transferor deliver such goods or documents of title, and the same are actually received by the person making the loan or advance, either at the time of the contract or at a time subsequent thereto, with- out notice that 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 phapter, 1740. 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 ngent. 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. 1751. Every agent in pos- session of goods or documents as aforesaid is for the purposes of this chapter taken to be en- trusted therew ith by the owner, unless the contrary is shewn in evidence. 1752. Nothing contained in this chapter lessens or affects the civil responsibility of the agent for the breach of any oblig- ation, or the non-fulfilment of his orders or authority. 1753. Notwithstanding any of the foregoing articles, the owner may redeem any goods or documents of title pledged as aforesaid, at any time before the same have been sold, upon repayment of the amount of the lien thereon or restoration of the securities in respect of which the lien exists, and upon payment or satisfaction to the agent, of any sum of money for or in respect of which such agent is entitled to retain the goods or documents by way of lien against such owner ; or he nmy recover from the person with whom any goods or docu- ments ha ire been pledged, or who has any lien thereon, any l)alance 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. 1754. In case of the bank- ruptcy of any agent, and in case th^ owper of the good^} ;:t If \ 224 MANDATE. redeem the same, he is held, in respect of the sum paid by him on account of the agent for such redemption, to nave paid the same for the use of such agent before his banlt- 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 be. CHAPTER SIXTH. OF THE TERMINATION OF MAN- DATE. .,^/ '-, 1750. 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 ; 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 author- ity in the mandator ; 6. By the accomplishment of the business or the expiration of the time for which tne man- date is given ; 7. By other causes of extinc- tion common to obligations. — C. N. 2003. 1756. The mandator may at any time revoke the mandate, and oblige the mandatary to return to him the procuration, if it be an original instrument. -C. N. 2004. 1757. The appointment of a new mandatary for the same business has tne effect of a revocation of the first appoint- ment from the day on which the former mandatary has been notified of the new appoint- ment.- C. N. 2008. 1758. If notice of the revo- cation be given to the man- datary alone, it does not affect third per>^ons who in ignorance of it have contracted with the mandatary, saving to the man- dator his right against the latter.-C. N. 2005 ; C. C. 1728. 1759. The mandatary may renounce the mandate after acceptance, on giving due notice to the mandator. But if such renunciation be inju- rious to the latter, the man- datary is answerable in dam- ages, unless there is a reason- able cause for the renunciation. If the mandatary be acting for a valuable consideration he is liable according to the general rules relating to the inexecu- t"on of obligations.— C. N. 2007. 1760. Acts of the manda- tary, done in ignorance of the de ith of the mandator or othfer cause whereby the mandate is extinguished, are valid. — C. N. 2008 ; C. C. 1721. 1761. The legal represent- atives of the mandatary, hav- ing a knowledge of the man- date and not being incapaci- tated by minority or otherwivse, are bound to give notice of his death to the mandator and to do, in business already begun, whatever is immediately neces- sary to protect the latter from \Oss,-Q.N 2010 225 '^"mp ^'t ■ TITLE NINTH. OF LOAN. •}'. •t 1 GENERAL PROVISIONS. 1702. Loans are of two kinds : 1. The loan of things which may be used without being destroyed, called loan for use {commodatuni) ; 2. The loan of things which are consumed by the use made of them, called loan for con- sumption {mutuuin).—C. N. 1874. . CHAPTER FIRST. OP LOAN FOR USE (COMMODA- TUM). SECTION I. Gene7'al Provisions. 1763. Loan for use is a con- tract by which one party, called the lender, gives to another, called the borrower, a thing to be used by the latter gratuit- ouvsly for a time, and then to be returned bv him to the former. ~C. N. 1875, 1876. 1764. The lender continues to be the owner of the thing lent.— C. N. 1877. 1765. Every thing may be loaned for use which may be the object of the contract of lease or hire.— C. N. 1878 ; C. C. 1605, 1606. SECTION II. Of the Obligations of the Bor- rower. 1766. The borrower is bound to bestow the care of a prudent . ; administrator in the safe-keep- ing and preservation of the thing loaned. He cannot apply the thing to an>r other use than that for which it is intended by its nature or by agreement.— C. N. 1880. 1767. If the borrower apply the thing to any other use than that for which it is intended, or use it for a longer time than is agreed upon, he is liable for the loss of it arising even from a fortuitous event.— C. N. 1881. 1768. If the thing lent be lost by a fortuitous event from which the borrower might have preserved it by using his own, or if being unable to save both things he prefer to save his own, he is liable for the loss. — C. N. 1882. 1769. If the thing deterior- ate by the use alone for which it is lent and without fault on the part of the borrower, he is not liable for the deterioration. -C. N. 1884. 1770. The borrower cannot retain the thing lent for a debt due to him by tne lender, unless such debt is for expenses neces- sarily incurred in the preserv- ation of the thing.— C.N. 1885; C. C. 1775, 2001. 1771. If in order to use the thing the borrower have incur- red expense, he is not entitled to recover it from the lender.— C. N. 1886. 1 772. If several persons con- jointly borrow the same thing, they are jointly and severally 15 226 LOAN. obliged toward the lender.— C. N. 1887. 8KCTION III. Of the Obligations of (he Lender. 177a. The lender cnniiot take back the thing, or disturb the borrower in the proper use of it, until after the expiration of the term agreed upon, or, if there be no agreement, until after the thing has been used for the purpose for which it was borrowed; subject never- theless to the exception de- clared in the next following articIe.-C. N. 18)«. 1774. If before the expir- ation of the term, or, if no term have been agreed upon, before the borrower has completed his use of the thing, there occur to the lender a pressing and un- foreseen need of it, the court may, according to the circum- stances, oblige the borrower to restore it to nim.— C. N. 1889. 1775. If during the continu- ance of the loan the borrower be obliged, for the preservation of the thing lent, to incur any extraordinary and necessary expense, of so urgent a nature that he cannot notify the lender, the latter is itound to reimburse it to him.— C. C. 1770 ; C N. 1890. 1776. When the thing lent has defects which cause injury to the person using it, the lender is responsible if he knew the defects and did not make them known to the borrower.— C. N. 1891. CHAPTER SECOND. op loan for consumption (mutuum). section i. General Provisiona. 1777. Loan for consumption is a contract by which the lender gives the borrower a certain quantity of things which are consumed by the use made of them, under the oblig- ation by the latter to return a like quantity of things of the same Kind and quality.— C. N. 1892. 177H. By loan for consump- tion the borrower becomes owner of the thing lent, and the loss of it falls upon him.— C. N. 1893. 1770. The obligation which results from a loan in money is for the numerical sum received. If there be an increase or diminution in the value of the currency before the time of the payment, the borrower is obliged to return the numeri- cal sum lent, and only that sum, in money current at the time of payment.— C. N. 1895, 1896. 1 780. If the loan be in bul- libn or of provisions, the bor- rower is obliged to return the same quantity and Quality as he has received ana nothing more, whatever- may be the in- crease or diminution of the price of them. — C. N. 1897. SECTION II. Of the Obligations of the Lender. 1781. In making a loan for consumption the lender must have the right to alienate the thing loaned, and he is subject to the obligations declared in article 1776, relating to loan for use.-C. N. 1898. SECTION III. Oj the Obligations of the Borrower. 1782. The borrower is ob- liged to return for the things lent a like quantity of other LOAN. 227 the .ject in for the 6b- ings ther thinKs of the same kind and quality, at the tune agreed upon.-C. N. 1891), 1J)02. 1783. If there be no agree- ment by which the time for tlie return can l>c determined, it in fixed by the court according to circumstances.— C. N. 1900, 1901. 1784. If the borrpwer make default of satisfying the oblig- ation to return things lent, he is bound at the option of the lender to pay the value which they bore at the time and place at which, according to tne agreement, the return was to be made ; If the time and place of the return be not agreed upon, payment must be made of the value which the things bore at the time and place of the bor- rower beim? put in default ; With interest in both cases from the default. -C. N. 1908, 1904. CHAPTER THIRD OF LOAN UPON INTEREST. 1785. Interest upon loans is either legal or conventional. The rate of legal interest is fixed by law at six per cent, yearly. The rate of conventional in- terest may be fixed by agree- ment between the parties, with the exception : 1. Of certain corporations mentioned in the laiv respect- ing interest, which cannot re- ceive more than the rate per cent, therein mentioned ; 2. Of certain other corpor- ations which are limited as to the rate of interest by special acts ; 3. Of banks, which are not subject to any penalties for usury but which cannot re- cover more than seven per cent.-U. S. Q., 0240 ; H. S. C, c. 120 and 127 ; C. X. 1907. 1780. An ac(iuittance for the principal debt creates a presumption of payment of the interest, unless there is a reserve of the latter.— C. N. 1908. CHAPTER FOURTH. OF (;ONSTIVlJTION OF RENT. 1787. Constitution of rent is a contract by which parties agree that yearly interest sliall be paid by one of them upon a sum of money due to the other or furnished by him, to remain permanently in the hant' of the former as a capital of which pay- ment shall not be demand- ed by the piirty furnishing it, except us hereinafter provided. It IS subject with respect to the rat( of interest to the same rules as Joans upon interest.— C. N. 1909 ; C. C. 388 et s. 1788. Constitution of rent may likewise be made by r' 'o or will. 1789. Rents may be con- stituted either in perpetuity or for a term. When constituted in perpetuity they are essen- tially redeemable by the debtor ; subject to the provisions con- tained in articles 390, 391 and 392.-C. N. 1910, 1911 ; C. C. 2248. 1700. The capital of a rent constituted in perpetuity may be demanded : 1. When the debtor of it fails to furnish and maintain the security to which he is obliged by the contract ; 2. When the debtor becomes bankrupt or insolvent ; 3. In the cases provided in articles 390, 391 and 392.— C. N. 1912, 1913. 1791. The rules concerning i. I i ^ 228 DEPOSIT. the prescription of arrears of constituted rents arc contained in the title Of Prescription.— C. C. 2250. 1702. The creditor of a con- stituted rent secured by the privilege and hypothec of a vendor has a right to demand that the sale under execution of property upon which such privilege and hypothec exists shall be made subject to the rent.— C. C. 1593 et s. ; C. C. P. 724. 1793. The rules concerning life-rents are declared under the title 0/ Life-Rents. . v TITLE TENTH. OF DEPOSIT. 1704. There are two kinds ^^ deposit; simple deposit and fci^«»uestration.~C. N. 1910. CHAPTER FIRST. OF SIMPLE DEPOSIT. SECTION I. General Provisions. 1705. It is of the essence of simple deposit that it be gra- tuitous.— C. N. 1917. 1706. Moveable property only can be the object of simple deposit.-C. N. 1918. 1707. Delivery is essential to the formation of the contract of deposit. The delivery is sufficient when the depositary is already in possession, under any other title, of the thing which is the object of the deposit.-C. N. 1919, 1708. Simple deposit is either voluntarj' or necessary.— C.N. 1920. SECTION II. , , ' Of Voluntary Deposit. 1700. Voluntary deposit is that which is made by the mutual consent of the party making it and of the party receiving it.— C. N. 1921. 1800. Voluntary deposit can take place only between persons capal>le of contracting. Never- theless if a person capable of contracting accept a deposit made by a person incapable, he is liable to all the obligations of a depositary ; which obligations may be enforced against him by the tutor or other adminis- trator of the incapable person. -C. N. 1925. 1801. If the deposit have been made with a person in- capable of contracting, the party making it has a right to reven Jicate the thing deposited so long as it remains in the hands of the former, and after- wards a right to demand the value of the thing in so far as it has been profitable to the depo- sitary. —C. N. 1926. DEPOSIT. 229 can 'sons 5ver- le of )08it [e, he Ins of Itions him linis- •son. ,, SECTION III. f ... Of the Obligations of the D€2)0S- itary. 1802. The depositary is hound to apply in the keeping of the thing deposited the care of a prudent administrator. — G. N. 1927, 1928. 1803. The depositary has no right to use the thing deposited without the permission of the depositor.— C. N. 1930. 1804. The depositary is bound to restore tlie identical thing which he has received in deposit. If the thing have been taken from him by irresistible force and something given in ex- change for it, he is bound to restore whatever he has received in exchange.— C. N. 1932, 1934. 1805. The depositary is only held to restore the thing depos- ited, or such portion of it as remains, in the condition in which it is at the time of re- storation. Deteriorations not caused by his fault fall upon depositor.— C. N. 1933. 1806. The heir or other legal representative of the deposit- ary who sells the tiling deposit- ed, in good faith and in ignor- ance of the deposit, is held only to restore the price received for it, or to transfer his right against the Vmyer if the price have not been paid.— C. N. 1935. 1807. The depositary is bound to restore any profits received by him from the thing deposited. He is not bound to pay inter- est on money deposited unless he is in default of restoring it. -C. N. 1936. 1808. The depositary can- not exact from the depositor proof that he is owner of the thing deposited.— C. N. 1938. 1809. The restoration of the thing deposited must be made at the place agreed upon, and the cost of conveying it there is borne by the depositor. If no place be agreed upon, the restoration must be made at the place where the thing is. -C. N. 1942, 1943. 18 JO. The depositary is obliged to restore the thing to the depositor whenever it is demanded, although ' the delay for its restoration may have been fixed by the contract, unless he is prevented from so doing by reason of an attach- ment, or opposition, or other legal hindrance, or has a right of retention of the thing, as declared in article 1812.— C. N. 1944 ; C. C. 2203. 1811. All the obligations of the depositary cease if he estab- lisli that he is owner of the thing deposited.— C. N. 1946. SECTION IV. ' : Of the Obligations of the De- positor. 1812. The depositor is bound to reimburse the depositary for the expenses incurred by the latter in the preservation and care of the thing, and to in- demnify him for all losses that the deposit may have caused to him. The depositary has a right to retain the thing deposited until such expenses and losses are paid to him.— C. N. 1947, 1948 ; C. C. 2001. 230 DEPOSIT. ■f'> • SECTION V. V Of Necessary Deposit. 1813. Necessary deposit is that which takes place under an unforseen 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. -C. N. 1949, 1950 ; 0. C. 1233, s 4. 1814. Keepers of inns, of boarding-houses, and of tav- erns, are responsible as deposi- taries for the things brought by travellers who lodge in their houses. The deposit of such things is considered a necessary deposit. — C. N. 1952. 1815. The persons mention- ed in the last preceding article are responsible if the things be stolen or damaged by their servants or agents, or by strangers coming and going in the house, but are not liable to make good to any guest, any theft of, or injury to goods or property brouglit to their nouses, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the sum of two hundred dollars, except in the following cases : 1. Where such goods or pro- perty have been stolen, lost, or injured through their wilful act, default, or neglect, or of any servant in their employ ; 2. Where such goods or pro- perty have been deposited ex- pressly for safe custody with them. Provided always, that in case of such deposit, such persons may, if they think fit, require, as a condition of liability, that such goods or property be de- posited in a box or other re- ceptacle fastened and sealed by the person depositing the same. If any such persons refuse to receive for safe custody, any goods or property of his guest, or if any such guest through any default of such person, be unable to deposit such goods or property, such persons are not entitled to the benefits of this article, in respect of such goods or property. Such, persons must cause to be kept conspicuously posted in the office, and public rooms, and in every bedroom in their establishments, a copy of this article, printed in plain type ; and they are entitled to the benefit of its provisions in re- spect of such goods or pro- pertv only as are brought to his estaolishment while such copy is so posted. Such persons are not respon- sible if the theft be committed by force of arms or the damage be caused by irresistible force ; nor are they responsible if it be proved that the loss or damage is caused by a stranger, and has arisen from neglect or careless- ness on the part of the person claiming.— R. S. Q., 5818 ; C. N. 1953, 1954 ; C. C. 1672. 1816. The rules declared in article 1677, subject to the pro- visions of the preceding article, apply also to the liability of keepers of inns,boarding houses and taverns and as regards the oath to be offered.— Jd. 5819 ; C. C. P. 372. DSP08IT. 231 ''1 '< m ■A- ,| ;on N. m jro- ?le, of ses the L9; /" SECTION V (a). ^ "" " Of the Lien of Inn-keepers up- on the Goods of their Chiests. 1816a.— Persons keeping a hotel, inn, tavern, public house or other place of refreshment and boarding-house keepers and lodging-house keepers have a lien on the baggage and pro- perty of their guests, boaraers or lodgers for the value or price of any food oi accommodation furnished to them. They have, in addition to all r*\er remedies, the right in case theamount remains unpaid for three months, to sell such baggage and property by public auction, on giving one week's notice of such intended sale, by advertisement in a news- paper published in the munici- pality in which such hotel, inn, tavern, public house, place of refreshment, boarding-house, or lodging-house, is situate, or in case there is no newspaper published in such municipality, in a newspaper published nearest thereto. The notice must state the name of the guest, boarder or lodger, the amount of his in- debtedness, a description of the baggage, or other property to be sold, the time and place of sale, and the name of the auctioneer ; After such sale, such inn- keeper, hotel-keeper, boarding- house-keeper, or lodging-house- keeper may apply the proceeds of such sale m payment of the amount due to him, and the costs of such advertising and sale, and must pay over the surplus (If any) to the person entitled thereto on application being made by him therefor.— Id. 5820 ; C. Cf. 2001. CHAPTER SECOND. ,; ■^ OF SEQUESTRATION. 1817. Sequestration is ei- ther conventional or judicial.— C. N. 1955. 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.-C. N. 1956. 1810. Sequestration is not essentially gratuitous. It is in other respects subject to the rules generally applicable ro simple deposit, when these are not inconsistent with the articles of this chapter.— C. N. 1957, 1958. 1820. Sequestration may have for its object inmioveable as well as moveable property.— C. N. 1959. 1821. The sequestrator can- not be discharged until the termination of the contestation, unless it is by the consent of all the parties interested, or by the court for sufficient cause. — C. N. 1960. 1822. When the sequestra- tion is not gratuitous it is as- similated to the contract of lease and hire, and the obli- gations of the sequestrator for the safe keeping of the thing are the same as those of the lessee. SECTION II. Of Judicial Sequestration. 1823. Sequestration or de- posit may take place by judicial authority : fi iii (■:i < 232 DEPOSIT. 1 . Of moveable property seiz- ed under process of attachment or taken in execution of a judgment; 2. Of money or other things tendered and deposited by a debtor in a suit pending t 3. The court or the judge up- on application by the interest- ed party may, according to circumstances, order the seques- tration of a thing, moveable or immoveable, concerning the property or possession of which two or more persons are in litigation.— C. N. 1961 ; 60 V. c. 50, 8. 27 ; C. C. P. 680, 713, 800, 864, 951. 1824. The sequestration may also take place by judicial authority in the following cases specified in this code : 1. When the usufructuary cannot give security as speci- fied in article 465, 2. When the substitute is put in possession under article 955. 1825. The guardian or sequestrator appointed by judi- cial authority IS bound to apply to the safe-keeping of the things seized the care of a prudent administrator. He is subject to the duties and oblig- ations imposed upon the guardians in seizures under exe- cution.— 60 V. c. 50, 8. 28. 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 en- titled to them under the judg- ment of the court. He is also bound to render an account of his administration when judgment is rendered in the cause, and as often as is ordered by the court or the judge during its pendency. He is entitled to be paid, by the party seizing, such com- pensation as is fixed by law or by the court or the judge, un- less he has been prevented by the party on whom the seizure is made.— C. N. 1962 ; 60 V. c. 50, s. 28. 1 825a. If among the things sequestrated some are consum- able or perishable, the seques- trator may cause them to be sold, upon observing the for- malities prescribed for the sale of moveable property under execution.- 60 V. c. 50, s. 29 18256. If the thing seques- trated consist in a right of en- joyment, the sequestrator, if there is no conventional lease, is bound to give out the lease by auction.— JftiVZ. 1826. The thing sequestrated cannot be leased directly nor indirectly to any of the parties n the contest concerning it. 1826a. Repairs or other necessary expenditure, cannot be made upon the premises sequestrated without the authorization of the court or of the judge upon petition of which the parties have received notice.— 60 V. c. 50, s. 30. 1827. The sequestrator ap- pointed by judicial authority, to whom tne thing has been de- livered, is subject to all the obligations which attach to conventional sequestration.- C. N. 1963. 1827a. A sequestrator is discharged by law, upon his de- livering the property seques- trated lo the party named in the judgment.— 60 V. c. 50, s. 31. 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 ^IP PARl?NEItSHtP. 233 to es- in 8. the Inc- by the coUrt within that time upon cause shewn. 1829. The special rules con- cerning judicial sequestration or deposit are contained in the Code of Civil Procedure.— C. C. P. 594, 8. 8, 621, et s., 657 et 8., 669, 833, 8. 2, 973 et 8. TITLE ELEVENTH. OF PARTNERSHIP. CHAPTER FIRST. GENERAL PROVISIONS. 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 property, credit, skill, or industry.— C. N. 18;^2, 1833. 1831. Participation in the profit* of a partnership carries with it an obligation to con- tribute to the losses Any agreement by which one of the partners is excluded from participation in the pro- fits is null. An agreement by which one partner is exempt from liability for the losses of the partner- ship is null only as to third per- sons. — C. N. 18.H5. 1832. If no time for the commencement of the partner- ship be designated, it takes effect from the date of the con- tract.— C. N. 1843. 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. —C. N. 1892, 1895; C.C.I 895. 1834. In partnerships for trading ; manufacturing or mechanical purposes, or for the MTlde R.S.Q. 5635 et s. s Ibid. construction of roads, dams and bridges, or for the purpose of colonization, or of settlement, or of land traffic, the pan ners must deliver to the prothono- tary of the Superior Court in each district, and to the re- gistrar of each county, in which they carry on business, a declar- ation in writing, in the form and subject to the rules pro- vided in the statute intituled : A7i act respecting partner- ships. The omission to deliver such declaration does not render the partnership null ; it subjects the contravening parties to the penalties and liabilities im- posed by the statute.* 1834fr. A similar declaration must be also made by any per- son carrying on business alone under a firm name. — R. S. Q. 5821.2 18.S5. 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 con- troverted, as against any party being a partner, by a person who has not signed but was really a member of the partner- ship at the time the declaration was ?nade ; and no partner, whether he has signed or not, is deemed to have ceased to be 234 tARTNURSHtP. :l i ii h a partner until a new declar- ation has been made and filed as aforesaid, stating the alter- ation in the partnership. 1836. Any partner, although not mentioned in the declar- ation, may be sued jointly and severally with the partners mentioned therein, or the latter may be sued alone, and, if judg- ment be recovered against them, any other partner or partners may be sued on the original cause of action on which such judgment was rendered. 1837. When persons are associated as partners in Lower Canada for any of the purposes mentioned in article ISHi, and no declaration has been filed as aforesaid, any action which might be brought against all the members of the partner- ship, may also be brought against any one or more of them, as carrying on or as having carried on trade jointly with others, without naming such others in the writ or de- claration, under the name and style of their partnership firm ; and if judgment 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 oblig- ation or instrument in writing in which all or any of the part- ners bound by it are named, then all the partners named therein must be made parties to such action. 1838. The service of sum- mons or process, for any claim or demand founded upon any liability of an exist- ing partnership, at the office or place of business of such partnership within the pro- vince of Cfanada, has the same effect as a service made upon the members of such partner- ship personally, and any judg- ment rendered against any member of such existing part- nership, for a partnership debt or liability, may be enforced by process of execution against the partnership property in the same manner as if the judg- ment had been rendered against the partnership. — C. C. P., 122, 139. CHAPTER SECOND. OF THE OBLIGATIONS AND RIGHTS OF PARTNERS AMONG THEMSELVES. 1839. Each partner is a debtor to the partnership for all that he has agreed to con- tribute to it. When such contribution con- sists of a certain thing and the partnership is evicted of it, the partner is subject to war- ranty in the same manner as a seller is in favor of the buyer. — C. N. 1845 ; C. C. 1508 et s. 1840. A partner who fails to pay any sum of money which he lias agreed to contribute to the partnership is liable for interest on such sum from the day of his default. He is also liable for interest upon any sum taken by him from the partnership funds for his particular benefit, from the day that he has withdrawn it.— C. C. 1846. 1841. The provisions con- tained in the last two preceding articles are without prejudice to the rights of the other part- ners to damages against the partner in default, and to obtain a dissolution of the partnership, PARTNERSHIP. 235 according to the rules con- tained in the title Of Obliga- tions and in article 1896. 1842. A partner cmnot carry on privately any business or adventure which deprives the partnership of a portion of the skill, industry, or capital, which he is bound to employ therein. If he do so, he is obliged to account to the part- nership for the profits of such business.— C. N. 1847. 1843. When a partner is creditor individuallv of a person who is also indebted to the part- nership, and both debts are ac- tually payable, the imputation of any payment received by him from the 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, such imputation is to be maintained.— C. N. 1848. 1844. — When a partner has been paid his full share of a debt due to the partnership, and the debtor becomes insolvent, such partner is obliged to return to the partnership what he has received, although he may have given a discharge special Iv for his part.— C. N. 1849. 1845. Each partner is liable to the partnership for damages caused by his fault. He cannot set up in compensation of such damages the profits which the partnership has derived from his industry in other affairs.— C. N. 1850. 1846. A cert Jin and deter- minate thing which does not consume by use, and of which the enjoyment only is contrib- uted to the partnership, is at the risk of the partner who is the owner of it. Things which consume by use or deteriorate by keeping, or which are intended to be sold, or are contributed to part- nership at a fixed valuation, are at the risk of the partner- ship.-C. N. 1851 ; C. C. 1893. 1847. A partner has a right against the partnership not only to recover money disbursed by him for it, but also to be in- demnified for obligations con- tracted by him in good faith in the business of the partnership, and for the risks inseparable from his management.— C. N. 1852. 1848. When there is no agreement concerning the shares of the partners in the profits and losses of the part- nership, they share equally.— C. N. 1853. 1840. A partner charged with the management of the business of the partnership by a special clause m the contract, may perform all acts connected with his management, not- withstanding the oppositioivof the other partners, provided he act without fraud. Such power of management cannot be revoked without sufficient cause while the part- nership continues ; but if the power be given by an instru- ment posterior to the contract of partnership, it is revokable in the same manner as a simple mandate.— C. N. 1856. 1850. When several of the partners are charged with the management of the business of the partnership generally, and witnout a provision that one of them shall not act without the others, each of them may act separately ; but if there be such a provision, one of them cannot h ; I i 236 1»ARTNERSHI1». act in the absence of the others, although it be impossible for the latter to join in the act.— C. N. ia57, 1858. 1851. If there bono special stipulation as to the manage- ment of the business of the partnership, the following rules apply :— 1. The partners are presumed to have mutually given to each other a mandate for the man- agement, and whatever is done by one of them binds the others; saving the right of the latter, together or separately, to object to any act before it is con- cluded ; 2. Each partner may use the things belonging to the part- nership, 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 co- partners from making use of them according to their right ; 3. Each partner may compel his co-partners to bear with him the expenses which are necessary for the preservation of the property of the partner- ship ; 4. One of the partners cannot make alterations in the im- moveable property of the part- nership without the consent of the others, although he should establish that such alterations are advantageous.— C. N. 1859. 1852. A partner who has no right of manay;enient cannot alienate or otherwise dispose of anything which belongs to the partnership ; saving the rights of third persons as hereinafter declared.— C. N. I860. 1863. Each partner may, without the consent of his co- partners, associate with him- self a third person in the share he has in the partnership. He cannot without such consent associate him in the partner- ship.-C. N. I86I. CHAPTER THIRD. OF THE UBLIGATIONS OF PART- NERS TOWARD THIRD PER- SONS. 1854. Partners are not jointly and severally liable for the debts of the partnership. They are liable to the creditor in e(iual shares, although their shares in the partnership may k>e unequal. This article does not apply in commercial partnerships. — C. N. 1862, 1863; C. C. 1105, 1873. 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.- C. N. 1864. 1856. The liabilities of part- ners for the acts of each other are subject to the rules con- tained in the title Of Mandate, when not regulated by any article of this t itle. -•. J CHAPTER FOURTH. OF THE DIPFEKENT KINDS OF PARTNERSHIPS. 1857. Partnerships are either universal or particular ; They are also either civil or commercial.— C. N. 1835. PARTNERSHIP. 23T OF are liar ; 11 or , . . SECTION I. Of Universal Partnerships. 1858. Universal partnership may be either of all the pro- perty or of all the gains of the partners.— C. N. 1896. 1850. In universal partner- ship of property, all tlie pro- perty of the partners, moveable and immoveable, and all their gains, as well present as future, are put in common.— C. N. 1837. 1860. Parties contracting a universal partnership are pre- sumed to intend only a partner- ship of gains, unless the con- trary is expressly stipulated. — C. N. 1839. 1861. In a universal part- nership of gains is included all that the partners acquire by their industry in whatever employment they are engaged during the continuance of the partnership. The moveable property and the enjoy- ment of the immoveables pos- sessed by the partners at the date of the contract are also included ; but the immoveables themselves are not included.— C. N. 1838. SECTION II. Of Particular Partnerships. 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 profession is also a particular partnership. -C. N. 1811, 1842, SECTION III. :, Of Commercial Partnershij)a. 1863. Commercial partner- ships are those which are con- tracted for carrying on any trade, manufacture cr other business of a commercial na- ture, whether general or limited to a special branch or adven- ture. All other partnerships are civil partnerships. 1864. Commercial partner- ships are divided into : 1. General partnerships ; 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 incon- sistent with the rules contained in this section, and with the laws and usages specially ap- plicable in commercial matters. -C. N. 1873 ; C. C. 1854. § l.—Of General Partnerships. 1865. General partnerships are those contracted for the pur- pose of carrying on business under a collective name or firm consisting ordinarily of the names of the partners or of one or more of them, all of whom are jointly and severallv liable for the obligations of the part- nership. 1866. The partners may make such stipulations among themselves con erning their respective powers in the man- agement of the partnership business as thevseent, but witn respect to third persons dealing witn them in good faith, each Eartner has an implied power to ind the partnership for all ob- ligations contracted in its name M \i\ \ 238 PARTNERSHIP. and in its general course of dealing and business. 1 867. The partners are liable for obligations contracted by one of theui, 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 ap- plied to its use. 1808. 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 collective name.— C. C. 1900, s. 5. 1800. Nominal partners, and persons who give reasonable cause for the oelief that they are partners, although not so in fact, are liable as such to third parties dealing in good faith under that belief.— C. C. 1730. § 2. — Of Anonymous Partner- ships. ' 1870. In partnerships hav- ing no name or firm, whether they are general or confined to a single object or adventure, the f)artners are subject to the same labilities in favor of third per- sons as in ordinary partnerships under a collective name. § 3.— Of Partnerships en com- mandite or iimifcd Par^ner- ' ships. 1871. Partnerships en com- mandite, or limited partner- ships, for the transaction of any mercantile, mechanical, or manufacturinjg business, other than the business of banking and of insurance, may be form- ed under the statute intituled : An Act Respecting Limited Partnerships. ^ 1872. Such partnerships con- Tvide R.S.Q. 6640. sist of one or more persons call- ed 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 part- ners. 1873. The general partners are jointly and severally respon- sible in the same manner as or- dinary partners under a collec- tive name ; but special partners are not liable for the debts of the partnership beyond the amount contributed by them to the capital. 1874. The general partners only can be authorized to trans- act business and sign for the partnership, and to bind the same. 1875. 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 carried on ; 3. The names of all the gen- eral and special partners, dis- tinguishing which are general 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 statute specified in article 1871. 1876. The partnership is not deemed to be formed until the certificate is made, filed and re- corded, as indicated in the last preceding article. 1877. If any false statement be made in the certificate, all the persons interested in the PARTNERSHIP. 239 partnership Jigations, ii are liable for its ob- iii the same manner as ordinary partners under a collective name. 187H. In case of any renewal or continuance of the partner- ship beyond the time originally fixed for its duration, a certifl- cate thereof must be made, filed and recorded in the man- ner required for the original formation. Any partnership otherwise renewed or con- tinued is deemed a general partnership. 1879. Every alteration in the name of the general part- ners, in the nature of the busi- ness, or in the capital or shares, or in any matter, other than the name of the special part- ners, specified in the original certificate, is deemed a dissolu- tion of the partnership ; and if it be carriea on after such alter- ation, it is d(?enied a general partnership, unless renewed as a limited partnership in the manner provided in the last precedingarticle.—C.C. 1892,8.9. 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 ; ami if the name of a special part- ner be used in the firm with his privity, he is deemed a general partner. 1881. Suits in relation to the business of the partner.- hip may be brought ana conducted by and against the general partners, in the same manner as if there were no special part- ners. 1882. No part of the sum w^hich any special partner has contributed to the capital stock can be withdrawn by him or paid or transferred to him in the form of dividends, profits or otherwise, during the con- tinuance of tlie 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. 1883. If by the payment of interest or supposed profits the original capital be reduced, the partner receiving the same is bound to restore the amount necessary to make good his share of the deficient capital with interest. 1884. A special partner may, from time to time, ex- amine into the state and pro- gress of the atfairs of the part nership, and may advise as to its management ; but he can- not transact any business on account of the partnership, nor be employed by it as agent, attorney or otherwise. It he act in contravention of the pro- visions of this article, he is deemed a general partner. 1885. The general partners are liable to account to each other and to the special part- ners for the management of the business of the partnership, in the same manner as ordinary partners under a collective name. 1880 In case of the insol- vency or bankruptcy of the partnership, no special part- ner is allowed, under any cir- cumstances, to claim as a creditor, until the claims of all the other creditors of the partnership have been satis- fied. 1887. No dissolution of the partnership by the acts of the parties can take place pre- lis pi ■1 i 240 PARTNERHUIP. viously to the time specified in the certificate of its formation, or the certificate of its renewal, until notice of Ruch dissolution has been filed and pul)lislied in the n)anner provided in the act specified In article 1871, 1888. Partnerships for the business of banking are regu- lated by special acts of incor- poration, and by the federal act respecting banks and l)anking. -R. S. Q., 6241 ; R. S. C, c. 120 ; C. C. 367. § i.— Of Joint Stock Companies. 1880. Joint stock companies 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 thev are formed with- out such autnority, and, in the latter case, are sulyect to the same general rules as partner- ships under a collective name. — C. C. 35;^, 371, 373rt, 1892, s. 10. 1890. The names of the part- ners or stockholders do not appear in joint-stock com- panies, which are generally Known under an appellation in- dicating the object of their formation. The business is carried on by directors or other mandataries, who are appoint- ed from time to time, according to the rules established for the governance of such companies respectively. 1801. Any seven or more persons may in like manner associate 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 insur- ance, in conformity with the provisions of the act of 1865, in- tituled An act to authorize the formation of companies or co- operative asaocintions for the purpose of carrying on, in com- mon, any trade or business. The formation and govern- ance of joint-stock companies and corporations for particular objects are provided for by special statutes. CHAPTER FIFTH. OF THE DISSOLUTION OF PART- NERSHIP. 1802. Partnership is dis- solved :— 1. By the efflu*x of time ; 2. By the extinction or loss of the partnership property ; 3. By the accomplishment of the business for which it was contracted ; 4. By bankruptcy ; 5. By the death of one of the partners ; 6. By the civil death, or inter- diction, or l)ankruptcy, of one of the partners ; 7. By the will of one or more of the partners not to continue the partnersliip, according to articles 1895 ana 1890 ; 8. By the business of the part- nership becoming impossible or unlawful. Limited partnerships are also determined by the causes de- clared in article 1879, to which article the causes of dissolutior declared in the above para graphs 5 and 6 are subjected. The causes of dissolution de- clared 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.— C. N. 1865. Commercial partnerships are also termioated by judgment maintaining, at the instance of a creditor of one of the partners, PARTNERSHIP. 241 ira de- Inot lies |of a the are lent ot lers, the seizure of such partner's share In the stock of pjirtner- ship, or at the nistance of one of the partners after such seizure, -ao v., c. 50, sec. 32 ; C. C. P. 69H. 180». When one of tlie part- ners has promised to put in common the property in a thing, the loss of sucn thins iwfore the contrihution of it has l)een made, dissolves the partnership with respect to all the partners. The partnership is equally dissolved by the loss oi the thing when only the enjoyment of it is put in common, and the property of the thing remains witn the partner. But the partnership is not dissolved by the loss of the t^ing of which the property has already been brought into the partnership ; unless such thing constitutes the whole capital stock of the partnership or is so important a part of it that the business of the partnership cannot be carried on without it. -C. N. 1867. 1H04. It may be stipulated that in case of the death of one of the partners, the partnership shall continue with his legal re- presentative, or only between the surviving partners. In the In^tor case, the representative the deceased partner is en- tled to a division of the part- rship property, only as it ex- t s at the time of the partner's death. He cannot claim the benefit of any transaction sub- sequent thereto, unless such transact! (^n is a necessary con- sequence something done be- fore the ath occurred.— C. N. 1868. 180. Those only wh. are not duration an be d issolved at the will of any one of the partners, partnerships limited as to by a notice to all the others of his renunciation. Such renun- ciation must be in good faith, and not made at a time unfav- orable for the partnership. — C. N. 180» ; C. C. 18:«. iHiUi. The dissolution of a partneiship limited as to dura- tion, may be demanded by one of the partners before the ex- piration of the stipulated term, upon just cause shown, 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 unable to attend to the business of the partner- ship, or when his condition and status are essentially changed, and in other cases of a like nature.-C. N. 1871 ; C. C. 1841. IHOOa. If a partnership be dissolved or a judicial demand be made for such dissolution, the court or the judge, upon the demand of one of the partners, after notice given to the others, has power to appoint one or more liquidators. The liquidators so appointed must be sworn to well and faithfully perform the duties of their oflfice. They immediately give notice of their appointment by an ad- vertisement to that effert published in the Quebec Offi- cial Gazette, and in two newspapers, one in the French and the other in the English language, published at the place of business of the partnership or at the nearest place, and in such other manner as the court or judge may prescribe. They become pleno jure seized of the assets of the part- nership for the purposes of the liquidation ; they luinish the f^ecurity prescribed by the court or judge, and are in all respects I f I J A I ♦' 242 PARTNERSHIP. n 1^; of subject to the summary juris- diction of such court or judge. They possess all the powers and are subjected to all the ob- ligations of judicial sequestra- tors, with the exception of the fmtting into possession, which s done without the intermedi- ary of a bailiff. Acts, exceeding those of ad- ministration, cannot be per- formed by the liquidators with- out the consent of all the part- ners, and in default of such con- sent, only with the approval of the court or judge, after pre- vious notice to the members of the partnership. The remuneration of the liqui- dators is fixed by the court or judge. Proceedings respecting the appointment of liquidators and the performance of the duties of their office are summary. Provisional execution takes place notwithstanding the ap- peal, saving the right of the court to which the cause is taken in appeal to summarily suspend such execution. Two judges of the court seized of the appeal may also give such order for suspension after no- tice to the adverse party. — R. S. Q. 5822. CHAPTER SIXTH. OF THE EFFECTS OF TION. DISSOLU- 1807. The mandate and powers of the partners to act for the partnership cease with its dissolution, except for such acts as are a necessary conse- quence of business already be- gun ; nevertheless whatever is done in the usual course of deal- ing and business of the part- nership, by a partner acting in gOo4 l^itH and in iguor£viice of the dissolution, binds the other partners, in the same manner as if the partnership still sub- sisted. 18Q8. Upon the dissolution of the partnership, each part- ner or his legal representativ^e 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 so far as they can be made to apply. Nevertheless, in commercial Partnerships these rules are to e applied only when they are consistent with the laws and usages specially applicable in commercial matters. — C. N. 1872 ; C. C. 689 et s. ; C. C. P. 1037 et s. 1890. The property of the partnership is to be applied to the payment of the creaitors of the firm, in preference to the separate creditors of any part- ner ; and in case such property be found insufficient for the purpose, the private property of the partners, or of any one of them is also to be applied to the payment of the debts of the partnership ; but only after the payment out of it, of the sepa- rate creditors of such partners or partner respectively.-- C. C. 1991. 1900. The dissolution of a partnership by the terms of the contract, of the voluntary act of the partners, or by the ex- piration of time or by the death or retirement otherwise of a partner, does not affect the rights of third persons dealing afterwards with any of the part- ners on account of the partner- ship firm ; except in the cases following : if When notice is given ^s re- LIFE-RENTS. 243 e of a |)f the act ex- :ieath of a the aling part- rtiier- cases as re- quired by law or the usage of trade ; 2. When the partnership is limited to a particular enter- prise or adventure which is terminated before the transac- tion takes place ; 3. When the transaction is not within the usual course of dealing and business of the part- nership ; 4. When the transaction is in bad faith or illegal, or otherwise void ; 5. When the partner sought to be charged is a dormant or unknown partner, to whom no credit is actually given, and who has retired before the transaction takes place. TITLE TWELFTH. OF LIFE-RENTS. CHAPTER FIRST. GENERAL PROVISIONS. lOOl. Life-rents may be con- stituted for valuable consider- ation ; or gratuitously, by gift or will.— C. N. 1968, 1969 ; C. C. 472. 1Q02. The rent may be upon the life of the person who con- stitutes it, or who receives it, or upon the life of a third per- son who has no right to the en- joyment of it. — C. N. 1971. 1003. It may be constituted upon one life or upon several lives. But if it be for more than ninety-nine years or three suc- cessiv^e lives, and affect real estate, it becomes extinct there- after as provided in article 39(\ — C. N. 1972. 1904.— It maybe constituted for the benefit of a person other than the one who gives the con- sideration.— C. N. 1973. 1005. A life-rent constituted upon the life of a parson who is dead at the time of the contract produces no effect, and the con- sideration paid for it may be recovered back.— C. N. 1974. lOOO. The rule declared in the lastprecedingarticle applies equally when the person upon wnose life the rent is consti- tuted is, without the knowledge of the parties, dangerously ill of a malady of which he dies within twenty days after the date of the contract. — C. N. 1975. CHAPTER SECOND. OF THE EFFECTS OF THE CONTRACT. 1007. 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.— C. N. 197H, 1908. The creditor of a life- rent secured by the nriviloge and hypothec of a venoor upon immoveable property, after- wards seized to be sold under execution, has a right to de- mand that the property shall be ] ji W- ! i| 244 TRANSACTION. i! sold subject to the life-rent a« a charge upon it.-C. C. 1593 ets.; C. C. P. 724. 1000. The debtor of the rent cannot free himself from the payment of it by offering to reimburse the capital and re- nouncing all claim to receive back the payments made. lOlO. The rent is due only for the number of days that the person upon whose life it is con- stituted lives ; unless it is made payable in advance. — C. N. 1980 ; C. C. 453. ^ lOll. A stipulation that the life-rent cannot be seized or taken in execution is without effect, unless it is constituted by a gratuitous title. -C. N. 1981. 1012. The obligation to pay a life-rent is not extinguif-hed by the civil death of the person upon whose life it is constituted. It continues during his natural life.-r. N. 1982. 1013. The creditor of a life- rent on demanding payment of it must establish the 'existence of the person on whose life it is constituted, up to the time for which the arrears are claimed. -C. N. 19J^3. 1014. When an imm iveahle hypothecated for the payment of a life-rent is sold by a forced sale or other proceeding having the same effect, or by a volun- tary sale followed by confirma- tion of title, the posterior cred- itors are entitled to receive the proceeds of the sale on giving sufficient security for the con- tinued paynient of the rent, and in default of such security being given, the creditor of the rent is collocated, according to the order of his hypothec, for a sum equal to the value of the rent at the time of collocation.— C. C. 394 ; C. C. P. 803. 1015. The value of a life- rent is estimated Jit tlie 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. 1016. If the price of the im- moveable be less than the esti- mated value of the life-rent the creditor of it is entitled to re- ceive such price according to the order of his hypothec, or security from the posterior creditors for the payment of tlie rent until the price received by th(?m and the interest is ex- hausted by such payments. lfH7. 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 con- tained in the foregoing articles in so far as they can be made to apply. TITLE THIRTEENTH. OF TRANSACTION. 1018. Transaction is a con- tract by which the parties ter- minate a lawsuit already begun, or prevent future litigation by means of ?.oncessions or reser- vations made by one or both of them.— C. N. 2044. 1010. Those persons only m OP GAMlNQ CONT&ACTS AND BETS. 246 Can enter into the contract of transaction who have legal capacity to dispose of the things which are the object of it.— C. N. 2045; C. C. 307. 1020. Transaction has be- tween the parties to it the au- thority of a final judgment, {res judicata).— C. N. 2052 ; C. C. 1241. 1921. Error of law ia not a cause for annulling transac- tion. With this exception, it may be annulled for the same causes as contracts generally ; subject nevertheless to the provisions of the articles follow- ing.— C. N. 2053. 1022. 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 cov- ered the nullity.- C. N. 2054. 1923. Transaction upon a writing which has since been found to be false, is altogether null.— C. N. 2055. 1924. Transaction upon a suit terminated by a judgment having the authority of a final judgment, and not known io either of the parties, is null. But if the judgment be appeal- able tlie transaction is valid. — C. N. 2056. 1925 When parties have transacted generally upon all the matters oetween 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 re- specting whicli the newly dis- covered documents prove that one of the parties had no right whatever.— C. N. 2057. 1920. Erros of calculation in transaction may be reformed. — C. N. 2058. III 11 \ TITLE FOURTEENTH OF GAMING CONTRACTS AND BETS. li r ^er- of bly 1027. There is no right of action for the recovery of money or any other thing claimed under a gaming con- tract or a bet. But if the money or thing have been paid by the losing party he cannot recover it back, unless fraud be proved.— C. N. 1905, 1967; C. C. 1140. 1928. The denial of the right of action declared in the pre- ceding 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 reject the action when the sum d's ; '/■■y.' t./; . ; ■ , TITLE FIFTEENTH OF SURETYSHIP. =1' ■ *, .; I CHAPTER FIRST. .:, OF THE NATURE, DIVISION, AND EXTENT OF SURETYSHIP. 1920. Suretyship is the act by which a person engages to fulfil the obligation of another in case of its non-fulfilment by the latter. The person who contracts this engagement is called surety. 1030. Suretyship is either conventional, legal, or judicial. The first is the result ot agree- ment between the parties, the second is required by law, and the third is ordered by judicial authority. 1031. The surety is not bound to fulfil the obligation of the debtor unless the latter fails to do so.-C. N. 2011. 1932. Suretyship can only be for the fulfilment of a valid obligation. It niay however be for the fulfilment of an obligation which is purely natural or from which the principal debtor may free himself by means of an exception which is purely per- sonal to himself ; for example, in the case of minority.— C. N. 2012 ; C. C. 1958. 1933. Suretyship cannot be contracted for a greater sum nor under more onerous con- ditions than the principal obli- gation. It may be contracted for a part only of the debt or under conditions less onerous. The suretyship which exceeds the debt, or is contracted under more onerous conditions, is not null ; it is only reducible to the measure of the principal obli- gation.— C. N. 2018. 1934. A person may become surety without the request and even without the knowledge of the party for whom he binds himself. A person may become surety not only of the principal debtor but even of the surety of such debtor.-C. N. 2015. :&935. Suretyship is not pre- sumed ; it must be expressed, and cannot be extended beyond the limits within which it is contracted.— C. N. 2015; C. C. 1611. 1936. Indefinite suretyship extends to all the accessories of the princioal obligation, even to the costs of the principal action, and to all costs subse- quent to notice of such action given to the surety.— C. N. 2016. 1937. The obligations of the surety pass to his heirs, except the liability to coercive im- prisonment wli ;> the obligation of the surety w a such that he would have been subject to it. -C. N. 2017 ; C. C. P. 833, s. .3. 1938. The debtor who is bound to find a surety must otter one who has the capacity of contracting, who has suffic- ient property in Lower Canada to answer the obligation, and whose domicile is within the limits of Canada.— C. N. 2018; C. C. 1962 ; C. C. P. 562. Sn&ET7SHlP. 247 jxceeds I under , is not i to the al obli- become est and edse of i binds surety I debtor of such lot pre- jressed, beyond h 'it is C. 0. etyship ories of n, even rincipal subse- action N. 2016. s of the except Iv'e im- gation hat he t to it. , s. •>• ,vho is y must apacity sufflc- Canada )n, and lin the m. 2018; loao. The solvency of a surety is estimated only with rejjfard to his real property ; except in commercial matters, or when the debt is small, and in cases otherwise provided for by some special law. Litigious immoveables are not taken into account.— C. N. 2019; C. C. P. 561, 9A0, 916, 1215, 1249. 1040, When the surety, in conventional or judicial surety- ship, becomes insolvent, an- other musD 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 creditor has required that a certain person should be the surety.— C. N. 2020 ; C. C. P. 1221. CHAPTER SECOND. OF THE EFFECT OF SURETYSHIP SECTION I. 0/ the Effect of Suretyship between the Creditor and the Surety. t041. The surety is liable only upon the default of the debtor, who must previously be discussed, unless the surety has renounced the benefit of dis- cussion, or has bound himself jointly and severally with the debtor in which case his liabil- ity is governed by the rules established with respect to joint and several obligations — C. N. 2021 ; C. C. 1120, 1964, 1965. lO-lS. The creditor is not bound to discuss the principal debtor unless the surety de- mands it when he is first sued. — C. N. 2022. 1043. 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. ; He 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.-C. N. 2021^ ; C. C. P. 177, s. 5, 190. 1044. Whenever the surety has indicated property in the manner prescrioea by the pre- ceding article,and has advanced sufticient money for the dis- cussion, the creditor is to the extent of the value of the pro- perty indicated, responsible as regards the surety for the in- solvency of the principal debtor which occurs after his defahlt to proceed against him.— C. N. 2024. 1045. When several persons become sureties of the same debtor for the same debt, each of them is bound for the whole debt.-C. N. 2025. 1040. Nevertheless, each of them may, unless he 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 in- solvent, such surety is propor- tionately liable for their insolv- ency ; but he cannot be made liable for insolvencies happen- ing after the division. C.N. 20261 1047. If the creditor have himself voluntarily divided his action, he can no longer recede from such division, although at I iHf J I 248 SURfeTTSttlP. I 1 the time some of the sureties had become insolvent.— C. N. 2027. SECTION II. • > Of the Effect of Suretyship be- tween the Debtor and the Surety. . . ^ , 1048. The surety, who has bound himself with the consent of the debtor, may recover from him all 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 notification. He has also a claim for damages, if there be ground for it.— C. N. 2028. 1040. The surety, who has bound himself without the con- sent of the debtor, has no re- medy for what he has paid be- yond 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 re- course for such damages as the debtor would have been liable for in the absence of such suretyship. 1050. The surety who has paid the debt is subrogated in all the rights which the creditor had against the debtor.— C. N. 2029 ; C. C. 1150, s. 3, 1959. 1051. When there are several principal debtors jointly and severally 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.— C. N. 2030. 1Q52. The surety who has paid first han no i^emedy 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 before being sued and has not notified the principal debtor, he loses his remedy against such debtor if, at the time of the payment the latter had the means of having the debt de- clared extinct ; saving his right to recover back from the cre- ditor.— C. N. 20:31. 1053. The surety who has bound himself with the consent of the debtor may, even before {)aying, proceed against the atter to be indemnified ; 1. When he is sued for the pavment ; 2. When the debtor becomes bankrupt or insolvent : 3. When the debtor has obliged himself to effect his dis- charge within a certain time ; 4. When the debt becomes payable by the expiration of the stipulated term, without regard to tke delay given by the creditor to the debtor without the consent of the surety ; 5. After ten years, when the term of the principal obligation is not fixed, unless the princi- pal obligation, such as that of a tutor, is of a nature not to be discharged before a determinate period.-C. N. 2032 ; C. C. 1961. 1054. The rule contained in the last paragraph of the pre- ceding article does not apply to sureties given by public officers, or other employees, in order to secure the fulfilment of the duties of their office ; such sure- ties have a right at all times to free themselves from future liability under their suretyship SUR£TYSHtP. 249 by giving sufficient notice un- less it has been otherwise agreed. SECTION III Of the Effect of Suretyship be- tAveen Co-sureties. 1 055. When several persons become sureties for the same debtor and the same debt, the surety who discharges the debt has his remedy against the other sureties, each for an equal share. But he can only exercise this remedy when his payment has been made in one of the cases specified in article 1953.— C. N. 2033. CHAPTER THIRD. OF THE EXTINCTION OF SURETY- SHIP. 1 056. Suretyship becomes extinct bv the same causes as other obligations.— C. N. 20:M ; C. C. 1179, 1185, 1186, 1191, 2228, 2229. 1057. The confusion which takes place in the person of the principal debtor or of his surety when one of them becomes heir of the other, does not destroy theaction of the creditor against the suiety of such surety. — C.N. 2035. 1058. The surety may set up against the creditor all the exceptions which belong to the principal debtor and are inher- ent to the debt ; but he cannot set up exceptions that are purely personal to the debtor.— C. N. 2036 ; C. C. 1932. 1050. The suretyship is at an end when by the act of the creditor the surety can no longer be subrogated in the rights, hypothecs and privileges of such creditor.— C.N. 2037. loeo. When the creditor voluntarily accepts an immove- able or any object whatever in payment of the principal debt, the surety is discharged, though such creditor should afterwards be evicted of it. — C. N. 20:i8. lOOl. 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 com- pel him to pay.— C. N. 2039; C. C. 1953, s. 4. CHAPTER FOURTH. OF LEGAL AND JUDICIAL SURETYSHIP. 1002. Whenever a person is required by law or by order of a court to find a surety, he must conform to the conditions prescribed by articles 1938, 1939 and 1940 In the case of judicial surety- ship, the person offered must moreover not be exempt from civil imprisonment.— C.N. 2040 ; C.C. 2034 ; C.C.P. 559 et s., 883, s. 3, 835. 1063. When a person can- not find surety he may in lieu thereof deposit some sufficient pledge.— C. N. 2041. 1964. A judicial surety can- not demand the discussion of the principal debtor.— C.N. 2042. 1065. He who is simply surety of a judicial surety can- not demand the discussion of the principal debtor nor of the surety.— C. N. 2043. X I 1 250 .1 1 TITLE SIXTEENTH OF PLEDGE. ■' 5 ^. 'i lOOfl. Pledge in a contract by which a thing in placed in the hands of a creditor, or, be- ing 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.— C. N. 2071, 2077; C. C. 1740 et s. 1066a. Articles 1488, 1489 and 2268 apply to the contract of pledge. -R S. Q. 5823. CHAPTER FIRST. . OF THE PLEDGE OF IMMOVE- ABLES. 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 tirst in pavment of interest upon the debt and afterwards upon the principal. If no interest be payable the imputation is made wholly upon the principal. The pledge of immoveables is subject to the rules contained in the following chapter, in so far as they can be made to apply. CHAPTER SECOND. OF PAWNING. 1068. The pledging of move- able property is called pawning. 1060. The pawn of a thing gives to the creditor a right to be paid from it by privilege and preference before other credit- ors. -C. N. 2073 ; C. C. 1994, s. 4, 2001. 1 070. The privilege subsists only while the thing pawned remains in the hands of the creditor or of the person ap- pointed by the parties to hold it.-C N. 2076 ; C. C. 1182. 1071. Saving pawnbrokers, no creditor can, in default of payment of the debt, dispose of the tiling given in pawn. He maj'^ cause it to be seized and sold in the usual course of law under the authority of a com- petent court and obtain pay- ment by preference out of the proceeds. This provision, however, does not apply to timber, which is pledgea under the provisions of the Act, 29 Vic, ch. 19, nor to banks as regards goods and merchandise given in security under the provisions of the law respecting banks and banking. The creditor may also stipu- late that in default of payment he shall be entitled to retain the thing.— R. S. Q. 6242 ; R. S. C, cap. 120 and 128 ; C. N. 2078. 1072. 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.— C. N. 2079. 1073. 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 oes is of to nd ity \v g. u- nt lin ler is lof. the to )le of to the tor PRIVILXOSS AND HTPOTBECS. 251 is obliged to repay to the cred- itor the necessary expenses in- curred by him in the preserva- tion of the thing. -C. N. 2080. 1Q74. If a debt bearing in- terest be given in pledge, the interest is imputed by the creditor in payment of the in- terest due to him. If the debt for the security of which the pledge is given do not bear interest, the imputa- tion of the interest of the debt pledged is made upon the capit- al of the former.-C. N. 2081. 1075. 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 thing is abused by the creditor. If another debt be contracted after the pledging of the thing and become due before that for which the pledge was given, the creditor is not obliged to re- store the thing until both debts are paid.— C. N. 2082. 1976. The pledge is indivi- sible although the debt be divi- sible. 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 credi- tor who receives his portion of the debt restore the thing pledged to the injury of those of his co-heirs who are not paid. rj jj 2083 1077. The rijjhts of the cred- itor in the thmg pledged to him are subject to those of third parties upon it, according to the provisions contained in the title Of Privileges und Hypothecs. 1078. The rules contained in this chapter, are subject in com- mercial matters to the laws und ut$ages of commerce. 107O. The special rules re- lating to the trade of pawn- broking are contained in the laws respecting pawn-brokers and pawn -broking. The Federal acts respecting banks and banking, in so far as banks are concerned, and chap- ter 54 of consolidated statutes of Canada as respects private per- sons, contain special provisions for the transfer by endorsement of bills of lading, specifications of timber and receipts given by warehousemen, millers, wharf- ingers, masters of vessels or carriers, to incorporated banks, or to private persons, as collat- eral security, juid for the sale of the mcn:handise and effects represented hy such instru- ments.- R. S. Q. 6243 ; R S. C, cap. 120 and 128. TITLE SEVENTEENTH. OF PRIVILEGES AND HYPOTHECS. CHAPTER FIRST. PRELIMINARY PROVISIONS. 1080. Whoever incurs a per- sonal obligation, renders liable for his fulfilment all his prop- erty, moveable and immoveable, present and future, except such property as is specially declared to be exempt from seizure.— C. N. 2002 ; C.C.P. 598, 599. i| mm I \\m. \\ 1 m 252 PRIVILEGES AND HYPOTlIECd. m \. 1081. 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. ~-C. N. 2093. 1982. The legal causes of E reference are privileges and ypothecs.— C. N. 2094. CHAPTER SECOND. OF PRIVILEGES. General Provisions. 1083. A privilege is a rij^ht which a creditor lias of being preferred to other creditors ac- cording to the origin of his claim. It results from the law and is indivisible of its nature, — C. N, 2095. 1984. Among privileged cred- itors preference is regulated by the different qualities of the privileges, or the origin of the claims.— C. N. 2096. 1985. Privileged claims of equal rank are paid rateably.— C. N. 2097. 1980. Persons who are sub- rogated in the rights of a priv- ileged creditor may exercise his right of preference. Such creditor has nowever 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 have obtained sub- rogation.— C. C. 1154 et s. 2052, 2127. 1987, Persons who are mere- ly subrogated by law in the rights of one and the same priv- ileged creditor are paid rate- ably.— C. N. 2097. 1988. The transferees of dif- ferent portions of a privileged claim are also paid rateably. If their respective transfers have hevn maile without warranty of pnyment. Those whose transfers wera made with warranty of pay- ment, are preferred to the others ; as between themselves, however, regard is had to the date of the notice given of their respective transfers.— C. C. 1574, 2052, 2127. 1989. The crown has certain rights and privileges resulting from the laws relating to cus- toms, and from other provisions contained in special statutes concerning matters of public administration. — C. N. 2098; C. C. 2m)a. 1990. The creditors and lega- tees of a deceased person who 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.— C. N. 878, 2111 ; C. C. 743, 879. 880, 2106. 1991. The rule as regards the creditors of a partnership and those of the partners indi- vidually, is declared in article 1899.— R. S. Q. 6244. 1992. Privileges may be upon moveable or upon immoveable property or upon both to- gether.— C. N. 2099. SECTION I. Of Privileges upon Moveable Property. 1993. Privileges may be upon the whole of the moveable prop- erty, or upon certain moveable property only.— C. N. 2100. PRIVILEQES AND HYPOTHECS. 253 rd8 cle lOn )Ie Ito- ile % 1004. The claims which carry a privilege upon moveable property are the following, and where several of them come together they take preced- ence in the following order, and according to the rules here- inafter declared, unless sonie special law derogates there- from : 1. Law costfl and all expenses incurred in the interest of the mass of the creditors ; 2. Tithes ; 3. The claims of the vendor ; 4. The claims of creditors who have a right of pledge or of re- tention. 5. Funeral expenses ; 6. The expenses of the last ill- ness ; 7. Municipal taxes ; 8. The claim of the lessor in accordance with article 2005 ; 8a. The claim of the owner of a thing lent, leased, pledged or stolen, in accordance with article 2005«. (60 V. c. 50, s. 33) 9. Servants' wages [and those of employees of railway com panies engaged in manual labor] 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 pro- perty of the debtor, the others are special and affect only some particular objects.— R. S. Q. 5825, 59 V. c. 41 ; 60 V. c. 50. 1004a. Each person engag- ed to flsh, or assist at any fish- ery or in the dressing ot fl-.h, either by written agreement or otherwise, has, for securing his wages or share, a first lien pre- ferable to Q,ny other creditor, upon the produce of his employ- er's flsbrry.-/r/., art. 5826. 10046. Mutual fire insurance companies have a privilege upon the n\oveable property of the insured for the payment of assessments which nuvy be im- posed on the deposit notes of the members, whicn privilege takes rank inmied lately after muni- cipal taxes and rates and re- mains in force for the same time.— /f/. lOO-lc. Every person engag- ing himself to cut or manufac- ture timber, or to Hraw it out of the forest, or to fioat, raft or l)ring it down rivers and streams, has, for securing his wages or salary, a privilege, ranking with the claims of creditors who have a right of pledge or of retention, upon all the timber belonging to the person for whom he worked, and, if he worked for a contrcnc- tor, sub-contractor or foreman, upon all the timber belonging to the person in whose service such contractor, sub contractor or foreman were, and which was cut, drawn or floated by such contractor, sub-contractor or foreman ; but said privilege is extinguished as soon as the lumber shall have passed into the hands of a third person who has bought it, ha-i received de- livery thereof and has paid the price therefor in full. Such priv- ilege in no wise affects that which the banks may acquire in virtue of the Banking Act. However, in the case in which the creditor has worked for a contractor or sub-contractor, such privilege shall not exist unless the person having a right thereto has given a verbal notice to the person affected by the exercise thereof and to the debt- op or their agents or employees^ W: Mi i . 254 PRIVILEOES AND HTPOTHZOS. I I ! : i. j In the presence of two witneHHe«, or a notice in writinjr, of the amount due to hini at each term of paymi-nt, as soon as posHible, and Huch notice n»ay l)e given by one creditor for and in the name of all the others who are unpaid. 2. In the event of a contest- ation between the creditor and the debtor resDectmg the amount due, the creditor shall, without delay, give written no- tice to the person afFected by the exercise of such right, and the latter shall then retain the amount in dispute until he re- ceives a written notification of an amicable settlement or of a judicial decision.— 57 V. cap. 47 ; C. C. 2001. 1 905. Law costs are all those Incurred for the seizure and sale of the moveable property and thoseof judicial proceedings for enabling the creditors generally to obtain payment of theii* claims.-C. N. 2101 ; C. C. P. 070. 1000. The expenses incurred In the interest of the mass of the creditors, include such as have served for the preservation of their common pledge.— C. N. 2102. 1007. Tithes carry with them a privilege upon such crops as are subject to them. 1008. The unpaid vendor of a thing has two privileged rights : 1. A right to revendicate ; 2. A right of preference upon its price. In the case of insolvent trad- ers, these rights must be exer- cised within thirty days after the delivery.— R. S. Q. 5827, 54 V. c. 39 ; C. C. 1543 ; C. C. P. 946 et s.,955, 8. 1. 1009. The right to revendi- cate is subject to four condi- tions ; 1. The sale must not have been made on credit ; 2. The thing must still be en- tire and in the same condition ; 3. The thing must not Imve passed into the hands of a third party who has paid for it ; 4. It must be exercised within eight days after the delivery ; saving the provisions concern- ing insolvent traders contained in the last preceding article. 2000. If the thing be sold pending the proceedings in re- vendication, or if, wlien the thing is seized at the suit of a third partv, the vendor be with- in the delay and the thing in the condition prescribed for re- vendication, tne vendor has a privilege upon the proceeds in preferencetoall other privileged creditors hereinafter mention- ed. 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 of the pledgee. ~C. N. 2102. 2001. Creditors having a right of pledge or of retention, rank according to the nature of their pledge or of their claim. [The following is the order among them : Carriers ; Hotelkeepers ; Mandataries or consignees ; Borrowers in loan for use ; Depositaries ; Pledgees ; Workmen upon things repair- ed by them, and persons having a privilege in virtue of article hmc ; Purchasers against whom the right of redemption is exercised, for the reimbursement of the price and the moneys laid out upon the property.— 60 V, c, 50, PR7VILEOE8 AND HYPOTHECS. 255 lir- Ing |c?e the id, bhe )Ut 150, 8. 34.] This pri vilepre cnnnot how- ever he exerclHed, unleNH the ' right is still sul>HiHting, or could \ have heen claimed at the time of the seizure, if the tlilutr 1ms heen sold.-C. N. 2102; C. C. 441, 1516, 1(570. 17i:}, 172:i, 1770, IH12, IHKJa, IIMJO. j 20012. Privilej^ed funeral ex- penseH include only what Is Nuitable to the station and means of the deceased, and are payable out of all liis moveable property. Tney include the mourning of the widow, within the same restriction.— 0. N. 2h)I ; C. C. 2000, s. 2. 200;i. 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 moveable property of the deceased. In cases of chronic disease, the privilege avails only for the expenses during the last six months before the decease.— 0. N. 2101 ; C. C. 2000, s. 3. 2004. The municipal taxes which rank before all other priv- ileged claims hereinafter men- tioned, are limited to taxes on persona and personal propertjr imposed by certain municipali- ties, and taxes to which a like privilege is attached by special statutes. -C. C. 2011, s. 8. 2005. The privilege of the lessor extends to all rent that is due or to beconie due, under a lease in authentic form. But in the case of the liquida- tion of property , abandoned by an insolvent trader who has made an abandonment in favor of his creditors, the lessor's privilege is restricted to twelve months rent due and the rent to be- come due during the current year, if there rem£^ii) more than four months to complete the year; and If there remain less than four months to conjpleto the year to the twelve months* rent due jind to the rent of the current year and the whole of the following year. If the lease be not in authentic form, the i)rivilege can only Ihj claimed for threeoverdue instal- ments and for the remainder of the current year.— 01 V. c. 46. sooner. The owner of a thing who has lent, leased, or pledgee! it, and who lias not prevented its sale, has a right to be paid the proceeds of its sale, after the claims mentioned in articles IJW.oand \m\ and the claim of the lessor, have been collocated. The same rule applies to the ownerof a thing which has been stolen, who would not have lost his right to revendicate it, had it not been judicially sold.-(K) V. cap. 50, s. '.io. 200(). Domestic servants and hired persons are next entitled to be collocated by preference upon all the moveable property of the debtor for whatever wages may be due to them, for a period not exceeding one year previous to the time of the seizure or of the death. Clerks, apprentices and jour- neymen are entitled to the same preference, but only upon the merchandise and eO'ects con- tained in the store, shop or workshop in which their ser- vices were required, for a period of arrears not exceeding three months. [Employees of railway com- panies engaged in manual labour, have also the same privilege upon all the moveable property of the company, for arrears not exceeding three months.— 59 V. c. 42.] Thoi^e whp hfive supplied prp- 256 PRIVILEGES AND HYPOTHECS. ^] I visions have likewise a privi- lege, concurrently with domes- tic servants and hired persons, for the supplies furnished dur- ing the last twelve months.— C. N. 2101. 2000a. The privileges of the Crown are defined by special 8tatute8.-60 V., c. 5(), s. 80; C. C. 1989. 2007. The privileges upon ships, upon their cargo and their freight, are declared in the title Of Merchant Shipping.— C. C. 2383 et ?. 200K. Other rules concern- ing the collocation of certain privileged claims, are to be found in the Code of Civil Pro- cedure. SECTION II. Of Privileges upon Immove- ables. 2000. The privileged claims upon immoveables, are herein- after enumerated and rank in the following order : 1. Law costs and the expen- ses incurred for the common interest of the creditors ; 2. Funerai expenses, such as declared in article 2(X)2, when the proceeds of the moveable property have proved insufti- cient to pay them ; 3. The expenses of the last ill- ness, such as declared in article 20()3, and subject to the same restriction as funeral expenses; 4. The expenses of tilling and sowing ; o. Assessments and rates ; (). Seignioral dues ; 7. The claim of the builder, Biibject to the provisions of article 2013 ; 8. The claim of the vendor ; 9. Servants' wages and those of emploj'ees of railway com- panies engaged in manual the same res- funeral expenses. — lil04; C. C. 2084, P. 798; 57 V., c.46 ston- upon labour under triction as C. N. 2103, 2107 ; C. C. 59 v., c. 42. 2009tr?. 2013/>. The right of urefer- ence or privilege upon the im- moveable exists, as follows : Without registration of the claim, in favor of the debt due the laborer, workman and the builder, during the whole time they are occupied at the work or while such work lasts, as the case may be ; and with regis- tration, provided it be regis- tered within the thirty days following the date upon which the building has become ready for the purpose for which it is intended. But such right of preference or privilege shall exist only for one year from the date of the registration, unless a suit be taken in the interval, or unless a longer delay for payment has been stipulated in the contract. -lb iff. 201Sc. The preservation of the privilege is subject to the following conditions : The laborer and workman must give rotice in writing, or verbally l)efore a. witness, to the proprietor of Mie immove- able, that they ha\'e not been paid for their work, at and for each term of payment, due to them. Such noti owned in common, for the warranty of the partitions made between them and of the differences to be paid.— C. N. 210;^< ; (.'. C. 74H et s., 2050, 2100, 21 (W:, 2105, 2122. sp:ction III. How Pricileges upon Iniinove- ablcs are retained. 201o. With regard to im- moveables, privileges produce no elFect among creditors, un- less they are made public in the manner determined in the title Of Registration of Real Riylits, saving the exceptions therein mentioned.— C. X. 210(). CHAPTER THIRD. OF HYPOTHECS. a ,ble im. eral SECTION F. General Provisions. 20i0. Hypothec is a real right upon immoveables made liable for the fulfilmei.t of an obligation, in virtue of which the creditor may cause them to be sold in the hands of whomsoever they may be, and have a prtference upon the pro- ceeds of the sale n order of date as fixed by this code.-C N. 2114, 2118. 2017. Hypothec is indivi- sible and subsists in entirety upon all the im?.joveablea made liable, upon e.^ch of them and upon every portion thereof. Hypothec extends over all subsequent improvements or increase by alluvion of the pro- perty hypothecated. It secun s besides the prin- cipal, whatever interest accrues therefrou), under the restric- tions stated in the title Of 7»V- gistraiion of Real Rig/its, and all costs incurred. It is merely an acces-ory and subsists no longer than the claim or obligation which it secures.- C. N. 2114, 21:^3 ; C. C. 2247 ; C. C. P. H04. 2018. Hypothec can take place only in the cases and according to the tormalities authorized by law.— C. N. 2115. 20in. Hypothec may be either 1- gal, judicial, or conven- tional.- C. N. 2110. 2020. Legal hypothec is that which results from the law alone. Judicial hypothec is that which results from judgments or judicial acts. Conventional hypothec re- sults from an agreement,— C. N. 2117. 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 equivalent act, remains proprietor of s(jme portion of such immoveable, sa\ing I he provisions of article TM. C, C. P. 740. 2022. Moveables f.re not susceptii»le of hypothecation ; except as provided in the titles Of MercJadit Shipfting and Of lioffonirff and /iespoodeiifia.- C. N. 21 \\k 2120. 202il. Hypothec cannot be 260 PRIVILBOES AND HYPOTHECS, Ill HI! I S 'li I Mm m:ir if hi acquired, to the prejudice of existing creditors, tipon the im- moveables of persons notorious- ly insolvent, or of traders within the thirty days previous to their bankruptcy.- C. C. 10;i2 et s., 2085, 2090. SECTION II. 0/ Legal Hypothec. 203 4. The only rights and claims to which legal nypothec is attacheri, under the restric- tions hereinafter mentioned, are declared in paragraphs one, two, three and four of this sec- tion. 2025. Legal hypothec either alitects all the immoveables generally, or is limited to some of them onlv. 2020. Legal hypotiiec altects such immoveables only as be- long to the debtor and are de- scribed in a notice liled and re- gistered, as prescribed in the title Of Bt gist rat ton of Real Right.s.-C. C. '1VX\ lUla. 201^7. Oeditorswhoacqnired a legal hypothec before tlie tliirty-flr.st day of December, one thousand eight hundred and forty-one, may nevertheless exercise it upoi: all the immove- able property held by the debtor at or since the time of the ac- i|uisition of such hy])othec. 202S. Legal hypothecs an- terior to the first rlay of vSep- tember, one thousand! eight hundred and sixty,arego'erne2t>. Married women liave a legal hypothec for all clanns or demands which they nniy have against their husbands on account of whatever they may have received or accpiired dur- ing marriage l)y succession, in- heritance or gift.— C. X. 2121, 2135 ; C. C. 2115. § 2. — Legal Hypothec of Minors and Jnterdicted Persons. 2030. Minors and inter- dicted persons have a legal hypothec upon the immoveables of their tutors or curators for the balance of the tutorship or curatorship account. — C. N. 2121 ; C. C. 2117 et s. 20«1. This hypothec takes place only in the case of tutor- sliips or curatorships conferred in Lower Canada. § 3. — Ljegal hypothec of the crown. 20a2. Tlie legal hypothec of the crown in cases where it exists, is, like legal hypothec in general, subject to the pre- liminary provisions of this sec- tion.-C. N. 2121 ; C. C. 19H0. g 4. — Legal Hypothec of Mutual Insura nee (ktnqxniies. 203;«. There is likeuise a leg.ii hypothec in favor of nui- tual fire insurance companies upon the immoveables men- tioned in (he policy, for the payment of the assessments upon the deposit notes. This hypothec is not subject to the restrictions contained in article 202(5, and it ranks dating from the date of the deposit note. ~H. S. Q. 5S:iO ; (\ C. 20S-I, s. 5, 2130. PRIVILBQES AND HYPOTHECS. 261 of 'udl ie a niu- nieH neii- the ents SECTION Til. Of Juflicidl Hypothec. 20.'i4. Jutlieial hyporhcc re- sults from judgments rendered l>y the courts of Lower Canjiil.-i, either i;i contested or uncon- tested cases, and which order the payment of a s})ecifu' sum of money. Sucli judgments likewise carry hypothec for in- terest and costs without speci- fyinu; the amount tliereof, sub- ject to the restrictions conta.in- ed in the title Of Registration of Real Rights. It also results from any act of suretyship judicially entered in- to, and from any other judicial act creatiufian ol)lij>;ation to pay a specific sum of money. It is subjei t to the rules con- tained in article 2026.- C. N. 212:J; C. C. 2121. 2(Kt5. Judicial hypothecs ac- quired ])efore the thirty-first day of December, one thousand ei{ and advances the money necessary to obtain its discus- sion.- C. N. 2170; C. C. P. 177, s. o, UK). 2007. This exception, how- ever, cannot be set up in re- spect of immoveables hypothe- cated for the pay mem pf a rent created for the price of the land. § 2.-0/ the Exception of runty. War 2008. The holder may repel the hypothecary action, or the action for the recognition of a hypothec, brought against him, when the prosecuting creditor is in any way whatever person- ally bound to warrant the im- moveable against such hypo- thec. 2000. This exception of war- ranty is equally available if the prosecuting creditor be himself the holder of another immove- able bound for the warranty of the defendant against the hypo- thec sued upon ; the creditor in such case cannot maintain his action unless he previously sur- renders the property which he thus holds. § .3.-0/ t?ie Exception of Sub- rogation (cedendarum actionum.) 2070. The holder who issued has a right to be subrogated in the rights and claims of the pro- secuting creditor against all other persons liable for the pay- ment whether personally or hy- pothecarily.— C. C. 11.56. 207 1 . If the prosecuting cre- ditor or those from whom he derives his claim, have destroy- ed any right or recourse which I'lMVIIiEQES AND HYPOTHECS. 2«5 the holdei' inipjlit othorvvise have exercised in order to he itidenmifled aj^ainst the con- demnation songht for, or have by tlieir own act become nnable to transfer the same to him, tlie action in so far cannot be main- tained. § 4.- Of the E.vcejifio}! rrsult- iiui from E.rpen dihi res. 2072. The holder a^M'nst wliom tlie iiypothecary ai > ion is bron}2:ht may also H5. The notice received or knowledge acijuired of an un- registered right belonging to a third party and subject to re- gistration, cannot prejudice the rights of a su>)se(juent pur- chaser for valuable considera- tion whose title is duly regis- tered, except when such title is derived from an insolvent trader.-C. N. 1071. 2080. Want of registration may be invoked against min- ors, interdicted persons, mar- ried women, and the crown. aOH7. Registration may be demanded by minors, inter- dicted persons, or mairied wonn n, themselves, or by any person whatever in their be- half. -C. N. 2i:«); C. C. 2147/>. ao«8. The registration of a real right cannot prejudice the purchaser of an imnioveable who at the time and before the coming into force of this code was in open and public posses- sion of it as owner, even though his title be not registered until afterwards. 20K0. The preference which results from tlie prior registra- tion of the deed of conveyance of an immoveable obtains only between purchasers who derive their respective titles from the same person. 2090. The registration of a ^, 'S'^^^o. IMAGE EVALUATION TEST TARGET (MT-3) %* 1.0 I.I 'i' I— III 2.2 2.0 1.8 1.25 u |||i/s M 6" ► V] V^ •^ "■^ ^;. ? <^i /A Photographic Sciences Coiporation 23 WEST MAIN STREET WEBSTER, N.Y. I45B0 (716) 87MS03 u. rr 268 REOISTBATTON OF RIAL RIGHTS. a i .title conferring real rightH in or upon the immoveable property of a person, made within the thirty days previous to his baiikruptey, is without efl'eet ; saving the case iti which the delay given for the registration of sueh title, as mentioned in the fo lowing cliapter, has not yet expired.-C). N. 214« ; lf»3H, 2023. 200 1 . The same rule applies to the registration ejected after the seizure of an immoveable, when such seizure is followed by judicial expropriation. - a N. 2146; C. C. P. 715. 2002. The registration of real rights must be made at the registry office for the division in which the immoveable af- fected is either wholly or partly situated.- C. N. 214(J. 2003. Registration aval I •> in favor of all parties whose rights are mentioned In the document presented for the purpose. 2004. Privileged claims not registered take effect, as regards other unregistered claims, ac- cording to their rank or their date,and are preferred to simple chirographic claims ; saving the exceptions contained in article Wm and mn.—C. N. 211 :i 2005. Registration does not interrupt prescription. 2000. Other provisions con- cerning registration, both as regards real rights and move- able property and rights, are contained in several other titles of this code. 2007. The ellects of regis- tration or of non-registration in respect of doedsand judgments ana other real rights anterior to the different statutes con- cerning registration are gov- erned oy special provisions of law contained in such statutes. CHAPTER SECOND. HULKS I'ARTK'liLAH TO DIKFER- KNT 'IIT1-KS BV WHICH HIIAI. RKUITS ARK Af. 20i)N. All act*< itifrv vivos conveying the ownership of an immoveaolc must be registered at length, or by memorial. In default of such registra- tion, the title of conveyance cannot !»«' invoked e>.'ainst any (bird party who has purchased the same property for the same vendor for a v.iluable consider- ation and vvhot-e title is regis- tered. Registration has the same effect between* two donees of the same innnoveable. Every conveyance by will of an imnioveal)le nmst oe regis- tered either at length or by memorial, with a declaration of the dae of the death of the tes- tator and a description of the immoveable. The transmission of immove- ables by succession must be re- gistered by means of a dechir- ation setting forth the name of the heir, his degree of relation- ship to the deceasod, the name of the latter, the date of his death, and, lastly, the designa- tion of the immoveable. So long as the right of the ac- quirer has not been registered, the registration of all convey- ances, transfers, hypothecs or real rights granted by him in respect of such innnoveable is without effect.- R. S. Q., art. ^im; C. C. 2147a, 2147b. 2000. Notwithstanding the povisioiis hereinabove contain- ed, the sale, lease, or transfer of a (nining right, if the title be authentic, is preserved and takes effect from its date by means of its registration within RBOI8TKATION OF REAL RIGHTS. 269 sixty days after Its date, even though such act be not followed by actual possession. 2100. Persons conveying iin- niovealiles by sale, gift or ex- cliange preserve all their rights and privileges by registering the deed of alienation within thirty days fr.mi iis date, even against persons registering their rights between the dates of such deed and of its regis- tration. The right of the vendor to take imck an immoveable sold, inthecaseof non paynientof the price, does not attect subse- quent purchasers who have not subjected themselves to such right, unless the deed in which it is stipulated has t)een regis- tered as in (trdinary cases ; nevertheless the vendor in this matter as well as for securing the price has all the advantage of the delay of thirty days. 2t01. All judgments declar- ing the dissolution, nullity, or rescission of a registered deed of conveyance or other title by which an immoveable has l)een transmitted, or |>ermitting the exercise of a right of re<(emp- tion or of revocation, must be registered at length within thirty days after they are ren- 2102. The action of the ven- dor lo have the sale dissolved by reason of the non payment of tlu' price, according to article 1.5;W, cannot be brought against third parties, if the stipulation to that effect have not l)een re- gistered. The same rule applies to the right of redemption, 210». Vide 2iHa. 1. The privilege of the per- sons nu^iitioncd in article 'AiVA dates, in the cases mentioned in the first clause of article 20136, only from the registration, within the proper delay, at the registry office of the division in which is situated the immove- able affected by the inscription, of a notice or memorial, tlrawn up according to form A, with a tre be not yet deposit- ed, the name of the claimant and the amount due at the time the memorial is filed. 3. The memorial shall be nuide out in duplicate, one of which shall remain in the archives of the registry oltice and the other be delivered to the creditor with the registrar's certificate there- on 4. The creditor shall, within three days from the registration of the memorial, give a written notice to the proprietor of the immoveable, or to his agents, if he cannot be found.— 57 v., c. 4(i ; 59 v., c. 42 ; C. C. Irt95. 21U3 and liHKtrf replaced liy m Vic, can. 42. 2104. 'I he privilege of co- partit loners, as well for the pay- ment of ;'C. C. 2()14. 2105. The same delay is allowed co-heirs and co-lega- tees for the registration of 1 m ■1! frf^ 270 BSQIBTEATION OF BIAL BIQHT8. the rightB and privilegeH accru- ing to them under acts or judg- meiit8 of licitation.— C. C. 2014. 2106. CrediturH and legatees claiming Heparation of property preserve a right of preference upon the eutate of their deceaa- ea debtor, against the oreditorH of the heirs or legal representa- tives of the latter, provided they register within six mouths after the death of their debtor the rights which they have against his SMccession. Such registration is effected by means of a notice or memo- rial specifying the nature and amount of their claimis and describing any immoveables affected thereby.— C. N. 2111 ; C. C. 743, 879, 880, 1090, 2133, 2147a. 2107. Claims for funeral ex- penses and expenses of last ill- ness do not retain their privi- lege upon immoveables unless a memorial of such claims is re- gistered in the manner and within the delay prescribed by the preceding article.- C. C. 2009, 2147a. 2108. Fiduciary substitu- tions in respect of immoveables contained in deeds of gift inter vivos are subject to the general rules mentioned in article 2098 as regards third parties whose real rights upon such immove- ables have been registered. As regards all other interested parties the registration of sub- stitutions, takes effect accord- ing to the provisions coiitHined in the title concerning gifts.- - C. N. 1009 ; C. C. 938 et k., 981. 2109. If the substitution be created by will, it Is subject as regards registration to the pro- visions hereinafter declared with respect to wills. 21 lO. All rights of owner- ship resulting from wills, and all special hypothecs therein declared, are preserved and take their full effect by means of their registration within six mouths from the death of the testator, if he die within the limits of Canada, or within three years from such decease, if it occur beyond such limits. — (;. N. 1000 ; C. C. 880, 2045,2098. 2111. In the case of the concealment, suppression or contestation of a will, or of any other difficulty, parties inter- ested, who, without negligence or participati(jn on their part, are disabled from effecting its registration within the delay prescribed by the preceding article, may nevertheless pre- serve their right by registering wiihin the same delay a state- ment of such contestation or other impediment, and regis- tering the will within six niontns after it or its probate has been obtained, or after the removal of the impediment. — C. C. 2147a. 2112. Nevertheless the re- gistration of the statement mentioned in the preceding article has no retroactive effect unless the will be registered within tive years from the death or the testator. 21 la. Married men of full age are bound to register, with- out delay, the hypothecs and incu!nbrances to which their inmioveables are subject in favor of their wives, on pain of punishment as for misdemeanor and of being liable for all dam- aKes.--C. N. 2136. 21 14. If the married man be a minor, his father, mother, or tutor, who consented to his marriage, is bound to effect the registration mentioned in the preceding article, on pain of Ml UB0I8TRAT10N OF REAL RIGHTS. 271 ?Ml''l being held liable for all dam- , ages in favor of the wife. | 21 IS. The legal hypothec of | the wife aft'ectH the immove- ables of her husband by means j only of the registration of her debt, right or claim, and such immoveables only as are des- cribed and specified in a notice for that purpose, registered either at the same i ime as the right claimed, or at any time afterwards; and the hypothec dates only from such last men- tioned registration. 21 lO. The right to legal ens- tomarv dower, cannot be pre- served otherwise than by the registration of the marriage certificate with a df scription of the ini moveables then subject to such dower. Ah regards immoveables which may subsequently fall to the husband and become subject to customary dower, the right to dower upon such immoveables does not take effect until a declaration for that purpose has been regis tered, setting forth the date of the marriage, the names of the consorts, the description of the immoveable, its liability for dower and how it has become subject to it.— C. C. 2i:«, 2147a. 2116a. In default of regis- tration, no real, discontinuous and unapparent servitude, constituten by title, has any effect as regards third parties who become subsequent pro- prietors or creditors, whose rights have been*^ registered.— R. S. Q. 5834 ; C. C. 547, MS. 21 17. Tutors to minors, and curators to interdict! d pert^ons are bound to register, without delay, the hypothecs to which their real estate is subject in favor of such minors or inter- dicted persons, under the pains ?i hereinabove declared against married men in article 21 IH.— C N. 2i:i«, 2141 ; C. C. 2030, MM. 2118. Subrogate tutors are l)ound to see that the registra- tion re(|uirrd in favor of the minor is effectid, and if the fail to do so are liable for a consiquent damages that may be sustained by such niinor.— C. N. 2i:f7 ; C. C. 2tr7. alio. Every notary called upon to make an inventory is iMund to see that the tutorships of the minors, or tl)e curaior- ships of the hiterdic ed persons interes'ed in such inventories are duly legistered, and, if necessufy, to cause such regis- tration to l>e ettectf d at the cx- Kense of such tutors or curators, efore proceeding with tlie in- ventory, on pain of all damages. 2120. The hypothec of minors against their tutor or of interdicted persons against their c irator affects such im- moveables only as are de- scribed and specified in the act of tutorship or curatorship, and in default of such description, such immoveables as are de- scril>ed in a notice for that pur- pose registered either at the same time as the appointment of the tutor or afterwurds ; and the hypothec dates only from such registration. C. 0. 2133, 2147«. 2121. Tlie judgments and judicial acts of the civil courts confer hypothecs, when they are registerefi, from th»- date only of the registrution of a notice specifying and describing the immoveables of the debtor upon which the creditor intends to exercise his hypothec. The same rule applies to all claims of the crown to which any tacit hypothec or privilege •*"l ,1 272 REGISTRATION OP RBAL RIGHTS. is attached by law.— C. C. aWM etH., 2133, 214 m. 2122. HeKiHtration of A deed of sale secures to the vendor ill the same order of preference as for the principal, the interest for Ave years generally and that which is due upon the current year. 2123 Kcgistiation of a deed constituting a life-rent or other rent preserves a preference for the arrears of fl vc years gener- ally and for those whicn are due uiK)n the current year. - C. C. P. 804. 2124. Registration of any other claim preserves the same right of preference for the inter- est of only two years generally and for such interest as is due u on the current year.— C. N. 21.51. 2125. The creditor has a hypothec for the remainder of the arrears of interest or of rent from the date only of the registration of a claim or mem- orial specifying the amount of arrears due and claimed. Nevertheless the arrears of interest due at the time of the Hr«t registnition and therein specified are preserved by such registration. -C. N. 2151 ; C. C. 2m, 2147a. 2126. Renunciations of dower, of successions, of lega- cies, or of community of pro- perty cannot be invoked against third parties, unless they have been registered in the registry office of the division in whii-h 1 « right accrued. 2127. Every conveyance or tran fer, whether voluntary or juiticial, of a privileged or hvpothecary claim must be re- gfstered in the regi-try ottlce in which the title creating the debt has been registered. A duplicate of the certificate of its registration must be fur- nished to the debtor, together with the copy of the transfer. If these formalities be not ob- served the conveyance or trans- fer ;s without effect against subsequent transferees who have conformed to the above requirements. All subrogations in such rights granted by authentic deeds or by private writings must likewiiie be registered and notice thereof i)e given. If the subrogation take place by the sole operation of law, it may be registered by transcribing the document from vvhich it results, with a declaration to that ettect. The transfer or subrogation nnist be mentioned in the mar- gin of the registry of the title creating the delit, with a ref» r- ence to the number of the entry of such transfer or subrogation. -C. C. 1154 et s., 1574, 1988 et s., 2052. 212R The Icitse of an im- moveable for a period exceeding one year cannot be in 'okea against a subseiiuent purc.iaser unless it has been registered. — c. c. um. 2120. No act containing a discharge from the rent of an immoveable for more than one year in anticipation, can be in- voked against a subsequent purchaser unless it has been registered, to^^ether with a de- scription of the immoveable. CHAPTER THIKI). OF TlIK OKDKR OF PREFEKENCE OF REAL RIGHTS. 2 1»0. Privileged rights which are not suoject to regis- tration take precedence accord- ing to their respective rank. Rights subject to registration i^:'l? - RKOI8TRATION OP REAL RIQHTS. 273 ts '18- rd- on and which have been registered within the prescribed delays, talce effect aceordinK to the provisions contained in the pre- ceding chapter. Except the above cases and the case of articles 2068 and 2091, real rights rank according to the date of their registration. If, however, two titles creat- ing hypothec be entered for registration on the same dav and at the same hour they rank together. ff a deed of purchase, and a deed creating a hypothec, both affecting the same immoveable, be entered at the same time, the more ancient deed takes precedence. No hvpothec has any effect without registration, except that of mutual insurance com- panies, for the amount which the parties insured are liable to contribute.— C. C. 2(«3, 2047. CHAPTER FOURTH. OF THE MODE AND FORMALITIES OF UEUISTRATION. 2131. Registration is effected at length or by memorial. It may from time to time, without, however, interrupting prescription, be renewed upon the demand of the creditor or his assigns or any other person interested or entitled to de- mand registration. The re- newal is made by transcribing, in a register kept for that pur- Sose, a notice to the registrar esignating the document, the date of its original registration, the immoveable affected and the person who is then in posses- sion of it ; and the volume and page in which the notice of re- newal is registered must be referred to in the margin of the original registration. Iff the title were originally registered in another registra- .on division and a copy thereof have not been transmitted to the registry office of the new division, such renewal must mention the place where the title has been so registered. An index must he kept for the books used for the registra- tion of notices of renewal, and each notice is entered In the index, both under the names of the creditor and of the debtor and under that of the owner of the immoveable as given in the notice.— C. C. 2147a, 21476. SECTION I. Of Registration at Lentjth. 2132. Registration at length is effected by transcribing on the register the title or aocu- ment which creates or gives rise to the right, or an extract from such title made and certi- fied according to the provisions of article 1216. Errors of omission and com- mission in registration at length of any document or in the document presented for registration do not affect the validity of such registration unless they occur in some ma- terial provision which should l)e noticed in a memorial or in a registrar's certificate. 2138. The notices mentioned in articles 2026, 2106, 2115, 2116, 2120 and 2121 nmst be regis- tered at length. 2134. Registration at length of an authentic deed may be obtained upon the production of a copy or extract thereof certified oy the notary, if he have kept the original of record, or 18 i'l' 274 RIOIBTRATIOM OF RIAL RIGHTS. of the original itRelf, if it have been delivered by the notary. If the title be a private writ- ing it must be proved in the manner hereinafter preHcribed with respect to memorials. 2185. The certificate of re- gistration at length i.s written upon the document itself and mentions the day and hour at which it was entered and the book and page in which it has been so registered, with the numl)er under which it was so entered and registered. SECTION II. Of Registration by Memorial. 2 ISO. Registration by me- morial is effected by means of a summary setting forth the real rights which the party inter- ested wishes to preserve, which is delivered to the registrar and transcril^)ed upon the register. -C. N. 2148. 2187. The memorial must be in writing and may l^e made at the request of any party in- terested in or bound to effect the registration and must be attested by two subscribing witnesses. The memorial may also l)e made in duplicate and acknow- ledged according to article 2144a. The party requiring the memorial must subscribe his name to it, and if he cannot write, his name may be sub- scribed by another, provided it be accompanied by tne ordinary mark of such party made in the presence of the attesting wit- nesses. The memorial may be made on behalf of the Crown by the Provincial Treasurer or other officer of the Crown, in whose hands the document is, and it must state the name, oflHce and domicile of the person by whom it is made.— R S. Q. 5836, as amended by 52 V. c. 2f). 218H. When there are more writings than one to complete the rights of the person requir- ing registration, they may be all included in one memorial without its being necessary to insert more than once therein the description of the parties or of the immoveables or other prop«*rly. 213Ma. One memorial is sufficient, in the case of several obligations, titles or claims, from the same debtor, upon one or more immoveables in favor of the same creditor or acquirer, and also in the case of seveial successive titles and transfers of the same property.— R. S. Q. OOuD. 2 ISO. The memorial must set forth : 1. The date of the title and the name of the place where it was executed ; If it be a notarial act, the name of the notary who keeps the original thei'euf, or the name of the notaries or of the notary and witnesses who signed it, if the original have been delivered ; if it be a pri- vate writing the names of the subscribing witnesses ; if it be a judgment or other judi- cial act, it must designate the court ; 2. The nature of the title ; 3. The description of the creditors and debtors and other parties thereto ; 4. The description of the pro- perty subject to the right claim- ed, and that of the party re- quiring registration ; 5. The nature of the right claimed, and, if it be a claim for money, the amount due, the BIOI8TRATION OF RIAL BIGHTS. 276 rate of interest, and the costs if there he any ; If the rate of Interest l»e not specified, tlie registration does not preserve the rl^ht to Inter- est beyond the legal rate. 2140. The memorial is de- livered to the reKistrur to- gether with the tille or docu- ment, or an authentic copy of the title, and must be acknow- ledged by all or one of the pe proved in Lower Canada, by the affidavit of one of the witnesses, sworn to iiefore a judge of the court of Queen's Bench, or of the Super- ior Court, or a commissioner of the latter court for taking afti- davli s, or before a justice of the peace, a notary, the registrar, or his deputy. 2142. When the memorial is executed in Upper Canada, proof thereof may be there made and attested in the same manner before a judge of the Court of Queen's Bench or of the Court of Common Pleas, or before a justice of the peace, or a notary, or before a commis- sioner of the Superior Court for Lower Canada. 2143. Wlien it is executed in any other British possession it may be proved therein by an affidavit sworn to t>efore the mayor of the place, the chief justice or a judge of the Su- preme Court, or iKjfore a com- miss oner authorized to take affld ivits to be used in the courus of Lower Canada. 2144. If it be executed in a foreign country the affidavit may be sworn to before any minister, or charge d'affaires, or consul of Her Majesty in such foreign state. 2144a. The memorial may also Ihj executed i>efore a notarv iiy deed en minute or en brevet. The memorial so executed, need not be attested l>efore a witness nor prove, 2i:n, 213*^, 213:1 21:10, 2140, 2101, 210Hand 2172, may be f^iven either nnder private heIu or by notarial deed, en ininuie or en bn rti : Hucli noticen, declara- tioiiH or niemorialH, if en brevet or nnder private seal, mnst remain in the registry oHice ; but if en minute the delivery of an authentic copy in Hutticient. The certiticate of regiHtra- tion Im aflixed to such notices, declarations or memorials, only if it l)e demanded —52 V. c. 2H.' at 47b. The notices and de- cl tratiouH mentioned in articles mm, 2\m and 2172, may be given to registrars for those interest- ed, by any person whomsoever, whether related or not. They may also be given by married women, interdicted persons, and the minors themselves.— R S. Q. 5830 ; C. C. 20H7. CHAPTER FIFTH OF TUB CANCKLLlNCi OF KK- (1I8THATIONS OF HKAL KKiHTS. 214H. The registration of real rights, or the renewal there- of, may be cancelled with the c inseiit of the parties, or in virtue of a judgment from which there is no appeal, or which has l»econie final. The ac(|uittance of a debt implies a consent to its being cancelled. Any notary who executes a total or imrtial discharge of a hypothec is bound to cause the same to be registered in the proper division, according to the statute 27th and 28th Vict, ch. 40. The creditor is bound to see that the discharge is registered, and is responsible for any costs that may l)e incurred in con- sequence of non-registration, and he cannot be com|)elied to grant a discharge, unless a sufHcient sum is placed in his hands to pay for the registration and transmission.— C N. 2158. 214fl. If the cancelling i>e not consented to, it may )h^ demand- ed from the proiwr court by the debtor or otJier holder, by any subsequent hypothecary credit- or, by a surety, or by any imrty interested, together with what- ever damages may l>e due. -C.N. 2150. 2150. The cancelling is or- dered when the registration, or the renewal, has oeen effected without right or irregularly, or u))on avoid or informal title, or when the right registered has been annulleci, rescinded or ex- tinguished bv' prescription or otherwise.— C. N. 2100. 21A1. The consent to the cancelling and the acquittance or certificate of discharge may Im) in authentic form or under private signature. When under private signa- ture they nmst be attested by two witnesses, and cannot be received by the registrar unless they are accompanied liy an aflidavitof one of such witnesses sworn to before one of the functionaries mentioned in ar- ticles 2141, 2142. 2143 and 2144, as the case requires, and estab- lishing that the money has been paid in whole or in part, and that such acquittance, certifi- cate of discharge, or consent to the cancelling was signed in the presence of such witness by the party granting it. The discharge of any hypothec in favor of the crown may be entered in the margin against RlGIBTRATIOIf oF RIAL RIOHTH. 277 the resiHtry of such hypothec upon the proer 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. All alphabetical list of all parishes, townships, seignior- ies, cities, towns, villages, and extra-parochial places within his registry division, containing a reference under the head of each local division to ail entries of documents concerning im- moveables comprised within such division, or giving the number and other references mentioned in the preceding paragraph, so as to serve as an index to immoveables, and such list must be made in conformity m^ BKHSTRATION op REAL RIGHTS, 279 t. (' with th<' proviNionn of article 2171; 3. All entry Ijook in which are entered the year, month, day and hour when each dociinienY Ih hrou^ht for r«»jflHtratlon. the nanien of the particN to the name and of the perHon by whom the name Ih brought, the nature of the riKht of which reu^istra- tion iH rt'<|uired. and a general deHcription of the immoveable affe<^ted thereby ; 4. A re^iNter in witich all documentN preHented for rej^ls- tration are tranHcri>M>d ; 5. A book in whicli are reglM- tered the noticen reciuircd by aHiclcH S115, 211((, 2120, 2121, with an index to iw made in the name manner an the index prc- Ncribed in article 2181. -C. N. 2202. 2161a. A register for the ad- dre88e8 orelection.s of er of the entry of the same is noted in the index to immoveables, in the page or space allotted for the lot or sub- division hypothecated in favor of the person giving the notice. —Id. 2161ff. A copy of the notice for the sale of immoveables under seizure must be given by the sheriff t^ the registrar, to nMnain de|>oslt4'd In his othce, and an «>ntry must In> made by the latter in his Index to im- moveables or in the margin opposite the last entry in the books, for «'ach lot or piece of land inentioneil in such notice, by writing the words : ' under seizure No. .'—Id ; C. C. P. 710, 2161^ A notice must Iks immediately sent by the re^is- trar,bv registered letter, to each hypothecary creditor, whose name is entered in the register of addresses, informing him that the immoveable hypothe* cated to him is under seizure, and of the place where and the lime when it will lie sold. -/(i. 2161^. The registrar must until the notice of seizure is cancelled, mention it in all cert Ideates demanded of him, either against the immoveable descril)en in such notice, or against the person upon wliom the immoveable was seized. — Id. 2161a. When the seizure is folio wedf by judicial expropria- tion, the notice of seizure will t)e cancelled by the registration of the sheriff's deed of sale. — rd. 2 161 A. When the seizure is released, the notice of seizure is cancelled by the deposit in the registry -•ftice of a certi- llcate establishing such release given by the prothonotary and by the noting of the release in the index to immoveables or in the margin of the last entry in his books after the noting of the seizure. — !d. 2161i. A list of the lands sold for taxes must, within the eight days following the ad- judication, be transmitted bv the secretary- treasurer of eacfi 280 REaiBTRATION OF REAL RIGHTS. county council to tlie registrar to be deposited in his office ; and the registrar must make an entry of the sale in his index to immoveables, or m the mar- gin opposite I lie last entry in liis books, for each lot or piece of land so sohl, by writing the words: 'sold for municipal taxes No. .'--Id. 2101J. The registrar must, until the entry of such muni- cipal sale is cancelled, mention it in all certificates demanded of him affecting any lot or piece of land mentioned in the list. — Id. 21blA\ The cancellation of the entry of such muni'-ipal sale is effected by the registration of a municipal deed of sale, or by the deposit of a certificate from the secretary-treasurer that the land has been re- deemed, and by the noting of such redemption in the index to immoveables or by the noting of the municipal sale in the margin of the last entry in the books. — Id. 2101^ The omission to com* ply with any of the provisions or articles 2101a to 21filA: docs not invalidate any proceeding in any cause or matter in which such omission may occur ; but the officer in default is respon- sible for all damages wnich may result therefrom.— /rf. 2102. In the registration divisions of Quebec and Moat- real the register mentioned in paragraph 4 of the preceding article may be kept in seveial fiarts in separate books, accord- ng to the following clasr,ifi- cation : 1. Bonds, recognizances and obligations in favor of the crown ; wills, and the probates thereof ; 2. Marriage contracts and gifts ; 3. Appointments of tutors and curators ; judgments and judicial acts and proc«edings : 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 Ci;arges, and not comprised in any of the preced- ing classes ; n. All other acts of which registration may be reeing that of the lot intended to be affected by such registration. — C. C. P. 124. 2100. The deposit of the original plans and books of re- ference in any registration division is declared by a pro- clamation from the Governor in Council, fixing at the same time the day on which the provisions 282 REGISTRATION OF REAL RIGHTS. I \ 'i * I « i I of article 2168 shall come into force therein. 2170. The repjistrar, so soon as such deposit has been made, must prepare the index to im- moveabicH mentioned in the second place in article 2161. 2171. From and after the day appointed by such pro- clamation the registrar must, from day to day, make up and continue tue index to immove- ables by entering under the number of each lot separately designated upon the plan and book of reference a reference to each entry thereafter made in the other books and registers atfecting such lot, so as to en- able any person easily to ascertain all the entries con- cerning it made after that time. 2172. Within two years after the day fixed by the pro- clamation of the liieuteiiant- Governor, bringing the pro- visions of article 2168 into force in any registration division the registration of any real right upon any lot of land within such division must be renewed by means of the registration at length, in the book kept for that purpose, of a notice describing the immoveable allected, 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 mentioned in this article, in the same manner as the index mentioned in article 2131.— R. S. Q. 5844 ; C. C. 2147a, 21476. 2172a. If the hypothec is in part extinguished, the renewal may be made for the balance only.~/d. art. 5845. 2173. If such renewal be not eftected the real rights preserv- ed by the first registration have no efifect against other creditors and subsequent purchasers whose claims have been regular- ly registered. 2174. The registrar cai.not in any way correct or alter the plans or books of reference ; and at any time if he find therein errors or omissions in the description or dimensions of any lot or parcel of land, or in the name of i he 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 cor- rection. Such correction must how- ever be made without changing the number of the lots : and in the case of the omission of a lot it must be inserted by distin- guishing it by characcers or letters, so as not to ii»terfere with the original numbering. No right of ownership can be afiected by any error in the plan or book of reference, nor can any error of description, di- mensions or name be inter- preted to give any person any better right to the iand than his title gives him. 2174a. After the coming into force of the provisions of article 2168, respecting the cadastre of any locality, if it be ascertained that there are certain lots of lands designated erroneously under several num- bers, or whenever a re-number- ing becomes necessary in con- sequence of the construction of a new road or the closing of an old one, or for any other cause, the Commissioner of Crown Lands may, on being so re- quired by the parties inter- ested, amend and correct the RKOI8TRATION OF REAL RIGHTS. 2as official plan and book of refer- ence thereto of Kuch locality, and provided that there are no registrations of mortgage •» against the numbers whicli it is proposed to cancel, lie may strike out and cancel the nurii- bers found to be useless. If it be found that the same territory is included in the cadastre of two dirterent locali- ties, or that some territory is included in the cadastre of a locality to which such territory does not belong, the official plan and book of reference of the locality to which such ter ritory does not belong and the one to which it does belong, may be corrected in conse- quence. Notice of such corrections must l)e given in the Quebec Oj^cial Gazdte so soon as the correction has been certified by the commissioner.— R. S. Q. 5846. 2175. Whenever the owner of a property designated upon the plan or book of reference subdivides the same into town or village lots, he must deposit in the office of the Conmiis- sioner of Crown Lands a plan and book of reference certified by himself, with particular numbers and designations, so as to distinguish them from the original lots; and if the Commissioner of Crown Lands find that such particular plan and book of reference are cor- rect, he transmits a copy certi- fied by himself to the registrar of the division. Another subdivision of the property niay be substituted for any subdivision deposited with the registrar, or any part of the subdivision for any other part of the subdivision, by the proprietor or other person in- terested, provided that the plan or book of reference be made and deposited in conformity with this article.- /f A, art. 5847. Vide oJi v., c. 53. 2176. When by reason of the subdivision of the lots 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 h& made out and a copv thereof to Ihj deposited witli the registrar of such locality ; but such amended plan and l)ook of reference must be based upon and refer to the former ones ; and the Governor may by proclamation fix the day uuon which they will begin to be used together with the former ones ; and from and after the day so fixed the pro- visions of this code shall apply to such amended plan and book of reference. 2170a. Whenever the plan of the lots of land of any city, town, village, parish, township or of any division whatsoever of such localities, forming part of any registration division, has been lawfully made, the Lieutenant-Governor in Coun- cil may cause to be deposited in the registry office of the proper registration division, a correct copy of such plan, to- gether wltli a copy of the book of reference relating thereto. The deposit of such plan and book of reference is announced by a proclamation of the Lieu- tenant-Governor ill Council, de- termining the day upon which the provisions of article 2168 shall come into force in such registration division, respect- ing the localities whereof the plan of the lands has been so filed ; and from the date of the period fixed in such proclama- i ■•> \ > i 284 RB0I8TBATI0N OF RSAL RIGHTS. tion, all the provisions of this Code apply to such plan and book of reference, and to all lands and property comprised in the said plan, and to all con- tracts, hypothecs or ■ deeds whatever, concerning or affect- ing such lands in the same manner as if the plan of the whole registration aivision had been deposited in conformity with article 21WJ.-R. S. Q. 584H. 21766. The Commissioner of Crown Lands may cause to be published in the Quebec Official Gazette the book of reference of any or all the localities included in the registration division— /und 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. [Nevertheless, in places where there are no official numbers given to the lands be- longing to railways, registrars, when reqtiired to give certifi- cates respectinflc the lands tra- versed by any such railway, are not bound to mention the judgments and hypothecs re- gistered against such railway, unless specially requested so to do.j-Si v., c. o4 C. N. 2H)6; C. C. P. 771 et s. 2178. He is bound to de- liver, to all persons demanding the same, copies of the acts or documents legistered, 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. 2 1 70. He is alsa bound to allow all persons desirous of examining the entry book dur- ing his office hours to take com- munication of the same without removing it, and free from charge. He must likewise, upon pay- ment 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. He is also bound, upon pay- ment of the fee lawfully exi- gible, to communicate the index to immoveables to all persons PRESOmiPTION. 285 who desire to examine the name without removal.- R.S.Q. 5849. 2180. The entries upon the registers and lx>olcs Icept by the re)ered and tran- scribed in the order in which it is produced and mention must be made in the margin of the register of the hour, day, month and year when it was de- posited in the office for regis- tration. The registrar is bound, when n^quired to do so, to give the person who presents a docu- ment for registration a receipt indicating the numl>er under wliich such document is en- tered in the entry-boolc.— C. N. 2181. Kvery register for re- gistration must, before any entry is made therein, be au- thenticated in the manner pre- scribed in the Code of Civil Procedure. 60 V., c. 50, s. 37.-- C. N. 2201 ; C. C. P. 1317. 2 1 82. The provisions of the preceding article apply equally to the entry-book and to the index to immoveables. TITLE N I NETEENT H. OF PRESCRIl^ION. ;;,f / fvit BuW CHAPTER FIRST. GENERAL PROVISIONS. 2183. Prescription is u means of acquiring, or of being discharged, by lapse of time, and subject to conditions estab- lished by law. In positive prescription, title is presumed and confirmed and ownership is transferred to a Eossessor by the continuance of is possession. 6 Extinctive or negative pre- scription is a bar to, and in some cases precludes, any action for the fulfilment of an obligation or the acknowledgment of a right when the creaitor has not preferred his clfiim within the time tlxed by law.— C. N. 2219. 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 oegun.— C. N. 2220; C. C. 2227, 2229. 2185. Renunciation of pre- scription is express or tacit. Tacit renunciation results from any act bv which the abandon- ment to the right acquired may be presumed.- -C. N. 2221. 2180. Persons who cannot alienate cannot renounce pre- scription acquired.— C. N. 222SI. 2187. Any person interested in the acquiring of a prescrip- tion, may set it up although the debtor or the possessor have renounced it.— C. N. 2225; C. C. 2229. 2188. The court cannot of its own motion supply the de- fence resulting from presump- tion, except in cases where the 1 i''M. it/'i M^ H*!' Mi ■I? Il:'i U^^-\' !, iM': 286 PBISOBIPnON. riiicht of action is denied.— G. N. 2223 ; G. G. 2267. 2180. Prescriptions in re- spect of immoveable property are governed by the law of the place where it is situated.— C. C. 6. 2100. As regards moveable property and personal actions, even in matters of bills of ex- change and promissory notes and commercial matters in general, one or more of the following prescriptions may be invoked. 1. Any prescription entirely acquired under a foreign law, when the cause of action did not arise or the debt was not stipulated to be paid in Lower Canada, and such prescription has been so acquired before the possessor or the debtor has bis domicile therein. 2. Any prescription entirely acquirea in Lower Canada, reckoning from the date of the maturity of the obligation, VI hen the cause of action arose or the debt was stipulated to be paid therein, or the debtor has his domicile therein at the time of such maturity ; and in other cases from the time when the debtor and possessor be- comes domiciled tnerein ; 3. Any prescription resulting from the lapse of successive periods in the cases of the two preceding paragraphs, when the first period elapsed under the foreign law.— C. C. 6. 21 91. Prescriptions com- menced according to the law of Lower Canaoa, are com- {deted according to the same aw, without prejudice to the right of invoking those ac- quired previously under a for- eign law, or by a union of periods under both laws, con- formably to the preceding ar- ticle. CHAPTER SECOND. OF POSSESSION. 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.— C. N. 2228. 219d. For the purposes of prescription, the possession of a person must be continuous and uninterrupted, peaceable, public, unequivocal, and as proprietor.- C. N. 2229. 2104. A person is always presumed to possess for himself and as proprietor, if it be not E roved that his possession was egun for another. 2195. When possession is begun for another, it Is always presumed to continue so, if t here be no proof to the contrary. 219(t. Acts which are merely facultative or of suiierance can- not be the foundation either of possession or of prescription.- C. N. 2232. 2197. Nor can acts of vio- lence be the foundation of such a possession as avail for pre- S! ription.- C. N. 2233. 2198. In cases of violence or clandestinity, the possession which avails for prescription begins when the defect has ceased. Nevertheless the thief, his heirs and successors by univer- sal title, cannot by any length of time prescribe the thmg stolen. Successors by particular title do not suffer from these defects in the possession of previous holders, when their own pos- PRBBOBIPTION. 281 session has been peaceful and public. -C.N. 2233; C.C. 2168, r. 5. 2100. An actual possessor who proves that he was in pos- session at a former period is }resuined to have possessed dur- ng tlie intermediate time, un- ess the contrary is proved.— C.N. 2234. 22 OO. A successor by par- ticular title may join to his pos- session that of his author in or- der to complete prescription. Heirs and other successors by universal title continue the pos- session of their author, saving the case of interversion of title. ~C. N. 2233, 2235, 2237 ; C. C. 2205,2208. CHAPTER THIRD. OF THE CAUSES WHICH HINDER PRK8CRIPTION, AND 8PEt;iAL- LY OF PRECARIOUS POSSES- SION AND OF SUBSTITUTIONS. 2201. Things which are not objects of commerce cannot be prescribed. Special provisions explanatory of tne present article are to be found m the fourth chapter of this title. -C. N. 2226, 2232. 2202. Good faith is always presumed. He who alleges bad faith must prove it.— C. N. 2262, 2268. 2208 Those who possess for another or under acKnowledg- ment of a superior domain, never prescribe the ownership, even by the continuance of their possession after i he term fixed . Thus emphyteutic lessees, tenants, depositaries, usufruc- tuaries and those who hold precariously the property of an- other cannot acquire it by pre- scription. They cannot by prescription I liberate themselves from the i obligation of paying duesattach- ed to their possession, but the measure of such dues and any arrears thereof are prescrip- tible. Emphyteusis, usufruct and other like proprietary' rights are susceptible or a distinct owner- ship and of a possession avail- able for prescription. The pro- prietor is not hindered by the title which he has granted from prescribing against these right s. He who has been put in de- flniti.e possession of the pro- perty of an absentee only iK'gins to prescribe against him or his heirs or legal represenUitives when such absentee returns or his death becomes known or may be legally presumed.— C.N. 22:^6, 2239; C. C. 101, 102, 22:32, s. 4,2250. 2204. Heirs and successors by universal title of those whom the preceding article hinders from prescribing, cannot them- selves prescribe.— C. N. 22:^7. 2205. Nevertheli^ss the per- sons mentioned in artivles 2203 and 2204 and also persons charged with a substitution, may, if a title have been inter- verted, begin a possession avail- able for prescription, dating from the information given to the proprietor by notification or other contradictory acts. Such notitlcation of title and other contradictory acts only avail when made to or in re- spect of a person against whom prescription can run. -C.N. 2238 ; C. C. 2200, 2208. 2200. Subsequent purchas- ers in good faith, under a trans- latory title derived either from a precarious or subordinate possessor or from any other per- son, may prescribe by ten years against the proprietor 288 PBK80BIPT1ON. during such subordinate or pre- carious holding. Third parties nmy also, dur- ing a sulmrdinate or precarious holding, preHcriln^ against the proprietor by thirty years with or without title. -C. N. 22:iO, 2257.- C. C. 2242, 2251 et s. 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 universal t tie. Prescription runs against the substitute before the opening of the right, in favor of third par- ties, unless he is protected as a minor, or otherwise. Any substitute, against whom Erescription thus runs may ring an action to interrupt it. The possession of the institute avails the substitute, for the purpose of prescription. Prescription runs against the institute during the time of his possession nna in his favor against third parties. After the opening, prescrip- tion may begin to lun in favor of the institute and of his heirs and successors by universal title.-C. N. 2241 ; C.C. 949, 2205. 2208. No one can prescribe against his title, in this sense that no one can change the cause and nature of his own posses- sion, except by interversion.-- C- N. 2240 ; C. C. 2200, 2205. 2200. A person may prescribe against his title in the sense that he maybe freed by prescrip- tion from an obligation he has contracted.— G. N. 2241. 22 lO. Positive prescription by thirty years takes place, for the contents of corporeal im- moveables in excess of what is given by the title, and negative prescription takes place by the same time in all ca^es, in dimin- ution of obligations which the title imposes. In the matter of dues and rents, the enjoy i rent of more than the title shows a right to, does not give rise to the acqui- sition of such excess by pre- scription.- C. C. 1504. CHAPTER FOURTH. OF CERTAIN THINGS IMl'HK- SCRIPTIBLE AND OF PlllVI- LK(iKD PRESCRIPTIONS. 2211. The crown mav avail itself of prescription. Tne sub- ject may interrupt such pre- scription by means of a petition of right, apart from the (jases in which ^he law gives another remedy. Among privileged persons, the privilege takes effect in the matter of prescription. — C. N. 2227 2212. The rights of the crown with regard to sovereign- ly and allegiance are impre- scriptible.- C. N. 2226. 2213. Sea-beaches and lands reclaimed from the sea, ports, navigable and floatable rivers, their banks and the wharves, works and roads connected with them, public lands, and gener- ally all immoveable pri-perty and real rights forming part of the domain of the crown are imprescriptible.— C. N. 2226, 538, 540. 541 ; C. O. 400, 402, 403. 2214. The rights of the crown to the principal of rents, dues, and revenues owing and payable to it, and to the capital sums accruing from the aliena- tion or from the use of crown property, are also imprescrip- tible. 2215. All arrears of rents, dues, interest and revenues, and all debts and rights, belonging PMSORIPTION. 289 to the crown, not declared to be imprescriptible by the preced- ing articles, are preHcribed by thirty years. Subnequent purchasers uf im- moveable property charged therewith cannot be lU>erated by any shorter period. ~C. N. 2227 ; C. C. 2250. 2216. Property escheated to the crown by failure of heirs, bastardy or forfeiture is not con- sidered as incorporated or us- siniilatcd 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 pos- session, in the name of the crown, of the totality of the rights thus escheated in the particular ease. Until such incorporation ur assimilation, such properly con- tinues to be subject to the ordi- nary prescriptions.— C. N. 2227 ; C. C. 35, 401, 006, (W7, 2217. Sacred things, so long as their destination has not been changed ot lierwise than by encroachment, cannot be ac quired by prescription. Burial grounds, considered as sacred things, cannot have the?r destination changed, so as to be liable to prescription, until tlie dead boaies, sacred by their nature, have been removed.— C. C. 2201. 2218. Positive prescription of corporeal immoveables not sacred, and negative prescrip tion as regards the principal 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 private persons. Purchasei*8 with title and good faith prescribe against the church by ten years, whether positively or negatively, in the same way as against private persons. Positive prescription of cor- {Mireal moveables not sacred, and the other negative prescrip- tions, including ttiat of capital sums, take place against the church as against private per- sons. C. N.2227. 22 1 ». The right to tithes and the rate of the tithe are mipre- scriptible. Positive prescrip- tion by forty years runs l)e- tween neighboring rectors. Arrears of tithes can only be demanded for one year. Tithes must Im; paid at the residence.- -R. S. Q, rector s 58.50. 2220. wharves, squares. Roads, streets, landi. g places, markets and other pfaces of a like nature, possess- ed for the general use of the public cannot be acquired by prescription, so long as their destination has not been changed otherwise than by tolerating the encroachment.— C. N. 53H, 2227. 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. CHAPTER FIFTH. OF THE CAUSES WHICH INTER- RUrX OR SUSPEND PRESCRIP- TION. SECTION I. Of the Causes which Interrupt Prescription. 2222. Prescription mav be interrupted either naturally or 19 290 PRB80BIPTI0N. clvllIy.-C. N. 2242 ; C. C- 2085, 2266,2204. 2228. Natural interruption takes place when the poamessor is deprived, during more than a year, of the enjoyment of the thing either by the former pro- prietor or by any one else.— C. N. 2243 ; C. C. 21tt3, 2199. 2224. A judicial demand in proper form, served upon the person whose prescription it is sought to hinder, or filled and served conformably to the Code of Civil Procedure when a per- sonal service is required, creates a civil interruption. Seizures, set-off, interven- tions and oppositions are con- sidered as juaiclal demands. No extra-judicial demand, even when made by a notary or bailiff, and accompanied by the titles, or even signed by the party notified, is an interrup- tion, if there lie not an acknow- ledgment of the right.— C. N. 2244; C. C. 2211. 2225. A demand brought be- foreacourtof incompetent juris- diction does not interrupt pre- script ion. -C. N. 2246. 222e. 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 dismissed.- - C. N. 2247 ; C. C. 2265. 2227. Prescription is inter- rupted civilly by renouncing the benefit of a period elapsed and by any acknowledgment which the possessor or the debtor makes of the right of the person against whom the pre- scription runs.— C. N. 2248; C.C. 1229, 1236, s. 1, 2184 et s. 2228. A judicial demand brought against the principal debtor, or his acknowl^gment, interrupts prescription as re- gards the surety. The same acts against or by a surety interrup: prescription as re- gards the principal debtor.— I. N. 2260. 2220. Renunciation by any person of a prescription ac- quired does not prejudice his co-debtors, his sureties or third parties.— C. C. 2187. 2280. Every act which in- terrupts prescription with re- gard to one of joint and several creditors benents the others. When the obligation is in- divisible, acts of interruption with regard to some only of the heirs of a creditor benefit the others. If the ol)ligation be divisible, even when tlie debt is hypothe- cary, acts of interruption in behalf of some only of such heirs do not benefit the other heirs. In the same ease these acts only benefit the other joint and several creditors for the share of the heirs with regard to whom such acts have been done. In order that the interrup- tion should in this case produce the full effect with regard to the other joinc and several creditors, it is necessary that the acts which interrupt should have been done as to all the heirs of the deceased creditors. -C. N. 1199, 2249; C.C. 1102, 2239. 2231. Every act which inter- rupts prescription by one of joint and several debtors, inter- rupts it with regard to all. Acts of interruption with regard to one of the heirs of a debtor, interrupt prescription with regard to the other neirs PRK80RIPTI0N. 291 and Joint and several debtors, when the obligation Is indi- visible. If the obligation be divisible, even when tne debt is hypothe- cary, a judicial demand brought against one of ihe heirs of a joint and Neveral debtor, or his acknowledgment, does not interrupt prescription with regard to the other heirs; without prejudice to the right of the creditor to exercise his hypothec within the proper time on the whole of the im- moveable 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 co-debtors for the share of the heir who is sued or has acknowledged the right. In order that m this case the in- terruption should take place for the whole with regard to the joint and several co-debtors, it is necessary that the judicial demand or the acknowledg- ment should take place witli regard to all the heirs of the deceased debtor. Acts which interrupt pre- scription with regard to the debtor do not Interrupt pre- scription by a third party hold- ing the immoveable property burthened with any charge or hypothec; they affect him in the sense that they hinder the extinction by prescription of the debt to which tlie hypothec is attached. These acts against the holders 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 interrupt pre- scription with regard to the others. In natural interruption, how- ever, it suffices that one of the possessors of undivided pro- perty, or an heir of one of them, should have kept useful posses- sion of the whole in order to secure the advantage of it to the others. C. N. 1206, 2249; C. C. 505, 1110. HKCTION II. Of the Causes which Suspend the Course of Prescription. 2282. Prescription runs against all persons, unless they are included in some exception established by this code, or un- less it is absolutely impossible for them in law or in fact to act by themselves or to be represented by others. Saving what is declared in article 2260, prescription does not run, even in favor of subse- quent purchasers, against those who are not l)orn, nor against minors, idiots, madmen, or in- sane persons, with or without tutors or curators. Those to whom a judicial adviser is given, and persons interdicted for prodi-cality, dt> not enjoy this privilege. 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 the absentee. — C. N. 2251 ; C. C. 101, 102, 106, m), 2208, 22.58. 2233. Husband and wife cannot prescribe against each other.—C. N. 2253. :.]■ I 292 PBIBOBIPTIOll. 2284. Prescription runn against a married woman, whether Heparated or in com- munity, wltli respect to her private property, including her dowiy, even when her husoand has the adminiHtration 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 ner consent, and In all cases where the action against the debtor or the possessor would turn against the huNband, pre- scription does not run against the married woman, even in favor of subsequent purchasers. — C. N. 2254, 2256. 2285. Neither does prescrip- tion 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 dis- solved during the marriage ; at the time of which dissolution prescription begins against the wife, as regards the rights which she may then exercise in consequence of such dissolu- tion. Saving what is excepted in the present article, prescription acquired or which has run against the property of the community aftects the share of the wife who accepts.— C. N. 2255, 2256 ; C. C. Ill, 208, 1322, 1404, 1438, 1440. 2286. Prescription of per- sonal actions does not run : With respect to debts depend- ing on a condition, until such condition happens ; With respect to action in warranty until the eviction talces place ; With respect to debts with a term, until the term has ex- pired.- C. N. 2267. 2287. Prescription does not run against a lieneflciarv heir, with respect to claims he has against the succession. It runs against a vacant succession al- though there Ite no curator.-— C. N.2258; C. C. 671, s. 2. 2288. It runs during the delays for malcing an inventory and deliberating.— C. N. 2250. 2280. The particular rules concerning the suspension of prescription with regard to joint and several creditors and their heirs are the same as those concerning interruption in like cases, explained in the pre- ceding section.— C. C. 2230. CHAPTER SIXTH. OF THE TIME REQUIRED TO PRESCRIBE. SECTION 1. General Provisions. 2240. Prescription is reck- oned by days ana not by hours. Prescription is acquired when the last day of the term has ex- pired ; the day on which it commenced is not counted.— C. N. 2260, 2261. 2241. The rules of prescrip- tion in other matters than those mentioned in the present title are explained in the parti- cular titles relating to such matters. PRBSCBIITIoif. 293 HKCTION II. Of PrfMcrijifion by Thirty Venrs, of Prencription of HentH arid Interisf, and of the duration of thr Plen of PreHoription, 2242. All thhtf^H, rif^hts nnd nctioriH thu prescription of which iN not otherwise regu- lated by law, are preacrilied by thirty years, without the party prescrfning being bound to pro- duce any title, an. After ten years, arch- itects and contractors, are dis- charged from the warranty of the work they have dune or directed. —C. N. 2270; C. C. 1688. SECTION V. Of certain Short Preccriptions 2200. 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 ; a. Against advocates, attor- neys, notaries and other otticei-s or functionaries who are de- positaries in virtue of their office, fur the recovery of papers and titles confided to them ; reckoning from the termination of the proceedings in which such papers and titles were made use of. or, in other cases from the date of their recep- tion ; 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 commerci.il nature, reckoning from maturity ; this prescription however does not apply to bank notes ; 5. Upon sales of moveable ef- fects between non-traders or between traders and non- traders, these lat ter sales being in all cases held to be commer- cial matters ; 6. For hire of labor or for the price of manual, professional or intellectual work and materials furnished ; saving the excep- tions contained in the following article^- : 7. For visits, services, opera- tions and medicines of physi- cians or surgeons, reckoning from each service or things furnished. The t)ath of the physician or surgeon makes proof as to the nature and dura- tion of the services. -R. S. Q. 5851 ; C. N. 2272, 2273, 2276 ; C. C. 1734, 2267. 2201. The following actioi.s are prescribed by two } ears : 1. For seduction, or lying-in expenses ; 2. For damages resulting from offences or quasi - offences, whenever other provisions arding-house ,? ij»I charges.-C. N. 1781, 2272 ; C. C. 2267. 2263. Short limitations and prescript ionfs established by acts of parliament, follow the rules peculiar to them, as well in matters respecting the rights of the Crown as in those respect- ing the rights of all others. 2204. After renunciation or interruption, except as to pre- scription by ten years in favor of Bubsequent purchasers, pre- scription recommences to run for the same time aa before, if there be no novation, saving the provisions of the following arti- cle. -C. C. 2255. 21105. Any action which is not declared to be perempted, and any judicial condemnation, constitutes a title which is only prescribed by thirty years, al- though the subject matter thereof be sooner prescript! ble. A judicial admission inter- rupts prescription, even in an action the peremption of which is declared or wliich is other- wise insuificient to interrupt it alone ; but the prescription which recommences is not thereby prolonged.— C N. 2214, 2247, 2248 ; C. C. 2220, 2206. A continuation of like services, work, sales or supplies, does not hinder a prescription, if there have been no acknow- ledgment or other cause of in- terruption. C. N. 2274. 2207. In all the cases men- tioned in articles 225(), 22(30, 2201 and 22()2 the del)t is absolutely extinguished and no action can be maintained after the delay for prescription has expired. — C. N. 2275 ; C. C. 2188. 2208. Actual possession of a corporeal moveable, by a person as proprietor, creates a pre- sumption of lawful title. Any party claiming such moveable. must prove beside his own right, the defects in the posses- sion or in the title of the posses- sor who claims prescription, or who, under the provision of the present article, is exempt from doing so. Prescription of corporeal moveables takes place after the lapse of three years, reckoning from the loss of possession in favor of possessors in good faith, even when the loss of pos- session has been occasioned by theft. This prescription is not, how- ever, necessary to prevent revendication 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 commer- cial matters generally ; saving the exception contained in the fol I o w ing paragraph . Nevertheless, so long as pre- scription has not been accjuired, the thing lost or stolen may be rever.dicated, although it have been l)ought in good niith in the cases of the preceding para- graph ; but the revendication in such cases can onlv take place upon reimbursing tne purchaser for the price which he has paid. If the thing have l)een sold under the authority of law, it cannot in any case, be reven- dicated. The stealer or other violent clandestine possessor of a thing, and his successors by general title, are debarred from pre- scribing bv articles 2197 and 2198. -C.N. '2279, 2280 ; C.C. 1488, 1489, 1490 ; C. C. P. 6(>8. 2200. Prescriptions which the law fixes at less than thirty years, other than those in favor of subsequent purchasers of im- moveables with title and ingood faith, and that in case of res- COMMERCIAL LAW. 297 cission of contracts mentioned in article 2258, run againnt minors, idiots, madmen and in- sane persons, wlietlier or not they have tutors or curators, saving their recourse agiunst the latter. -C.N. 227H ; C.C.22a2. SECTION VI. Transitory Provisions. 2270. Prescriptions bepjun liefore the promulgation of this code, must be governed by the former laws. Nevertheless prescriptions then begun, for which, accord- ing to these laws, an immemo- rial duration or one of a hundred years is required, are acquired without respect to such neces- sity. OF IMPRISONMENT IN CIVIL CASES. 2271. o(), s. S8. 2272 2273. 2274. Repealed by 00 V. v. Ibid. Ibid. Ibid. 2275. Ibid. 227 «. Ibid. 2277. Ibid. Vide C. C. P. 832 et s. M\ BOOK FOURTH COMMERCIAL LAW. (iKNKBAL I'ROVISIOXS. 227H. The principal rules applicable in commercial cases which are not contained in this book are declared in the several preceding books, and more especially in the titles Of Obligations, Of sale ^ Of lease, Of mandate. Of pledge. Of part- nership and Of prescri2)tion, in the third book. III m 298 TITLE FIRST OF BILLS OF EXCHANGE, NOTES AND CHEQUES. Articles "2279 to 2354, both in- clusive, of the Civil Code of Lower Canada tuive titeii re- pealed by " The Bills of Ex- cfuinge Act, 1S!)0" except in so far as these articles, or any of them, relate to evidence in regard to bills of exchange, cheques, and promissory notes, " The Bills of Exchange Act, 1S[K)," is reproduced in the Appendix, with all amend- ments to date. The following are the articles of the Civil Code that relate more or less directly to evidence in regard to bills of exchange, cheques, and promissory noteit. —Editor. , . . 2340. In all matters relating to bills of exchange not pro- vided for in this code or the Ff deral laws, recourse must be had to the laws of England in force on the thirtieth day of May, one thousand eight hun- dred and forty-nine.- R, S. Q. 6251 ; B. N. A. act, 1807, ss. 91 and 92. 2ii41. 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 in the last preceding article, and no additional or different evidence is reiiuired or can be adduced by reason of any party to the bill not being a trader. 2342. The parties in the actions or suits specified in the last preceding article may be examined under oath as pro- vided in the title Of Oblig- ations. 2354. In the absence of special provisions in this sec- tion, cheques are subject to the rules concerning inland bills of exchange in so (ar as their application is consistent with the usage of trade. TITLE SECOND. OF MERCHANT SHIPPING. 2355. Subject to the pro- visions of the following para- graph, the law of the Imperial parliament, respecting mer- chant shipping, contains pro- visions concerning British ships in the province of Quebec, in all matters to which such pro- visions extend and are appli- cable therein. The following Federal laws contain provisions concern- ing ships, in all matters regu- lated by such laws : MERCHANT SHIPPING. 299 1. The law respecting the registration and classi^cation of shipping ; 2. The law respecting the Hliipping of seamen ; 3. Tlie law respecting the shipping of seamen on inland waters ; 4. The law respecting wrecks, casualties and salvage ; 5. The law respecting the safety of ships and the preven- tion of accidents on board thereof ; 6. The law respecting the navigation of Canadian waters ; 7. The law respecting the liability of carriers by water ; 8. Tlie law respecting the coasting trade of Canada.— R. S. Q. 6254; R. S. C, cc. 72, 74, 75, 77, 79, 81, 82 and 83. CHAPTER FIRST. OFTHERK(JISTRAT(ON OF SHIPS. 2350. The registration of British ships, when necessary, is ettected in the manner and according to the rules and forms prescribed in the laws for that purpose mentioned in the preceding article.— H. S. Q. 62.55 ; R. S. C. c. 72. 2357. Every ship propelled either wholly or in part by steam, whatever her tonnage as well as ev» ry ship not propelled wholly or in part by steam, of more than ten tons burthen, and having a whole or fixed deck, although otherwise by law deemed to be a British ship shall, to be recognized as a British ship and to be admitted to the privileges of a British ship in Canada, l)e registered in the manner and according to the formalities prescribed in the Federal law respecting the regi'>tration or clussiflcation of ships. 2. The owner of a vessel, not l)eing a ship, within the mean- ing of the preceding paragraph, must obtain a license from the otticer authorized to grant the same, the whole in the manner and under the conditions pre- scribed in the above nientioned Federal act.— B. S. Q. «25C) ; R. S. ('., c. 72, ss. 5 and 25. 235M. The special rules con- cerning the measurement of vessels of the description men- tioned in the preceding article, concerning builders' certifi- cates, change of masters and change in the name of such vessels, certificHtes of registra- tion and endorsement thereof, permits and those concerning the powers and duties of col- lectors and other officers in relation thereto, are contained in the Federal act above re- ferred to.- R. S. Q. 625(5; H. S. C, c. 72. CHAPTER SECOND. OF THF<: TRANSFER OF RIXJIS- TFREO VKSSKLS. 2359. The transfer of regis- tered British ships can be made only by a bill of sale executed in tihe presence of one or more witnesses, containing the re- cital specified in the Imperial law respecting merchant ship- ping, and entered in the book of registry of ownership in the manner in the said law pre- scribed. The rules respecting the per- sons qualified to make and receive such transfers and re- specting the registry and certi- ficate of ownersliip and priority of right are contained in the said law.-R. S. Q. 6257; H. S. C, cc. 72 and 12(), s. 52. 230O. The transfer of ships registered in Canada is etleoted in accordance with the prov i; ii n ! ■ I .:i^ 300 MERCHANT SHIPPINn i sions of the preceding? article.- R. S. Q. «258 ; R. S. C, c. 72. 2302. Transfers of ships and vessels of the description speci- fied in articles 2359 and 21300 not inadean contracts of affrei^litment to the same rules ms if he were owner. 240». The ship, with her equipments, and the freiji^ht are bound to the performance of the obligations of the lessor and the cargo to the perfornv ance of the obligations of the lessee or freighter. 24 10. If before the depart- ure of the vessel there be a de- claration of war or interdiction of trade, with the country to which she is destined, or by reason of any other event of irresistible force, the voyage cannot l)e prosecuted, the con- tract is dissolved, without either party being liai)lo in damagf's. The expense of loading an«l unloading the cnrgo is borne by the freighter. 241 1. If the port of destina- tion be closed, or the ship de- tained by irresistible force, for a time only, the contract sub- sists 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 obstruc- tion arise during the voyage ; and no increase of freight can be demanded. 2412. The freighter may nevertheless unload the goods during the detention of the ship for the causes stated in the last preceding article ; subject to the obligation of reloading after the obstruction han ceased, or of indemnifying the lessor for the full freight ; unless the goods are of a perishable nature and cannot be replaced, in which case freight is due only to the placre of the discharge. 24 i:i. ContractH of alfreight- nuMit an is title. • ■ .. ;...,, -1 . .. ..'. CII.VPTKR SECOND. OF CHARTKH PARTY. 24 1 4. AfVrei g h t m e n t by charter-party may be either of the whole ship or of some prin- cipal nart of it. and for a deter- minecl voyage or a specified time. 2415. The charter-party, or memorandum of charter-party, usually specifies the name ana burden of the ship with a stipu- lation that she is tight and staunch and well furnished and e(j nipped for the voyage. It also contains stipulations as to the time and place of loading, the day of sailing, the rate and pay- ment of freight, and the con- ditions of denmrrage, with a declaration of the fortuitous events which exeinpt the lessor from liability, and such other coven atits as the parties may see tit to add. 2410. If the time of loading and unloading the ship, and the demurrage be not agreed upon, they are regulated by usage. 2417. When goods are put on board of a ship in ])ursuance of a charter-party the master signs a bill of lading for them to the effect mentioned in arti- cle 2420. 20 306 AFFREIUHTMINT. 2418. If the whole of the Hhip V)e leased, but it be not wholly loaded by the levnee, the nmHter cannot receive other car^^o without bin couMent ; in cu.se of any otiier cargo l>eing received the lesHee is entitled to the reiKht of it. CHAPTER THIRD. OF THK CONVKYANCK OF JJOODS IN A UENKHAL SHIP. 241l> The contract for the conveyance of goodb in a gene- ral ship iH that by which the master or theowilar of a ship destined forupartiouljir voyage engages separately with various persons, unconnected witli each other, to convey their respective j;oods according to the bill of ading to the place of their des- ination and there to deliver ;heni. CHAPTER FOURTH. OF THK BILL OF LADINd. 2420. The bill of lading is signed and delivered by the master or purser, in three or more parts, of which the master retains one ; the freighter also keeps one, and sends one to the consignee. Bep.ides the name of t he par- ties and of the ship, it states the nature and quantity of the goods shipped, with their marks and numbers in the margin, and the place of their delivery, the name of the consistnee, the place of shipping and of ship's destination, with the rate and manner of payment of the freight, and primage and aver- age. 2421. When by the bill of a ding the delivery of the goods is to be made to a person named or to his assigns, such i)erHon may transfer his right by en- dorsement and delivery of the bill of lading, and the owner- ship of the goods and all rights ana liabilities in respect thereof are held to pass thereliy to the indorsee ; subject nevertheless to the rights of third persons. 2422. The freighter or lessee upon the signing and delivery to him of the bill of lading, is bound to return the receipts given by the master for the floods shipped. The bill of lad- ng, in the hands of a consignee or endorsee, is conclusive evi- dence against the party signing it ; unless there is fraud, of which the holder is cognizant. CHAPTER FIFTH. OF THE OBLIOATIONS OF THE OWNER OR LESSOR AND OF THE MASTER. 2423. The lessor is obliged to provide a vessel of the stipu lated burthen, tight and staunch, furnished with all tackle and apparel necessary 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 voy- age. The master is obliged to take on board a pilot, when by the law of the country one is required. 2424. The master is obliged to receive the goods, and care- fully arrange and stow them in the ship, and to sign such bills of lading as n)ay l)e required by the freighter or lessee, accord- ing to article 2420, upon receiv- ing from him the receipts given for the goods. 2425. The goods must not be APPREiailTMENT. :m bliged care- lem in ;h billK red by iccord- receiv- given stowed on deck without the con- Hent of the freighter, ilniesH in H partictihir trade or in inland or coasting voyages, where there is an eNtahli.shed usage to tliat ert'ect. If without such consent or usage the goods Ik* 80 stowed ami are lost l>y peril of the sea the master is person ally liable. 242fl. The ship must sail on the day flx»'d by the contract, or, if no day be fixed, within a reasonable time, according to circumstances and usage ; and nnist proceed to her des- tination without deviation. If by the fault of the master the ship be delaye(' in her depart- ure, or during the voyage, or at the place of discharge, or any loss or injury occur, he Is liable in damages. 2427. The master is obliged to exercise all needful care of the cargo, and, in case of wreck, or other obstruction to the voyage by a fortuitous event or irresistible force, he is obliged to use the diligence and care of a prudent administrator for the preservation of the goods, and for their conveyance to the place of destination, and for that purpose to engage another ship, if it be necessary. 2428. On the completion of the voyage, and after due com {)liance with the laws and regu- ations of the port, the master is obliged to deliver the goods without delay to the consignee or his assignee, on production of the bill of lading or payment of the freight and other charges due in respect of it. 2429. The goods must be delivered in conformity with the terms of the bill of lading and according to the law or usage observed in the place of delivery. 24JlO. Whenever any vessel has arrived at its destination in any port in Lower Canada, and the master thereof has notified the consignee either by public advertisements or other- wise, that such cargo has reached the place designated in the bill of lading, such consignee is bound to receive the same within tweniy-four hours after notice ; and ' thereafter such cargo, so soon as placed on the wharf, is at the risk and charges of the consignee or owner. 24»l. The time allowed for the discharge of cargoes con sisling of certain kinds of iner chandise is regulated by the laws respecting the discharging of cargoes of vessels.— R. S. Q., art. 62«i5; R. S. C, c. IM). 2482. Neither the owner nor master is exempt from liability for loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of the ship.— R. S. Q., art. «2«) ; R. S. C, c. HO, s. 57. 243J). The owner of a sea- f;oingship is not liable for the OSS or damage occasioned to any goods, wares, merchandise and article of any kind, on board any such vessel or delivered to him for conveyance therein, without his actual fault or privity, or the fault or neglect of his agents, servants or employees : 1. By reason of fire, or the dangers of navigation; 2. By reason of any defect in, or the nature of, the goods themselves or from armed rob- bery or other irresistible force ; or, 3. By reason of any robbery, theft, embezzlement, removal or secreting of any gold, silver, diamonds, watches, jewels or m 308 AFFRKIGHTMENT. precious stones, or valuable securities, or articles of great value, not lieing ordinary mer- chandise, unless the true nature and value thereof have at the time of their delivery for con- veyance, been declared by the owner or shipper thereof to the carrier or agent or servant, and entered in the bill of lading, or otherwise in writing. —-R. y. Q. 6267 ; R. S. C, c. 82, ss. 1 and 2, §4. 24!i4. In any case of loss of life or personal injury, damage or IcfiS to anything on board of a sea-going ship without any actual fault or privity on the part of the owner of the vessel on board of vrhich or through the fault of v/Lich the loss hap- pened, such owner is not re- sponsible for the damage or the loss occasioned to an amount exceeding the sum of thirty- eight dollars and ninety-two cents per ton of the ship's regis- tered tonnage in the case of sailing vessels, and of the gross tonna^^^e, without deduction from the engine room in case of steam vessels. The owner however remains always responsible in the same manner for every such loss and damage arising on distinct occasions to the same extent, as if no other loss or damage had arisen.— R.8.Q. 6208; R.S.C., c. 79, s. 12. 2435. The freight mentioned in the iast preceding article is, for the purposes thereof, deemed to include the value of the carriage of any goods be- longing to the owners of the ship, passage 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 be earned until the expiration of six months after the loss or damage.' This article 2435 is without effect owing to the pi'ovisions of tne Federal act respecting the navigation of Canadian waters -R. S. Q. 6269 and R. S. C, c. 79, s. 12. 2430. The provisions con- tained in articles 2433 and 2434 do not apply to any master or seaman, being also owner or part owner of the ship to which he belongs, to take away or lessen the liability to which he is subject in his capacity of master or seaman. CHAPTER SIXTH. OF THE OBLIGATIONS OF THE • ■ . SECTION I. General Provisions. 2437. The principal oblig- ations of the lessee are : 1. To load the ship with the stipulated cargo, and within the tijne specified by the con- tract, or, if no time be specified, within a reasonable delay ; 2. To pay the freight with primage and average, and demurrage wlien any is due. 2438. The lessee cannot put on board any prohibited or un- customed goods, by which the ship may be subjected to deten- tion or forfeiture, or goods of a dangerous nature, without no- tice to the master or owner. 2430. If the lessee fail to load the ship fully, as agreed by the charter-partv, or if after loading, he withdraw the goods before the departure of the ship or during the voyage, he is liable AFFREIGHTMENT. 09 to pay the whole freight, and to indemnify the master for all ex- penses and liabilities arising from such withdrawal. 2440. If the ship be delayed in her departure, or during the voyage, by the fault of the freighter, he is liable for de- murrage and other charges. 2441. If the lessee agree to furnish a return cargo, and fail to do so, and the ship of neces- sity return unladen, the lessee is obliged to pay the whole freight, subject, in the latter case, to the deduction of such amount as the ship may have earned on the return voyage. SECTION II. Of Freight, Primage, Average ana Demurrage. 2442. Freight is the recom- pense payable for the lease of n ship, or for carrying goods upon a lawful voyage to the place of their destination. In the ab- sence of express stipulation it is not due until the carriage of the goods is completely per- formed, except in the cases specified in this section. 2443. The amount of freight is regulated by the agreement in the charter-party, or bill of lading, at a gross sum for the whole ship, or a certain part of it, or at a fixed rate per ton or package, or otherwise. If not regulated by agreement, the rate is estimated upon the value of the service performed, according to the usage of trade. 2444. The amount of freight is not atfected by the longer or shorter duration of the voyage, unless the agreement Ije to pay a certain sum bv the month, or week, or other division of time, in which case the freight begins to run, if not otherwise stipu- lated, from the commencement of the voyage, and so continues, as well during its course, as during all unavoidable delay not occasioned by the fault of the master or lessor ; subject nevertheless to the exception contained in the next following article. 2445. If the ship be detained by the order of a sovereign power, freight payable by the time does not continue to run during such detention. The wages of the seamen and the expense of their maintenance are in such case a subject of general average. 2446. The master may dis- charge, at the place of loading, goods found in his ship, if they ave not been declared, or he may recover freight upon them, at the usual rate paid, at the f>lace of loading, for goods of a ike nature. 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 slie is bound, freight is due upon the outward voyage only, al- though a return cargo has been stipulated. 244H. 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 part of the voyage which is ac- complished. 2449. Freight is due upon 310 AFFRBIOHTMENT. the goods which the master has of necessity sold to repair the ship, or to supply it with provi- sions and otner urgent neces- saries, and he is obliged to pay for such goo. is the price which they would have brought at the place of destination. This rule applies equally al- though the ship be afterwards lost on the voyage ; but in that case the price is that at wiiich the goods were actually sold. 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. 2451. Freight is not due upon goods lost by shipwreck, taken by pirates, or captured by a public enemy, or which with- out 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. 2452. If the goods be recap- tured or saved from the ship- wreck, freight is due to the place of capture or wreck, and if they be afterwards conveyed by the master to their place of des- tination, the whole freight is due, subject to salvage. 2458. The master cannot keep the goods in his ship in default of payment of the freight ; but at the time of un- loading, he may prevent them from being carried away, or cause them to be seized. He has a special privilege upon them while they remain in his f}Ossession or the possession of lis agent, for the payment of his freight, with primage and accustomed average, as ex- pressed in the bill of lading. 2454. The c -^nee, or other authorized rson who receives the good s bound to grant a receipt for (hem 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. 2455. Goods which are dim- inished in value or damaged by reason of intrinsic defect in them, or by a fortuitous event, cannot be abandoned for freight. But if without any fault of the freighter, casks containing wine, oil, honey, molasses, or other like things, have leaked so much that they are nearly or altogether empty, the casks may be abandoned in satisfaction of the freight. 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 payable to the master m his own right, unless there is a stipulation to the contrary. 2457 . Demurrage is the com- pensation to be paid by the freighter for the detention of the ship beyond the time agreed upon, or allowed by usage, for loading and discharging. 2458. Any person who re- ceives the goods under a bill of lading importing an obligation to pay demurrage, is liable for sucn demurrage as may become due on the discharge of the CARRIAOB OF PA8SEN0ERS. ETC. 311 goodn ; subject to the rules de- clared in article 2454. 2459. Demurrage under ex press contract is due for all delays which are not caused by the shipowner or his agents. It does not begin to be computed until the got)ds are ready to be discharged, after which, if the stipulated time have expired, a further reasonable time mus» be allowed for their discharge. 2460. If the time conditions, and rate of demurrage be not agreed upon, they are regulated by the law and usage of the port when the claim arises. T I T L E F () U R T H . OF THE CARRIAGE OF PASSENGERS IN MERCHANT VESSELS. lo re- )ill of ];ation rie for icome ^f the 2461. Contracts for the car- riage of passengers in merchant vessels are subject to the pro- visions contained in the title Of Affreiffhtrnent, in so far as they can be made to apply, and also to the rules contained in the title Of Lease and Hire, re- lating to the carriage of pas- seniters. 2402. The special rules con- cerning the conveyance of pas- sengers by sea i n passenger ships on voyages from the United Kingdom in this province, or on Colonial voyages, or from this province to the United Kingdom in any ship, are con- tained in the acts of the Impe- rial parliament, entitled re- spectivelv: The Passengers Act, 1855, and The Passengers Act Amendment Act, \S6A, and in the lawful oiders and regula- lations made by competent authority under the same. 2463. Spe".ial rules concern- ing vessels which arrive in the ports of the province of Quebec from any port in the United Kingdom or of any other part of Europe or from any other port outside Her Majesty's posses- sions with passengers or emi- f grants therefrom, and rules re- ating to the rights and duties of the masters of such vessels, and for the protection of such passengers and emigrants are contained in the Federal acts respecting immigrants, emi- grants and respecting quaran- tine. -R. S. Q. 6270; R. S. C, cc. 65, 67 and 68. 2404. 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 inu? to usage and the condition of the parties. 2405. The owner or master has a lien or privilege upon the baggage and other property of the passengers on board the vessel for the amount of the passage money. 2400. The passenger is sub- ject to the authority of the master as declared in the title Of Merchant Shipiiing. 2407. Damages for personal injuries suffered by passengers are subject to the special rules contained in articles 2434, 2435 and 2436. 312 TITLE FIFTH .. >f OF INfeURANCE. ■.U-j"- ■• ■ ("V'.C. CHAPTER FIRST. GENERAL PROVISIONS. SECTION I. OJ the Nature and Form of the Contract. ■'•- 246H. Insurance is a contract whereby one party, called the insurer or utiderwriter under- takes for a valuable consider- ation, to indemnify the other, called the insured, or his repre- sentatives, against loss or liability from certain risks or perils to which the object of the insurance m.iy be exposed, or from the happening of a cer- tain event. 2460. The consideration or Erice which the insured obliges imself to pay for the insur- ance, is calif d the premium. It does not belong to the in- surer until the risk begins, whether he has received it or not. 24 70. Marine insurance is always a commercial contract ; other insurances are not by their nature commercial, but they are so when made for a premium by persons carrying on the business of insurers ; subject to the exception con- tained in the next following art- icle. 2471. Mutual insurance is not commerci il. It is governed by special statutes, and by the general rules contained in this title, in so far as they are appli- cable and not inconsistent with such statutes. 2472. All persons capable of coiuracting may insure objects in which they have an interest and which are subject to risk. 247:<. Incorporeal things as well as corporeal, and also human life and health, may be the object of insurance. 2474. 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. 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 insurance. 247(S. Insurance may be made against all losses by in- evitable accident, or irresistible force, or hy events over -vhich the insured has no control ; subject to the general rules re- lating to illegal and immoral contracts. 2477. The insurer may effect a re-insurance, and the insured may insure the solvency of the first insurer. 2478. In case of loss the in- sured must, with reasonable diligence, give notice thereof to the insurer ; aid he must con- form to such special require- ments as may be contained in the })olicy with respect to notice and preliminary proof of his claim, unless they arc waived by the insurer. tNSURANOlB. Jil3 If it be impossible for the in- sured to give notice or to make the preliminary proof within the delay specitied in the policy, he is entitled to a reasonable extension of time. 2479. Insurance is divided with respect to its object and the nature of the risks, into three principal kinds : 1. Marine insurance ; ' * 2. B'ire insurance ; 3. Life insurance. 2480. The contract of insur- ance is usually witnessed by an instrument called a policy _of insurance. The policy either declares the value of the thing insured and is then called a valued policy, or it contains no declaration of value, and is then called an open policy. Wager or gaming policies, in the object of which the insured has no insurable interest, are illegal. 2481. The acceptance of an application for insurance con- stitutes a valid agreement to insure, unless the insurer is re- quired by law to contract in another form exclusively. 2482. Policies of insurance may be transferred by indorse- ment and delivery, or by de- livery alone, subject to the con- ditions contained in them. But marine policies and fire policies can be transferred only to persons having an insurable interest in the object of the policy. 2483. In the absence of any consent or privity on the part of the insurer, the simple trans- fer of the thing insured does not transfer the policy. The insurance is thereby terminated, subject to the pro- visions contained in article 2576. 2484. The announcements and clauses which are essential or usual in policies of insurance, are declared in articles herein- after contained relating respect- ively to the different Kincls of insurance. SECTION ir. Of Representation and Con- cealment. 2485. The insured is obliged to represent to the insurer fully and fairly every fact whicli shows the nature and extent of the risk, and which may pre- vent the undertaking of it, or affect the rate of premium. 2480. The insured is not obliged to represent facts known to the insurer, or which from their public character and notoriety he is presumed to know ; nor is he obliged to de- clare facts covered by warranty express or implied, except in answers to incpiiries made by the insurer. 2487. Misrepresentation or concealment either by error or design, of a fact of a nature to diminish the appreciation of the risk or change the object of it, is a cause of nullity. The con- tract may in such case be an- nulled although the loss has iot in any degree arisen from Axe fact misrepresented or con- cealed. 2488. B>audulent misrepre- sentation or concealment on the part either of the insurer or of the insured is in all cases a cause of nullity of the contract in favor of the innocent party. 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 coQcealment. 314 INSURANCE. il 1 m 1 -Hi i SECTION III. Of Warranties. 2400. Warranties and condi- tions are a part of the contraca and must he true if attiiniative, and if promissory must b»» com- plied with ; othe>wi. no con- tract may be annulled notwith- standing the good faith of the insured. They are either expressed or implied. 2401. An express *-»->"«.r>y is astipulation or coi .ntio». ex- pressed in the policy, or i- ferred to in it as to maivo of the policy. Implied warranties n^ pavt I be I designated in the follow „ chapters relating to ditferent kinds of insurance. .« . , CHAPTER SECOND. OF MARINE INSURANCE. •? . ; SECTION I. General Provisions. 2402. The policy of marine insurance contains : The name of the insured or of his agent ; A description of die object in- sured, of the voyage, of the com- mencement ana termination of the risk, and of the perils in- sured against ; The name of the ship and master, except when the insur- ance is on a ship or ships gen- erally ; The premium ; The amount insured ; The subscription of the insur- ance with its date. It also contains such other clauses and announcements as the parties may agree upon. 240:i. Insurance may be made on ships, on goods, on freight, on bottomry and re- spondentia loans, on profits and commissions, on prennums of insurance, and on all other things appreciable in money and exposed to the risks of na- vigation, with the exception of seamen's wages, upon which insurance cannot be legally made, and subject to the general rules relating to unlawful and immoral contracts. 2404. Insurance may be "inde for any kind of voyage or ^ »n. ;)ort by sea, river or canal « ■ _,'ition and either for the .1 ► :* "wage or for a limited ti; le, 2405. 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 specified in the policy are tempest and ship- wreck, stranding, collision,uua- voidable change of the ship's course, or of her voyage, or of the ship itself, fire, jettison, plunder, piracy, capture, re- prisal 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 ex- tend the risks by special agree- ment. 2406. If the time of the commencement and termina- tion of the risk be not specified in the policy, it is regulated ac- cording to article 2598. 2407. Marine policies in cases of doubtlul meaning are INSURANCE. 315 construed by the established and known usage of the trade to which the policy relates ; such usa^e is iieid to be a part of the policy when it is not otherwise expressly provided. 2408. An Insurance made after the loss or the arrival of the object of it, is null, if, at the time of insuring, the in- sured had a knowledge of the loss, or the insurer of the ar- rival. Such knowledge is presumed where information might have been received in the usual course and at the usual rate of transmission. ,"'(.. ,, : , , > SECTION II. Of the Obligations of the In- sured. 2409. The principal obliga- tions of the insured relate : To the premium ; To representation and con- cealment ; To warranties and conditions; To abandonment, which is treated in the fifth section. § \.— Of the Premium. 2500. The insured is obliged to pay the amount or rate of premium agreed upon, accord- ing to the terms of the con- tract. If the time of payment be not specified, it is payable without delay. 2501. In the following cases the premium is not due and if 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 breaking 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 fn- demniHcation, unless the policy is illegal, or rendered null by fraud, misrepresentation or con- cealment on his part. If the policy be illegal, there is no right of action for the premium, and none to recover It back if it have been paid. 2502. The preceding article applies when the risk occurs for part only of the value insured, for the non-payment or return of a proportional part of the premium, according to circum- stances and the discretion of the court. . ; § 2. — Of Hepresentation and Concealment. ,;^ a 2503. The rules concerning representation, and the effect of misrepresentation or con- cealment are declared in chap- ter one, section two. ^ § 3.-0/ Warranties. * 2504. The general rules re- lating to warranties are con- tained in chapter one, section three. 2505. It is an implied war- ranty in every contract of marine insurance that the ship shall be seaworthy at the time of sailing. She is seaworthy when she is in a fit state, as to repairs, equipments, crew and in all other respects, to under- take the voyage . lliii \i 31« INSURANCE. It I ■ :■ • " I* ■j I'' i 2500. Ill insurance for a ship-owner, it is an implied warranty that the ship shall be Sroperly docuinented and con- iicted jiccordinK to the laws and treaties of the country to which she belongs and to the law of nations. CHAPTER THIRD. OF THK OHLIGATIONS OF INSURER. THE 2507. The principal obliga- tion of the insurer is to pay to the insured all losses guttered by him by reason of any of the risks insured against according to the terms of the contract. His liability is subject to the rules contained in the fore- going section and to the rules and conditions hereinafter de- clared. 2508. The insurer is not liable for losses surtered after a deviation or change of the risk made without his consent, by changing, contrary to the es- tablished usage, the ship's course or the voyage, or tlie 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 nevertheless entitled to the premium if the risk has commenced. 2500. The insurer is not liable for loss or damage arising from intrinsic defect in the thing, or caused by tlie culpable act or gross negligence of the insured. 2510. The insurer is not liable for loss by barratry of the master or mariners unless there is an agreement to the contrary. 251 1. Barratry is any act of wilful misconduct by the mas- ter or mariners whereby loss is caused to the owners or freighters. 2512. The insurer is not liable for the ordinary charges known as petty averages such as pilotage, towage, tonnage, anchorage, clearance, or duties imposed upon the ship or cargo. 2513. The limitation of the insurer's liability, for particular average under a certain amount and for the loss or damage of certain articJes enumerated in the common memorandum of warranty to be free from aver- age, is regulated by the terms of such memorandum contained in the policy. If there be no memorandum of warranty, the general rules declared in this title apply. 2514. A contract of insur- ance made fraudulently on 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 I he amount insured. 2515. If in (he case specified in the last preceding article there be no fraud, the contract is valid to the amount of the value of the object insured. The insurer is not entitled to the full premium upon the amount insured in excess of the value but to one half per cent only. 2516. If there be several contracts 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, re- serving a half percent. Subject neverthelesss to such INSURANCE. 317 special agreement and condi- tions as may be contained in the policies of insurance. 2517. When in the case specified in the last preoedinjr article the total vahie of the object is not insured by the first contract, the subsecjuciit in- surers are lisible for the surplus according to the date of their respective contracts ; subject to the same restriction. 2518. If the sub-equent in- surance be fraudulent on the part of the insured, he is ob- liged to pay the whole piernium on such insurance, but is not entitled to recover anything upon it. 2510. When there is a par tial loss of an obj- ct insuren by .several insurances to an amount not exceeding its full value, the insurers are liable for it rateably in proport'on to the sums for which they have respectively insured. 2620. When the insurance is made separately upon goods to b laden on diflerent ships, if all the goods be pi ced in one of the ships or in any number of them less than the whole, the insurer is liable only for the sums in mred on the goods which under the contract w(?re to be placed in such ship or ships, although all the ships specified in the contract be lost. Ho is entitled nevertheless to one half percent of premium upon the remainder of the total amount insured. SECTION IV. Of Losses. ' 2521. Loss for which the insurer is liable is either total or partial. 2522. Total loss may be either absolute or constructive. It is absolute when the thing insured is whollv 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 inspired, or the voyage an; insjired in all cases of its constructive loss and may thereupon re- cover as for a total loss. With- out abandonment he is entitled in such cases to recover as for a partial loss only. 2330. An abandonment can- not be partial or conditional. It extends however only to the property actually at risk at the time of the loss. 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. 2541. 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 investigation be required to enable the insured to deter- mine whether he will abandon or not, reasonable delay for that purpose is allowed according to circumstances. 2542. If the insured fail to abandon within «\ reasonable time, as provided in the last S receding article, he is held to ave waived the right to do so and can only recover as for a partfal loss. 2543. The abandonment is mad I' by a notice given by the insured to the insurer of the loss, and that he abandons to the latter all his interest in the tiling insun'd. 2544. The notice of almndon- ment must be explicit and must contain a statement of the grounds of abandonment. These grounds must exist and be sufficient at the time of the notice. 2545. Abandonment on the ground of the ship being dis- abled by stranding cannot be made if she can be raised and put in a condition to continue her voyage to the place of des- tination. In such case tlie insured has his recourse against the insurer for the expense and loss occa- sioned by the stranding. 2540. If a ship has not been heard of within a rea.sonable time after sailing, or after the reception of the last intelligence of her, she is presumed to have foundered at sea, and the in- sured may make an abandon- ment ana recover for a con- structive total loss. The time necessary for raising such presumption is determined by the court according to the circumstances of the case. 2547. 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 acceptance may be either express or implied. 2548. On an accepted aban- donment of the ship, the freight earned after the loss belongs to the insurer of the ship; that •il 320 INSURANCE. !i i; earned previously to the Iohs belongH to the ship-owner or to the insurer on freight to wlioni it is abandoned. 2n40. Abandonment nmde upon NufTlc'ient ground and accepted, Is binding on l)oth parties. It cannot be defeated by any 8ubse(|uent event, or revoI'andoned ; 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 detention of the ship in the course of hvr voyage, by a sovereign power, imd during the necessary repairs of injuries of a nature to give rise to aver- age contribution ; H. 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 expenses arising from the voluntary strandin^r of the ship for the purpose of escaping total loss or capture. And in general all damages voluntarily suifered 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 poit of destination. 2553 Jettison gives rise to contribution only when it is made in imminent peril and is necessary for the preserva- tion of the .ship and cargo. It may be of the cargo, or of the provisions, tackle or furni- ture of the ship. 2554. Jettison must be first made of things the least neces- sary, the most weighty, and of the least value. 2555. The .ship's warlike stores and provisions, and the clothes of the crew, do not con- tribute, but the value of those INSURANCE. 321 of 'va- lost by Jettison is pjiid by con- tribution upon other elleets generally. The baKKiii{<3 "f passe nj^ers does not contribute. If lost it is piiid l)y contribution in which it Himres. 2n5fl. Goods for wliich tliere is no bill of hiding or acknow- ledjLcment by the master, 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. 2557. Goods carried on deck, which are lost or damaged by jettison, are not paid for by contribution, unless they were so carried in conformity with an establisheo^U, or by the sum specified in the valued policy and not by their contribu- tion value. 2560. No contribution is made for particular average losses. They are borne bv 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. 2501. If the ship be not saved by the jettison, no con- tribution takes place, and the goods saved are not held to con- tribute for those lost or dam- aged thereby. 2502. if the ship be saved by the jettison and continue her voyage, but be afte^'wards lost, the goods saved are subject to contribution at their actual value, deducting the costs of salvage. 2503. The goods jettisoned do not in any case contribute to the payment of losses hap- pening afterwards to the gooas saved. The cargo does not contribute to the payment of the ship wh(" lost or rendered unfit for navigation. 250-1. 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 ure subject to contribu- tion; but if the ship be lost with the goods remaining on board, the jjoods in the lighters are not subject t"^ contribution, although they arrive safely in port. 2505. It is the duty of the master on his arrival at the first port to make his declaration and protests in the customary form, and also, together with some of his crew, to make oath that the loss or expense sus- tained was for the safety of the ship and crew. The neglect to do so does not however affect the rights of the parties inter- ested. 2500. The owners and mas- 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. 2507. If after the contribu- tion the goods jettisoned be 21 ^t\ M V it t « 322 INSURANOB. 4 -V !f,t 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- age suffered by the goods and the costs of salvage. CHAPTER THIRD. OF FIRE INSURANCE. 2568. Insurance against loss bv fire is regulated by the pro- visions contained in the first chajater of this title, and is sub- ject 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. 2560. A fire policy contains the name of the party in whose favor it is made ; A description 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 insurance, of the amount or rate of the premium, and of the nature, commence- ment and duration of the risk ; The subscription of the in- surer with its (late ; Such other announcements and conditions as the parties may lawfully agree upon. 2570. Representations not contained in the policy or made a part of it, are not admitted to control its construction or effect. 2571. The interest of an in- surer 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 spec fled. 2572. It is an implied war ranty on the part of the in- sured that his 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. 2573. An insurance upon effects indeterminately as being in a certain place is not !imited to the particular efforts which are there at the time of insuring, but attaches to all those falling within the description contain- ed in the policy which arc in the place at the time of the loss; unless a different intention is indic.'ited in the policy. 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 consent of the in- surer, by means within the con- trol of the insured and which increases the risk, is .a cause of nullity of the policy. If the alteration do not in- crease the rit'k, the policy is not affected by it. 2575. The sum insured does not constitute any proof of the value of the object of the in- surance ; such value must be established in the manner re- quired by the conditions of the policy anci the general rules of proof, unless there is a special valuation in the policy. 2576. The insurance is ren- dered 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 in- surer. The foregoing rule does not apply in the case of rights acquired by succession, or in that specified in the next fol- lowing article. INSURANCE. 323 the in- The insured has in all cases a right to assign the policy with the thing insured, subject to the conditions therein con- tained.- K. 8. Q., fi271 ; 18 V. C, e. J. 2577. A transfer of interest by one to another of several partners or owners of undivid- ed property who are Jointly insured, does not avoid the policy. 257H. Tlie insurer is liable foi losses caused by the in- sured otlierwise than by fraud or gross negligence. 2570 The insurer is also liable for losses caiised by the faults of the servants of tlie in- sured committed without hi*» knowledge or consent. 2580. The insurer is liable for all losses which are the im- mediate consequence of fire or burning for whatever cause it may arise, including damage to the' things insured sulFered in their removal or by the means used for extinguishing the fi.'e ; subject to the special excep tions contained in the policy. 2581. The insurer is not lia- ble for losses caused merely by excessive heat in a furnace, stove or usual means of com- municating warmth when there is no actual burning or ignit ■ m of the thing insured. 2582. In case of loss by fire the insurer is Table for the whole amount of the loss not exceeding the sum insured, without deduction or average. 258». When by the terms of the policy a delay is given for the payment of the renewed premium, the insurance contin- ues, and if a loss occur within the delay, the insurer is liable, deducting the amount of the premium due. 2584. ""he insurer on paying 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. CHAPTER FOURTH. or I-IFK INSI'KAXCE. 2585. Life insurance is regu- lated by the provi-^ions con- tained in the tirst chapter of this title, and is subject also to the rules contained in the sec- ond chapter when these can be made to apply and are not in- consistent with the articles con- tained in this chapter. Articles 2.')7() and 25811 apply to contnicts of life insurance. 258G. liife insurance is sub- iect also to the rules contained in articles 1902, VMi, 1901, 1905, 1906, relating to the persons upon whose life it may be efleeted. 2587. A life policy contains : The r.ame or sutlicient desig- nation of the party in whose favor it is made, and of the per- son whose life is insured ; A declanition of the amount of the insurance, of the amount or rate of preinium, and of the conmiencement and duration of the risk ; The subscription of the in- surer with its date ; Such other announcements or conditions as tlie parties may lawfuliv agree upon. 2588. The declaration in the policy of the age and condition of he 1 1th of the person, upon whose life the insurance is made, constitutes the warranty upon the correctness of which the contract do]H'nds. Nevertheh'ss in the absence of fraud the warranty that the person is in good health is to be construed liberally and not as ^JMl TT" 324 BOTTOMRY AND RE8P0ND1NTIA. meaning that he is frp<^ from all infirmity or disorder. 2580. In life insurance the sum insured may be made pay- able upon the death of the per- son upon vv.iose life it is effect- ed, or upon his surviving a specirted period, or periodically so long as he shall live, or otherwise continj'ent upon the continuance or determination of life. 2500. The insured must have an insurable interest in the life upon which the insur- ance is efiected. 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 liim for the pay- ment of money, or respecting property or services which death or illness might defeat or prevent the performance of ; 4. Of tiny person upon whose life any estate or interest vested in the insured depends. 259 1. A policy of insurance on life or health may pass by transfer, will, or succession, to any person, whether he has an insurable interest or not in the life of the person insured. 2502. The measure of the in- terest 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 re- duced to the actual interest. 2593. Insurance effected by a person on his own life is void if he die by the hands of jus- tice, by duelling, or by suicide. TITLE SIXTH. OF BOTTOMRY AND RESPONDENTIA. 4 1 1 i i 1 i H 1 I I: '' 2594. Bottomry is a contract whereby the owner of a ship or his agent, in consideration of a sum of money loaned for the u«e of the ship, undertakes con- ditionally to repay the same with interest, and hypothecates the ship for the performance of j his contract. The essential j condition of the loan is that if j the ship be lost by a fortuitous event or irresistible force, the lender shall lose his money ; otherwise it is to be repaid with a certain profit for interest and risk. 2595. If the loan be made not upon the ship but upon the goods laden in her the contract is callid respondentia. 2596. The loan may be made upon the ship, freight and cargo together, or upon such portion of either as may be agreed upon l>y the parties. 2597. The contract must specify : 1. The amount of money loaned w ith the rate of interest to be paid ; 2. The.objects upon which the loan is made. It specifies also the nature of the risk. 5298. If the time of the risk 'p BOTTOMRY AND RESPONDENTIA. 325 ihe Iso 8k do not appear from the con- traet, it ^un^^, with respect to tlie ship and freight, from the day she sails until she is anchored or moored in the place of her destination. With respect to the cargo, it runs from the time the goods are shipped until their delivery ashore. 2509. In loans upon bottom- ry 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 interest of the money loaned upon them. In loans upon respondentia the cargo is held in like man- ner. If the loan be upon a part only of the ship or cargo such part only is held for the pay- ment. 2600. Loans in the nature of contracts of bottomry or re- spondentia cannot be made upon the wages of sailors. 2601. A loan made for a sum exceeding the value of objects atfected for the payment of it may be annulled at the instance of the lender, if fraud be proved against the borrower. If there be no fraud, the con- tract is valid to the amount of the objects affected for the pay- ment, and the surplus of the sum borrowed must be repaid with legal interest at ♦he place of borrowing. 2002. 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. 2003. A loan upon bottomry 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 auth- ority of the owners, in the place where they reside, or where communication with them is easy, such part only of the ship or cargo as may belong to the master is held for the payment of the loan ; subject to the pro- visions contained in the next following article. 2604. The parts of the owners, even if residing in the place wliere the loan is made, are held for the payment of money loaned to the master for repairs and provisions, when the ship has been affreighted with tne consent of such owners, and they have refused to furnish their contingent for putting her in condition for the voyage. 2005. Loans upon bottomry and respondentia, made for the latest voyage, are paid by pre- ference before those of a pre- ceding 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. 2000. The lender upon re- spondentia does not bear the loss of goods which perish by perils of the sea, when such goods have been transferred from the ship specified in the contract into a different one ; unless it is proved that such transfer was caused by irresist- ible force. 2007. If tlie ship or cargo upon which the loan is made be totally lost, by a fortuitous event or irresistible force, with- h 326 BOTTOMRY AND RESPONDENTIA. in the time and place for which the risk extends, the money loaned cannot be recovered. 2608. Losses arising from defect in the thing, or caused by the act of the owners, mas ter or charterer, are not con- sidered fortuitous events unless there is a special agreement to the contrary. 2000. In case of partial loss by shipwreck or other fortui- tous event, the payment of the sum loaned is reduced to the value of the things held for it which are saved. 26 lO. Lenders upon bottom- ry or respondentia contribute to general average in discharge of the borrower. They do not contribute to simple average or particular damages, unless there is an arrangement to that effect. 20 1 1. If there be a loan and also an insurance upon the same ship and cargo, the lender is preferred to the insurer upon whatever is saved from the shipwreck, for the capital only of his loan. 2012. Bottomry and respon- dentia bonds made payable to order may l)e negotiated by endorsement. Such negotiation of them has the same etlect and produces the same rights as the transfer of other negotiable instruments. FINAL PROVISIONS. 2013. The laws in force at the time of the coming into force of this code are abrogated in all cases : In which there is a provision herein having expressly or im- pliedly that effect ; In which such laws are con- trary to or inconsistent with anv provision herein contained ; In which express provision is herein made ufion the particular matter to which such laws relate. Except always that as regards transactions, matters and things anterior to the coming into force of this code, and to which its provisions could not apply without having a retroac- tive effect, the provisions of law which without this code w'ould apply to such transactions, matters and things remain in force and apply to them, and this code applies to them only so far as it coincides with such provisions. 2«14. The declaration that certain matters are regulated by the Code of Civil Procedure shall not have the effect of re- pelling any existing rule or of abolishing any mode of pro- ceeding now in use until the said Code of Civil Procedure shall have become law. 2015. If in any article of this cofle founded on the laws ex- isting at the time of its promul- gation, there be a difference be- tween the English and French texts, that version shall prevail which is most consistent with the provisions of the existing laws on which the article is founded ; and if there be any such difference in an article changing the existing laws, that version shall prevail which is more consistent with the in- tention of the article, and the ordinary rules of legal inter- pretation shall apply in deter- mining such intention. THE END. I •!:" 8 3 VICTORIA. CHAP. 33. An Act relatimq to Bills op Exchange, Ohkquks, . AND Promissory Notes. [Assented to mil May, 1890,] cle V'S, ich in- he er- er- HER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows :— - i ' PART I. PRELIMINARY. 1. This Act mjiv' be cited as " The Bills of Exchange Act, 1890." 2. In this Act, unless the con- text otherwise requires, — («.) The expression " Accept- ance " means an acceptance completed by delivery of notifi- cation ; (6.) The expression " Action " includes counterclaim and set off; (c.) The expression " Bank " means an incorporated bank or savings bank carrying on busi- ness in Canada ; (d.) The expression '* Bearer " means the person in possession of a bill or note which is payable to bearer ; {€.) The expression " Bill " means bill of exchange, and " Note " means promissory note ; (/".) The expression "De- livery " means transfer of pos- session, actual or constructive, from one person to another : (y.) The expression "Holder" means the payee or indorsee of a bill or note who is in po.sses- sion of it, or the bearer there- of ; (h.) The expression "Indorse- ment " means an indorsement completed by delivery ; (i.) The expression " Issue " means the first delivery of a bill or note, complete in form, to a person who takes it as a holder ; ij.) The expression " Value" means valuable consideration. i {k.) The expression "De- ; fence " includes counter-claim. •■ 328 BILLS OF EXCHANGE. ■4 PART II. BILLS OF EXCHANGK. Form and Interpretation. 3. A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay, on demand or at a fixed or de- terminable future time, a sum certain in money to or to the order of a specified person, or to bearer : 2. An instrument which does not comply with these condi- tions, or which orders any act to be done in addition to the payment of money, is not, ex- cept as hereinafter provided, a bill of exchange : 3. An order to pay out of a particular fund is liot uncon- ditional within the meaning of this section ; but an unqualified order to pay, coupled with (a) an indication of a particular fund out of which the drawee is to re-imburse himself, or a particular account to be debited with the amount, or (6) a statement of the transaction which gives rise to the bill, is unconditional : 4. A bill is not invalid by reason— (a.) That it is not dated ; (6.) That it does not specify the value given, or that any value has been given therefor ; (c). That it does not specify the place where it is drawn or the place where it is payable. 4. An inland bill is a bill which is, or on the face of it purports to be, (a) both drawn and payable within Canada, or (6) drawn within Canada upon some person resident therein. Any other bill is a foreign bill : 2. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill. 5. A bill may be drawn pay- able to, or to the order of, the drawer ; or it may be drawn payable to, or to tho order of, the drawee : 2. Where in a bill drawer and drawee are the same person, or where the drawee is a ficti- tious person or a person not having capacity to contract, the holder may treat the instru- ment, at his option, either as a bill of exchange or as a promis- sory note. 6. The drawee must be named or otherwise indicated in a bill with reasonable cer- tainty : 2. A bill may be addressed to two or more drawees, whether they are partners or not ; but an order addressed to two drawees in the alternative, or to two or more drawees in suc- cession is not a bill of exchange. 7. Where u bill is not payable to bearer, the payee must be named or otherwise indicated therein with reasonable cer- tainty : 2. A bill may be made payable to tv,o or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees. A bill may also be made payable to tne holder of an onice for the time being : 3. Where the payee is a ficti- tious or non-existing person, the bill may be treated as pay- able to bearer. 8. When a bill contains words prohibiting transfer, or indicating an intention that it should not be transferable, it is valid as between the BILLS OF EXCHANGE. 329 ' ■^■1 nder Icti- pon, lins Ifer, tiat >le, the parties thereto, but it is not negotiable : 2. A negotiable bill may be Eayable either to order or to carer : 3. A bill is payable to bearer which is expressed to be so piyable, or on which the only or last indorsement is an in- dorsement in blank : 4. A bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person, and doQs not contain words prohibiting transfer or indicating an intention that it should not be transferable : 5. Where a bill, either origin- ally or by indorsement, is ex- pressed to be payable to the order of a specinea person, and not to him or his order, it is nevertheless payable to him or his order, at hisoption. O. The sum payable by a bill is a sum certain within the meaning of this Act, although it is reouired to be paid— (a.) With interest ; (b.) By stated instalments ; (c.) By stated instalments, with a provision that upon default in payment of any in- stalment the whole shall be- come due ; {d). According to an indicated rate of exchange, or accord- ing to a rate of exchange to be ascertained as directed by the bill: 2. Where the sum payable is expressed in words and also in figures, and there is a discre- pancy between the two, the sum denoted by the words is the amount payable : 3. Where a bill is expressed to be payable with interest. unless the instrument other- wise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof. 10. A bill is payable on demand— (a.) Which is expressed to be payable on demand, or on presentation ; or— (6.) In which no time for payment is expressed : 2. Where a bill is accepted or indorsed when it is overdue, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand. 1 1. A bill is payable at a de- terminable future time, within the meaning of this Act, which is expressed to be payable— (a.) At sight, or at a fixed period after date or sij-rht : * (6.) On or at a fixed period after the occurrence of a speci- fied event which is certain to happen, though the time of happening is uncertain : 2. An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect. 12. Where a bill expressed to be payable at a fixed period afterdate is issued undated, or where the acceptance of a bill payable [at sight, or]'- at a fixed 13eriod after sight is undated, any holder may insert therein the true date of issue or accept- ance, and the bill shall be pay- able accordingly ; Provided that (a) where the holder in good faith and by mistake inserts a wrong date, and (b) in every case where a wrong date is inserted, if the I 54-55 V. 0. 17. 8. 1. » Ibid. 330 BILLS OF EXOHANQE. r ^1 It bill subnequcntly comes into the hands of a holder in due course, the bill shall not be voided thereby, but shall operate and be pavable as if the date so in- serted had been the true date. 13. Where a bill or an ac- ceptance, or any indorsement on a bill, is dated, the date shall, unless the contrary is proved, be deemed to be the true date of the drawing, ac- ceptance, or indorsement, as the case may he : 2. A bill is not invalid by rea- son only that it is antedated or postdated, or that it bears date on a Sunday or other non- juridical day. 14. Where a bill is not pay- able on demand, the day on which it falls due is determined as follows : (a.) Three days, called days of grace, are, in every case, where the bill itself does not otherwise provide, added to the time of payment as fixed by the bill, and the bill is due and payable on the last day of grace : Pro- vided that— (I.) Whenever the List day of grace falls on a legal holiday or non -juridical day in the Pro- vince where any such bill is payable, then the day next fol- lowing, not being a legal holi- day or non-juridical day in such Province, shall be the last day of grace : 2. In all matteis relating to bills of exchange the following and no other shall be observed as legal holiday^- or non-juridi- cal days, that is to say : (a.) In all the Provinces of Canada, except the Province of Quebec- Sundays ; New Year's Day ; Good Friday ; Easter Monday ; ., Christmas Day ; The birthday (or the day fixed by proclamation for the celebration of the birthday) of the reigning Sovereign ; and if such birthday is a Sund.iy, then the following day ; The first day of July (Domin- ion Day), and* if that day is a Sunday, then the second cay of July as the same holiday ; Any day appointed by procla- mation for a public holiday, or for a general fast, or a general thanksgiving throughout Can- ada; and the day next follow- ing New Year's Day and Christ- mas Day, when those days re- spectively fall on Sunday ; The first Monday in Septem- ber to be designated Labor Day ; » (6.) And in the Province of Quebec - the said days, and also— The Epiphany ; The Ascension ; All Saints' Day ; Conception Day ; (c.) And also, in any one of the provinces of Canada, any day appointed by proclamation of the Lieutenant-Governor of such province for a public holi- day, or for a fast or thanksgiv- ing within the same, or being a non-juridical day by virtue of a statute of such province : 3. Where a bill is payable at sight, or at a fixed period after 1 57-58 V. 0. 65. ^ The names of the holidays, the Annunciation, Corpus Christi, and St. Peter and St. Paul's Day have been struck out by 66 V. o. 30. fitLLS Ot EXOHANOl. 331 date, after sight, or after the happening of a specified event, the time of payment is deter- mined by excluding the day from whicli the time is to begin to run and by including the day of payment : 4. Where a bill is payable at sight or a fixed period after sight, the time begins to run from the date of the acceptance if the bill is accepted, and from the date of noting or protest if the bill is noted or protested for non-acceptance, or for non- delivery : 5. The term " month " in a bill means the calendar month : (J. Every bill which is nuide payable at a month or months after date l>eoomes due on the same numbered day of the month in which it is made pay- able as the day on which it is dated -unless there is no such day in the month in which it is made payable, in which case it becomes due on the last day of that month— with the addition, in all cases, of the days of grace. 15. The drawer of a bill and any iiidorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonored by non- acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not, as he thinks fit. 16. The drawer of a bill, and any indorser, may insert therein an expj ess stipulation— (a.) Negativing or limiting his own liability to the holder ; (6.) Waiving, as regards him- self, some or all of the holder's duties. 17. The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer : 2. An acceptance is invalid unless it complies with the follow i ng cond itions, namely :— Ut.) It must be written on the bill and be signed by the drawee. The mere signature of the drawee without addi- tional words is sufficient ; (b.) It must not express that the drawee will perform his promise by any other means than the payment of money ; 3. Where in a bill the drawee is wrongly designated or hia name is misspelt, he may ac- cept the bill as therein de- scribed, adding, if he thinks fit, his proper signature, or he niay accept by his proper signature. 18. A bill may be accepted— {n.) Before it has been signed by the drawer, or while other- wise incomplete ; (6.) When it is overdue, or after it has been dishonored by a previous refusal to accept, or by non-payment : 2. When a bill payable after sight is dishonored by non- acceptance, and the drawee subsequently accepts it, the holder, in the absence of any dift'erent agreement, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance. 19. An acceptance is either Ui) general, or {b) qualifiel: a general acceptance assents without qualification to the order of the drawer ; a qualified acceptance in express terms varies the effect of the bill as drawn : 2. In particular, an acceptance is qualified which is-— (a.) Conditional, that is to say, which makes payment by the acceptor dependent on the m '■• 332 BILLS Ot* EXCHANGE. iii: Ki \''~ Vi ^ fulfilment of a condition therein stated ; but an acceptance to pay at a particular specified place is not conditional or quali- fied. (6.) Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn ; {c.) Qualified as to time ; (d.) The acceptance of some one or' more of the drawees, but not of all. 20. Where a simple signature on a blank pajper is delivered by the signer m order that it may be converted into a bill, it operates as a pr/wwi/ofcte au- thority to fill it up as a complete bill for any amount, using the signature for that of the drawer, or the acceptor, or an indorser ; and, in like manner, when a bill is wanting in any material particular, the person in possession of it has a prhnd facie authority to fill up the omission in any way he thinks fit: 2. In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time, ancl strictly in accordance with the authority given ; reasonable time for this purpose is a question of fact : Provided, that if any such instrument, after completion, is negotiated to a holder in due course, it shall be valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the author- ity given. 21. Every contract on a bill, whether it is the drawer's, the acceptor's or an indorser's, is incomplete and revocable, until delivery of the instrument in order to give ettect thereto : Provided, that where an acceptance is writ*"en on a bill, and the drawee gives notice to, or according to the directions of, the person entitled to the bill that he has accepted it, the acceptance then becomes com- plete and irrevocable ; 2. As between immediate parties, ard as regards a remote party, other than a holder in d>ie course, the delivery— in.) In order to be effectual must be made either by or under the authority ot the f>arty drawing, accepting or ndorsing, as the case may be ; {b.) May be shown to have been conaitional or for a special purpose only, and not for the purpose of transferring the pro- perty in the bill ; But if the bill is in the hands of a holder in due course, a valid delivery of the bill by all parties prior to him, so as to make them liable to him, is conclusively presumed : 3. Where a bill is no longer in the possession of a party who has signed it as driwer, acceptor or indorser, a valid and unconditional delivery by him is presumed until the con- trary is proved. Cajiacity and Authority of Parties. 22. Capacity to incur liability as a party to a bill is co-exten- sive with capacity to contract : Provided, that nothing in t*his section shall enable a cor- poration to make itself liable as drawer, acceptor or indorser of a bill, unless it is competent to it so to do under the law for the time being in force relating to such corporation : bility xten- ract : g in cor- jle as ier of nt to )rthe g to BILLS OF EXOHANQE. 333 2. Where a bill is drawn or indorsed by an infant, minor, or corporation having no capa- city or power to incur liability on a bill, the drawing or in- dorsement entitles the holder to receive payment of the bill, and to enforce it against any other party thereto. 23. No person is liable as drawer, inaorser, or acceptor of a bill who has not signed it as such: Provided that — (a.) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name ; (b.) The signature of the name of a firm is equivalent to the signature by the person so sign- ing of the names of all persons liable as partners in that firm. 24. Subject to the provisions of this Act, where a signature on a l)ill is forged or placed thereon without the autnority of the person whose signature it purports to be, the forged or unauthorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sougnt to retain or enforce payment of the bill is precluded from set- ting up the forgery or want of authority : Provided, that nothing in this section shall aflfect the ratifica- tion of an unauthorized signa- ture not amounting to a forg- ery : And provided also, that if a cheque, payable to order, is paid by tne drawee upon a lorged indorsement out of the funds of the drawer, or is so paid and charged to his account, the drawer Nliall have no right of action against the drawee for the recovery back of the amount so paid, or no defence to any claim made by the drawee for the amount so paid, as the case may be, unless he gives notice in writing of such forgery to the drawee within one year after he has acquired notice of such forgery ; and in case of failure by the drawer to give such notice within the said 1)eriofl, such chuque shall be leld to have been paid in due course as respects every other party thereto or named therein, who has not previously insti- tuted proceedings for the pro- tection of his rights. 2. If the drawee of a cheque bearing a forged indorsement pays the amount thereof to a subseciuent indorser, or to the bearer thereof, he shall have all the rights of a holder in due course for the recovery back of the amount so paid from any indorser who has indorsed the same subsequent to the forged indorsement, as well as nis legal recourse against the bear- er thereof as a transferrer by delivery ; and any indorser who has made such payment shall have the like rights and re- course against any antecedent indorser subsequent to the forged indorsement, — the whole, however, subject to the provisions and limitations con- tained in the last preceding sub-section. * 25. A signature l)y procura- tion operates as notice that the agent has but a limited author- ity to sign, and the principal is bound by such signature only if the agent in so signing was act- I I M » 54-56 V. 0. 17, s. 4. 334 BILLS OF EXOHANOE. ^i '• Si! If ^ ^^• ing within the actual limits of I his authority. 26. Whore a person signs a ' bill as drawer, indorser or ac- ceptor, and adds words to his signature indicating that he signs for or on behalf of a prin- cipal, or in a representative character, he is not personally liable thereon ; but the mere j addition to his signature of | words describing him as an agent, or as filling a representa- tive character, does not exempt him from personal liabllltv : 2. In determining whether a signature on a bill Is that of the principal or that of the agent by whose hand It is written, the construction most favorable to the validity of the Instrument shall be adopted. The Consideration for a BUL 27. Valuable consideration for a bill may be constituted by- (a.) Any consideration suf- ficient to support a simple con- tract ; (6.) An antecedent debt or liability ; such a debt or liability is deemed valuable considera- tion, whether the bill is payable en demand or at a future time : 2, Where value has, at any time, been given for a bill, the holder is deemed to be a holder for value as regards the ac- ceptor and all parties to the bill who became parties prior to such time : 3. Where the holder of a bill has a lien on it, arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. 28. An accommodation party to a bill is a person who has signed a bill as drawer, ac- ceptor or indorser, without re- ceiving value therefor, and for the pur|)oseof lending his name to some other person : 2. An accommodation narty Is liable on the bill to a holder for value ; and It is immaterial whether, when such holder took the bill, he knew such party to be an accommodation party or not. 29. A holder in due course is a holder who has taken a bill, coniplete and regular on the face of It, under the following conditions, namely : {a.) That he became the hold- er of it before It was overdue and without notice that it had been previously dishonored, if such was the fact ; (h.) That he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated It : 2. In particular, the title of a person who negotiates a bill is defective within the meaning of this Act when he obtainea the bill, or the acceptance thereof, by fraud, duress or force and fear, or other unlaw- ful means, or for an illegal con- sideration, or when he negoti- ates it in breach of faith, under such circumstances amount to a fraud : 3. A holder, wheth» i vui. or not, who derives i title t a bill through a holdt i in due course, and who is not h\m^ 'If a party to any fraud or illegal- ity affecting it, has all the rights of that holder in due course as regards the acceptor and all Earties to the bill prior to that older. 30. Every party whose sig- nature appears on a bill is BILLS OP BXCHANQI. 335 itlet n d\xe im?^ If llecal- rights irse as nd all ,o that e sig- Sill IS ttritnd facie deemed to have oecoine a party thereto for value. 2. And every holder of a bill in nrhnd facie deemed to be a holder In due course ; but if, in an action on a bill, it is ad- mitted or proved that the ac- ceptance, Issue or subsequent negotiation of the bill is af- fected with fraud, duress or force and fear, or illegulity, the burden of proof thai he is such holder In ciue course shall be (ui him, unless and until he proves that, subsequent to the alleged fraud or illegality, value has in good faith been" given for the bill by some other holder in due course : 3. No bill, although given for a usurious consideration or upon a usurious contract, is void In the hands of a holder, unless such holder had at the time of its transfer to him actual knowledge that it was originally given for a usurious consideration, or upon a usuri- ous contract : 4. Every bill or note the con- sideration of which consists, in whole or in part, of the pur- chase money of a patent right, or of a partial interest, limited geographically or otherwise, in a patent right, shall have written or printed prominently a-id legll)lv across the face thereof, bef(>re the same is issued, the words " given for a patent right : " and without such words thereon such in- stiument and anv renewal ■ hereof shall be void, except in tie hanns of a holder in due )urse without notice of such onsideration : 5. The indorsee or other trans- eree of any such instrument iiaving the words aforesaid so printed or written thereon. shall take the same subject to any defence or si't-ott' in respect of the whole or any part thereof which would have existed be- tween the otlginal parties : 0. Every one who issues, sells or transfers, by indorsement or delivery, any such instrument not having the words "given for a patent right " printed or written in manner aforesaid across the face thereof, knowing the consi non-accept:ince — («.) Where the drawee is dead {or h((nkrvpt),'- or is a fic- titious person or a person not having capacity to contract by bill ; {b.) Where, after the exercise of reasonable diligence, such presentment cannot be etfected ; (c.) Where, although the pre sentment has been irregular, acceptance has been refused on some other ground : 3. The fact that the holder has reason to beli- ve that the bill, on presentment, will be dishonored does not excuse pre- sentment. 4^-. When a bill is duly pre sented for acceptance and is not accepted on the day of present- ment or within two days there- after, the person presenting it nmst treat it as dishonored by non-acceptance ; if he does not, the holder shall lose his right of recourse against the drawer and indorsers. 43. A bill is dishonored by non-acceptance— (a.) When it is duly presented for acceptance, and such an acceptance as is prescribed by this Act is refused or cannot be obtained ; or— (6.) When presentment for acceptance is excused and the biP is not accepted : 2. Subject to the provisions 1 64-55 V. c. 17, 8. 5. « Struck out by 54-55 Y- c. 17, s. 6. BILLS OP EXCHANGE. 339 for the lions of this Act, when a bill is dis- honored by non-acceptance an immediate riji^ht of recourse against tiie drawer and in- dorsers accrues to the holder, and no presentment for pay- mfnt is necessary. 44. The holder of a bill may refuse to take a (qualified ac- ceptance, and if he does not obtain an unqualified arcept- ance may treat the bill as dis- honored by non-acceptance ; 2. Where a qualified accept- ance is taken, and th«' drawer or an indorser has not expressly or impliedly authorized the holder to take a qualified ac- ceptance, or does not subse- quently assent thereto, such drawer or Indorser is discharged from his liability on the bill ; The provisions of tliis sub- section do not apply to a partial acceptance, whereof diie notice has been given ; where a foreign bill has been accepted as to part, it must be protested as to the balance : li. When the drawer or in- dorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto. 4."%. Subject to the provisions of this Act, a hill must be duly presented for payment ; if it is not so presented, the drawer and inaorsers shall be dis- charged : 2. A bill is duly presented for payment which is presented m accordance with the follow- ing rules :— (a.) Where the bill is not payable on demand, present- ment must be made on the day It falls due ; (6.) Where the bill is payable QU demand, then, subject to the provisions of this Act, pre- sentment must be made within a reasonable time after its issue, In order to render the drawer liable, and within a reasonable time after its indorsement, in ordf-r to render the indorser liable ; In det«'rmining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case; (r.) Presentment must be made by the holder or by some person authorized to receive payment on his behalf, at the proper place, as hereinafter de- fined, either to the person de- signated by the bill as payer or to his representative or some pei-son authorized to pay or refuse payment on his behalf, if, ^^ith the exercise of reasonable diligence, such person can there be found ; (fl.) A bill is presented at the proper place, — (1.) Where a place of payment is specified in the bill or accept- ance, and the bill is there pre- sented ; (2.) Where no place of pay- ment is specified, but the ad- dress of the drawee or acceptor is given in the bill, and the bill IS there presented ; (3.) Where no place of pay- ment is specified and no address given, and the bill is presented at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence, if known ; (4.) In any other case, if pre- sented to the drawee or ac- ceptor wherever ho can be found, or if presented at his last known place of business or residence : 3. Where a bill is presented '.) Where the drawer or in- dorser is dead, and the party giving notice knows it, the notice must be given to a per- sonal representative, if such there is and, with the exercise of reasonable diligence, he can be found ; (jf.) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of tliem has authoiity to receive such notice for the others ; y payment in due course by or on behalf of the drawee or ac- ceptor : "Payment in due course" means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective : 2. Sul)ject to the provisions hereinafter contained, when a bill is paid by the drawer or an indorser, it is not discharged ; but— (a.) Where a bill payable to, . t / ■II -i I *'!:. '^ !i : : ,t ' . 346 BILLS OF t:X0HANO£. :! ■\ ^ or to the order of, a third party is pai(l by the drawer, the drawer may enforce payment thereof ajjjalnst the acceptor, but may not re-issue the bill ; (6.) Where a bill Is paid by an indorser, or where a bill pay- able to drawers order is paid by the drawer, the party paying it is remitted to his former rights as reu^ards the acceptor or antecedent parties, and he may, if he thinks fit, strikeout his own and subsequent in- dorsements, and again negoti- ate the bill : 3. Where an accommodation bill is paid in due course by the Sarty accommodated, the bill is ischarged. eo. When the acceptor of a bill is or becomes the holder of it at or after its maturity, in his own right, the bill is dis- charged. 61. When the holder of a bill at or after its maturity abso- lutely and unconditionally re- nounces his rights against the acceptor, the bill is discharged : the renunciation must be in wriling, unless the bill is de- livered up to the acceptor . 2. The liabilities of any party to a i)ill may in like manner be renounced by the holder before, at or after its maturity ; but nothing in this section shall affect the rights of a holder in due course without notice of renunciation. Q2. Where a bill is intention- ally cancelled by the holder or his agent, and the cancellation is apparent there on, the bill is discharged ', 2. In like manner, any party liable on a bill may be dis- charged by the intentional can- cellation of his signature by the holder or his agent. In such case, any indorser who would have had a right of recourse against the party whose signa ture is cancelled is also dis charged : 3. A cancellation made un intentionallv, or under a mis take, or without the uutliority of the holder, is inoperative but wher^abill or any signa ture thereon appears to have been cancelled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake, or without authority. 63. Where a bill or accept- ance is materially altered with- out the assent of all parties liable on the bill, the bill is voided,except as againsta party who has himself made, author- ized, or assented to the altera- tion, and subsequent indorsers : Provided, that where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder in due course, such holder may avail h'mself of the bill as if it had not been altered, and may enforce payment of it according to its original tenor : 2. In particular, the following alterations are material, namely, any alteration of the date, the sum payable, the time of payment, the place of pay- ment, and where a bill has oeen^ accepted generally, t he addition of a place of payment without the acceptor's assent. Acceptance and Payment for Honor. 64. Where a bill of exchange has been protested for dishonor by non-acceptance, or protested for better security, and is not overdue, any person, not being a party already liable, thereon, BILLS OF EXOHANQl. 347 may, with the consent of the holder, intervene and accept the bili suprd protest, for tne lionor of any party liable there- on, or for the honor of the per- son for whose account the bill is drawn : 2. A bill may be accepted for honor for part only of tne sum for which it is drawn : 3. An acceptance for honor suprd protest, in order to be valid, must— («.) Be written on the bill, and indicate that it is an ac- ceptance for honor ; (b.) Be signed by the acceptor for honor : 4. Where an acceptance for honor does not expressly state for whose honor it is made, it is deemed to i)e an acceptance for the honor of the drawer : 5. Where a bill payable after sight is accepted for honor, its maturity is calculated from the date of presenting for non- acceptance, and not from the date of the acceptance of honor. 65. The acceptor for honor of a bill by accepting it engages that he will, on due present- ment, pay the bill according to the tenor of his acceptance, if it is not paid bv the drawee, providf'd it has been duly pre- sented for payment and pro- tested for non-payment, and that he receives notice of these facts : 2. The acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted. 66. Where a dishonored bill lias been accepted for honor suprd protest, or contains a reference in case of need, it must be protested for non-pay- ment before it is presented for payment to the acceptor for honor, or referee in case of need : 2. Where the address of the acceptor for honor is in the same place where the bill is f protested for non-payment, the >ill must be presented to him not later than the day following its maturity ; and where the address of the acceptor for honor is in some place other than the place where it was pro- tested for non-payment, the bill nmst be forwarded not later than the day following its ma- turity for presentment to him : 3. Delay in presentment or non- presentment is excused by any circumstance which would excuse delay in presentment for payment or non-present- ment for payment : 4. When a bill of exchange is dishonored by the acceptor for honor, it nmst be protested for non-payment by him. 67. Where a bill has been protested for non-payment., any person may intervene and pay it supra protest for the honor of any party liable thereon, or 1 or the honor of t he person for whose account the bill is drawn : 2. Where two or more per- sons otrer to pay a bill for the honor of ditferent parties, the person whose payment will dis- charge most parties to the bill shall have the preference : 3. Payment for honor supra protest, in order to operate as such and not as a mere volun- tary payment, must be attested by a notarial act of honor, which may be appended to the protest or form sm extension of it: 4. The nt'tarial act of honor must be founded on a declara- tion made by the payer for honor, or his agent in that be- ■li- i t t ■'M iiiii i:i ' 348 BILLS 0? SXOHANOl. half, declaring his intention to pay the bill for honor, and for whose honor he pays : 5. Where a bill has been paid for honor, all partiea Hubse- quent to the party for whose honor it is paid are discharged, but tlie payer for honor is huI)- rogated for and succeeds to both the rights and duties of the holder as regards the party for whose honor he pays, and all parties liable to that party : 6. The nayer for honor, on paying to tlie holder the amount of tlie bill and the notarial ex- Eenses incidental to its dis- onor, is entitled to receive both the bill itself and the pro- test. If the holder does not on demand deliver them up, he shall be liable to the payer for honor in damages : 7. Where the holder ol a bill refuses to receive payment 8ii2)rd protest, he shall lose his right of recourse against any party who would have been dis- charged by such payment. LoMf Instt'uinents. 68. Where a bill has been lost before it is overdue, the person who was holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indem- nify him against all parties whatever in case the bill al- leged to have been lost shall be found again : 2. If the drawer, on request as aforesaid, refuses to give such duplicate bill, he may be compelled to do so. 69. In any action or pro- ceeding upon a bill, the court or a judge may order that the loss of the instrument shall not be set up, provic^id an indemnity is given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question. •' Bill in a Set. ■ 70. Where a bill is drawn in a set, each part of the set being numbered, and containing a reference to the other parts, the wliole of the parts constitute one bill : 2. Where the holder of a set indorses two or more parts to di tie rent persons, he is liable on every such part, and every in- dorser subsecjuent to him is liable on the part he has him- self indorsed as if the said parts were separate bills : 3. Where two or more parts of a set are negotiated to dilTer- ent holders in due course, the holder whose title tlrst accrues is, as between such liolders, deemed the true owner of the bill ; but nothing in this sub- section shall affect the rights of a person who in due course ac- cepts or pays the part first pre- sented to him : 4. The acceptance may be written on any part, and it must be written on one part only : 5. If the drawee accepts more than one part, and such accept- ed parts get into the hands of dimirent holders in due course, he is liable on every such part as if it were a separate bill : 6. When the acceptor of a bill drawn in a set pays 5t withotit requiring the part bearing his acceptance to be delivered up to him, and that part at matur- ity is outstanding in the hands of a liolder in due course, he is liable to the holder thereof : 7. Subject to the preceding rules, where any one part of a BILLS OF EXOHANGI. 349 i: bill rlrawn in a Met is discharged by payment or otherwise, the whole bill is diNclwirgcd. dnijlivf of Lawn. 71. Where a bill drawn in one country is negotiated, ac- ec^pted or payable in another, the rights, duties and liabilities of the parties thereto are de- termined as follows : {u.) The validity of a bill as regards re«|uiHites in form is determined by the law of the place of issue, and the validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement, or acceptance sunrd protest, is determined by tne law of tha place where such contract was made : Provided that— (1.) Where a bill is issued out of Canada, it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue ; (2.) Where a bill, issued out of Canada, conforms, as regards requisites in form, to the law of Canada, it may, for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold or become parties to it in Canada ; (b.) Subject to the provisions of this Act, the interpretation of the drawing, indorsement, acceptance or acceptance suprd, protest of a bill, is determined by the law of the place where such contract is made : Provided, that where an in- land bill is indorsed in a foreign country, the indorsement shall, as regards the payer, be in- terpreted according to the law of Canada ; (c) The duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufllciency of a protest or notice of dishonor, or otherwise, are determined by the law of the place where the act is done or the bill is dis- honored : ((I.) Whtre a bill is drawn out of but payable In Canada, and the sum payable is not ex- pressed in the ctirrency of Canada, the amount shall, in the absence of some cxnress stipulation, be calculated ac- cording to the rate of exchange for sight drafts at the place of payment on the day the bill payable ; (e.) Where a bill is drawn one country and is payal)le another, the due date thereof is determined according to the law of the place where it is pay- able ; (/'.) If a bill or note, presented for acceptance, or payable out of Canaaa, is protested for non- acceptance or non-payment, a notarial copy of the protest and of the notice of dishonor, and a notarial certificate of the ser vice of such notice, shall be re- ceived in all courts, as prima fncie evidence of such protest, notice and service. IS in in PART III. CHEQI'KS ON A BANK. 72. A chccjue is a bill of ex- chang<' drawn on a bank, pay- able on demand : 2. Except as otherwise pro- vided in this part, tlie provi- sions of this Act applicable to a bill of exchange payable on demand apply to a cheque. 73. Subject to the provisions of this Act— Hi^: 1 > 1 350 BILLS OP EXOHANOE. i {a.) Where a cheque is not presented for payment within a reasonable time of its issue,and the drawer or the person on whose account it is drawn had the rij^ht at tlie time of such presentment, as between him and the bank, to liave the checjue paid, and suflTers actual damage through the delay, he is discharfj;ed to the extent of such damap;e, tliat is to say, to the extent to whicl; such drawer or person is a creditor of such bank to a iargeramount than he would have been had such cheque been p lid ; (6.) In determining what is a reasonable time, reg-ird shall be had to the nature of Lhe instru- ment, the usage of trade and of banks, and the facts of the particular case ; (c.) The holder of such cheque, as to which such drawer oi' per- son is discharged, shall be a creditor, in lieu of such drawer or person, of such bank to the extent of such discharge, and entitled to recover the amount from it. 74. The duty and authority of a bank to pay a cheque drawn on it by its customer are terminated by— (a.) Countermand of pay- ment : {h.) Notice of tlie customer's death. Crossed Cheoiws. 75. Where a checjue bears across its face an addition of— (n.) The word "bank" be- tween two parallel transverse lines, either with or without the words " not negotiable ; " or— {b.) Two parallel transverse lines simply, either with or without the words " not negoti- able ; " That addition constitutes a crovying, and the cheque is crossed generally : 2. Where a cheque bears across its face an addition of the name of a bank, either with or without the words " not negoti- able," that addition constitutes a crossing, and the cheque is crossed specially and to that bank. 7fl. A che(|ue mav be crossed generally or specified by the drawer : 2. Where a cheque is un- crossed, the holder may cross it generally or specially : 8. Where a cheque is crossed generally, the holder may cro-s it specially : 4. Where a cheque is crossed generally or specially, the holder may add the words " not negotiable ; " 5. Where a cheque is crossed specially the bank to which it is crossed may again cross it specially, to another bank fci- collection : 6. Where an uncrossed cheque, or a cheque "rossed gener- ally, is sent to a »»ank for collec- tion, it may cross it specially to itself: 7. A crossed cheque may be reopened or uncrossed by the drawer writing between the transverse lines, and initialling the same, the words " pay cash." 77. A crossing authorized by this Act is a material part of the cheque : it shall not be law- ful for any person to obliterate or, except as authorized by this Act, to add to or alter the cross- ing. 7H. Where a cheque is crossed specially to more than one bank, except when crossed to another bank as agent for collection,the bank on which it is BILLS OF EXCHANGE. 351 drawn shall refuse payment thereof : 2. Where the bank on which a cheque so crossed is drrawn, nevertheless pays ihe s;une, or pays a cheiiue crossed {.generally otherwise than to a bank, or, if crossed s])ecially, othei wise th .n to the bank to wliich it is crossed, or to ihe i»ank acting as its agent for collection, it is licible to the true owner of the cheque for any loss he sustains owing to tlie checjue having been so paid : Provided, that where a cheque is presented for payment which does not at the tinie of present- ment appear to be crossed, or to ha^'c had a crossing which has been obliterated, or to have been added to or altered other- wise than as authorized by this Act. the bank paying the cheque in good faith* and without negligence shall not be respon- sible or incur any liability, nor shall the payment be questioned by reason of the cheque having been crossed, or of the crossing having been obliterated orhav ing been added to or altered otherwise than as authorized by this Act, and of payment having been made otherwise than to a bank or to the bank to which the cheque is or was crossed, or o the bank acting as its agent for collection, as the case may be. 79. Where the bank, on which a crossed cheque is drawn, in goc^d faith ancl with- out negligence pays it, if cross- ed generally, to a bank, or, if crossed specially, to tlie bank to which it is crossed, or to a bank acting as its ageni for colUction, the bank paying the cheque, and if the cheque has come into the hands of the payee, the drawer sh,«ll re- spectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof. I 80. Where a person takes a crossed cheque wtiich bears on it the words "not negotiable" lie shall iiot have and shall not be capable of giving a better i tide to the clu'(|ue than that which had tlie person from whom he took it. 81. Where a hank, in good faith and without negligence, receives for a customer payment of a cheque crossed generally or specially to itself, and the customer has no title, or a de- fective title thereto, the bank shall not incur any liability to the true o\^ nt r of the cheque by reason only of having re- ceived such payment. PAHT IV. rKOMISSOUY NOTES. 82. A promissory note is an unconditional promise in writ- ing made by one person to an- other, si^iiied by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in monev, to, or to the order of, a specifiled person, or to bearer : 2. An instrument in the form of a note payable to maker's order is not a note within the meaning of this section, unless and until it is indorsed b\ the maker : 'A. A note is not invalid by reason only that it tontaitis also a pleilii, of <<*llbtera! se( urtty \v !t! authority to sell or.bspose t h«»reof : 4. A note which is. or on the 352 BILLS OF EXOHANQE. n, 1 face of it purports to be, l)Oth made and payable within Canada, is an inland note : any other note is a foreign note. 83. A promissory note is in- choate and incomplete until de- livery thereof to the payee or bearer. 84. A promissory note may bo made by two or more makers, ard they may be liable thereon jointly, or jointly and severally, accordinij; to its tenor : 2. Where a note runs " I promise to pay," and is signed by two or more persons, it is deemed to be their joint and several note. 85. Where a note payable on demand has been indorsed, it must be presented for payment within a reasonable time of the iudcn'sement : if it is not so presented, the inrlorser is dis- charged ; if however, \vitlj the assent of the indorser it has been dt-livered as a collateral or continuing security it need not l)e presented for payment so long as it is held as such se( ur- ity: )L In determining what is a rea>onable time, regard shall be had to the nature of the in- strument, the usage of ' rude, and the facts of the partjicular case : 3. Where a note payable on demand i*> negotiated, it is not dee:i» All of which I attest by my signature. (Protested in duplicate.) A. B., Notary Public. Form C. protest for nox-acceptance or for non-payment of a bill payable at a stated place. .V,' {Cojty of Bill and Indorse- merits.) On this day of , in the year 18 , I, A. B., notary public for the Province of , dwelling at , in the Province of , at the request of , did exhibit tne original bill of ex- change, whereof a true copy is above written, unto E. F., the {fc^^ptorl "--»f- "t , being the stated place where the said bill is payable, and there, speak- ing to did said bill : unto which demand he answered : " ." Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest Jigainst the acceptor, ¥ f r 356 BILLS OF EXCHANGE. m m ^ I [f;: ''i;!- I rli^" drawer and indorsers (or drawer and indorsers) of the said bill, and ail other parties thereto or therein concerned, for all ex- change, re-exchange, costs, damages and interest, present and to come, for want of {ra"ymeur}°' fe .said Inll. All of which I attest by my signature. (Protested in duplicate.) A. B., Notary Public. Form D. protest for non-payment of a bill noted, but not protested, for non- acceptance. Jf the protest is made by the same 7iotarywho noted the bill, it should immediately follow theact of noting andmeiiioran- dum of service thereof, and begin with the ords "and afterwards i i, 6^. ," continu- ing as in the la preceding foi'm, but introducing between the words "did" and " ex- hibit," //le uord "again," and, in a parenthesis, beticeen the words "written" and "unto," the words: "and which bill was by nie duly noted for non- acceptance on the day of But if the protest is not ma> "^( lor ^ non-payment J A. B., Notary Public. Form H. notarial notice of protest for non-payment of a NOTE. ( Place and date of Protest.) To at • Sir, Mr. P. Q.'s promissory note for S , dated at , the ^ days 1 payable \ months > after date (on j to ] ^Y I ^^ order, and in- dorsed by you, was this day, at the request of , duly pro- tested by me for non-pavment. A. B., Notary Public. '■fit 358 BILLS OF EXCHANGE. % fix i ii ii I { of the Form I. NOTARIAL SERVK^K OF NOTICE OF A PROTEST FOR NO' ACCEPTANCE OR NON-PAY- MENT OF A HILL, OR OF NON- PAYMENT OF A NOTE {to be subjoined to the Protest.) Atjd afterwards, I, the afore- said protesting notary public, did serve due notice, in the form prescribed by law, of the foregoing protest for non-acceptunce i non-payment i { note I thereby protested upon i P. Qm L tUp / drawer \ t CD., J ^'^® t indorsera / personally, on the day of lor, at his residence, office or usual place of business) in , on the day of ; (or, by depositing such notice, directed to the said ] n jf) f ^*^ » '" Her Majesty's post office in on the day of , and prepaying the postage thereon). In testimony whereof, I have, on the last mentioned day and year, at aforesaid, sij^ned these presents. A. B., Notary Public. Form J. PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE IS NO NOTARY) FOR NON-ACCEPT- ANCE OF A BILL, OR NON-PAY- MENT OF A BILL OR NOTE. (Copy of Bill or Note and In- dorsements). On this day of , in the year 18 , I, N. O., one of Her Majesty's justices of the peace for the district (or county, &c.), of , in the Province of , dwelling at {or near) the village of , in the said district, there being no practising notary public at or near the saitl village {or any other le(/al canse), did, at the request of and in the presence of , well known unto me, exhibit the original \^\^^[q whereof a true copy is above written unto I drawer j P. Q., IhcN acceptor Y thereof, (promisor J personally {or at his residence, otiice or usual place of business) in , and speaking to him- self (his wife, his clerk or his servant, &c.), / acceptance I \ payment / which demand did demand thereof, r he ] \ she j unto an- swered : *' Wherefore I, the said justice of the peace,at the request afore said, have protested, and by these presents do protest against the drawer and indorsers promisor and indorsers acceptor, drawer and .dorsers of the said {ll^l^j and other parties thereto therein concerned, for all ex- change, re exchange, and all costs, damages and interest, present and to come, for want <" { p^-^K^r"} of "- -'" ( bill. ] \note. / All which is by these presents attested by the signature of the said {the witness) and by my hand and seal. (Protested in duplicate.) (Signature of the witness.) (Signature and ieal of the J. P.) BILLS OF EXCHANGE. SF^CONf) SCIIKDULE. ENACT.*IENT8 HKPKALED. 359 Province and Chapter. Title of Act and extent of repeal. Dominion of Canada : '< Cliap.l2l{, Revised Statutes. An Act respectintr BIUh of Exchange , and Promissory Notes.— The whole I Act. Province of Quebec : Civil Code of J ■ wer Canada. Articles 2,279 to 2,854 both inclusive. Nova Scotia : Revised Statutes, third series, chap. 82 "Of Bills of Exchange and I'romis- sory Notes." Section 2. The other sections of this chapter have been lieretofore repealed. Revised Statutes, chap. 116. " Of Bills, Notes and Choses in Action." Section 2. The other sec- tions of this chapter have been heretofore repealed. 30 Vict.. 1867, chap. 34 An Act toamendchap. 116 of the ! Revised Statutes. "Of Bills, Notes j and Choses in Action ; " also Act I 12th Victoria, chapter 31), relating ; thereto. Section I. [*Except in so far a:s such articles, or any of them, relate to evidence in rega! 1 to l)ills of exchange, cheques and promissory notes.] New Brunswick : III- lNr3EX I'O CIVIL CODE. A ins. Abaiidonnd Lantlfi, in seigniories, re-entry upon -ri(/« 11. S. Q. rmi et se" '% .> /!S« Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4103 V rr 362 tNDlX TO CIVIL CODl. Accension.— ART8. in successions devolving to ascendants 627 in regard to legacies 868, 888 '^^ gifts inter vivos 868 Accessories, in legacies in- clude necessary dependen- cies 891 sale of a thing includes its accessories 1409 sale of a debt includes its securities 1574 Accidents, liailwa}' (gen- eral) 1063 railway (injuries to cattle). lO&S railway '♦ (by fire).. 1063 street 1068 marine 1063 general 1053 to employees 1064 caused by horaes 1038 Account, 0/ Community : Vide Community, Parti- tion of 1364 to 1378 By Beneficiary heir 677 § 2 By Tutor is obligatory when his office hasy terminated, . . 308 By Tutw and sometimes during tutorship 300 By Tutor definitive account at majority or emancipa- tion of the minor 310 By Tutor musl be accom- panied by vouchers 311 J^j/ T'u^or contestation of.. 312 " interest due on balance of 313 Accretion. Vide Accession. Acknowledgment, of debt to take it out of ttie statute of limitations 1236 by father ormotherof illeg- itimate child . 240 Acquests, Of Community : Vide (Community. Acquisition, of rights of property 583 et seq. Acquittance, Vide Pay- ment. Act of Man, Servitudes ea- tablishedhy: Vide Servi- tudes. ARTS. Action, of a child to establish his status is imprescriptible . 235 for aliments ; by whom and to whom due 165 et seq. all not otherwise regulated are prescribed by 30 years . . 2242 en garantie of buyer against seller 1615 et seq. en garantie of buyer against seller re immove- ables 2062 Hypothkcary, when it lies and against whom 2068 Hypothecary, when i n possession of usufructuary 2059 Hypothecary, when i n possession of institute 2000 Hypothecary, object of. . 2061 ** holder can call in his vendor 2002 Hypothecary, and stay proceedings by dilatory ex- ception . . 2063 Hypothecary, what de- fences holder may set up 2064-20G5 Hypothecary, exception of discussion 2066-2067 Hypothecary, exception of warranty 2068-2069 Hypothecary, exception of subrogation 2070-2071 Hypothecary, exception arising from expenditures. 2072 Hypo • hecary, exception resulting from a privileged claim or a prior hypothec . . 2073 Hypothecary, effect of subsequent alienation of the immoveable 2074 Hypothecary, holder m^ surrender immoveable. 2075, 2079 Hypothecary, holder pays Eroflts since service 2076 [ypothecary, how sur- render effected 2077 Hypothecary, joined to personal, when prescribed. 2247 TO interrupt prescrip- tion 2067 OF MINORS are brought in name of tutor 304 INDBX TO CIVIL OODB. 363 Action.— ARTS. OF MINORS real actions re- quire a curator 320 OF MINORS of 14 can nue for wages up to $5U 304 OF PARTITION VMfH^ possRssoRY, emphyteutic lessee may bring 572 REDHIBITORY, resulting from latent defects, when it must be brought 1530 REDHIBITORY, (foes not He in sales under execution . . . 1531 Resolutory, in cases of sale 2102 Revoc^atory, of gifts on srouud of ingratitude 814-815 Separation from bed and BOARD, causes of 186 to 101 Separation from bed and BOARD, wife must be au- thorized 194 Separation from bed and hoard, wife may be allow- ed to leave her husband during the suit 105 Separation from bed and board, effect of reconcilia- tion 196 Separation from bedand BOARD, new causes give rise to new action 197 Separation from bedand BOARD, effect of dismissal of action 198 Separation from bedand BOARD, judgment may be suspended 199 Separation from bedand board, provisional care of children 200 Separation from bedand board, wife may live apart from her husband 201 Separation from bedand board, wife may demand alimentary pension 202 Separation from bedand board, wife may forfeit this pension 203 Separation from bedand board, wife in community Action.— arts. may attach the moveable effects of community 204 Separation from bedand BOARD, huslmnd's aliena- tion of immoveables after wife lives apart, is null — 205 Separation as to pro- perty. Vide Separation of property Salary of domestics and farm servants. Vide Waoes 1069 against partners, how served 18:« AvtH to be done by more than two, may be validly done by majority 17 § 19 ActH of Parliament, Vide Laws when public and when pri- vate 10 Eublic are deemed known, ut private must be pleaded 10 Act«, notarial, requisites of 1208-1209 make complete proof of certain things 1210 but may be contradicted and how 1211 passed out of Lower Cana- da, when valid 7 of ratification of an oblig- ation, when voidable 1214 of recognition do notalways make proof of primordial title 1213 sous aeiiig prive, defective authentic acts may be good as ...... 1221 sous aeing prive, what they make proor of 1222 sous seiny prive, when sig- nature to is held to be valid 1223 ftoxis aeing prive, effect of denial of signature 1224 ao%L3 aeing prive, when their date is proof against third parties 1225 aoua Being prive, c o m - mercial make proof of their own date 1226 f • T^ m IIIDBX TO OIYIL OODl. tl Aoto.— ARTS. S0U8 aeing privf, make proof against the maker but not In his favor. 12271228 801LS aeing prwS^ on notes Is proof of payment, but not proof of interruption of prescription 1229 Authentic^ wliat arc and iiow tliey make proof 1207 are valia if made in form of county where passed 7 how construed 8 0/ Civil Status, defined. . .17 § 22 " what they should contain H9 0/ Civil Status, attorneys may sometimes represent parties to 40 Of Civil Status, public offi- cer must read to the parties 41 Of Civil Status, must l)e inscrih>ed in Registers Vide Ukoisters 42 to 50 Of Civil Status, meaning of words Protestant churches Vide note to article 42 Of Civil Status, proof of when registera are lost 51 Of Civil Status, duties and rcsponsil>ilitics of depos^it- aries of Registers 52, 53, 53a Of Civil Status, rectifica- tion of acts and of registers. Vide Registers 75-76 Of Civil Status, ditto in case of omissions 77 Of Civil Status, against whom rectifications are ef- fective 78 Of Civil Status, extracts therefrom are authentic. . . 60 Of Birth, when registra- tion before clerk of the niu- uicipaliiy takes the place of 53a Of Birth, contents of 54 " whom they are signed by 65 Of Birth, when parents un- known 56 Of Birth, filiation of legiti- mate children is provecT by 228 Acts.— ARTS. Of Marricige, bans must be published and certificate furnished : 57-5N Of Marriage, except on pro- duction of a license 50, 50n Of Marriaae, marriage must take place within one year of last publication of bans 6 Of Burial, where burial shall take place in ceme- teries, to be determined by Roman Catholic ecclesias- tical authorities 66a Of Burial, what acts of should contain 67 Of Burial, as regards re- ligious communities and hospitals 68 Of Burial, as regards vio- lent deaths and in prisons. &c ; 69 Of Burial, disinterment of bodies 69rt Of Burial, interments and disinterments. Vide R.S.Q. 3458 et sef^. Of Religious Profession, two registers are to be kept 70 Of Religious Profession, how they are to be kept ... 71 Of Religious Profession, what the^ must contain. . 72 Of Religimis Profession, how disposed of after five years 73 Of Religious Profession, extracts from are authentic 74 INDEX TO CIVIL CODE. 365 il' Acts.— ARTS. Tufoi'ship^ registration of necessary, before tutor can bring actiona 304 Administration, Of Co7h- mtinity. Vide Community. Of Ed'eciUorn : Fu/e Wills Of Tutors: Vide Tutors AND Tutorship. Of Curat o7'8: Vide Cura- tor. Voluntary : Vide Negoti- ORUM (4EST10. Adniinl8trators,teMtanient- ary executors may be con- stituted 921 provisions for replacing . .92!^-U24 cannot purchase property in their charge 1484 investment of money by «81o et Heq. AdmisHlons, either extra- judicial or judicial 1243 may Isft divided in certain cases 1243 how proof of extra-judicial is made 1244 judicial is proof against maker, excepting error 1245 Adultery, by a wife is ground for separation. . .. 187 by a husband, condition- ally 80 188 Advance, what is deemed as to brokers, &c 17o() Adviser: Vide JuDiriAL adviser. Advocates, Rules governing 1732 evidence of 1732 privilege of 1732 powers of 1732 fees of 1732 distraction of costs 1732 liability of 1732 miscellaneous 1732 prescription of fees and disbursements of 22fi(» Affinity, not a cause of in- competency in a witness to a will. 846 but is as to a notary draw- ing will 845 Afflinty.— arts. in marriage; Vide Mar- riage. Afllriiiatlon, when included in word "oath" 17 § 15 AflVeii^htnient, (ieneral Pi'ovi»ion», contracts of what are 2407 General Provisions, by wiiom made and whom they bind 2408 Genei^al Prttvisions, ship, equipments and freight liable for lessor's and cargo for lessee's oblijj^ations 240i) General Provisions, dis- solution of for certain ex- traneous causes 2410 General Provis^imis, effect when such causes are tem- porary 2411 G ene ra I Provisions, freighter may unload dur- ing detention 2412 General Provisions, is sub- ject to rules of lessor and hire 2413 Charter party, what it may comprise 2414 C'AriWf/* pa /-/y, stipulations usually contained in 2415 Charter party, loading, un- loading and demurrage 2410 Charter party, master signs a bill of lading 2417 Charter ^arty, when whole ship is lured, effect of mas- ter taking other person's goods 2418 conveyance of floods in a aenerfd ship. 2419 hill ofladinff, is signed and delivered by master 2420, 2424 hill ofladini/,is transferred l)y endorsement and deliv- ery 2421 hill ofladinff, on receipt of, freighter must return receipts 2422 Obliffations of owner or lessor and master. lessor must provide a vessel «^i L> i 366 INDEX TO CIVIL CODE. Afrreif(litiiient;.— arts. properly equipped and man- ned, and maHter munt have a pilot when required by the law of the country 2423 master must receive goods and sign bill of lading 2420, 2424 goodH must not be stowed on deck 2425 must sail on the dav fixed . 2426 must take all needful care of cargo 2427 and deliver the goods 2428 how goor . , 2453 •e- , , 24&1 »y jr ■ • 2455 68 2456 2457 • 2468 2450 , . 2450 •K- 2431 •rs .246, 324 be , , 115 iL le a 16 . , ?025 R- 21-22-23 24 y 25 26 )e 27 a , 20 , 844 I- , 6 1- ^ 600 42U 422 423 458 52 ARTS. Alienation of substituted property during the sub- stitution 063a Alimentary Allowano? : Vide Maintknanck. Alimentary l*r;>viBlon, is not liable to vseizure 1100 Allnvlon, belongs condition- ally to riparian proprietor, does not take place on bor ders of private lakes and ponds effect of a large portion of land being carried away. . . usufructuary enjoys the l)enefit of AlteratlouH, depositaries of registers responsible for. . . Alternative Obligations : Vide Obliuations, alter- native. Ambiguity, of laws not a pretext for refusing judg- ment AmblgnouH,law-how inter- preted AmelloratlonH : Vide Im- provements. AmeublisHcment : Vide Mobilization. AnImalH, owner's and user's responsibility for 1055 found straying — Vide R.S.Q. 5537 et seq 504 § 5 Annuity, value of a life rent estimated as 1015 AnswerH, inserted in nota- rial protests not proof 1201) Appeal, regarding tutor- ships 281, 2H« regarding emaitcipation. . . 321 interdiction..:«2,:«0/i '' oppositions lo marriage Application, of laws o f Lower Canada and foreign laws Appointment, of heir in contracts of marriage 830 Apprentices, responsibility of master for acta of 1064 11 12 146 6 Apprentices.— arts. prescription of wages of . . . 2262 privilege for wages of 2006 Apprenticeship, expenses of not subject to be return- ed to succession — . 720 Appropriation, of property for public purposes : Viae OWNEHSHIP. of payments : Vide Impu- tation. Architects, are discharged from warranty after ten vears .* 2250 liable for loss of building within ten years 1688 Vide Work, Lease and Hire of. Archives, certain, recoids, registers, &c.. are evidcntie 1207 Arrears, of rents and inter- est prescribed by tive years 2250 registrations of arrears of 2122 to 2125 Arrest, damages arising from false 1053 Artisans, rules they are sub- ject to 1606 nave no direct action again.st owner of buildings they erect 1607 payment of — how secur- ed 1607 «, fe, c dt: r/ Vide Won K MEN. AscentlantH, liability to maintain . .166, 167 whom they ure Donnd to maintain 165 to Ht8 inheritance by : Vide Suc- CKSSIONS. AssessmciktH, liability of usufructuary for 471 for building churches, pri- vilege for, on immove- ables 2000 to 2011 Assignee, of ri>{ht in succes- sion may be excluded from partition 710 of litigious right : Vide RioHTs LiTKHors 1582 Assignment., of debt : Vide Transfer. t ' I h : 368 INDIX TO OIYIL OODl. A8si(ninieiit.— arts. of Titi|g;lou8 rights : Vide Sale of and Rights Litig- ious. of lease by the lessee 1638 ** in cases of cultiva- tion of land on shares 164A Assurance : Vide Insuk- ANCE. Attachment, rijo^ht of lessor for rent 162S1024 right of unpaid vendor to 1998-1999 Attorneys : Vide Advo- cates. Attorney, power of: Vide Mandate. Auction, either forced or vol- untary 1564 when need not be by licensed auctionetar 1565 effects of not employing such auctioneer 1666 how sale is completed 1567 things when not paid for may oe resold 1568 Authentic Writings : Vide Acts authentic and Writings authentic. 1207 ei seq. Authenticity, of registers of acts of civil status 42 and of extracts therefrom . 50 of certain notarial instru- ments 1208-1209 of sundry public records,etc. 1207 Authenticity.— arts. of copies of authentic writings 1215 to 1219 of certain writings executed out of Lower Canada 1220, 7 Authority, Of Parents : Vide Parental Author- ity. of Marital: F«rfe Marital Authority. Authorization of Ck)RONER, sometimes required for burials 69 OF WIFE to appear in judicial proceedings 176 to give or accept proper- ty 177 generally 176 to 184 as mandatary 1708 general only valid affects er property 181 of age by her minor hus- band. 182 want of is a nullity 183 Judicially to release her husband from prison or establish her children 1297 OF Tutors to minors re- quisite certain things ^, 301, 306, ;«7 Averaipe General, Vide Insurance Marine. Avoidance, of contracts,&c. in fraud of creditors. .1032 to 1040 B. Bad Faith, regarding im- provements 417 must be proved by he who alleges it 2202 BaiSifrs, cannot buy litigious riphts 1485 Balance, interest due to and by tutor on acxjount. . . 313 Bankinir, express authority required for corporations to carry on 367 partnerships for, how regu- lated 1888 Bank Notes, prescription of 2260 making, circulation and payment of 2348 Bankruptcy, what is meant by. 17 §23 effect of in regard to con- tracts 1035-1036 effect of registration of sale of property within 30 days of 9200 Bank Stock, is a moves l)le. 38!^ Bans of Marriage^ publica- tion of and certificate of 57,58 130 INDEX TO OIVIL OODI. 369 ARTS. to 1219 i 1220,7 1. *, >r m n 176 r- . 177 6 to 184 .. 1708 t8 181 8- 182 183 Br • • 1297 e- "ao6,:«7 ie ;c. i to 1040 of 2200 id 2348 nt 17 §2:3 0351030 le ys . 9200 e. 3Sii ,68130 Bans.— ARTS. Of mnri'inye, how diMuens- ed with nO, 1:^4 Of viat'rioffe, when mid where published VM, 131, i:^'{ Of mat^itiffr, iiiHufflcient after one year 00 Harratry, whnt is 2511 BaHtard, Viilt- lLi.K(irri- MATK. Births Floating, are move- ables :i85 Beaehos, property in grawses upon, VUde K. S. Q. 5537. . . 501 resulation!) ref^arding thingH obHtructinK 504 Beams, reHtoration of 400 in common wa!l8, how placed 514 Bees, ownership of 428 Beneficiary Heir : Vide Heir Benefk;iary fWO et srf/. Benefit of Discussion : Vifir Discussion. Benefit of Division : Vi(h Division. Benefit of Inventory : V'Ofr Inventory. Bets, when right of action' lies with regard to . . . . 1927, 1028 Betterments : VUfe Im- provements. Bill of LaclinK : Vidr Ak freiohtment 2420 rf seq. transfer of 2421 Bills of Exchange, (irueral Provisions, Law of Eng- land at 30th May 1849, to ap- ply when Code IS silent.. 2340 2;«1 but parties to suit may be examined under oath 2342 Prescription of 2200, 2207 Birth : Vide Acts of Birth 54 et se(|. Vide V liation 228 et seq. Blanks, not allowed in regis- ters 46, 2180 Boarding House, prescrip- tion of charges for 2262 keepers, are liable as depos- itaries for goods of travel- lers 1816 Boartling House.— arts. keepers liave a Hen and can sell goods of guests 1816a Bourding School, prescrip- lion of charges for 2261 Boats, are moveables 385 Boilers, when they may be- come immoveables by des- tlnation :no§l Bonds, bottomry a»e negoti- able ■ 5W15J Books, not comprised in the word " jnoveablen " *w Borrower, the obligations of \im to 1772 Bottomry: VidehoAS upon bottomry and respon- dentia 2504 et seq. Itoundaries, neighbours reciprocally Imund to settle the boundaries of their ad- jacent properties 504 determined either b v mutual consent or by judi- cial authority o<>*" Branches, over hanging must lie cut o20 British SuUfect, enjoys full civil rights here • 18 how quality acquired and who Is ^®«^?!^ Brokers, who are 173o rights and obligations of. . 1737 et seq. Brothers : Vide Sisters. Brother in Law, and sister in law, marriage between Is prohibited, but is per- mitted between a man and his deceased wife's sister . 125 Builder, privilege of 2009 § 7 privilege of, on what and how established — 2013 liability for loss of building before delivery 16841685 liability for loss If building perish within 10 years 1688 discharged from wanai ty after 10 years 2250 registration of prlvllegt of. 2103 Vide Work, tease and hire o/and Workmen. 2i 3t0 INDIX TO OIVIL OODB. AKT8. Buildinfpi, proprietor of soil may erect 414 proprietor of Hoil preHumed owner of 415 if made with materials of another 416 if made in bad faith on property of another 417 if made in good faith on property of another 417 Builflinffs, diHtancc re- quired between certain .%2 views on the property of a neighbour nXi Burial : Vlrlr Acts (»k BuRiAi (i6etHeq. Buyer, Obligations at'. . 1532 et seq Buyer.— arts. principa! obligation is to pay price 153*2 where payment must t)e made l&^i when liable for interest I5:il may delay payment when disturbed in poMsession, etc 1635 rights and obligation of when sale dissolved 15311 rights of when moveable is sold to two persons 1027 when and where he must take away things sold 1544 rights and obligations of in cases of redeniption . . . 1.54U et seq Viffe Salk, Redemption. Payment, Intehest, Dis solution and pukchasek. C. Cadastral Plans 216Het seq. Canada Gazette, makes proof of official announce- ments contained therein. . . 1207 Cancellation, of contract for building-when and how owner can secure 1091 of registrations of real rights. Vide Registra- tion 2148 et seq. Capacity, to contract, by what law regulated per- sons who have and have not 0H5 080 to contract in whose favour incapacity exists and by whom it may be set up U87 to contract in oises of sale 1482 to contract in cases of vol- untary deposit 1800 1801 to contract requisite to effect novation 1170 to contract requisite to enter into tran.sactions — 1010 to contract of a wife when niarchande pubiioue 170 to contract of minor en- gaged in trade 323 Capacity.— to contract requisite to validly offect a tender llfi.1 in tfifts inter vivos and in wills 750,761 requisite to make will s 831 requisite in case of u wife 184,832 to receive by wills 838 of witnesses to wills in authentic form 844 of witnesses to wills in Kn /lish form 851 of witnesses to authentic writings 1208 to contract marriage 115 Capital, sums belonging to minor liow transferred... 207 Capitalization, of life rents how calculated 1915 Captain, of ship ; Vide Mas- ter, Afkreihhtment, In- surance AND Bottomry. Care, provisional, of children given to husband usually in cAses of sepamtion 200 of minor children of a father who has disappeared 113-114 IMDBX TO OIVIL 0001. 311 ARTS. Oarrtase, of potiHengers In merchant vesHolH 2461 et seq. Carriers, by land and irafer — uhligationH an to safe keeping of thingn 1072 obligationM aH to receiving and carrving uaHHeiigr-rM . . . 1078 liability for tlitngH deli vi>rod at place of deposit 107-1 lianility for Iohh or damage of things 1«75 effect of special conditions limiting their iialtility 1076 liability fur gold, jewellery, money, &c 1677 liabilitv for dela} occas- ioned by force nuijrui'e... 167H rightof retention forfrei^ht 167U receipt of thing earned without protest, frees car- rier from liability for dam- age, &c HWO Cattle, rights and liabilities ftf usufructuary for • 478 lease of, on shares, \v hat is . 1008 what kinds of animal may be object of this contract . . 1008 how this contract is regu- lated 1700 Straying on beaches of St. Lawrence. — Vide R. S. Q. 5537 et seq. Vide Animals. Cause, a lawful cause or con- sideration necessary in con- tracts WW Celebration, of marriage : Vide Solemnization . . 128 et seq. Certificate, of maiTiage 157 et 8e(i. birth 50 death 51 hypothecs, fcc, by registers 2177 Cession : Vide Assignment. Charlies, usufructuary is liable for all ordinary and certain extraordinary 471 dowager is liable for all or- dinary and extraordinary . . 1458 emphyteutic lessee liaole for certain 576 ARTS. Charter - Party, Vids Av- fkkiohtmknt. Checks, governed generally by rules concerni:ig bills of exchange 2354 Child, of unknown parents, how entry of baptism is made 50 rules as to legitimacy of, liorn during and after mar- riage 218,221,227 when husband may disown such 210,220,222 within what time husband may disown 223 within what time heirs of husband may disown 224 how such disavowal is etrected 226 Children, definition of the term in prohibitions to alienate U80 care of mi nor children of a fa- ther who has disappeared.. 113-114 obligation of parents to maintain and bring up 165 father has care of (unless otherwise ordered), during pendency of action for separ- ation from bed and board . . 200 the successful party (unless otherwise ordered on ad- vice of a family council) is entrusted with their care, after judgment 214 but parents retain the right to watch over them who- ever may have charge of them, and they must con- tribute to their support 215 effect of separation as to bed and .board on advan- tages of children 216 remain subject to parental authority until majority or emancipation 248 minor cannot leave father's house without permission. 244 may be corrected by father or mother and those deleg- ated by them ^ ra r : 'I 872 INDEX TO OIVIL CODl. CThlldren.— arts. Bubnequent birth of child- ren does not conntitutc a resolutive condition in gifts H12 legitimation of children bom out of rnarritiKe. .*2iM to 'j:W acknowledgment by parent gives right to dcmanlhhig, wife's right to have dur ngf-mit for separ- ation 202 CotlicilN, to wills, how they take effect 840 Cohabitation, for six months, effect of as regards right to annul marriage — 149, 151 Coheirs, registration by : Vide Rk(JIstration 2105 Co-Legatees, registration by: VjV/^' Reuistkation. 2]fi5 Collaterals, marriage be- tween, when prohibited... 125 succession by, how they devolve and are divided — ({31,034 Collisions, at sea : Vide Acc'IDKnts, Marim'. Collocation, of Privileges : Vide Privileges. . . . 1984 et seq. of TAfe Rents: Vide Life Rents 1914 Coniinencenient of Proof in Writing, when neces- sary as evidence of the fill- at ion of legitimate children 232 what constitutes in such cases 233 proof may l)e made by test- imony, when there is 1233 § 7 in certain cases family pa- pers constitute 233 Commercial Agents : Vide Brokers and F a c t • ORS 1715 et seq. Commercial Liaw : Mer- chant Shipping 2355 et seq. Affreightment. . . . 2407 et seq. Insurance 2468 et se^. tNDKX TO OIVIL OODi. 373 CutiiiiieiH}lttl Law.— akth. BoTTOMilY ASU HkhI»(»NI)- KNTIA 2n(HetHe(|. Conimerclal MatterN, oral evidence adiiiisHible in . . IZ^i § 1 Joint and Hevernl ol)liKatiun preHumed in 1 10.') marine innurunce always Ih and other inHurnnceH may 1)6 2470 Commercial WrKiiiKN, presumed to have been made on the day of their date 1220 CommlHNlon, on BIIIh of Exchange : Vide Bills of Exchange 2:m CommiitNloii MeruhantD, who are : Vide FAtToitH. . . ITSiS Commodatuiii : Vifle Loan FOR USK 17ttJ et acq. Common Property, (as be- tween neighbours) when walls are presumed to be. . 510 when they are not so 511 to whom repairs are charge- able 512 how coproprietor may avoid same 513 right to build against 514 right to raise common wall 51.5-510 how neighbour may acquire property in such super- struction 517 how a wall may be made common 518 right to malce a recess in . . 519 expense of building and repairs to 520 when neighbour may make window or opening m 5:W mode of building and re- pairing different stories of same bouse 521 servitudes continue after rebuilding of common wall 522 when ditches presumed to be 523 and when not so 524-525 common ditches kept at common expense 526 GomiiHMi Property. aktsI hedges when presumed to iw and when not 527 trees and shruUs, rules re- garding 528 Codiiiiiinity or Property, l)etween consorts exists in absence of oonvenants to the contrary 1260 in either legal or con- ventional 1238 comnuMices from the day marriage is solemnised 120U parties cannot stipulate that it shall commence at any other period 12(M) ftyal, exists by mere fact of marriiige, in absence of stipulations to contrary . . . 1270 also by declaration to that effect in contract of mar- riage 1271 of whattheassets consits 1272-1273 as to mines and 'y.— arts. those incurred by wife only aftei dissolution 1294 civil death of one consort affects only share of such consort 1205 effect of unauthorized acts by wife on 1296 exception in cases of public trader and when authorized by a judge 1296 husband administers wife's private property 1298 wife cannot bind herself for nor husband 1297, i:i01 husband can only lease wife's property for a period of nine years 1299 Administration of^ and cannot renew more than a year in advance of expir- ation of such lease 1300 consort may pretake price of propre sold 1303 also amounts applied to exclusive benefit of other consort 1304 how replacement is eirected 1305-1306 out of what property com- f>en8ation may be claimed . . 1307 lability of property for sums used to benefit child- ren 1.-308 also, when benefit confer- red by husband alone 1309 Dissolution of, how com- munity is dissolved 1310 when separation as to pro- perty may be had 1311 when it takes effect 13i*: judgment ordering must be inscribed 1313 judgment is retroactive 1314 wife alone can demand such separation 1315 when creditors may oppose demand for 1316 when obtained wife must contribute to household expenses or bear all, if necessary 1317 1323 Community of Prop'y.— aKTS. effect of separation as to wife's power to administer her property 1318 when husband is respons- ible for the investment of price of immoveable alien- ated by wife under judicial Authorization 1319 when and how community may be re-established 1320 it then resumes its effect from day of nmrriage ...... 1321 dissolution does not give rise to rights of survivor- ship Vide SKPAKATiON OF Pko- PEKTY. In absence of will, surviv- ing consort has usufruct. . . obligations incurred by such usufruct 1324 usufruct ceases by second marriage 1325 property may be exempted from usufruct by will 132() Inventory must be made 1327, 1329 consequences of want of in- ventory ...1330-i:«2 Acceptance and renun- ciation of 1338 wife who has intermeddled cannot renounce — 133i» nor can wife of full age who has assumed the qual- ity comnu)n as to property. i:MO acceptance by wife under age, when duly authorized, is irrevocable 1341 wife must nmke inventory. 11342 but in certain cases may renounce without doing so has a delay for deliberation . at expiry of which she must renounce by notarial acte or judicial declaration 1345 when sued as being in com- munity may obtain an ex- tension of delay 1346 may renounce even after expiration of all these delays, conditionally 1347 1343 I'Mi AttTS. to er 1318 IS- of n- lal 131« ty 1320 JCt , , 1321 ve or- , , 1322 lO- iv- 1323 by 1324 11(1 1325 ed 132(J V.Vll , 132H in- i:wo-i:«2 (ti- 1338 led • • • \:]m ige al- ty. VMO ler ed, 1341 ry. i:i42 lay so 1343 m. i:m4 ist cte • • • 1345 m- ex- 1346 ter Bse 1347 INDEX TO OIVtL OODK. Coinniuiiity ol* Prop'y.— arts. renunciation by widow or heirs guilty of abstraction or conceabnent, is inoper- ative VMS delay granted to heirs of widow who dies liefore or after inventory is made. . . 134U above provisions also take effect in cases of civil death VM) creditors of wife may im- pugn any fraudulent renun- ciation IJiol widow allowed to sustain herself and domestics at expense of community dur- ing delays to deliberate. . . . 1352 heirs of wife whose decease has dissolved the com- munity,have similar delays 1353 Partiuon of asKcts—how effected 135-1 what is returned into mass of 1355-135(5 what things are preUiken . . 1357 pretakings of wife take Erecedence over those of usband and method of pretaking i:i58 from what property re- "spectively the pretakings of husband aim wife are taken 1359 interest on replacements and compensations 136U division of assets i:i61 how effected when all the heirs have not accepted VMM general rules of partition among coheirs applicable . . 13()3 consort abstracting forfeits his share V.MM Coinikiuuity, Partition of assets, as to enforcement of personal claims of one con- sort against the other VHiii interest on such claims 13(j() gifts between consorts not taken from community 1367 wife's mourning chargeable to husband's heirs 1368 5 ARTS. Coiiiiiiunity.— Liabilities of and rontrihu- tiov to debts iXahi^ charge- able equally 1369 wife not liable for debts be- yond beneflt she derives, if she has made inventory , . . 1370 but husband liable for u hole of debts 1371 although only conditionally for personal debts of wife. . 1372 wife can be sued for the whole of her personal debts, saving her recourse 1373 wife bound jointly and sev- erally with her husband, nevertheless only bound for one half of debt 1374 remedy of wife who has paid more than her half of a debt of the community.. 1375 remedy of wife sued hy|x>- thecarily 1376 by the partition, wife may become charged with more than half of a particular debt 1377 heirs of consort have same rights and obligations as the consort they represent. 1378 Renunciation of and its effects : Vide Renuncia- tion. Content io}ial~v o n s o r t s may alter or modify the legal community . ; 1262 but subject to certain re- straints 1258, 1250 what are the principal modi- fications 1384 K(:Hlization : Vide Reali- zation 1385 et seq. Mobili/ation : Vide Mobi- lization 1390 et seq. Separation of Debts : Vide Separation of Dkbts. l;i96 et seq" of the right of the wife of taking back free and clear what she brought into the community 1400 conventional preciput: Vide PREt :it»UT 1401 et seq. ;» ?Tr 11 . I 376 INDEX TO CIVIL OODl. 1412 14ia Community.— arts. unequal shares may be as- signed to the consorts 1406 debts are born proportion- ately to such shares 1407 effect of condition to pay a fixed sum in lieu of share of community 1408-1400 effect as regards creditors. . 1410 effect of stipulation that the whole community shall be- long to survivor 1411 of community by general title other covenants may be made than those above enumerated in matters not expressly departed from, legal com- munity applies 1414 of clause simply excluding community 1415 effect of simple exclusion of community : Virfe Exclu- sion OF Community. 1416 to 1421 of clause of separation of property : Vide Separa- tion OF Property . . 1422 to 142.5 Coiiiinunitie8,religious must keep registers of acts of burial religious must Iceep regis- ters of acts of religious pro- fession how kept and what must be inserted 71 et seq. Commutation, of sentence of civil death— effect of ... . :38 Companies: Vide Partner- ship, Joint Stock and Corporations. Compensation, (Sff off) what gives rise to 11S7 {Set oj') when effected by mere operation of law — 118H {Set off) not prevented by voluntary extension of time. 11H9 {Set off) when it does not take place 1100 {Set off) effects as to surety, principal debtor and joint and several delitors 1191 (58 70 Compensation. — arts. {Set off) effect as to assignee of the debt 1192 (Set off) rule wlien debts are payable at different places. 119!^ {Set off) may be demanded by execution 11J)4 {Set off) imputation of, when several debts due 1195 {Set off) does not take place to prejudice of rights ac- quired by third parties 1190 {Set q/f) privileges attached to a debt are lost, as re- gards third parties, by pay- ment thereof when same is compensated 1197 Compensation, (/ndf^m?ti7y) right of wife to in cases of community 1285^, 1280 {Indennufy) right of hus- band in cases of commu- nity 1290 {Indrmnity) mutual rights of husband and wife to. I;i0:^-ia04 {Indemnity) from wliat property taken 1307 {Indenniity) bears interest from date of dissolution 13()0 Complicity, of legatee in death of testator ground for revocation of legacy 893 as also in cases of gifts 8i;{ Computation, of time re- quired to presenile 2240 Concealment, of effects of community, effect of. 1364, 1:M8 in insurance : Vide Insur- ance 250:J, 24R5 Concul)ina||^e,gifts between jjersons who liave lived in, are limited to mainten- ance 768 Condemnation, to certain corporal punishment re- sults in civil death 31, 3:^ various effects thereof 36 Conditions, for naturaliza- tion 22 to the validity of a contract 984 when an obligation is con- ditional 1079 tNDBX TO CIVIL OODK. 377 .re >8. iia^ ed . , \\\y\ en , . 1195 tee ic- 11% ed re- ly- 18 1197 ty) of 28:^ 1280 iis- lU- 1290 its i:i(«-1304 lat 1307 ^st . ■ • i:3(K) in rul 89a . • • 8i:i re- 2240 oif ^4, 1348 K- 5011 , 24a5 en n, in- . , 768 in re- , ^ 31, :« , , :« ;a- 22 ,ct 984 n- , , 1079 Conditions.— arts. impossible or illegal, effect of in gifts 760 in obligations, contrary to law or good morals render void 1080 in obligations, when facul- tative are null 1081 in obligations, when must be fulfilled 1082 in obligations, when pre- sumed to be fulfilled 1083 in obligations, when be- come absolute 1084 in obligations, fulfilment of has retroactive effect 1085 in obligations, before fulfil- ment of creditor may per- form conservatory acts 1086 in obligations, effect of sins- pensive 10H7 m obligations, effect of re- solutive 1088 in gifts, effect of resolu- tive 779,811,816,824 in Insurance : Vide Insur- ance. Conftneiiient, persons dying in forcible, burial of 69 Confiscation, of property of persons civilly dead 35 Confirmation* of title, judg- ment of, extinguishes hy- pothecs 2081 §7 ConTusion, a cause of ex- tinguishing a debt 1113 obligations become extinct by li:^8 when it arises 1198 avails the surety, but not the debtor when it occurs between the surety and creditor 1199 when it arises and ceases in matters of hypothecs . .2081 § 3 ConquetH, of community— what are deemed to be 1272 to 1278 Vide Community of Pro- perty. Consent, legally given, a re- quisite of contracts 984 either express or implied . . 988 ART8. Consideration, a lawful, a requisite of contracts. .. 084 effect of incorrectly ex- pressing 989 when unlawful 990 Consorts, mutual rights and obligations 173 to 175 when the wife or husband of absentee may re-marry . . 108 second marriage allowed only in dissolution of first. 118 may oppose marriage of each other 136 against whom separation granted loses advantages. . 211 obtaining same retains ad- vantages 212 but are reciprocally bound for aliments 213 effect of reconciliation after judgment 217 mutual donation of usufruct between, abolished 1265 indemnity to for amount used to benefit child 1308 liability for debts due by community 1372 to 1377 Constituted Uents : Vide Rents constituted. Consumable Things : Vide PRIUSHAKLE THIN(SS. form the subject of loan for consumption (tnufinnn).. . . 1777 Contents, of Immoveable, liability of vendor for when specified 1501 to 150:i Contingent Hights, accru- ing to absentees 104 to 107 Continuation, of Lease: r/r/« Tacit HKNEWAi 1609 Contractors : Vide Work Lease AND Hire OF 1(W3 payment of wages by : Vide Workmen \Wla ot seq. Contracts, requisites to val- idity of 984 who can enter into 985 who cannot enter into. . . . 986 when incapacity is in favor of one of the parties only . . 987 consent is necessary to , . . 988 >; 1 1 1 i I I n I i i i 'i \l 3»g mDBX TO CIVIL oot>i. Contracts.— arts. cause or consideration essential to 989 rendered null by illegal or immoral cause 990 causes of nullity in con- tracts, causes of nullity in error : Vide Error 9J)2 causes of nullity in fraud : Fide Fraud 9JW causes of nullity in violence and fear . Vide Violence AND Fear 994 et seq. causes of nullity in lesion : Vide Lesion 1001 et seq. interpretation of : Vide Interpretatio" of Con- tracts .. 1013 et seq. effect of, produce obliga- tions, etc 1022 usually only affect contract- ing parties and not third parties 1023 extend to incidents to same 1024 for alienation of a thing certain makes purchaser owner 1025 otherwise if thing uncer- tain or indeterminate 1026 effect of with regard to third persons : Vide Third Parties 1028 avoidance of, made in fraud of creditors 1032 et seq. avoidance of, Vide Credit- ors. . Quasi : Vide Quasi Con- ' TRACTS 1041 et seq. Quasi : Vide Negotiorum Gestio. Undue payment. Vide Oblioations. Contrainte par Corps: Vide Imprisonment. Contribution, in maritime losses : Vide Insurance 2553 et seq. to debts of communitv : Vide Community .'. . 1369 by usufructuary for debts on thing subject to usu- fruct 474 Contribution.— art«. by joint and several debt- ors and when one of them is insolvent 1117-1119 by partners : Vide Part- nership 1839, 1840, 1893 Conventional, Community: Vide Community C o n - VENTION AL 12(i2 et se(|. Dower : Vitfe Dower Con- ventional 1428 et seq. Conveyawce, of passengers in merchant vessels . .2461 et se(|. Copartitioners, are war- rantors toward each other. 748 in cases of dissolution of partnership 1898 privilegeoi on immoveables divided 2014 their claim must be reg- istered 2104 Copies, of authentic writings 1215 et seq. of lost notarial instruments makes proof of original 1217 of original documents, when they make proof 1219 Coroner, must authorize burial in certain cases 69 Corporations, what are 352 how constituted 353 are either aggregate or so e :i54 ecclesiastical or religious, lay or secular 355 secular corporations are either political or civil 3o(J have a corix)rate name under which they act Ii57 rights which they may exercise 358 select officers from their members 359 posters of these officers 360 can make by-laws and regulations 361 privileges of in general 3()2 f)rincipal privilege that of imited liability of its members 363 disabilities of in general. . . 364 certain, are tutors to found- lings, Vide R. S. Q. 5504. mttx t6 civil code. ARTS. ebt- in IS .11171110 IRT- 1840, 1803 ity: )N- met seq. !ON- 128 et seq. ?ers [61 et seq. var- ler. 748 1 of 1898 bles • ■ • . 2014 reg- 2104 t ic 515 et seq. snts 1217 fits, 121U :ize 69 • • • 352 353 »o e :m •us, . . :i55 are • > . 35(J me 357 lay 358 eir 359 , , 360 iid 361 362 oif its • • • 36:^ • • • 364 id- Corporations.— ARTS, voluntary liquidation ... '.^',i& cannot execute wills 908 cannot be tutors, executors witnesses, &c 305 restriction us to acquisition of property {mortmain) . .366, ^MS special authorization re- (|Uired for business of bank- ing :J67 of the dissolution of .. .368 to 370 of the liquidation of affairs of dissolved 371 to 373 property of 404 Krescription of property L'longing to 2221 Vide Partnership, Joint Stock. Correction, of unenianei- pated minors, right of 245 Corrosive Snbstan'^es, store for near a common wall mti\ C«ists, pei-sons residing out of Lower Canada must give security for 29 liability of .ni unsuccessful opposaiit to a marriage for 147 /rn/',are privileged on move- able property ll»94 § 1 defmition of such law costs 1995 are privileged on immove- able property 2009 hypothecs secure all costs incurred 2017 Vide Expenses. Co-Sureiies, Vide Surety- ship 1929 et seq. Co-Tutors, when appointed and powers of 201 Council, family : Vide Fam- ily Council. Counsel, judicial : Vide Ju- dicial AUVLSER- Counter-Letters, efTect of between writers and third parties 1212 C'ounter Walls, between neighbours, rules as to 532 Covenants, mBrriage : Vide Marriage Covenants. m ARTS. Coverture, women under, restrictions as to power to contract 986 Creditors, may intervene to prevent usufruct of their debtor being cancelled or renounced 480, 484 rights of, in case of gifts by their insolvent debtor 803 may impeach fraudulent acts of their debtor 1032 but onlv when they will injure them 1033 a gratuitous contract bv insolvent is deemed fraucf- ulent 1034 so may an onerous contract be Km so are payments made by an insolvent debtor to a creditor knowing his insol vency 1036 when onerous contracts are not voidable 1038 when subse(iuent creditoi's may impeach such acts. . . . lOJiO one year's prescription applicable to such suit** 1040 joint and several interest among : Vide Joint and Several 1100 et seq. Crops, tithes carry a privi- lege upon 1!)97 when uncut, are immove- ables.. 378 Crown, definition of 17 § 1 things having no owner be- long to 584 when things found at sea, or on shore belong to 589 legal hypothec of 20:J2 want of registration can be invoked against 2086 exception 2084 § 3 prescription in favor of and against: Vide Prescrip- tion 2211 et seq. f>rivilege of 1J)89 egal hypothec of 20132 Curator, to habitual drunk- ards 3:J60 1 1 1 ! ■ i \^ i'l 360 INDEX TO CIVIL OODl. ?. ' Curator.— arts. is either to person or pro- perty ;«7 to what persona given 1338 how appointed and sworn., 'diiii cannot oe named by a test ator . 922 to emancipated minora power of 317 et seq. 340 to interdicted person, how appointed 341 husband and wife, when appointed to each other 1342 to insane or imbecile per- sons, power of 343 responsibility for damage done by those in charge of. 1054 how long must retain office 344 to child conceived, powers of 345 ad hoc, when necesssary. . . 346 Curator.— ARTS, to absentees : Vide Absen- TEKs 87 et seq. to property, when appoint- ed 347 to property must be sworn 347a to property of extinct cor- porations 372, 373 to substitutions 347 § 2, 945 to vacant estates 347 § 3 to property abandoned by arrested debtors and hypo- thecarily :M7 § 5 to property accepted under benefit cf inventory 347 § investmtnt of money ])y. . . 981o et seq. Customary Dower : Vide Dower C'lTSTOMARY. . ^, CustoiriK- Duties, privilege of Crown for 1989 D. ■a ) i|! Damages : Vide Ac(:idents. responsibility for damages done by children, pupils, insane persons 1054 arising from breach of oblig- ation 1065 not due until deV)tor put in default except when oblig- ation is not to do 1070 always due save when non- performance of obligation arises from cause not im- putable to debtor 1071 fortuitous event or irresis- tible force a valid excuse . . 1072 of what they consist usually 1073 only what might have Ijeen foreseen 1074 even in cases of fraud they consist merely of direct and immediate consequences. . . 1075 effect of stipulation for a specified sum in lieu of damages 1076 resultmg from delay of pay- ment of money consist sole- ly of interest 1077 Damages.— when interest can be com- pounded 1078 arising from delifs commit- ted by two or more persons are joint and several HOG as between joint and sev- eral debtors 1109 arising from non-perform- ance of an indivisible oblig- ation are divisible 1128 mandatary is liable for, for non-execution of mandate. 1709 also for those arising from his want of care, etc . 1710 each partner is liable to partnership for those caused by his fault 1845, 1856 hypotheca^ creditor may sue tiers dHenteur for de- terioration to immoveable hypothecated 2055 to Real Estate, Fate, of private writings, how proved against third parties 1225 of commercial writings, presumption in favor of. . 1226 Day, on which prescription commences is not counted . 2240 Ueaf Mutes, provisions as to wills of 847, aoO, 852 Death, by violence or in pri- sons, asylums, etc 09 effect of complicity of lega- tee in death of testator 803 Vide Civil Death and Acts of Burial. Debentures, for payment of money how transferred .... 1573 Debtors, joint and several : Vide Joint and Several Liability. property of, is the common pledge of his creditors 1981 Debts, not comprised in the word '* moveaoles " 395 of succession, how paid 735 et seq. liability of legatees for debts of testator .875 et seq. of community, how borne. . 1:J69 et seq. sale of : F/f7^ Sale 1570 Declaration of Hypothec : F/f7f Hypothecs. Deductions : Vide Infer- ences : Pretakings. Deeds: Vide Acts Nota- rial. Default, how debtor is put in 1067 by expiry of a certain time in which alone his obliga- tion could be performed 1068 in commercial matters 1069 debtor must be put in, be- fore damages become due . . 1070 ' ' ARTS. Defects, in contracts : Vide Contracts, causes of nul- lity in 9»l et seq. warranty against latent, in j-ale : Vide Warranty 1522 et stq. in things lent, resj onsibil- ityfor 1'76 in the possession requisite for prescript ion 2198 intrinsic in goods carried, responsibility for 2455 intrin.iic in goods carried, insurer not liable for dam- ages arising from ........ 2509 Degrees, of relationship in successions, how deter- mined 015 relations Iwyondt he t'.velfth do not inherit 03° Delay : Vide Term. Delegation, does not effect novation, unless so in- tended 1173 creditor who has d ischarged his debtor by wliom delega- tion has been made, has no '• remedy against his debtor in case of insolvency 1175 debtor consenting to be delegated cannot oppose to his new creditors excep- tions peculiar to the party making the delegation — 1180 Delivery, of a thing sold, what is 1492 when obligation of, is satis- fled 1493 of incorporeal things, how efl'ected 1494 expenses of, by whom Ijorne ... 1495 prepayment a condition preceaent, unless term granted 1496 and even then not obliga- tory if buyer has become insolvent 1497 takes place in state thing was at time of sale 1498 of a thing comprises its ac- cessories HW f 382 INOIX TO OIVIL CODI. m Delivery.— arts. of moveable8— quantity 1500 of immoveables—tiuantity. 1501 Oemand, a judicial, proper- ly served, interrupts pre- scription 2224 a judicial, wife and child- ren are seized of their rightM of dower without the necessity of a 1441 Demurrage, definition of.. 2457 how regulated when not agreed upon 2416 what is 2457 liability for 2458 ]>epo8it, of holograph wills and wills madt; in English form 857 is either simple deposit or sequestration : Vide Se- questration 1794 simple, is gratuitous 1795 and must be of moveable property 1796 delivery is essential to 1797 simple, is either voluntary or necessary . 1798 Voluntary, what consti- tutes 1799 Voluntary, who can enter into, and respective effects of, either of the parties being incapable 1800, 1801 Voluntary, obligations of depositary 1802 to 1805, 1807 to 1811 Voluntary, obligations of heirs of depositary 1806 Neccssari/, when it takes place..." 1813 Necessary, dcpositof things brought by travellers to inns, stc, is deemed so 1814 obligation of depositary. . 1677, 1815, 1816 Tender and : Vide Tender. Depositaries, of registers of acts of civil status are re- sponsible for alterations.. 52 and are punishable for in- fr^Qtious of dut^r 53 Depositaries.— ARTS obligations of : Vide De- posit executors arc seized as legal depositaries 918 Deposits of Earth : Vide Alluvion. Deputy, powers of principal usually pertain to 17 § 18 Descendants : Vide Suc- cessions 625 Destination, moveables may become immoveables by destination 379,380 by proprietor as regards servituae is equivalent to a title 551 Destruction, of thing leased, dissolves the lease 1660 Vide LobS. Deterioration, emphyteu- tic lessee has not the right to deteriorate the immove- able leased 578 in successions of immove- able returned in kind 730 of things sold 1498 of things due 1063, 1064 of hypothecated property by tiem d4tenteur 2054 Difference, in shares in kind in partitions compensated by payment of difference . . 704 between English and French text of Code 2615 Diminution, of price, buyer entitled to in certain cases 1501 Disabilities, resulting from minority, insanity, mar- riage, &c 248,986 by whom may be urged 987 as to tutorship 282 of corporations 364 Disappearance, of a person, right of presumptive heirs to take provisional posses- sion of property of 93 et seq. Disavowal, of attorneys — 1732 of a child, right to make. 219 et se<{. Discharge ; Vxth Hiiii^ASS, INDIX TO CIVIL OODB. 383 ARTS. Discnntinuanue, of a suit by PfaintiflT prevents inter- ruption of prescription . . . , 2226 Discount, of Bills of Ex- change 2!Xi2 l>isuiiH8ioii, benefit of, enures (as aKainst creditors of the seller) to a buyer of a thing sold with right of redemption loot surety entitled to benefit of upon default of debt- or 1941 et seq. tiers drtenteur of hypothec- ated land is entitlea to be- nefit of 2066, 2()«7 Disinheritance, can only be effected by an act clothed with formalities of a will . . h»9 Disinterment, of bodies 69a Disownini; : Vide D i s - AVOWAL. Dispensation, or license au- thorizingomission of public- ation of oans of marriage. . 50 right to grant from impedi- ments to marriage 127 Dispositions, impossible or immoral condition attached to effect of as to gifts and wills 760 Disq nal • flcations : Vide Disabilities. l>issoI (ition, of marriage only arises from natural death of parties 185 of conitnunity, when i t arises 1310 of community, does not give rise to the rights of survivorship 1322 of partnership when it takes place 1892-1803 of partnership, when no time for its duration is specified, may take place at will .• li-05 of partnership, when time is fixed for its duration, may take place upon just cause shewn 1896 Dissolution.— arts. of partnership, effects of as between partners 1897-1808 Iff partnership, effects of as regards creditors 1890-1900 of sale, latent defects i n one of several things may be a cause for 1525 of sale, non-payment of price in case of immove- ables, not a gronnd for 1536 of sale, in case of stipula- tion of rights of redemption 1537 of sale, buyer may always pay price before the judg- ment of dissolution Is rendered 15138 of sale, obligations of seller in cases of 1539 of sale, obligations of buyer in cases of 1540 of sale, an action for dis- solution is a waiver of right to recover purchase money 1541 of sale, but a demand of price is not a waiver of right of dissolution 1542 of sale, in case of moveables right of dissolution can only be exercised whilst goods are in possession of buyer 1543 of sale, and in case of in- solvency, within 30 days after the delivery 1543 of gifts: Vide GiVTn, revo- cation of 811 et seq. I>iHtance, and intermediate works required for certain structures 532 Disti'il>ution, of statutes. . . 4, 5 pioperty of del)tor is com- mon pledge of creditors. . . . 1081 Disturbance, or just cause to fear it, authorizes buyer to delay payment 1535 by trespass of third party, lessor not responsible for. . 1616 Ditches, when connnon or presumed so 523 et seq. common, are kept at com- mon expense 526 11 384 INDIX TO OIVIL OODE. if ' li! II ARTS. DIvtfiibillty, when obliga- tions are divisible 1121 effects of as between credlt- orH and debtors and their heirs 1122 when certain heirs ninst r perform the obligation as f it were indivisible 112:^ damages arising from breach of an indivisil>le obligation are divisible 1128 of admissions 1248 Viffe Indivisibility. Division, benefit of cannot be claimed as against cred- itor by any joint and sevfral debtor 1107 effect of creditor consenting to division of a debt 1114 or receiving share of one of his co-debtors so specified in the receipt 1115 and of receiving arrears or interest separately and without reserve from one of his co-debtors 1 116 takes place of ri^ht among co-debtors of their joint and several obligation 1117 effect of a co-debtor paying in full being subrogated in rights of original cred- itor 1118 effect of insolvency of one of the co-debtors 1119 when joint and several ob- ligation is for the benefit of one only of co-debtors, he is liable for the whole towards his co-debtors 1120 Documents : Vide Acts, Writings. Domain, public: Vide Crown. Domestics: Fouor.— A It IS. conventional accrues from date of contract of niarriaj^e an(i custoinarv from dati; of it s celebiMtion IVXi of what (•n^t(n^ary dower consists IVM mohili/ed immovfabh's and certain moveai)!es imiiohi- lized arc not siili.joct to ... IV-i't cn-tfnnary dower reMikin^ from a secotid iiiar-riaKe and any .'iiibsetiuent mar- ring*'. . .* li:]U of wliat convent ional (iower may consist 14:^7 conventional dnwer is taken from the private propertv of htisband '. 1410 is a ri^lit of survivorship, hut may open otlierw ise . , lA'AH wife obtains enjoyment im mediately on its opening; and cliildren onlv after her death ' U'.V,) wife and children are seized of their rights without necessity of judicial de- mand 14 II is a real right and is gov- erned by the law of the place wheie iniMKjveables are situated 1442 effect of alienation or charges on propert v subject to... ■. 144:S may be renounced by wife who is of age ! 1444 elfectsof such renunciation. 1445 of children, how renounce- able 1446 effect of sales under execu- tion of immoveaV)!es sub- ject to 1447 is subject to registration 1448,2116 but not to prescription by purchaser of the immove- able, so long as dower is not open 1449 conventional of wife is not incompatible with a gift of usufruct by husband 1450 Dower.— arts. when it consists of money, wife has all rights of other creditors of the succes- sion 1451 and when of a certain por- tion of property a partition njust be made 14">2 dowager's riglits are like other usufructuaries 145.3 she enjoys them on taking oath to restore the dower but if she re -marries must give seciirity 1454 eHVct of failing to do so 1455 she must nniintain leases lawfully made 14.56 but leases made by her, ex- pire with her tenure 14.57 slu' is liable for ail charges, ordinary and extraordinary. 1458 and for the lesser repairs. 14.59 she takes things in condi- tion tliey are at opening.. . 1460 her obligations when addi- tions have been made to the thing subject to dower. 1461 how terminated 1462 wife is deprived of by rea- son of adultery or of deser- tion — when action must be brought 146.3 also by the abuse of her en- joyment IMH forfeiture or renunciation of by wife results in child- ren taking the property 1465 children entitled to, are those born of marriage for which It was constituted. . 1466 child assuming quality of heir is not entitled to 1467 must return benefits re- ceived or take less dower. , 1468 liability for debts of father. 1469 consisting of money is "moveable" 1470 how divided amongst children 1471 Dowry, separation from bed and board gives wife right to obtain restitution of 208 25 386 INDKX TO CIVIL CODE. I>t»wry.— AUTM. wife of institute has no snh- sidiiiry recourse jipiinst tiie property of substitutions for securinjf her UM DruiikunlN. liHl)itual nuiy i)e interdicted .'WOu by whom and how demand for interdiction is nuule '.i'MWt who are deemed 'MUk- f>roceedinv?H on petition for nterdiction :{:MJd to :mh whendrunkard may he con- fined 3:mi to:mi how interdiction may be lemoved 'MHin DriiiikarclM. — auts. wife or son may be curator to :u«)o sellin)^ li«Hior to, ]'!flf U.S. Q. rhMi. DriiiikeiinoHN, persons suf ferin^ from a temporary deratiKcinent of intellect arising from, art; unaiih; to give a valid ctjusent in con- micts um l>uol, civil responsibility for damages caused by lOotJ DiitioN on su» cessions, Vide note to jirt 509 E. li' 'I . ji i Earnest, giving of, in cases of sale 1 477 EavoH, of roofs, how con- structed oJW Fd. (ti Krrur, is a cause of nullity in contracts \ W\ in what ca.ses J«J2 Krror, may l>e a cause for annulling marriage 118 of law not a cause for annul ling transactions IU21 of calculation in traiiK- action may be reformed IW2() he who receives what Is not due to him, by error, is bound to restore it 1047 he who pays a debt no longer due, by error, may recover it 1048 of fact, is a ground of revo- cation in a judicial admis- sion 1245 Krrors, rectifications of in acts and registers of civil status 75 et seq. lOsohcnts, to the Crown, prescription of: Vidt- Chown 221(J lilHtiniato and Contract, Workbv: Vkh Wohk .... l(K{et8e(|. Kvoiit, fortuitous; Vide Fortuitous Evi;nt. Kvlction, in cases of succes- sions 748 warranty against in sale. . 1508 et se«|, fear of, a cause for delay of payment 1535 of party acquiring property in cases of sales and expro- priations, does not lie 1590 In contract of exchange — 1508 in partnership property .... 1839 lilvidence: Vidti Proof. 1243 et sefj fi.\ceptioii8, which may be pleaded by a joint and several debtor when sued . . 1112 KxceptioiiN.— ARTS. 0» hypothecary action) of dlscuHHion 20flO of warnuit y 20lV< of subrogation 2070 rcsulriiig t'n»in e.\|n'nditur«' 2072 resulting from ii pri% ili-grd clahn or prior h\p<«thcc. . 2073 K.V(*fiMtiKe, what is the con- tract of 15il0 etlect of one of the pirties thereto not being the owner of the thing exchanged 1.507, 1598 rules of sule applicable to contract of 1599 lOxcluHion, from tutorship . 282 et seq. i from successions, can only I beetrected by an act clothed with the formalities of a j will 899 I L^xcliiHion of (^tiuinuiiify, does not give wife the right to administ«'r luT property 1410 but husband retains admin- istration 1 117 other particulars regarding 1410 to 1421 KxeoMloi'H, a testator may name one or more, and pro vide for their ronlacement . J)0" who may and who mav not be '. " 905tolK)9 nobody can be compelled to accept otilce of; duties of are gratuitous, and they are not Ijound to be sworn 910 who have accepted otiice cannot renounce it without judicial authorlication 911 when several are appointed and some only accept or survive testator 912 powers and liabilities of joint executors 913 expenses of are borne by the succession 914 may perform conservatory acts l)efore prolmte of will. 91.-), 919 testator may limit obliga- tions of 910 f I (I lit ; I- 388 INUEX TO CIVIL CODE. Executors. - arts. may be removed by the Court for cause i»17 are seized as legal deposit- aries and seizin lasts for a year and a day and must render one ati!ount U18 must eauf^e an inventory to be jnade U19 powers of do not pass to their heirs 920 testator may extend the powers and seizin of 921 testator may provide for replacetnent of 92:i wlien jnd;^e or Ciurtmav replace i hem 924 investnieni of moneys bv 9Slo it He(|. l^tf/f AUMINISTK A T «.) U , Tkstatok, Wills. Kxeiiiptioii, /'/■(>?>* tuforsh ip, causes re.Mii ling in 272 etsc'(t. Kxpentlltuice!9 : I'ide Im l»ROVKMi;>TS. ExpenHBH, funeral, privilege for 1994, 20l)2. 2009 funeral, a memorial of must be registered 2107 of last illness, privilege for 2008, 2009 of last illness, a memorial of must be registered 2107 of tilling and h o w i n g on immoveables sold before harvest, are privi- leged 2010 fruits only belong to pro- prietor of soil, subject to Expenses.— arts. payments of exi)enses of tilling and sowing done by a third party 410 lying in, are prescribed by two years 22(H § 1 in the (juasi -con tract nrgo- tiorutn fjt'sfio 104G in the quasi-contract con- (lief to indibiti 10o2 in cases of loan 1770 deposit 1812 of delivery in sale are at the charge of seller 1495 Experts, make valuation of immoveables in cases of l)artition in successions.. . . (UMi and in cases of provisional possession of property of absentees 97 Expropriation, of innnove- able property for public purposes, VUh' R.S.Q. 57o4« et secj. (.34 V. c.'.^S) 1589 no one can be compelled to give up his property excej)t in cases of 407 party acquiring property for such purposes cannot be evicted 1590 Extinction, of obligatiorjs. . 111^ of suretyship 195(i et seq. of privileges and hypothecs 2081 of mandate 1755 Extracts, from civil regis- ters, when authentic 50 from originals of certain authentic instruments 121H F. Factors, who are 17;^ liability of factors whose principal resides abroad. . . 1788 power to sell goods 1739 when deemed owners of goods for certain p u r • poses 1740 general provisions regard- ing 1736 et seq. Faith ffood, is always pre sumed 2202 good, of a possessor, when it ceases 412 good, improvements made by a possessor in 417 bad^ must be proved by him who alleges it 2202 INDEX TO CIVIL CODE. 389 ARTS. •s of lie hv .. . 410 !d bv .../MA S I myo- 104G , con 1052 1770 1812 re at 1495 ion of es of ns. . . . (WMi sional rty of ..... 97 move- public . 5754« 158i) iled to except 407 operty annot ... 159n ions.. 111^ li)5(i et seq. othecs 2081 .... 1755 regis- 50 oitaiii ts 121H y pre when made ed by t'alth.— ARTS. barl, improvements made by a possessor in 417, 418 False, authentic writings may be attacked and set aside as 1211 Family, meaning of the term 979 Family Council, who may e made by evidence wlien there is a conjmencement of proof in writing 232 what gives rise to this commencement 23Ii how proof to the contrary may be made 2J14 action of child to establish his status as in»prescrip- tible 2Sn when heirs of such child may bring action 236 Final, judgment(f7jo**f'j«(/ of right of redemption in sale 1.549 et seq. FortiflcationH, belong to the Crown 408 Fortresses, gates, walls, ditches, &c., of, belong to Crown 402 Fortuitous Event, defini- tion of 17 §24 receiver of a thing not due who is in bad faith, is liable for loss ])y 10.50 obligation to deliver ceases when thing is des<^royed by 1200 debtor is not liable for damages for iiiexecution of obligation arising from 1072 a cause of extinguishing obligations 1202 a yearly lessee discharged from rent when harvest is destroyed by 1650 when borrower is respons- ible for loss by 1767 ART.S. Found : ]'{(fr T h i n (J s Found 593 Foundlings, commissioners of certain hospitals to be" tutors to, vifh- K. S. Q. 5504. Fraud, is? a cause of nullity in contracts 991, 998 is never presumed 9l>8 nullity is not absolute, but onlv gives rise to action to annul 1000 of the avoidance of con- tracts made in fraud of creditors 1032 et seq. effect of with regard to sub- sequent creditors 1039 suit must be brought with- in one year 1040 V'i(fe Third Parties. Free and Clear, (clause of) in marriage covenants . . 1397, 1899 right of wife to take back free and clear what she brought into the commun- ' ' ity 1400 Freight: T7c/f; Affreioht- MENT. ;. * Fruits, unplucked, are im- moveables 378 belong to proprietor by right of accession 409 subject to payment of plotighing, tilling, &c 410 are acquired by possessor In good faith 411 usufructuary has a right to enjoy 447, 450 natural and industrial, definition of 448 civil, definition of 449 they are acquired from day today *. in right of use of laud entitles the possessor to use of fruits for himself and fam- ily 493 of immoveable given in pledge are imputed first in payment of interest 1967 an heir excluded for unwor- thiness, must return 612 ARTS. V. S ... 593 lers be o04. lity ..91)1,993 . . . . 993 but n to .... 1000 con- l of 032 et aeq. sub- .... 1039 ath- .... 1040 eof) 1397, 1399 back she nun- 1400 GHT- im- ... 378 by .... 409 i of 410 or in 411 htto .. 447,450 rial, .... 448 .... 449 ft day itles e of fam- . . . 493 in st in 1967 wor- dl2 INDEX TO CIVIL CODE. ARTS. Funeral Mxpen.ses : Vide Expenses Funeral. 391 ARTS. Furniture, what the word comprises 396 G. Gaming Contract^;, no rif^ht of action ff>r recovery of money claimed under. . 1927 exception in favor of races and games 192S Ganiiu/Bf Policies, are illegal 24SO Gaol, burial of persons dving in must be authorized by coroner or other otlioer .... 09 Gender, masculine, includes both sexes 17 § 9 General Average : Vide Insurance Marine. (iieneral Partners, in limit- ed partnerships or partner- ship en conitim tidite . 1872 are jointly and severally re- sponsible 1873 can alone sign for or trans- act business of partnership 1874 names must appear in cer- tilicate of partnership 1875 change of, dissolves the partnershi}) 1879 name of one or more must be used in the partnership name 1880 suits in relation to partner- ship may be brought V)y and against thetn ." 1881 must account to each other and to the special partners. 188.5 Generations, proximity of relatioiiship is determined by the number of 615 how computed in the direct line 617 and in the collateral line. . . 618 Giving in Payment, is eciaivalent to sale 1592 Gift, what is comprised in "gift of a house with all that it contains " 398 Gifts, to be valid must be inter vivos or by will 754 Gifts.— ' arts. in contracts of marriage partake of gifts inter virus and of wills 757, 781, 830 made to take ert'ect only after death, when null 758 i)ifer vivos, what are and acceptance of 755 infer vivos, general rule re- garding capacity to make and accjuire Ijy 759 infer vivos, may be condi- tional 760 infer vivos, general rule as to capacity to make 761 infer vivos, when made during mortal illness 762 infer vii'os, by minors, tu- tors, wives, corporations, etc 763 itifer vivos, in case of sec- ond marriage 764 inter vii'os, general rule as to persons capable of acquir- ing by 765 inter vivos, corporations may acquire by 766 infer vivos, to tutors, cura- tors and ascendants 767 infer vivos, to concubines and adulterine children. . . . 768 infer vivos, to priests, doc- tors and advocates 769 i)(fer vivos, between con- .sorts prohibited 770, 1265 inter vivos, as to what time capacity to give or receive is to be considered 771 inter vivos, to children to be born of an intended marriage 772 i7iter vivos, of property of another 773 infer vivos, in onerous form, in favor of persons in- 392 INDEX TO CIVIL CODE. Ill II ! Gifts ARTS. capableofreceivinf?,arevoid 774 inter vivos, legitim cannot be claimed by children in consequence of 775 inter vivos, form of 77B inter vivos, Form of, donor must divest himself of ownership of thing given. 777 inter vivos, present proper- ty only can be given, save in contracts of marriage . . . 77.S inter vivos, resolutory con- dition in . Tt\) inter vivos, are universal, by general title or parti- cular title im inter vivos, abandonment of partition of present pro- perty is considered as 7y of, fol- aiid o/\ ant 'of\ o/\ nor of, of, 800 807 808 810 811 812 8i:{ 814 of, . 815,810 f of lar- ills m, 781, 830 Gifts.— ARTS. infi'r riros. By contract of marriage, general rule re- garding 817 inter vivos, By contract of marriage, who may make and of what they may con- sist 818 to 820 inter vivos. By co)itrilitv for in cases of usu- fruct..' ... U).^ Ground: T/r/r Land. (jruardiau : Vide CiUAToit, SeQIIESTHATOH, TlTOJt. H. Habitation, rights of use and, are immovccable ilsl rights of use and, deRned. 487 rights of use and, is estab- lished only by will of man and ceases in same manner as usufruct 488 rights of u-ne and, neces- sitates giving of security and making of inventory . . 489 rights of use a nd, must be Habitation.— exercised with the care of a prudent administrator MH) rights of use and, are gov- erned by title creating it 491 rights of use and, how gov- erned when title is silent 492 to 494, 499 rights of use and, extend to family, even if the rights 394 INDEX TO CIVIL CODE. I if Habitation. - ahts. ] were given to a person only | Hubse()uently married. . . . . Wo j rights of use, oiuf, cannot ' be assigned nor leased 497 rightn of use, a tiff, how ; costs of cultivation and repairs are borne 49H Habitual Drurikurd.s: I'it/e UrUXKARUS HAHITirAh. Harbours, are dependencies of Crown domain 4(K) Harvest, loss of, may trive rise to reduction of rent. . . 1(550 to 1052 tithes carry a privilege upon ." KWo privilege upon for expenses of tilling, etc 2010 Hearths, regulations con- cerning construction of r>32 § 4 repairs to, are deemed to be tenant's repairs 1635 Hedges, rules regarding . .520, 5:^0 Heir, definition of the terjn 597 is seized by law of succes- sions (J07 not bound to accept succes- sions 041 may accept purely and simply or under benefit of inventory 042 who renounces a succession deemed never to have been heir 052 but may accept so long as it has not been accepted by another 057 ert'ect of al)straction or con- cea!n;>o.:t of prooerty by . . . 059 pavT'^s • »r debi-s by. . .735 et seq. »';'.x .: em < f allowed in ,(>.)ij h :i: , nre valid 870 be: ?f,: <'*i V-, now quality of is acquired tiOO et seq. beneficiary, three months delay allowed to make in- ventory 664 beneficiary, but may sell perishable articles . . * 665 0H3 180(> Heir.— ARTrt. beneficiary, position during this'delay 600 beneficiary, may demand a still longer delay 667 beneficially, and even after these delays may make an inventory and become bene- ficiary CW9 beneficiary, is forfeited by concealment 070 beneficiary, effect of benefit of inventory (f71 beneficiary, obi igations and administration of 672 to 070 beneficiary, renunciation of quality of 077,078 beneficiary, obligations to- wards creditors 079, (580 beneficiary, account to be rendered by 081, 082 beneficiary, is not excluded by one who offers to accept unconditionally Hoirs, of depositary, liabilitv of *. of widow in comniunity, delays aitcorded to 1349, 135;^ effect of some accepting and some renouncing com- ujunity, 1302 Herd, usufruct's liability for loss of lease of cattle on shares.. . . Highways, roads and public ways form part of Crown domain disposal of things found on public Hire: Vide Lease and UlRK. Holder, of real estate may be sued hypothecarily. 2056, 2058 and condemned to surren- der it or pay the hypothec upon it 2061 n)ay call in his vendor or warrantor "^062 by dilatory exception 200;i and set up all grounds of defence 2064 and w^hen not personally 478 1698 400 593 INDI5X TO CIVIL CODE. 896 ARTS. ing 60<) 1 a ... 6iM ter an sne- by ' . . . . (570 lefit . . . . (J71 and .67210 070 n of ...077,078 to- . ..079, (iHO ) be ...081,082 ided cent (ilitv ...... 1H(M? nitv, . 1849, i:iM >tinK com- . . . VMy'l y for .. 478 8.... 1698 mhlic own 400 d on . . . fi9n Ian I) may 2056, 2058 rren- •thec . . . 2061 Wpr or . . . ^^.002 . . . 2(m is of .... 2004 nally Holder.— AKTs liable may plead the excep- tion of discussion 206(J the exception of warranty. 201W the exception of subro- gation 2070 the exception resulting | from expenditures 2072 ' and the exception resulting from a privileged claini or I a prior hypothec 2073 j cannot deteriorate property 2054 ! etfect of alienation by. after hypothecary action is brought . . . .' 2074 may surrender the immove- able before judgment. . . 2075 may be condemned person- ally to pay rents, is.sues and profits since service of process 2070 , elFect of surrender by, on I servitudes or real rights. . . 2078 I effect of surreiider on j ownership of property 2070 • Holidays, what are 17 § 14 Hoinol<»j|{ati(>n, of proceed- ings by family council held for appointment of a tutor, in cases of interdiction. ... in cases of ctiratorship Hospitals, regulations con- c( ruing burials in Hotel Keepers: 17r/e Inn Keepers. House, an iinemancipated minor cannot leave his father's house without his permission 244 with all it contain.s, what is comprised in the gift or sale of :J98 boarding : Vhie Bc>ari)IN(J House. Huntin;^, laws governing . . .587 Husband, must be curator to his interdicted wife 842 administers all his wife's private property, etc 12H8 leases made of wife's pro- perty by husband cannot exceed nine years 1290 262 829 I :«9j ()8 Husband.— arts. privilege for obli^^^ations contracted for the indi- vidual affairs of his wife. . . i.l02 responsibility of for re- placement of proceeds of sale of wife's property 181U insurance on life of. Vide U. S. Q. .5.580 et se(i 1265 Vii/r C/ONSORTS, CO.VIMUN- iTV, Wife. Hypothec, effect of parti- tions on 731 on lands expropriated for purposes of public utility are extinguished 1590 definition of the word 2016 is indivisible and extends over improvements 2017 how created 2018 is either legal, judicial or conventional 2019 meaning of these terms. . . . 3020 when it can subsist upon an undivided portion of an im- moveable 2021 moveables are not subject to 2022 cannot be acquired upon insolvent's property or that of traders within IM) days previous to their banlc- ruptcy 2023 J.c(/(d, definition of 2020 " what property affect- ed by '. 2025 Jjetfal, necessity for regis- tration 2026 Legal, special provisions regarding those created be- fore 31 December 1841 and 1st September \m) . . . .2027, 2028 Lfgal, of maried women, for claims against their husbands 2029 Legal, of minors and inter- dicts against tutors and curators 2030, 2031 I^cgul, only allects immove- ables specified in act of tutorship and curatorship. 2120 Legale of the Crown 2032 39G INDEX Tn CIVIL CODE. i 1 Hypothec— « arts. Legal, necossify for regis- tration of 2121 Legal, of Mutual Insurance Companies 20:W JudicHfl, definition of 2020 " froui what it re- sults, carries interest an«l costs 2o:m Judicial, special provisions rej^arding those acfjuired before the:U I)ecend)erl841, and between that date and tlie 1st September lH(i0..20;io, 'ims Conientiomil, definition of 2020 " by w h o m can be j.?ranted .* 20J^7 Coniritfional, in cases of ({ualilied ownership 20;iS Conren/ioital. how created on property of minors and interdicts 20:)y Concent iomil, must be in authentic form 2040 (.'oncetifional, save on lands held in free and common soccage and in certain spe- cified counties 2041 r'o/i«y^«//o/<«/, must special- ly describe the immoveai)le 2042 Conrcnfioiiaf, upon pro- perty to which debtor has an insutticient title 204:{ (.'onirnfionfd, must be for a sum certain 2044 (■onventional, may be ji:ranted for any obligation . 2040 Concent ional, created by will are governed by same rules as 2045 Hypothec— art?*. Ranking of, acccording to date ororder of regis' rat ion 2047 Ranking of, when prefer- ence is ceded 204H Ranking of, when upon more than one immoveal)le 2040 Ra n ki ng of, cred itors of the vendor "JiX^iS Ranking of, creditors whose chiim.s are suspend- ed 20rd Ranking of, persons sub- rogated in right of creditor 2052 Effects of, debtor still en- joys the property 205;i Effects of, but cannot de- teriorate it 2054 . f;ffWYi>N>/, effect of so doing 2055 " creditors can follow it into whatever - hands it pa.sses and cause it to be judicially sold 205(5 EJfects of, creditors can take hypothecary action. . . 2057 EJfects of, and action to interrupt prescription 2057 . 2224,22^0 Hypothecs, Effects of, attaching to ancient debt do not continue when there has been novation thereof. 1176 Ejfects of, nor, when nova- tion has k)een effected, can they be transferred to pro- perty of the new debtor . . . 1177 Hypothecai-y Action : 1 "^ifte Ai TioN Hypothecary. Hypoihecatioii, of cessels : Vide MERCHANTSHiPi'iNd 2374 ,■ I ; •f '.•'-51 ■{ .■•,!. ■■ • . ' Illegitimate, children: Vide Child. ^ ; Imbecility, habitual, is a cause of interdiction 325 IminoveubleH, laws govern- ing what things are by their nature 376 Immoveables. — when windmills and water- mills are 377 cr.ps and trees uncut and fruits unplucked are 37H moveables placed for a per- manency on real property by the proprietor are 379 INDEX TO CIVIL CODE. 397 ion 2041 fer- . . . 204H pun :U\e 204«J the ... 21)r)(> ;ors lul- . 20r»l ,ub- iior 20r)2 en- 205:^ (le- . . . . 2054 »ing 2055 : a 1) 5ver Luse . . . . 205(5 can I... 2057 to ;i057 2224, 22:W of, Mm lere tiof . va- can )ro- 1170 els : ISC. 117" 2374 ter- Aiid 3er- ii-ty 377 378 379 IniinoveableH. arts when such thingH are deemed permanently placed MHO rights of emj>hytensi.s, nse and habitation and servi- tn a minor, alien- ! ation or hypothecation of. . 207 ' and as to those helontrinu; I to emanci|)ated minors. . . . 322 ' belonging to a wife, hus- band cannot dispose of ... . 120S F/V/^' COMMUMTV 1272 Imped iinentw to Marrlajt;**, in the direct line 124 in the collateral line. 125 ' between uncle and niece, etc 120 miscellajieous 127 | Iniplenients, lessee bound | to furnish farm with. 1047 j Iinpo88ibility, of condition in gifts infer vivos 7(50 ^ of doing a thing imposed j as a condition in ol)liga- I tions 1080 : of performingan obligation, extinguishes it 1200 : but debtor must assign such rights of indemnity as he mav possess to his creditor 1201 effect of a partial perform- ance of 1202 Inipotenoy, when a cause of nullity in marriage 117 Imprescriptible 'IhingM: Vide Prescription. Imprisonment, executors are not liable to coercive. . . 910 trustees are not liable to. . . 981n Iniprisoniiicnt. — art.s. when wife may bind her- self to release her husband from 1297 liability to or surety does not pass to his heirs..' l{Ki7 till probation, of authentic writ ings 1211 IniprovenientH, on pi*operty of another 417 et seq. right to c()mi)ensation for in hypothecary actions .... 2072 hypothec extends over all subse(]uent 2017 claims of usufructuary for. 462 claims of lessee for. 1(540 as between consorts. .... 1304 in emphyteusis 582 Iniprudoniro, liability for damages resulting from. . . 105;^ Intpiifatioii, of iHtytnents, a debtor has right to make. . 1158 "/ p((!/>iiciifs, but cannot insist that it be made on interest in preference to capital 1159 of prtijiuftits, when receipt made bv creditor has been accepted by debtor, imputa- tions therein indicated are Hnal 11(30 of jjf(!/7fu)(ts, how made when no special imputation has been elected 1101 of j)(fif)nriifs, in partner- ship .." 1843, 1844 of pciymenfx, of fruits of immovealile given in pledge 1967 Incapacity, as regards tu- torship . . 282 et seq. Vi((i' Capacitv and Dis- ABILITIKS. Incestuous Chililren, gifts to are limited to mainten- ance 768 Incompetent Court, de- mand brought before, does not interrupt prescription. 2225 Incorporation, of joint stock companies 1889 et seq. Incorporeal Rights : Vide Rights Incorporeal. 398 INDEX TO CIVIL CODE. 1 ■; 1 ;■ ARTS. Increase, of animals are natural fruits 448 Indemnity, a condition pre- cedent to surrender of pro- perty for purposes of public utility 407 Vide Compensation. Intlcteriiiiiiato, o bj r r f , effect ot obligation con- cerning 10(il> Index, to iiunioveables, kept by registrars 21(51 Governor may alter form of 2l(>4 regulations concerning 2171 [ndication,of payment, sim- ple, does not effect nova- tion 1174 Indij^ent, relafires, obli gation to support certain : Vide Main'TENAm'K. .,l(jy will or Hucce.ssion 251U fiiFF, measure of iutcri'st, wlien policy ellectcd by creditors 255>2 LiFK, death by suicid«',duel- liuu; or hancis of justice, voids policy 2503 Life, Bi/ fiKshdHils, in favour of wife and children VUfe R. S. y. 5580 et seo . . 1205 fnNiiranoe, Mutual: Vifle iMl'TUAL Insukante. lnteiitioTi,ofparties in deeds how determined 1013 Intcriliction, imbecility. In- sanity or madness, causes for 325 prodigality a cause for 320 who has rifjjht to demand . 327 before what court must be made 328 family council must be called 329 defendant must be inter- rogated, etc !W0 if demand rcected, a. judi- cial adviser may be ap- pointed 331 power to appeal from or re- vise Judgment Jtt2 sentence must be inscribed. Ii33 takes effect from day of judgment 334 acts subsequent to are null, conditionally :W4, OHO and those anterior may or may not be null 3.'ij, 08(5 causes for cessation of 3^5(5 privilege of interdicts in !mmoveal>les of their cura- tors 2030 such immoveables must be described in act of curator- ship 2120 of habitual drunkards may 330a liitorclictioii. — ARTS, how denuind is made and before whom 3306 who is deemed an habitual drundurd 'X]i'u' petition for, liow served. . . 'XV\tf himily council refjuislte for. 33<>^ person proceeded against may examine witnesses, etc* :mt' proof is taken eillu'r orally or in writing li'Vif/ decision of judge is tlnal and without appeal 3;«»A judgment may order con- linemi'iit of interdict in an estal)Iishment 3:^6< or order for contlnenient may be ol)tained after wards :i'i|j; what particulars judgment ordering confinement must contain 'X\i\k how such order may be sus- pended \^M\l rejected demand for, can- not be renewed for three months 330m one year's sobriety, entitles interdict to be relieved .... 'Xiiin wife or son of interdict may be appointed curator 'XM\n proceedings are summary. 'SMi/t name of interdict must be inscribed on roll iiiMui of persons addicted to use of narcotics . 330/* formalities to l)e observed . 'Mis IntereHt, existini; and acttial retjulsite to briim- an action to annul marriage 155 upon balance due by tutor or by minor to tutor .... . 313 is comprised in term " civil fruits" 440 damages for non-payment of money consists of inter- est only 1077 bears interest in certain cases 1078 demand of against one of joint and several debtors 2G 402 INDEX TO CIVIL CODK. p i: Interest.— aits. causes interest to run a^^ainst all 1111 when buyer in obliged to pay 1.534 oetween consorts 13(i0, 13(56 rate of, upon loans by cor- porations and others . 17H.5" acquittance of principal debt is a presumption of payment of interest 1780 when mandatory is bound to pay 1714 when mandator is bound to pay.. 1724 when partner is bound to pay 1840 fruits of immoveable, given in pledge, are first imputed in payment oi 1907 on debt given in pledge 1J>74 registration of a deed se- cures five years 2122 what arrears of are pre- served by registration 212r. amount of nmst be speci- fied in registration 2146 pi'escription of 22.50 Intei'ineddling^, by heir in property of successions 659 by wife with propertv of community VW, 1348 InternientH : TiV/r Burials. Interposed, persons, gifts nominally in favor of 774 Interpretation, of laws... 12, 13 of certain terms, expres- sions and enactments 17 of wills 872 of contracts, when meaning of parties doubtful 1013 when a clause is susceptible of two meanings 1014, 1015 when doubtful, according to usage 1016 customary clauses in, are supplied 1017 all clauses interpreted one with another 1018 in doubt interpreted against atipulatok 1019 however general terms may Interpretation.— arts. be, they extend only to things intended by par- ties.. 1020 effect of special provision for a particular case 1021 Interrogatories, to Defend- ant in application for inter- diction :i30 luterruption, of prescrip- , tion is either natural or civil 2222 when natural takes place. . 2223 civil is etlccted by judi(;ial demand " 2224 dojnand before incompetent Court does not eflect ... 2225 nor if service be null, or Plaintilf abandon his suits or is perempted 222(5 renunciation and acknow- ledgment effect 2227 as regards principal and surely 2228 as regards co-debtors, sure- ties and third parties. . . 2229 as regards joint and several creditors 2230 as regards heir when ob- ligation is divisible and in- divisible respectively 2230 as regards joint and several debtors 2231 hypothecary creditor can bring action to etfect 20.57 Intervention, by creditors in actions for separation of property 1316 of previous grantor in hypo- thecary actions 20(52 Interversion, of titles, effect of in regard to presciipt ion. 2205 effect of as to ranking of hypothecs 2047 Inventory, of property of absentees: Vide Ab- sentees 90 et seq. in community : Vide Com- munity 1323 et seq. in successions : Vide Suc- cessions 660 et seq. of tutors : Vide Tutors.292 et seq. INDEX TO CIVIL CODE. 403 AKTrt. J to par- 1020 isiou 1021 fend- nter- :wo icrip- \\\ or 2222 ace.. 222:i licial 2224 etent 2225 li, or suits 222(5 :now- 2227 and 222S , sure- 2220 n'eral 2280 n ob- tid in- . . 22W veral .... 2231 I* can 2057 litor.s on of . laio lypo- .... 20!V2 tffect )t ioD. 2205 ng of 2047 ty of Ab- 90 et seq. CoM- 1323 et seq. Suc- . .660 et seq. S.292 et seq. ... IS ? ARTS. Investment, of moneys be- longing to minors 204 et seq. of proceeds of property be- longing to one of the con- sorts exclusively 1303 et seq. responsibility of husband who fails to make 1310 of money belongiiig lo other persons 081 o to i)81/' Irrevocable, gifts made in contracts of marriage are. . Islands, formed in beds of navigable or floatable streams and in those not navigable or Hoatable formed by a river or stream taking a new course ARTS. 823 424 425 426 J. Jettison, when master may resort to 2402 loss by, is a general average loss "! . 2552 when a contribution arises from 2.5.53 what must first be the sub- ject of 2.5.54 VhJc Insuranck, Marine. Joint Requests, of com- munitv, what constitute 1273 et seq. Jo nt and several Inter- est, among creditors, its etlect 1100 debtor may pay any one of, but release granted by one, affects only his share 1101 interruption of prescription, effects of as between. . 1102, 22:^ Joint and several Liabil- ity, of trustees 081 >/« when arises betwcei\ debt- ors 1103, 1104 never presumed 1 105 arises from common offen- ces creditor may apply to any one of debtors for payment legal proceedings against. . responsibility for perishing of thing due rules concerning interrup- tion of prescription .... 1110, 2231 effect or demand of interest against one of debtors 1111 what exceptions debtor may plead when sued 1112 110(J 1107 1108 1109 Joint and severalliiab'y.— arts. eflect of one of the debtors becoming heir of creditor. . 1113 effect of creditor consenting to division of debt 1114 or receiving separate share of one of co-debtors 1113 or share of arrears or in- terest 1116 is divided of right, between the CO debtors themselves . 1117 a co-debtor paying in full mav recover from his co- debtors 1118 effect of insolvency of one of 1118,1119 effect of creditor renounc- ing his joint and several action 1119, 1178 result of matter having originally concerned but one of the co-debtors 1120 stipulation of, does not render an obligation indi- visible 112."* surrender of original title to one of debtors, avails his co-debtors 1183 effect of express release to one debtor 1184 of joint mandataries 1712 of joint mandators 1726 amongst borrowers in loan for use 1772 Joint Stuck Companies : Vide Corporations and Partnership, Joint Stock. 404 INDEX TO CiVlT. CODB. ARTS. Journeymen, privilege of. . 2006 Judf^es, cannot refuse to ad- judicate because of silence or obscurity of law 11 cannot buy certain litigious rights 1485 •liulgments, judicial hypo- thec results from, subject to registration 2034 upon what property 2035, 203(i only from date of regis- tration 2121 Judicial Adviser, may be given when demand for Interdiction is rejected :^1 given to those of weak in- tellect or inclined to pro- digality 349 Judicial Adviser.— arts* formalities forappointment of 350 powers of and ho noved 351 Judicial Deina inter- rupts prescripti* 2224 wife and children are seized of their dower without the necessity of 1441 Judicial 8ale, privilegeB and hypothecs become ex- tinct by 2081 §G Jurisdiction. demand brought before a Court of incompetent, does not in- terrupt prescription 2225 Juror, an alien cannot serve as 2C K. Keeping: Vide Preserv- , Kind.— . r. ATiON. I stipulation regarding regis- Kind, in alienation for rent, tration of 2044 the rent may be paid in — 1.5941 , U Ijatent Defects, in sale : Vide Warranty .... 1522 et seq. liakes, alluvion on border of lakes which are private property 422 Ijands, reclaimed from the sea are dependencies of the Crown domain 400, 421 military, belong to Crown.. 403 ownersnip of, carries with it ownership of what is above and below it 414 regulations concerning ownership of buildings and f plantations on land. . .415 et seq. eft dry by running water withdrawing 421 carried away by a sudden force 423 lianguBKes, ditferences be- tween English and French texts of code 2615 Liawl'ul Consideration, ne- cessary in contracts 984, 98t) when not lawful 990 Laws, imperial, when deem- ed promulgated . . 1 provincial, when deemed promulgated 2 provincial, efTect of dis- allowance and within what time may be made 3 provincial, printing and distribution of . . 4 provincial, persons entitled to such distribution 5 of Lower Canada govern immoveable proper, y there- in and persons being therein fl of the domicile of owner govern moveables regulating forms of acts and deeds passed out of Lower Canada 7 INDEX TO CIVIL CODE. 405 ARTS* I a50 351 i 2224 e • 1441 8 d »f i- 2225 e 2C 2044 984, 98» 990 I s- It a d 4 (d . . •,} •u e- iQ (? ir , , G ts af IjaWS.— ARTS. such deeds are construed according to law of the county where they were passed 3 when they affect rights and prerogatives of Crown 9 of public order and good morals cannot be validly contravened by private agreement ... 13 prohibitive impute nullity. 14 "shall" is imperative and " may " permissive 15 penalties for contravention of, how recovered 10 of England: F*VZ«; England In (vs of. liease and Hire, is either of things or work or both com!)ined 1600 of things, defined IGOl of work, defined 1(502 Of fhings, what corporal things may be hired 1(K)5 Ofthing.s, what incorporeal things may be hired 16(K5 Of fhini/.s, termination of 1655 et se(|. '* Vhic Leask, Lessor, Lkssee, Repairs AND Privilege. Of work: Vide Work, Lease and Hire of and Carriers. Leaso, emancipated minor can only grant for nine years 319 husband alone cannot grant lease of wife's property for more than nine years 1299 right of usufructuary to grant 457 of houses, farms and rural estates, rules governing. . . 1007 persons holding by suffer- ance of owner, deemed tenants 1()(J8 tacit renewal of, when arises 1609 when notice given to lessee, tacit renewal does not'arise 1610 Lease and Hire.— arts, surety given for, does not extend to tacit renewal 1611 registration of required when for more than one year 2127, 212H Offarnisand rural csfafes, on shares, les.see cannot sublet or assign 1(M6 Of fa ritu< a u <1 ru ral exfa fes, must stock the farm 1647 Of farms a nd rural tsfafts. effect of excess or deficiency in quantity of land HWS Offarnisand rural estates, lessee must notify lessor of encroachments UU9 Of farms and rural estates, effect of harvest being de- stroyed lfJ50tol652 Off(t rms a nd rural esia ten, duration of lease lOo^i Of farms (tnd rural estates, ]essee must leave manure, straw, etc., on farm 1654 Of farms and rur9 Of eattle on shares, regu- lations concerning 1700 fie^acies, are either univer sal, l)y general title or par- t icular title 863 made subject to other legacies 865 right to repudiate 866 tutors and curators may accept 8()7 accretion in regard to 868 universal and legacies by general title, rules concern- ing 873 et seq. by particular title, rules concerning 880 of things which do not be- long to testator 88| 406 INDEX TO CIVIL CODE. Ijegacies. — '"'"^ " arts. or only in part to him 882 or which only become his property after the making of the will 883 of universality of assets and liabilities 884 reduction of, when and how takes place 885, 88ft rights of creditors of suc- cession in respect to and recourse of legatee 887 right of accession to im- moveables 888 effect of hypothecs on im- moveables, the subject of. 889 made in favor of a creditor are not deemed in compens- ation of his claim 89(> Revocation of: VUJe Wills, Revocation of, lapse by legatee pre- deceasing testator IKK) and by the death of the legatee before the fulfil- ment of the condition to which the legacies were sobject i^>l effect of suspensory con- dition in 1X)2 eflfectof lossof the subjectof 905^ lapse by repudiation by or incapacity of legatee 1K)4 Legatees, when corporations and persons in mortmain may be 83(> minors and interdicted or insane persons may be 837 may be mere fiduciary or simple trustees 809 from what time entitled to fruits and interest of thing bequeathed 871 of the seizing of 891 guilty of complicity in the death of testator, etc., effect of K'>3 transmit rights to heirs, when the legacy was made on a suspensory condition . 002 in possession, payments to are valid 870 liCRatees.— arts. Universal 873 et seq. By general title 873 et seq. By particular title 880 et seq. LieKitiin, children cannot claim. 775 Leg^itimatioii, of illegiti- mate children, how effected 237 et seq. consequences of Wd Ijesion, a cause of nullity in contracts 991 but only in certain cases. . 1001 simple is as regards un- einancipated minors 1002 effect of declaration by minor that he is a major. . . 1003 minor not relievable when lesion arises from a casual or unforeseen event 1004 nor when he is a b.anker, trader or mechanic lOOo norfroni stipulations in his marriage contract lOUO nor in regard to his offences or (luasi-offences 1007 nor when lie has ratified after majority lOOS without proof of lesion, con- tracts irregularly made by minors ^or alienation of real esiate may be avoided. 1009 but when regularly made they are valitl 1010 when reimbursement for what minors have received may be exacted 1011 majors not relievable for.. . 1012 in regard to sales loftl Ijessee, principal obligations of 102(5 responsible foi* injuries and loss to thing leased I(i27 even those arising fiom acts of his familv and sub- tenants ! 1628 and those arising from fire, whicli is pre.sumed to have been caused by his fault . . . 1629 this presumption does not extend ui favor of neigh- bouring proprietor 1630 ARTS. et seq. et seq. et seq. >t , 775 1- !d et seq. 2:^1) m 991 1001 n- , 1002 ay 1003 BIl at , , 1004 sr, 1005 lis iour> ;es 1007 ed lOOS )n- by of !d. 1001) de 1010 or ed 1011 1012 1.501 ns 102() nd , . . 1027 )in lb- , , 1628 re, ,ve 1629 lOt ?h- 1630 INDEX TO ClVIii CODE, 40*7 licssee.— ARTS, respective liabilities for fire when there are more than one lessee 1(J31 condition in which he must restore prem iscs 1632 effect of statement and ab- sence of statement as to condition of premises when taken possession of by lessee 1632, 16:3:3 obliged to suiter certain repairs 1634 and to make certain lessee repairs 1635 but not when caused by age or irri'sistiblti force 16:36 liability for rent when \ ejected mil when he has a riglit to sublet 16:38 liability of under tenant . . . 1(>:30 has a right to reinove cer- tain fixtures 1640 riglitof action against lessoi- 1611 Vidf Lease, I.kssor. LiCSHor, obligations of in general 1612 for repairs 1613 must dean wells and \aults of privies 1(>44 warranty for defects in thing leased 1(514 cannot change form of thing leased 1615 not liable for acts of tres- p..ssers 1616 to 161.S lias privilege on moveable ell'ecls on leased property. l(iU) what this privilege includes 1(520 and as to ett^ects of sub- tenants 1621 and as to ellects of third l)arties 1(522 how exercised, and right to follow for 8 days 1(523 right of action against lessee 1(524 cannot put an end to lease lor the purpose of occupy- ing premises himself 1(5(52 nor by selling the property 1(363 Iiessop.— ARTS. privilege of, for rent 2005 Letters Patent, make proof of themselves 1207 JLetters of Vepiflcation, how obtained OoOa Liiabillties, of a succession 735 fct seq. of the community 1280 et seq. Li)tbility, joint and several : Vide Joint and Several Liability. I Jbel, by Newspapers. 1053 and Slander 1053 prescription of action for, by one year 2262 § 1 Liberation, from punish- ment resulting in civil death, effect of 38 liicoiise, marriage 59a, 134 Licitation, of immoveables in successions 698, 709 in substitutions 948 in cases of minority 300 sale by, how etlected 1563 between co-proprietors 1562 ertect of when one of co- })!vrtitioners becomes the I>roprietor at a sale by 746 in partnership 1898 in merchant shipping 2393 liien : }'ide Pled(4E, Re- tention. of fishermen. Vide R. S '4^ .56:30 et seq 1094a Lil'e InsurautM' : V^ide 1n- suuan( E, Life 2.585 et seq. Life Kents, how constitut- ed 1901 on whose life may be con- stituted 1002 duration of 1003 for whose benefit 1004 i effect of one constituted on I life of a dead person or of one mortally ill, who dies within 20 days effect of non-payn»ent of arrears of ' right of creditor when se- cured by privilege on real estate 1^'- 1905 1900 11)07 ..| 408 INDEX TO CIVIL CODE. liifo Rents.— arts. debtor cannot free himself by reimbursing capital, etc. 1909 for what period rent is due 1910 when may bo stipulated unseizable. 1911 are not extinguished by civil death of person on . whose life it is consti- tuted 1912 creditor who demands pay- ment of, mustestabU ;b fhi: existence of the per.-- * o». whose life it is constitu c ' ' '^o effect of sale of propc ;ty securing 1914, VJi*y how the value of i. -'s timated iiil.'j Lights, servitude of view. . . windows or, regulations concerning ; . Ijfmitecl Partnership . Vide Partnership Limit- . ED. Liine, collateral, of descent in successions direct, of descent in suc- cessions Liiq nidation, of the affairs of dissolved corporations 371 et seq. of partuerships on dissolu- tion 1898 Liquors, when tavern-keep- ers have no right of action to recover price of 1481 selling to habitual drunk- ards. Vide R. S. Q. 5503 liist, of interdicted persons to be exposed publicly 33;^ name of those interdicted for drink must be placed on 33(w/ of persona obtaining separa- tion of property 1313 of workmen to be kept by contractors : Vide Work- man 1697a et seq. Litigious Rights, effects of sale of as regards debtor, . . 1.582 when a right is deemed litigious 1583 547 535 61fi 617 Litigious Rights.— arts. special provisions concern- ing 1584 who cannot become pur- chasers of 1585 Loan, is of two kinds, cty/n- tnodafuui and )Hnfin(Hi.. . 1762 for use {r10 preferences as between in- surer and lender 2(511 bonds of, are negotiable... 2612 Loans, what may and may not be eltected by entancip- ated minors . . 321 Lod^in/u;, of widow during delays for making inven- tory 11^52 LosN, of civil rights, how caused :^0 of thitig the object of an obligation, effect of 1200 liability of owner and mas- ter for in affreightment 2432 liability of usufruct for 478 liability of borrower for in loan for use 1764, 1767 and in loan for (consump- tion 1778 Vide Pheservation. Losses, in Insurance : Vide Insurance 2521 et seq. Lost wills, proof of 860 property 588 et seq. liOts, shares of co-heirs are drawn by 705 LoAver Canada, meaning of term 17 § 6 inhiibitant of, meaning of term 17 § 21 enj(tyment of civil rights in 18 effect of naturalization in. . 24 right of aliens to acquire and transmit property in. 25 Lyin^ in Kxpen.ses. are pre- scribed by two years 2261 § 1 M. Madness,' habitual, a cause for interdiction : Vide In- sane Persons 325 >l!igii4trate, means two j ustices of t he peace 17 i^ 16 Maintenance, to whom and by whom due.. . 165 to 168, 175 granted in proportion to wants of receiver and capa- city of giver — , — \Q^ 1 410 INDEX TO OIVIL CODE. ARTS. 213 708 1704 l7(Xi 1701) 1710 Maintenance.— effect of change in their positions 170 Court may oi'der that party claiming shall live with the person from whom it is claimed 171, 172 illegitimate children may claim 240 persony civilly dead may receive " 35 § 2 consorts separated may claim from each other gifts to incestuous or adul- terine children are limited to as also those to person with whom donor has lived in concubinage 7(>H refusal to grant to donor, may be a cause for revoca- tion of gifts 813 Majority, attained at the full age of twenty-one.. 240, 324 Mandatary, can do nothing beyond the authority given or implied by the mandate, cannot buy or sell things himself wliich are the ob- ject of the mandate is obliged to execute the mandate he has accepted. , is bound to exercise skill of prudent administrator is answerable for person whom he substitutes 1711 liability of joint manda- taries 1712 is bound to account 1713 liability for interest of money he uses for his own ends 1714 obligations towards third persons 1715 to 1717 when deemed not to have exceeded his powers 1718 if he acts alone, wlien he is charged to act jointly with another, he exceeds his powers 1710 lias a privilege on things placed in his hand 1723 Mandatary. — arts. when he may renounce mandate 1759 iCgal representatives of, nmst give notice of his death to the mandator 1701 Vide Mandate, Manda- tor, Mandate, what is the con- tract of 1701 is gratuitous in absence of agreement or usage to con- trary 1702 is either special or general. 1703 fjowers or mandatary are imited 1704 powers granted to profess- ional persons need not be specified 1705 right of mandatary to buy and sell on his own account . 170() emancipated minors may be mandataries 1707 as regards married women . 1708 termination of 1755 et seq. when revocation aflects third persons 1758 when mandatary may re- nounce 1759 Viile Mandatary, Man- dator. Mandator, is bound to in- denmifv the mandatary 1720, 1725 is bound by acts of manda- tary 1721 is IJound to reimburse ex- pjMises and charges of man- datary 1722 and obliged to pay him in- terest on money advanced . joint and several liability of liability towards third par- ties for acts of mandatary . even after mandate extin- guished 1728, and even of a person not his mandatary sometimes . and for damages caused by fault of his mandataiT Vide Mandatary, Man- date, Factors, Brokers, 1723 1720 1727 1729 1730 1752 INDEX TO CIVIL CODE. 411 ARTS. unce 1759 of, his ' 1761 NDA- con- 1701 ce of ► con- 1702 iieral. 1703 y are 1704 ofess- . ot be 1705 ;o buy ount. 170(5 may 1707 )men . 1708 .1755 I't seq. ittects 175H iv re- ; 1750 Man- to in- ry 1720, 1725 landa- 1721 se ex- man - 1722 im in- mced . 172'i lityof 1720 ■d par- atary . 1727 extin- .1728, 1729 )n not rimes. 1730 sed by vy... 1752 MAN- )KER!S, ARTS. ManufaotorieH, utensils necessary for working, are immoveables 379 § 2 Manure, is an immoveable. 379 S 2 when le-ssee of a farm must leave 1654 IVIaroliande Publique, when wife may become and effects of 179 Marine Insurance : Vhfr Insurance Marine. Mariners, Vidr Seamen. Marital Authority, a wife owes obedience to her hus- band 174 and nuist live with her husband . 175 and must have his author- i>;ation in judicial proceed- ings ' 170, 178 as also to enter into cer- tain contracts 177, 178 or to accept successions .... 043 or to make or receive gifts . 7(J3 exception when she is Realization 1885 et seq. clause of mobilization: Vide Mobilization 1390 et seq. clause of separation of debts : Vide Separation OF Debts 1396 of the right given to the wife of taking back free and clear what she brought into the community : Vide < Free and Clear 1400 of conventional preciput : Vide Preciput 1401 et seci. of the clause by which un- equal shares in community are assigned to the consorts 1400 et seq. of conununitv by general title. *. 1412 excluding community 1415 of the clause simply exclud- ing community : Vide Ex- , CLUSION CF Community 1416 et seq. of the clause of separation of property : Vide Separa- tion OF PRoPE'n'Y.. . . 1422 et seq. Masculine Gender, in- cludes both sexes 17 § 9 Masons : Vide Workmen. Master of Ship : Vide Af- freightm knt, Bottom ry. Insurance. Masters and Servants, duties ot— Vide R. S. Q. 5(tl4 et seq. Materials, proprietor of soil, who has constructed build- ing with n^aterials of tiH- Materials.— arts. other, must pay the value thereof 410 improvements nmile by a possessor with his own materials, right to 417 et seq. etf'ect of persons making a thing of a new description with materials belonging to another 434 et seq. Maternity, of illegitimate child, how established 241 May, the word, is construed as permissi ve 15 lea^e and hire of house, when no time is sped fled for its duration, terminates on the first day of 1642 Mention, must be made of the observance of formal- ities in wills 843 Merchant Shipping, the Imperial act respecting Merchant Shipping and certain Federal acts con- tain provisions respecting 2355 rules concerning registra- tion and measurement of 2356 to 2358 transfer of registered Brit- ish ships 2359 transfer of ships registered in Canada 2360 transfers must be register- • ed 2301 mortgage and hypothec- ation of British vessels 2374 and of vessels built in Can- ada 2375 when thev may be mort- gaged....? ■ 2370 how mortgage is extin- guished 2iiHih priority of mortgages inter se 2377 rights of mortgagee 2378 effect of transfer of owner- ship of mortgage 2379 form of mortgage 2380 when mortgagee may ob- tain a certificate of registry 2381 but tl}is does not deprive ARTS. value 41fi by a own . .417 et seq. Liiiia; a Iptiou •nging . .434 et 8e(]. miniate d 241 i>trued lo tiou.se, Bcifleci inates 1642 ade of Drmal- 843 J, the ecting V and / I con- lecting 2355 ;i8tra- nt of •• 2356 to 2358 Brit- . . . 2359 stered .. 23W) ?ister- • . . . 2:^fil Dthec- Is.... 2374 Can- 2375 niort- .... 2370 xtin- 2:^76^ inter . . . 2377 2378 Bvner- ... 2379 ... 2380 ob- i8try 2381 rive IMtJEX TO ClVlIi CODU. 413 iMerehant SbipniiiK. — arts. him of hia right of action at law 2:%2 privilege upon vessels 2118:^ privilege upon ship's papers 2384 privilege upon cargo 2;^85 privilege upon freight 2lim\ Older of privileges 2:^87 provisions concerning cases before the Court of Vice- Admiralty 2:^88 Owners, majority of may appoint and discharge master 2389 Ofvners, and are responsible for acts of master 2390 Oirners, hirers of vessels, with exclusive control, are deemed owners 2391 Owners, opinion by major- ity in value governs 2392 Owners, of one half of the total value may demand sale by licitation 2393 Master, general powers of. 2394 Master, liability of for con- tracts 2395 Master, engages ship's crew .. 2396 Master, must see that ship is properly equipped 2397 Master, must sail on day appointed 2398 Master, when he may bor- row money or sell cargo. . . 23{)9 Master, when he may sell ship 2400 Master, authority over sea- men and passengers 2401 Master, may throw cargo over-board 2402 Master, may obtain loans on bottomry and respon- dentia 2603 Master, Vide AFFREifiHT- MKNT AND InSURANCK. Master, special duties re- specting keeping of official day-book, seamen, etc 2404 Master, wages of seamen : Vide Wages, Seamen 1671, 2600, 24a5 ARTfi. Military Places, gates, walls, ditches and ram- parts of, belong to the Crown 402 as al.so lands, fortiflcations and remparts of disused. . 403 Mills, certain wind and water mills are immove- ables 377 certain floating mills are moveables 385 Mines and Quarries, right of usufruct with regard to. 460 right of community to 1274 Mining Rif^ht, sales, leases and transfers of, registra- tion requisite 2099 Ministers, certain civil re- §isters are kept by 44 uplicate registers remain in custody of 49 not liable for damages arising from a legal im- pediment to a marriage celebrated l)y them on pro- duction of a marriage license 59a gifts in favor of are valid. . 769 Minors, persons cease to be at the full age of 21 246, 324 power of tutor to borrow for. or alienate property of. 297 when authorization to do so can be granted 298 formalities necessary for sale of property of 1009, 300 formalities requisite for sale of shares belonging to. 351a acceptance or renunciation of successions failing to 792, 301, 302 acceptance of gifts made to 303 (•an sue on contracts for the hire of their personal ser- vices 304 interest on sum due to tutors by 313 cannot act as testamentary executors 907 are incapable of contract- ing 086 'J. 414 INDEX TO CIVIL CODE. Minors.— ahts. hut incapacily is estab- liKhed in tiielr favor only. . WJ simple lesion is a cauHe of nullity in favor of l(K)2 and it is no bai* thereto that the minor has (leclareligation Which depends on it ... . 1062, lOHO covenants contrary to, are forbidden in marriage con- tracts 1258 conditions contrary to, in gifts, render void the dis- position 760 Morals. - arts. effect of dispositions con trarv to good morals in will,; mi "■' Morphine, persons a()dicted to use of, may be inter- dicted ! m\v fornuilities for obtaining interdicttion 8iJ0s MortgaK(>s, Vidi' Hvi'O- Tii i:< s. Mortmain, disabilities of corporations arising from.8(W)§2 corporations and persons in mortmain can only receive by will such property as. they may legally possess. . . H8<'> prescription runs against property held in 2221 Mother, children are bound to n)aintain their '\ effect of forced or voluntary a<;knovvledgment by the mother of illegitimate child 240 power of over children 245 a child owes honor and re- spect to 242 Mourning, of wife is charge- able to heirs 13()H Moveable, property becomes immoveable by law 3H2 property is moveable by nature or by determination of law 88:{ things which are moveable by nature -m to 38(i things which are moveable by determination of law. .387, 8SS conventional dower is deemed 1470 meaning of expressions " moveable property " and " moveable things" 807 right of accession in rela- tion to : Vifh' Accession . . 429 et 8ey the iiimate 240 en 24.') and re- 242 Imrge- eeonies 3H2 bie by lination 88:^ veable . .:^to38«i veable law..387,:i^S er is 1470 lessiona " and 807 n rela- SION . . 429 et se<|. word 39: com- ' furni- ... 3iK} ARTS. MiiiiicipalitlCH : Vide Cor- porations. Mutual Oonatioii, of usu- fruct after marriaKe abol- ished 12(15, 770 Miituul IiiHui'ance, is not connnercial and is governed by special statutes 2471 Mutual lusurance.— arts. legal hypothec arising from \iii:K\ claims arising from are exempt from formality of registration 2(>H4 Mutuuni : \'i(ft' liOA.v fox CoNSlI.MI'TfON , 17(52 N. NarcotlcH, persona addicted to use of may be inter- dicted :^;M5r formalities for obtaining interdiction 8.'U»m Natural Children : Vifh Childrkx. Naturalization, conditions requisite for 21 to 2;i confers rights of Briti.**!! subject 24 Negotioruni Gentio, what gives rise to the contract of and eflect of 1048, 1(W4 care of prudent adminis- trator re(iuired in .. 104.5 indemnitlcation for 1H4(> Nei|i(hl)(>urH : Vhff Servi- tudes. Nomination, right of carries with it that of removal. . 17 § 17 Non-perronnance, of oblig- ations, eflect of 10().5, KKM) Non-residents, of Lower Canada must give security for costs in actions insti- tuted by them 20 Notaries, powers to make acts 120H notifications and protests . . 12(K> powers respecting making of wills 848 et seq. can alone make deed of hypothec 2040 rules governing 1782 liability of 1782 fee.s of 1732 evidence of 1782 power to receive money . . . 1732 Noturles.— are bound to ngister dis- charges of hypothecs which they execute 21 W pres lipt ion of fees of 22(K) Notit'*' ti»'rerniiiiate liease tenant remaining eight days w ithout receiving. . . . WW tacit renewal cannot be claimed when there h;is l>een 1(510 what is re(|uisite l(>o7 when not requisite l(5o8 Notiti arts. may perform conservatory acts 108(5 Cori(h'tionnl, effect of a sus- pensive condition 1037 Coitdif tonal, and of a reso- lutive condition 1088 Wi'fJi a term, difference be- ', tween and those with a suspensive condition 1089 With a ^r/*wi, payment can- not be demanrted before ex- *, piration of term Init when • voluntarily ante-paid can- not be recovered 1090 With a term, always pre- sumed to be in favor of debtor 1091 With a term, when debtor cannot claim benefit of term 1092 Alternative, when debtor of is disc^iarged 1093 Alternative, option belongs to debtor 1094 Altentative, how they be- come pure and simple . . 1095, 109(3 Alternative, when option belongs to creditor, effect of perishing of the things. 1097, 1008 Joi7it aK(l Several : Vide Joint and Several Lia- bility 1100 et seq. Divisible, when they are deemed ! '121 Divisible, how they must be performed 1122, 1123 Itidivisible, when they are deemed 1124 Indivisible, stipulation of joint and several liability does not make 1125 Indivisible, how they must be performed and effects of 1126 to 1130. With a penal clause, what are 1131 With a penal clause, are null if primary obligation be null, but not rice versa . 1132 With a penal cla^ise, credi- tor may enforce primary Obligations." ' ' -■"•■■ arts. obligation instead of pen alty, but not both 1113^3 With a penal clause, when the penally is incurred — 11134 With a penal clause, amount of cannot be re- duced by Court 1135 With a penal clause, its effect as legards heirs. 11^36, 11137 extinction of 1138 Obscurity, of law, judge cannot refuse to adjudicate because of 1 1 Occupancy, grains of St. Lawrence belongs to him who cuts it by right of 591 Occupation : F/r/f Quality. Oflfences, and quasi-offences produce obligations. 1053 et seq. are prescribed by two years usually 22(31 and certain others bv one year 2262 Otticf,person appointed to fill a temporary public ortice re- tains his former domicile. . 82 Officers, o/^" ctii/ stitfus, de- finition of 17 §22 of civil status, responsibil- ity of for alterations in re- gisters 52 of civil status, penalties for infractions of law 53 of justice, fees of are pre- scribed by five years 22()0 § 2 Omissions, in registers of civil status, how rectified.. 77 Opening, of successions. (500 et seq. of substitutions 9(51 et seq. of dower 1438 et seq. Opium, persons addicted to use of, may be interdicted 33(5r formalities for obtaining interdiction 33(5« Oppositions to Marriage, may be made by any one married to either of the parties 13(? of a minor, may be made by father or, in default, by the mother 137 27 ;! 418 INDEX TO CIVIL CODE. N r .' 11 I Oppositions to Marriage— arts. and, in default of both, by tutor 138 and by certain relatiouH . . . 139 when a tutor must be ap- pointed 140 of insane persons, by whom made. . 141 opposant must apply for in- terdiction of the person about to be married 142 and follow up the case 143 liability for damages when opposition is dismissed 147 Option, in alternative obli- gations : Vide Obligations alter^iative. Order of Successions, dif- ferent, general provi- sions 614 et seq. devolving to descendants. . 625 devolving to ascendants 626 to 630 in the collateral line. . 631 to 635 irregular.. 6:^6 to 640 Ordinances, copies of, when authentic 1207 Originals, lost, are proved by copies thereof 1217, 1218 Owner : Vide Proprietor. Ownership, definition of. . 406 how people are deprived of forpurposesof public utility 407 in a tlnng gives right to all it produces 408 Ownership.— arts. of natural and civil fruits of earth and increase of animals 409 subject to costs of plough- ing and tilling 410 possessor may acquire fruits 411, 412 Vide Accession. of the soil, carries with it ownership of what is above and what is below it 414 buildings and plantations on land 415 as regards improvements made by third parties. 417 to 419 as regards alluvion 420 to 425 eftect of rivers forming new branches or abandon- ing old course 426, 427 of pigeons, rabbits, fish and swarms of bees 428 of two or more dilferent things, belonging to dif- ferent owners, which have become united so as to form one whole 429 to 442 different means of acquir- ing 583 of a treasure found 586 of things found 592 et seq. an effect of contracts. 1025 et seq. of brokers, factors and com- mercial agents 1740 et seq. P. ^ Papers, family, form a com- mencement of proof in filia- tion cases 233 and in suits by illegitimate children to establish pater- nity 241 of what and against whom they make proof 1227 Pardon, restores civil liberty of persons civilly dead, but without any i^troactive -effect 38 Parentage : Vide Pater- nity, Filiation. Parents, Insurance on life of. Firf 1887 lf's, , , 1889 ess 1890 1888 1891 ' 373a 1892 hip [lis- the at by md lied ^bts of jcts fide 1893 1894 1895 1896 1897 1898 1899 1900 in Jl et seq. Passengers.— arts. carriers are bound to re- ceive and convey 1673 authority of master of a ship over 2401 Pasture, right of, consti- tutes a discontinuous servi- tude 547 Paternity - Vide Filiation. Path, tow, constitutes a servitude established by law for public utility 507 Pawn : Vide Pi.eimjk of Moveables. Pawnbrokers, special rules relating to trade of 1979 Payment, what is meant by 1139 pre-supposes a debt 1140 may be made by any per- son, but must be for the advantage of the debtor . . . 1141 consisting of obligation to do, when may be made by a stranger 1142 must be made by one hav- ing a legal right in the thing paid 1143 to whom must be made and eftect of paying to osten- sible creditor or to a credi- tor incapable by law of receiving 1114 to 1146 made to the prejudice of a seizure or attachment,etfect of 1147 must be of the thing due . . 1148 and of the wholething due, not parts thereof 1149 condition of the thing, res- ponsibility for. lloO. 1200 of a thing determined in kind only llol where must be made 1152 expense^ of are at charge of debtor 1153 with subroffdfion : Vide Subrogation. impufatioii of : Vide Impu- tation of payments, iw catie of »iui' : Vide Buyer. tender of and deposit : Vide Tender. Payment.— arts. by a person believing him- self by error to be the debtor 1148 of workmen : Vide Work- men 1697a et seq Penal Clause, in an obli- gation, what is : Vide Obli- gations, vith a penal clause 1131 et seq. Penalties, for contraven- tions of the laws, how recoverable 16 for infraction of laws re- lating to acts of civil status Sm for illegal solemnization of marriages 157, 158 for selling liquor to habitual drunkards. Vide R. S. Q. 5503. for breaches of contract be- tween masters and ser- vants. Vide R. S. Q 5614 et seq. Peremption, of suit, pre- vents interruption of pre- scription 2226 Perishable, things, may be sold by usufructuary 465 and by heir after notice 665 Permanency, when things are considered as being attached for a 380 Person, what the word includes 17 § 11 stipulating for himself, is deemed to include his heirs 1030 Persons, laws applicable to. Petition oi" ri^ht, subject mav interrupt prescription of Crown by 2211 Physician, claim for ser- vices of, prescribed by live years 2260 oath of, makes proof of nature and duration of services 2260 privilege for charges of during last illness 2003 power to receive gifts ... . 769 Pigeons, ownership of those passing into another dove- cot 428 422 INDEX TO CIVIL CODE. m I ! 1969 1970 1971 1972 ART8. PilotN . Vufe Affhkight- MENT 242:^,24^^2 Pledge, definition of . . 1960 immoveableis may be the subject of 1967 of moveable property is called pawning 1968 and it gives creditor right of preference which only exists while thing pawned remains in the hands of creditor or of some one appointed to hold it he may dispose of thing, in default of payment but until then the debtor is the owner of the thing reaponsiL'lity of creditor for loss or deterioration of thing, and of debtor for expenses of its preser- vation 1973 the interest of a debt given in pledge is imputed in pay- ment of interest due to cr.'ditor 1974 when debtor can claim restitution of thing 1975 is indivisible although debt be divisible 1976 effect of,on heirs of creditor and debtor 1976 rights of third parties 1977 above regulations are sub- ject to usages of com- merce 1978 special rules relating to pawnbroking 1979 property of a debtor is the common pledge of his credi- tors Ploiif^hinf^ and Tilling, fruits produced by a thing, only belong to the pro- prietor subject to restor- ation of costs of privilege for expenses of . . . Police Regulations, as to mines and mining. ... ... Policy : VifJe Insurance, 1981 410 2010 414 400 2192 219:3 2194 ARTS. Ponds, ownei*ship of fish going into another 428 Ports, are dependencies of the Crown Possession, what is requisite for prescription, definition of always presumed to be as proprietor, in absence of proof to the contrary begun for another, pre- sumed to continue so 2195 requisite for prescription cannot be founded on facultative acts or by suffer- ance 2196 nor on acts of violence 2197 but in cases of violence or clandestinity, it begins when the defect ceases^, though a thief's heir can- not prescribe 2198 actual, coupled with proof of former, raises a pre- sumption of intermediate. , 2199 actual, of a corporeal move- able, creates a presumption of ownership 2268 of property of absentees : Vi((e Absentees 9:3 et seq. person in actual, preferred as between two vendees of same thing 1027 Possession of Status, does not dispense parties from producing marriage certi- ficate parties in possession of status, cannot demand nul- lity of act 161 of legitimate children . .229 et seq. Possessor, when in good faith, acquires fruits when he is deemed in good faith Possessory Action, emphy- teutic lessee may bring Pound Sterling, value of : Vkff Sovereign 17 § 20 Power of Attorney : Vide Mandate 1701 et seq. 160 411 412 572 i;ii! INDEX TO CIVIL CODE. 423 ARTS, sh 428 of 400 ^192 )I1, 219:i as of , , 2194 re- 2195 ion on fer- 2196 2197 or ;ins ses, ;an- 2198 'OOf [jre- te. . 2199 ove- bion • • • • 2268 es : 98 et seq. red * of 1027 oes •om srti- 160 of aul- 161 129 et seq. ood 411 ood 412 hv 572 of 17 §20 kle 01 et seq. .^-sn*!^ ARTS. Preamble, which forms part of an Act, assists in ex- plaining it 12 Precious Stones, not in- cluded in the word " move- ables" 395 Preciput, conventional, in marriage covenants 1401 not suDJect to the formali- ties of gifts 1402 right to, opens by natural death, but not ' by civil death 1403 nor by separation of pro- perty or from l)ed and board 1404 rights of creditors of com- munity regarding 1405 Prescription, is positive and extinctive or negative. 2188 may be renounced but not liy anticipation 2184 renunciation of is express or tacit 2185 effect of as regards sureties. 2229 persons who cannot alienate cannot renounce 2186 who may set up, when debtor has renounced 2187 Court cannot supply de- fense resulting from 2188 but in certain cases right is absolutely extinguished... 2207 of immoveable property, law governing 2189 and as regards moveable property an I personal actions 2190 commenced in L o w e r Canada, how completed 2191 possession necessary for : Vide Possession 2192 et seq. Cn uses hindci'inq })reHcrip- tion, }irecarions possession art (J substitutions. — Things not the object of commerce are not subject to 2201 good faith assumed and bad faith must be proved 2202 is not acquired by those who possess for another. . . 2203 Prescription.-- arts. nor by their heirs 2204 save in cases of inter ver- sion of title 2205 of ten years by purchasers under a translatory title derived from a precarious or subordinate possessor. . . 2206 in cases of substitution .... 2207 no one can acquire, against his title 2208 save that he may be freed from an obligation by 2209 of excess of contents of im- moveables 2210 a continuation of like ser- vices does not hinder 2266 ThinffS iinpresrripfihle and privileged prescriptions. — Action of a child to estab- lish his sta'us is impre- scriptible 235 Crown may avail itself of 2211 rights of Crown of so- vereignty and allegiance are not subject to 2212 nor are sea beaches, ports, rivers, and other real rights of the Crown 2213 nor are the principal of rents, dues, revenues owing to the Crown 2214 but arrears of are 2215 of property escheated to the Crown 2216 sacred things cannot V)e ac- quired bv 2217 when it takes place against the church 2218 Things i mp re script ible and iiririJeged prescript iotts. light to tithes is impre- scriptible, but positive pre- scription by 40 years runs between neighbouring rectors 2219 public property cannot be acquired by 2220 but property belonging to municipalities and that held in mortmain can 2221 424 INDEX TO CIVIL CODE. Prescription.— arts. right to redeem rents is inipreMcriptible 2248 Interruption of, is either natural or civil 2222 Interruption o/\ detinition of natural 2223 Interruption oJ\ judicial admission effects 2265 Irtterruptioii of, judicial demand ellects. 222^4 Inter riiption of, hut not if .~> broujQjlit before incompe- tent court 2225 Interrupt ion of, nor if ser- . vice is null, or the suit is abandoned, perempted or dismissed 2226 Interruption of, eflect of. . 222H, 2255, 22(V4 Interruption of, how ef- fected civilly. .. .* 2227 Interruption of, endorse- ments of payments on notes or other writings do not make proof of 1220 luterrujttion of, effect of as regards joint and several creditors 2230 Interruption of, and as re- gards joint and several debtors and heirs, etc 2231 Interruption of, registra- tion does not eflect 2()95 Suspension of, as against those not born, minors, idiots, madmen and others. 2269, 2232 Suspension of, as between husband and wife. . 2233 Susjyension of as against married women 2234, 2235 Suspension of, with regard to certain personal actions. 2236 Svspension of, as regards beneficiarj heir and vacant 8UCC s.sions 2237, 2238 Suspension of, and joint and several creditors and heirs 2239 Time required for, is reck- oned by days, not hours. . . 2240 Prescription — arts. Time required for, from when calculated.*. 2258, 2260, 2262 liy thirty years, affects all things not otherwise regu- lated 2242 By thirty years, hfiH same effect as immemorial pos- » session 2245 liy thirty years, effect of on right to plead in actions. , . 2240 liy thirty years, of action to account against tutors. . 2243 By thirty years, title may establish defects in posses- sion 2244 By thirty years, arrears of rent due to Crown 2215 By thirty years, of emphy- teutic rents . '. . 224J5 By ten years, of corporeal ,s inimoveables under trans- latory title 2206,2251 By ten years, of capital of dues and rents, by subse- quent purchaser 2252 By ten years, what consti- tutes good faith of sub- sequent purchasers 2253 By ten years, a title which is null, cannot form a ground for 2254 By ten years, effect of re- nunciation of 2255, 2264 By ten year's, when may be i- . invoked together with that of thirty years 2256 By ten years, obligation to renew hypothecs, etc., in cases where this prescrip- tion lies 2257 By ten years, of contracts for error, fraud, violence or fear, lesion and rectification of tutors' accounts and when this time runs 2258 By fen years, of claims against architects and con- tra' tors 2259 By ten years, as regards escheats to the Crown 2216 By fire years, of profession- INDEX TO CIVIL CODE. 425 ARTH. 30, 2262 il . 2242 e '. 2245 n . 2240 n , . 2243 ] . 2244 of .. 2215 y- . . 224« al ■m, 2251 of 0- . . 2252 i- b- . 2253 h a .. 2254 e- '55, 2264 )e t . 2256 o n 2257 ts )n 2259 2216 Prescription.— arts. al services aud dishur.se- meiits of advocates and at- torneys 226() Bi/Jirr i/cars, of profession- al services and disburse- ments of notaries and fees of ofHcers of justice 2260 Bf/ Jive i/r(irs, of deposit- aries, for it'covery of i)ai>ers and titles 226() By five years, of bills of exchanK**, promissory notes and notes for the delivery of grain 22(50 By five years, of sales of moveable effects 22(30 By five years, of labor aud work in general 22(J0 By five years, of physicians and surgeons and how proof of their services is made 2260 By two years, of seduction and lying-in expenses 2261 By tiro years, of offences and quasi-oti'ences 2261 By two years, of wages of workmen hired for more than OL e year and not re- puted domestics 2261 By tiro years, of school masters and teachers 2261 By one year, of slander and libel 2262 By one year, of bodily in- ' juries in general 2202 By one year, of wages of domestics & farm servants 2262 By one year, and of mer- chants' clerks, hired for less than a year 2262 By one year, of hotel and boarding house charges. . . 2262 of certain short, established by Act of Parliament 2263 when it recommences after renunciation 2264 when debt is absolutely ex- tinguished by 2267 begun, before promulgation of code, how governed 2270 ■ " ARTS. Preservation, of thing, be- fore delivery 1025 of thing, oblij^ation to de- liver, involves the 10(^3 of tiling, and person charged therewith must use care of i prudent ad- niinistrutor 10(U of th ing, in contract of sale 1408 *' in contract of lease and hire 162(J et sec^. of thing, in contract of lease and hire of work.. 1(584, 1685 of thing, in contract of loan 17(5(5 " in contract of de- posit 1802 of tliliai, in contract of pledge.'. 1073 of filing, privilege for ex- penses incurred in : Viite Loss lOJX) Presumption, of survivor- ship : Vide Survivorship (503 et seq. furnishing of deeds by no- taries is not a presumption of payment of their fees. . . 1242 ac(juittalof the priiicipal of a loan, creates a presump- tion of payment of interest 1786 of receipt of work by lay- ment of wages of workmen 1(>87 Presumptions, are estab- lished by law or arise from facts 12:38 legal presumptions and those ./«r/.s et (fejnre 1230 when proof can contradict a legal presumption 1240 res Judicata is a presump- tion ,/w/'is et dejure 1241 when left to discretion of Court 1242 Pretakings, in successions, by heirs 701,702 in community, by each con- sort or his heirs 1357 but those of wife take pre- cedence over husband's .... 1358 Price, obligation of buyer to pay, in sales 1532 426 INDEX TO CIVIL CODE. M m Price.— ARTS. when buyer must pay 15:j3 when buyer nm»t pay in- terest on 1534 when buyer may delay pay- ment of .. 1535 effects of his not paying 1536 to 1540 buyer cannot recover, when he has brought a" action for diHsolution of sale, be- cause of non-payment of . . . 1541 but converse is not the case 1542 in cases of moveable things 1543, 1544 PrIestH : Virle Ministers, TiTHKS. Primordial Title, acts of recognition do not make proof of 1213 Printing, and distribution of laws 4, 5 Prisons, ])ersons dying in, how burial of rnust be authorized (i9 Private Writings : Vide Wkitin(js Private. Privilege, meaning of the term.. 1983 how preference among.st privileged creditors is re- gulated 1984 privileged claims of equal rank are paid rateably 1985 effects of subrogation in rights of 1157, 1986 to 1988 of the Crown 1989 of creditors and legatees of a person entitled to separa- tion of property 1990 of creditors of a partnership 1991 may be on moveables or immoveables 1992 Upon Nioreables, on what it may be 1993 Upo7i moveables, what claims carry and order of. . 1994 Upon moveables, fisher- man's lien 1994a Upon moveables, mutual tire insurance companies' lien 1994b Privilege.— arts. Upon moveables, lumber- man's lien 1094c Ujion moveables, what law costs carry 1905 Upon moveables, include costs of preservation . 1096 Upon, moveables, for tithes 1907 " of unpaid vendor 1008, 2000 Upon moveables, of credit- ors having a right of pledge or retention, in what order 2001 I 'pon moveables, for funeral expenses 2002 Upon moveables, for ex- pen.ses of last illness 2003 Upon moveables, for mu- nicipal taxes 2004 Upon moveables, of lessor. 2005 I pon moveables, of owner of a thing lent, leased, pledged or stolen 2005a Ujjoit moveabh'H, of domes- tic servants, clerks, appren- tices, journeymen and rail- way empl(jyees, at)d for provisions supplied 2006 Upon immoveables, what claims carry and order of . 2009 Upon immoveables, of com- panies for stoning roads. . . 2009a Upon immoveables, for ex- penses of tilling and sow- ing 2010 Upon immoveables, for as- sessments and rates 2011 Upon immoveables, for seigniorial dues 2012 Upon immoveables, of la- borers, workmen, archi- tects and builders 2013 Upon immoveables, when the right exists 2013b Upo7i immoveables, how it is preserved 2013c Upon immoveables, of ven- dor 2014 Upon immoveables, how re- tained 2015 Upon immoveables. Vide Hypothecs. INDEX TO CIVIL CODE. 427 ARTS. ber- ... 1994c lave .. . . 1905 ude .. . 1996 :he8 1997 [)aid . 1998, 2000 idit- 'dpje rder 2001 leral ... 2002 ex- .... 200:^ mn- 2004 j8or. 2005 vner i8ed, 2005a mes- pren- rail- '• for ... 2006 lA'hat of . 2009 cotn- s... 2009a ex- 80W- ... 2010 It as- . . . 2011 for . . 2012 f la- rchi- . . . 2013 vhen . . 2013b )w it 2013c ven- 2014 \w re- 2015 Vide ARTS. Privilei^e Maritime, upon vessels, for certain debts.. 2383 of 8hip'.s husbiind 2384 upon cargo, for certain debts 2:^a^ upon freight, for certain debts 2286 orrler of, when tliere are claims for collision, aver- ages or salvage 2387 special regul itions as to Vice Admiralty Court 2388 Privy, erection of near com- mon walls .532 Probate <>f WillN, how an«l where made 857 heir need not be called to. . 8.58 when heir jnav not contest . 8.50 when lost or withheld . 860 to 802 Prodigality, a ground for interdiction : Viffc Intkr- DKvnoN 320 Profession, rclif/ious, dis- abilities arising from 34 religiours, acts of 70 to 74 of advocate and attorney, how regulated * . 1732 Prohibition to Alienate, how it may arise and its effects 968 in whose interest it may be. JNiO things soid, is void 970 may be confirmatory of a substitution 971 effect of not expressing motive of 972 when a substitution is cre- ated by 973,970 extending to several de- grees 974 may be contined to acts inter Hvos or acts in con- templation of death, etc. . . 975 out of family, effects of .977 to 979 meaning of terms "chil- dren " or " grandchildren " in 980 must be registered 981 Promise of Marriage, not a ground for opposition to a marriage 62 ARTS. Promise of Sale : V'ifle Salk. ProinlHHory Notes, endorse- ments of payments on, do not prove interruption of prescription 1229 signitlcatioti of transfer of, not necessary 1573, 2286 Promnlfpation, of Acts of imperial and provincial parliaments 1, 2 of code, prescription com- menced before, how gov- erned 2270 of code, effects of 2613, 2615 Proof, on whom burthen of lies 1203 when secondary cannot be received 1204 how it may be made 1205 Vlffe EN(iLAM), laws of. Bt/ irrifi)igs, of authentic writings 1207 to 1214 Bi/ irrifinffs, of copies of avithentic writings. . . 1215 to 1219 Bf/ irrifinffs, executed out of Ijower Canada 1220 B(/ trrifing.s, of private writings 1221 to 1229 by testimony : Vide Testi- mony. ... by presumptions: Vide -, Prksumptioxs. by admissions : Vide Ad- i missions. by oath of parties : Vide Oaph. of interruption of prescrip- tion is not made by en- dorsement of payments, on promissory notes 1229 of primordial title by acts of recognition 1213 Property, in its relatiotis with those to whom it be- longs or who possess it. . . . 399 et seq. without an owner belongs to Crown 401, .584 in matters of successions. . 599 how it can be disposed of . 754 428 INDEX TO CIVIL CODE. Property.— arts. of (tubtor is cuiMinon pledge of his creditors 19H1 i8 either moveable or iin- moveable 874 Vide MovKAULE Phopkh- TV, Immovkahlks. Proprietor, buildliiKH on land are presumed to have been made at cost of 415 of soil who constructs buildings with materials of others 41(5 may be bound to pay a pos- sessor in good faith' for itn- provements made on his property or may have them removed 417, 418 such possessor may have right of detention* until proprietor pays the cost of improvements 4U) of land enjoys alluvion. . . . 420 of ground adjacent to that uncovered by rushing water enjoys the increase . . 421 of land carried away by a sudden force may reclaiiia it ' 423 of land on soutli side of St. Lawrence may cut and cure grass on the l)each : Vide R.S.Q. oriiM his rights with regard to moveables improvecl bj' ac- cession of workmanship. . . 429 et seq. Protestant, churches, mean- ing of the word : r/f/t' foot- note to article 42 Protests, when may be made by one notary 1209 Provisions, doubtful or ambij^uous of law, how interpreted 12 privilege of those who sup- ply 200(5 ARTS. I'rovisionul PosmohhIoii, of the heirs of absentees : \'{(h' Ahskntke 98 et soq. Proximity, of relationship, how determined 015 Prudent Atlminictrator, right of use and habitation must be used as by a 490 obligation to keep a thing involves the care of a 10(M lessee nmst use things as a 1(52(5 borrower must bestow care of a 17(5(5 depositary nmst keep thing as a 1802 mandatary must act as a. 1710 sequestrator is responsible as a 1825 trustee nmst act as a 981k Publication, of bans of mar- riage : Vide Bans of M au- KiAUE 57 et seq. 130 et seq. Publi'-jity, of registers of civil status 50 of registers of real rights 2177 et seq. Purchaser, at auction is bound by the entry of his name in the sale book 1507 effect of his not paying the price 15(58 at judicial sales who is evicted— his remedy. . . .1586, 1587 in sales for purposes of pub- lic utility cannot beovicte*' when he has a right r ■ v i a lessee yo effect of unreglster i^lii. upon subsequent i chas- ers 2085 effect of registration of rea rights as against a 2088 prescription by subsequent purchasers 2251 et seq. Vide Buyer. AKTS. lion, Dces : , uaet soq. ship, 015 »top, ition 490 :hiiiK ... . 10(M s aH a 1620 ' care \im thing ..... 1802 ks a. 1710 isible 1825 y81k i mar- Ma^k- . .57 et seq. 130 et 8eq. rs of 50 ipchts 2177 et seq. 11 is f his 1567 K the .... 15(i8 lo is . . 1586, 1587 f pub- •i(!te<' T*' ( ha8- 2085 f rea 2088 uent 1.'2251 et seq. INDEX TO CIVIL CODE. Q AHTS. 429 Cliialit.v, of father and mother is stated in acts of birth 5^1 of parties to be married and that of their parents in acts of n)arria>;e .j8 and of the deceased in acts of burial *n mercltantable, re(|niHite when thing conti acted for in determined in kind only 1151 to contract: Viylc Capa- city. C^uantity, seller must deliver full 15(X) effect of excess or deflciency of 1.501 et seq. of a thing in obligations may be uncertain provided it can be ascertained . ... lOllO QuHrricK, when usufructu- ary may work 4(K) (Quarries.— arts. rights of community re- garding 1274 QiiUNi-CoiitraotH, obliga- tions arise from 1)83 persons capable of contract- ing may be bound or bind others by lOll and also persons incapable of contracting 1042 Viilc Xe{iittiorum ycstio . . 1013 et se(i. resulting from the reception of a thing not due : I'idc Unduk Fa ymknt 1047 et 8e(i. QuaNi OlTcneeN, obligations arise from 983 every person is responsible for his 10.53 also for those under his control 10.54 and damages arising from fault of his animals. ! 10.55 how prescribed . . .2261, 2262 R. Rabbits, passing into an- other warren, ownership of 428 Rates, school and municipal, privilege for on immove- ables... 2009 §.5, 2011 usufructuary liable for — 471 llatiflcation of title : Vide Confirmation of Title. 2081 § 7 Reading, of acts of civil status to parties and wit- nesses of wills in authentic form . Realization, clause of, in marriage covenants, effect of lers coiisort debtor for unt he promised to con- ute V the contribution is )stantiated 1387 elicct of as to pretakings of consorts 1388, 1.389 re si 41 843 1385 1:^86 Reception of thing not duo, tjuasi contract arising from: Vide Unduk Paymiont 1047 et seq. Recognition, acts of, when proof of primordial title . . . 1213 l^econciliation, effect of, between parties to an action for separation from bed and board 196, 217 Records, of the executive departments of government, ' of parliament and of courts of justice are authentic 1207 Rectification, of errors in acts and registers of civil status, by whom may be demanded and before what Court 75 effect of judgment of 76 of total omissions in, how effected 77 i 430 INDEX TO Civil. CODE. iji Rectification.— arts. against whom judgment may be set up 78 Redemption, of share as- signed to a stranger by one of co-heirs 710 right of may be stipulated in contract of sale and effects of 1540 seller takes back property free of incumbrances . . . 1547 cannot be stipulated for more than ten years 1548 and stipulated term must be strictly observed 1549 failing which buyer remains absolute owner 1550 the term runs against minors and others 1551 seller of immoveables may exercise right of against second buyer 1552 but second buyer may pre- scribe against seller 1555^ and may set up benefit of discussion as against credi- tors of the seller 1554 effect of sale by licitation. . 1555 and of several selling jointly 1556 how exercised by co-heirs. . 1557 buyer may compel co-heir or co-ven(ior to take back whole property 1558 unless sale was made by each of them of his part only 1559 Redemption, effect of as re- gards heirs of buyer 1560 right of, musr be registered. 2100 right of is absolute without prescription being required 2248 Redhibitory, action, when must be brought 1530 Reduction, of gifts to con- cubines, incestuous or adul- terine children 768 Registers, of civil status^ acts of civil status are in- scribed in 42 of ciml sfafuSf meaning of words "Protestant Reduction.— ARTS, churches." Vide foot-note to article 42 of civil status, duplicate are divided into three volumes 42a of civil status, regulations concerning 42b of civil status, alphabetical index is made 42c of civil status, to whom furnished 43 of ciHl status, by whom kept 44 of civil status, must be ini- tialed by proper officer 45 of civil status, acts of civil status are inscribed in 46 of civil status, one dupli- cate is deposited yearly with prothonotary ' 47 of civil status, who must verify tliem and report thereon 48 of civil status, the other is kept by register 69 of civil status, extracts from are authentic 50 of civil status, when lost or none kept 51 of civil status, responsibil- ity for alterations therein. 52 of civil status, penalties to -n. which keepers of are sub- ject 53 of civil status, for acts of relisjious profession ... 70 et seq. of cwil status, which have been lost or destroyed, how replaced 78a et seq. ofciAnl status, reproducing those kept up to the year, 1800 78f etseq. Fa mil}/, against whom they do and do not make proof. . 1227 of departments of govern- ment, pailiament and courts of justice are au- thentic 1207 Registrars : Vide Regis- tration Offices— Ovgani- zation of. INDEX TO CIVIL CODE. 431 ARTS. b-note 42 ilicate three 42a itions 42b ►etical 42c whom 43 whom 44 be ini- >r 45 )f civil n 46 dupli- V with ; 47 must report ...... 48 ther is m ctracts 50 11 lost 51 nsibil- lerein. 52 ties to e sub- 53 cts of 70 et seq. have 1, how 78a et seq. ucing year, 78f et seq. they roof.. 1227 vern- and e au- ... 1207 EGIS- yani- ARTS. Reg:i8tratioii, of partner- ships. Vide R. S. Q. 5635 et seq. when wife separate as to property engages in com- merce. Vide H. S. Q. 5502a. gives effect to real rights . . 2082 from what time 2083 certain rights are exempt from 2084 ettect of notice received or . knowledge acquired of an unregistered riglit 2085 against whom want of may be invoked 2CijG by whom it may Ije de- manded 2087 effect of possession before the code in regard to 2088 preference arising from oi)- tains only between pur- chasers from same person . 2089 within 30 days of insol- vency of title derived from insolvent is null 2090 as is also tliat ellected after seizure of the property 2091 when it must be made 2092 whom it avails 2093 how unregistered privi- leged claims take effect. ., . 2094 does not interrupt prescrip- tion 209.5,2131 what acts require, and ef- fects thereof 2098 authentic titles to mining rights may be registered within 60 days from date. . 2099 sales, gifts or exclianges and rights ol redemption must be registered within 30 days 2100 also certain judgments 2101 a right of dissolution of sale has no effect against third parties without 2102 privilege of laborer, work- man, architect and builder, how preserved 2103 those of co-partitioners by registration of deed of partition within 30 days. . . 2104 Registration. arts. and those of co-heirs and co-legatees for privileges accruing under liciUition.. 2105 creditors and legatees of de- ceased debtor claiming sep- aration of property, must register notice within 6 months of death ot debtor. 2106 as also claims for funeral expenses of last illness 2107 liduciaty substitution must be registered 2108, 2109 and also all rights of own- . ership resulting from wills within 6 months 2110 requisites in case of con- cealment, suppression or contestation of the will 2111, 2112 husbands must effect, of their wives' rights 2113 or their parents or tutor if husband be minor 2114 what property is effected by 2115 of customary dower 2116 of servitudes 2116a of rights of minors and in- terdicted persons 2117 to 2120, 2147b of judgments and judicial acts of civil courts ... 20:M, 2121 of hypothecs of the Crown. 2121 of deed of sale, secures Hve years interest 2122 of life rent, secures arrears for five years 212^3 of other claims, secures two years interest only 2124 other arrears are secured by registering a memorial thereof 2125 renunciations of dower, successions, legacies, and community of property re- quire 2126 leases for more than one yearrequiie 2127,2128 and also payment of rent for more tlian one year in anticipation 2129 i: 432 INDEX TO CIVIL CODE. Registration.— ARTS, order of preference of real rights 2i:« is effected at length or by memorial and may be re- newed 2131 at length, how eftected — 2132 to 2135 by memorial, how effected. 213(> form of memorial and at whose request it may be' ^^ made 2137 memorial may embody sev- eral titles 2i:^8 contents of memorial 2131) memorial is delivered to register and proved 2140 how proved and executed in Lower Canada 2141 and if in Upper Canada 2142 and if in any other British possession 2143 and if in a foreign country. 2144 if executed in duplicate be- fore a notary 2144a duty of registrar on receipt of 2145 memorial of arrears of in- terest must state amount thereof and be sworn to. . . 2110 provisions of this section apply to titles not affecting immoveal)les but requiring registration by special laws 2147 form of certain notices, de- clarations and memorials 2147a right of married women, minors and interdicts to effect 2147b Cancellhkg of, who may and who must effect 2148 CancfiUing of, who may demand 2149 Cancelling of, when it may be ordered 2150 Cancellmg of, how effected 2151, 2152a ** consent to must be mentioned 2152 Cancelling of, judgment ordering 2153,2154 Caihcelhng of, sheriff and Rej^istration.— arts. prothonotary are bound to effect, in certain cases. ,2155, 2156 Cancelling of, registration of confirmations of titles, forced licitations, sheriff's sale, &c., is equivalent to. . 2157 Renewal of, in certain cases ' 2172,2173 CerHficatc of 2177 KcKisiry Offices, object of and where established 2158 are kept by registrars, their duties and liabilities 2159 when must be kept open. . 2160 what books registrars must keep 2101 addresses of hypothecary creditors kept by 2101a who nmst give their ad- dresses to 2161^ how the^' are entered 21616' how seizures are entered by 2161f/ to 2161/1 how sales for taxes are entered by 2161/ to 216U the registers may be divided and kept in several parts. . 2162 for cities of Quebec and Montreal 2163 Governor in Council may alter form of books. . 2164 of official plans and books of reference 2166, 2167 lands may be described ac- cording to 2168 Organization of, location of. Vide R.S.Q.5651 et seq. Organization of, archives in registry offices of certain former counties. Vide R. S. Q, 5656 et seq. Organization of, registrar after the change. Vide R. S. Q. 5660. Organization of, prepara- tion of official plans and books of reference. Vide R. S. Q. 5661 et seq. OrganizaUon oj, acquisi- tion of registers. Vide R. S. Q. 5680. INDEX TO CIVIL CODE. 433 ARTS. d to .2155,2156 ition itles, riff's ito.. 2157 rtain . 2172,2173 2177 ct of 2158 their 2159 en. . 2160 trars . ... 2101 acary 2161a • ad- 2lQlb 216U' tored yhl to 2161/1 i are 61/ to 2ieu k'ided rts.. 2162 and .... 2163 may .. 2164 )ooks .2166, 2167 d ac- . . 2168 ition _- • yi - lives rtain ide strar Vide )ara- and [Vide luisi- iVide Registry Offlices.— arts. Organization of, renewal of registers. Fir/eR.S.Q. 5681. Organization of, remission of registers. Vide R. S. Q. 5682. Organization ot\ duties of registrars. Vide R. S. Q. 5(«3 et seq. Organization of, oaths to be talcen by registrars. Vide R. S. Q. 5(l88. Organization of, security to be furnished by Regis- trars. Vide R. S. Q. 5689 et seq. ' - Organization of. Regis- trar's fees. Vide R. S. Q. 5693 et seq. Organization of. Inspector of Registry Offices. Vide R. S. Q. 5697 et seq. Helation»hip, proximity of, how determined 615 et seq. Release, of obligations, either express or tacit.. 1181 not presumed from sur- render of pledge 1182 surrender of original title of an obligation to one of joint and several debtors avails co-debtors 1183 express release in favor of one of joint and several debtors does not discharge others 1184 effect of, as between debt- ors and sureties 1185 consideration given by surety for his release is not imputed in discharge of principal debtor 1186 Relief, of minors for lesion : Vide Lesion 1001 et seq. Religious Profession: Vide Profession 70 et seq. Removal, right of nomina- tion to an office carries that of 17 §17 Of Tutors, causes for 284, 285 '* advice of family council re88 Constituted, what are 178^/ Constituted, may be made bv gift or will 1788 28 434 %:l % I • INDCX TO CIVIL CODE. llents.— ARTS. Constituted, either in per- petuity or for a term 1789 Constituted, for what term may be made when effect- ing real estate 380 Constituted, may stipulate that they be not redeem- able for thirty years 390 Constituted, when redeem- able at option of debtor. . .391, 392 Constituted, when capital : may be demanded 1799 Constituted, prescription of 1791,2248,2250 , Constituted, effect of sale of property charged with . 1792 Life : Vide Life Rents, Rents, Issues and Profits : Vide Fruits. Renunciation, of Com- munity : Vide Community 1338 et seq. of Prescription : Vide Pre- scription 2184 et seq. 2229 of Successions : Vide Suc- cessions 651 et seq. Repairs, liability of usufruc- tuary for 4(J8 lesser and greater, what are the 469 dowager's liability for 1459 in lease and hire, liability of lessor for 1613 when lessee must suffer , them to be made 1634 when lessee must make them 1638 Replacenient, as between consorts in community . 1305, 1306 Representation, 2'n succes- sions, definition of 619 takes place without limit in the direct line descending 620 does not take place in favor of ascendants 621 when admitted in collateral line 622 is effected according to roots 623 only takes place of those who are naturally or civilly Representation.— ARTS, dead. A person may repre- sent him whote succession ^/' he has renounced 624 Representations, and con- cealments in Insurance : Vide Insurance 2485 et seq. 2503, 2570 Representatives, the word " person " extends to heirs and 17 §11 Reprisals, between consorts on dissolution of com- munity 1357 et seq. Requisites, in contracts : Vide Conditions. Rescission, Of Gifts : Vide Gifts, revocation of 811 et se(| Of Contracts, made in fraud of creditors : Vide Credi- ^ TORS.. . 1032 et seq. Of Sale, for latent defects : Vide Dissolution 1525 et seq. Of Lease : Vide Lessor, Lessee 1624, 1641, 1656, 1662. Of Contracts for construc- tion of a building 1691 In matters of partition 751 et seq. Residence, of wife is with her husband 175 as regards notice of protest 2328 Vide Non-Resident 29 Res Judicata, is a presump- tion JnWs et dejure 1241 transaction has the author- ity of 1920 Resolntion, of sale — 1538 et seq. Respi. tfkil Requisitions, to the father and mother * before marriage abolished. 123 Respondentia : Vide Loan upo7i bottomry and res- pondentia 2594 et seq. Responsibility, for damages caused by a person's act or neglect 1053 for those caused by persons under his control 1054 for those caused by animals or buildings owned by him 1055 INDEX TO CIVIL CODE. 435 ARTS. >re- ion 624 on- ce : 2503, 2570 ord eirs . . 17 § 11 orts om- K)7 et 8eq. els : ; 7if1e 811 et se(i raud :edi- 032 et seq. cts : L525 et seq. iSOR, 1656, 1662. truc- .... 1691 751 et seq. with 175 jtest 2328 29 amp- ... 1241 hor- .... 1920 ,538 et seq. ons, ther Ihtd. 123 OAN res- et seq. ages t or .... ia53 ons .... 1054 Imals by .. 1055 Kesponsibility.— arts. when right to damages ceases as regaTds the injured person's heirs 1056 Restitnt)on,when buyer has a right to claim from the seller 1511 of materials used, without proprietors consent, to make a thing of a different description 440 Restore, he who receives what is not due to him is bound to 1047 Retention, right of upon moveables on which posses- sor has made improvements 441 upon immoveables under similar circumstances 419 co-heir's right of for im- provements on immove- ables returned in kind 732 right of institute to 966 right of in pledge 1966 creditors having a right of. 2001 Retroactive Effect, code does not apply to past trans- actions when it would have a 2613 judgment of separation as to property between con- sorts has 1314 Return(S,by consorts or their heirs into the mass of the community 1355, 1356 In »\iccesaion8, what heirs must return into mass 712 In suceessions, obligation ceases on renouncing suc- cession . . 713 In succe8»ions^ donee, not an heir at time of gift, is still lK)und to return 714 In successions, effect of gifts to son of a person en- titled to succeed 715 In successions, what a j^randson is bound to return 716 In successions, gifts made during marriage to donee or his wife, when they must be returned 717 Keturns.— » arts. In successions, are made only to the succession of the donor or testator 718 In successions, dislnirse- ments for establishment of heir or payment of his debts must be returned 719 In sucressions, what ex penses are not subject to. 720, 722 In succeHsions, only due from co-heir to co-heir 723 In surcessions,ho'w effected 724 In successions, of moveable property 725 //} successio)t8, of money. . 726 " of immove- ables 727 to 729 lit successions, responsi- bility of donee for deterior- ations 780 In successions, and for hypothecs and incum- brances 731 In successions, right of retention for ameliorations 732 In successions, at what time value is estimated . .733, 734 In ffoicer, what benefits child is bound to return. . . 14(58 He-union, of consorts : Vide Reconciliation. . Revendication, unpaid ven- dor has a right of 1998 is subject to four condi- tions 1999 Revocation, Of f/iffs, when creditors may obtain 803 Of gifts, when liable to be revoked after acceptance. . 311 Of gifts, subsequent birth of children to donor, not a ground of 812 Of ififts, when express stip- ulation is I'equisite 816 Of wills, how testator must effect 892 Of wills, when it may l)e demanded 893 Of wills, effect of subse- quent wills as regards 894, 805, 806 436 INDEX TO CIVIL CODE. Revocation.— arts. Of wills, alienation of thing bequeathed effects 897 Of xvilla, except by gifts in contract of marriage, tes- tator cannot renounce hin right of 898 Of mandate, terminates mandate 1755 Of mandate, mandator may at any time effect 1756 Of mandate, appointment of new mandatary effects, . 1757 Of mandate, notice of is requisite 1758 Right of Accession : Vide Accession and Owner- SHIP Right of Petition : Vide Petition of right 2211 Right of Redemption : Vide Redemption right OF. Right of Way : Vide Way 540 et seq. Rights, of the Crown and of third parties, when affect- j^ ed by Acts of the Legis- lature 9 •; civil are enjoyed by all British subjects 18 civil, how tbey are lost and restored : Vide Civil -' Death 30 et seq. Vide Civil death, Pro- ui fessions Religious. of ownership, donor must ..> divest himself of 777 of succession, what seller i of is bound to warrant, etc. ; Vide Sale 1579 et seq. litigious : Vide Litigious RIGHTS 1582 et seq. of retention : Vide Reten- tion. Rights.— arts. seigniorial : Vide Seigni- orial RIGHTS. 1 of Riparian proprietors : i Vide Alluvion, Servi- -».'i TUDES. i'f i! of action, sale of : Vide ' Sale. >• Risk, in insurance : Vide ^ Insurance. of a thing before deliverv, rules regarding . . . 1025, 1063, 1064 of fire, in Ifiase and hire . 1629, 1631 in contract of loan, of thing lent 1768 in partnership, of thing the enjoyment only of which belongs to the partnership . 1846 Vide Preservation. Rivers, navigable and float- able are Crown depend- encies 400 alluvion produced belong to owner of adjacent land 420 Vide Alluvion, Owner- ship. Roads, maintained by the state are Crown depend- encies 400 things found on, rules regu- lating ownership of 593 Roll : Vide List. Roots, of trees, extending upon neighbour's property. 529 where representation is ad- mitted, partition is effected according to 623 Ruins, of a building, respon- sibility of owners for dam- ages caused by 1055 Rural Estates, rules ap- plicable to lease and hire of. 1657 rules particular to lease and hire of farms and. Vide Lease and hire 1646 et seq. s. !i Safe Keeping : Vide Pre- servation, Risk. Sailors : Vide Seamen. Salary : Vide Wages. Sale, definition of contract of general rules governing of moveable things, by 1472 1473 INDEX TO CIVIL CODE. 43Y ARTS. Si- rs : VI- ■ MV-i t il i(ie ide ' i*"? !rv, 1063,1064 1629, 1631 ing .... 1768 the lich lip. 1846 oab- snd- igto L... SER- the end- egu- iing jrty. \ ad- cted )on- lam- ap- 400 420 400 593 529 623 1055 of. 1657 land 16 et seq. Iract by 1472 1473 Sale.— '' "" ARTS, weight, number or mea8- ure 1474 on trial, presumed made under a suspensive condi- tion 1475 simple promise of, not equivalent to 1476 accompanied by the giving of earnest * 1477 promise of. with tradition and actual possession, is equivalent to 1478 expenses of title deed, borne by buyer 1479 effect of on rights of third parties 1480 of intoxicants by tavern keepers, right of action for price of 1481 capacity to enter into con- tract of 1482 husband and wife cannot. . 1483 tutors, curators, agents, administcators, trustees and certain pul)]ic officers cannot buy certain prop- erty ' 1484 of litigious rights, who can- not buy : Vide Litigious Rights 1485 what things may be the ob- jectof 1486 of a thing not belonging to .seller, is null 1487 but is valid if it be a com- mercial matter and the seller afterwards becomes owner of the thing 1488 of property lost or stolen bought at a fair or market. 1489 or sold under authority of law 1490 expenses of delivery are at the charge of seller 1495 obligations of seller : Vide Skller, Warranty, De- livery 1491 et seq. obligations of buyer : Vide Buyer purchaser, Dis- solution, Interest, Pay- ment 1532 et seq. Sale.— • ' - . arts. dissolution of : Vide Dis- solution, Lesion, Re- demption 1545 et seq. by 1 {citation : Vide Licit a - TioN 1562, 156:i by auction : Vide Auction . 1564 et seq. of registered vessels 1569, 2:^59 et seq. Of constituted rents, Vide R. S. Q. 5fU0 et seq. Of certain propertf/ Itelong- - ■"■- ing to ^ninors mid other i ncapable persons, how ef- fected 351a Of certain pro/ ertifhetong- imf to minors and other incapable persons, im- moveables and shares 351b Of debts and, Hifhts of ac- tion, how perfected 1570 Of debts and viqhts of ac- tion, when buyer's posses- sion is available against third parties 1571 Of debts and, rights of ac- tion, when debtor has no ■'•'' ""■ domicile in the province, advertising is sufficient notice of transfer lUlla, 15716 Of debts and rights of ac- tion, how signification may '> i"* be niade when a whole class of rents or debts are sold . . 1571o Of debts and rights of ac- tion, elfect of payment by debtor to the seller before signification of act . . 1572 special rules as to checks, notes, bills, shares, etc 1573 of a debt includes its acces- sories 1499, 1574 but arrears of interest are not included 1575 of a debt, implies warranty of existence of debt 1576 effect of a warranty of solv- ency of debtor 1577 Of successions, warranty of seller 1579 Of successions, seller must 4;^8 INDEX TO CIVIL OODV. S»Ie.— ART8. reimburse what he may have received of the suc- . cension 1580 Of 8uccen8ions, obligations of buyer 1581 0/ litigiouH rights: Vide Litigious Rights 1582 et seq. Forced, when and how af- fected 1585 Forced, remedy of buyer in case of eviction 1586, 1587 Forced^ of immoveables for purposes of public utility Vide R. S. Q. 5764a et seq. (54 V. c. :«) 1588 et seq. Salt, stores for : Vide Stores.532 § 4 Salvage, finder of things on sea or on sea-shore has a claim for . 589 loss by, insurers are re- sponsible for 2528 Schoolmasters, are re- sponsible for damages caused by their pupils.. .... 1054 claims of for tuition, &c., prescribed by two years .... 2261 Sea, things which are the produce of, belong to finder 588 things found at sea con- tinue to belong to original owner 589 Seamen, master has author- ity over 2401 special duties of masters with respect to 2404 wages of, not exceeding ^200, how recovered 2405 prescription of runs only after expiration of voy- . age 2406 wills of, special provisions concerning 849 Second Marriage, cannot be contracted before dis- solution of the first 118 ; prohibition respecting gifts by future consorts in case of, no longer exists. . . 764 Security for Costs, to be furnished by registrars. Vide R. S. Q. 5689 et seq. ARTS. Seduction, or lying-in ex- penses proscribed by two years 2261 Seigniorial Rights, com- mutation of, Vide R. S. Q. 5505 et seq. * Seigniories, re-entry upon ^ abandoned lands in. Vide * R. S. Q. 5607 et seq. ' Seizin, of heirs, takes effect by operation of law 607 of legatees, how it takes place 891 of trustees 981b Seizure, payments made to the prejudice of a seizure, are not valid as against seizing creditor 1147 alimentary debts not liable to seizure are not subject to compensation 1190 immoveables under, how effected by registration 2091 Seller, principal obligations of are delivery and war- ranty 1491 . what constitutes delivery , 1492 when obligation to deliver is satisfied 1493 delivery of incorporeal things, how eft'ected 1494 expenses of delivery are at charge of 1495 is not obliged to deliver if buyer do not pay price un- less a term has been granted 1496 nor even then if, since the sale, buyer has become in- solvent 1497 in what condition thing must be delivered 1498 must deliver accessories of thing scld 1499 is bound to deliver full quantity sold 1500 effects of delivering more or less 1500 et seq. is obliged in favor of the buyer to legal or conven- tional warranty : Vide Warranty 1506 et seq. INDEX TO CIYIL CODl. 439 ARTS. 2201 /e ct 607 es 891 .. ttSlb to •e, St . . 1147 tie ct .. 1190 w .. 2091 nn ^r- . . 1491 '. 1492 er .. 1493 al .. 1494 at 1495 if li- ed 1496 le 11- ^' 1497 )g . . 1498 of . . 1499 ill .. 1500 re et seq. le 1- le et seq. Seller.— arts. privilege of, upon move- ables sold 1908 et seq. privilege of, upon immove- ables sold 2009 § 9, 2014 Separation of Debts, con- Horts may modify legal com- munity by stipulating that they shall be separately liable for their debts con- tracted before marriage . . 1384 § 3 effect of clause by which consorts stipulate that they will separately pay their personal debts. 1396 when consort brings a de- terminate object into the community, there is a tacit agreement that it is unen- cumbered 1397 does not prevent interest and arrears accrued since the marriap . being charge- able to community 1398 effect of community being sued for debts of one of the consorts 1399 Separation of Property, In successions, when cre- ditors can obtain 743, 744 preference of creditors.. 1990, 2106 J7i legacies, when credit- ors can obtain 879 preference of creditors.. 1990, 2106 III subsfitutioiis, when in- stitute or his heirs can , obtain 966 preference of creditors.. 1990, 2106 Between consorts, commu- nity is dissolved by 1310 can only be obtained judi- cially, when 1311 has no effect until execut- ed 1312 judgment of, must be in- . scribed 1313 it has a retroactive effect. . 1314 wife may accept or re- nounce comnmiiity 1314«, renunciation must be re- gistered 13146 reprises of wife 1314<' Separation of Property.— arts. payment of the amount of the wife's rights 1314e by whom it can be de- manded 1315 creditors of husband may oppose it ... 1316 wife who has obtained, must contribute to house- hold e'xpenses 1317 effect of on wife's control of her property 1318 liability of husband for failure to replace price of immoveables alienated — 1319 effected by separation from bed and lK)ard, may be re- established by consent of parties 208,1320 when it resumes effect from day of marriage 1321 Between consorts, dissolu- tion of comnmnity effected by, does not give rise to rights of survivorship 1322 Between coitsorts, stipulat- ed in marriage contracts — effects of as to administra- tion of projHjrty by wife .... 1422 Between consorts, expenses of marriage, how borne I42ii Betiveen consorts wife can- not alienate her immove- ables without husband's consent or judicial authori- zation 1424 Between consorts, hus- band's responsibility for fruits of wife's property.. . . 1425 VilJe WiFK SEPARATK AS TO Property. Separation from bed and Board, cannot be based on mutual consent of parties. 186 husband may demand, on ground of wife's adultery. 187 and wife, if husband keep his concubine in their com- mon habitation 188 consorts may respectively demand it for outrage, ill- usage or grievous insult.. . . 189 440 INDEX TO CIVIL CODE. .■■ (. :i Separatiitn fk'oin Bed arth. and Board.— sufficiency of these causes iH left to Court 190 wife nmy hIho demand it, if huHband refuses to receive and maintain her 101 wife must petition for leave to sue .• . . 1W4 judpce may allow wife to reside apart from her hus- band during suit .'. 195,201 is extinguished by recon- ciliation 191 but fresh causes give rise to new action 197 if action dismissed, parties nmst again live together. . . 198 Court may suspend judg- ment in certain cases 190 provisional care of children 200 wife may demand aliment- ary pension 202 effect of wife having place of residence assigned to her 203 right of wife to attach moveable effects of com- munity 204 obligations contracted by husband affecting the com- munity and alienations of immoveables are null after wife has been granted leave to sue for 205 does not dissolve marriage tie 206 wife can choose her own domicile 207 carries with it separation as to property 208, 1320 husband must make inven- tory 209 wife can administer her property, but husband or judge must authorize alienation of her immove- ables 210 party against whom it is declared, loses all advant- ages granted by the other party 211 Separation IVoiii Bed aktSi and Board. the party who obtains It, retains all advantages granted by the other par- ty 212 each may demand alimen- tary pension, when re- quisite 213 custody of children— how arranged 214, 215 rights of children, how af- fected by 210 re-union of consorts puts an end to 217 Sequestration, is either conventional or judicial. .. 1817 Conventional, what is and obligation of depositary .... 1818 Conventional, is not es- sentially gratuitous and is • subject to rules applicable to simple deposit 1819 Conventional, moveables and immoveables may be the subject of 1820 Conventional, how the se- questrator can be dis- charged 1821 Conventional, ruhs gov- erning, when not gratui- tous.. 1822 Judicial, what may be the object of and when Courtor judge may order it 1823 Judicial, in cases of usu- fruct and substitution 1824 Judicial, obligations of se- questrator 1825, 1827 Judicial, must cause per- ishable things to be sold . . . 1825a Judicial, must give out lease by auction 1825b Judicial, thing sequestrat- ed may not be leased to either of the parties 1826 Judicial, expenditure must be authorized 1826a Judicial, how the seques- trator can be discharged. . . 1827a, 1828. INDEX TO CIVIL CODE. 441 ARTS. it. ;eH ftr- . . . 212 ju- re- . . . 21H ow 214, 215 af- . . . 210 217 1817 1818 1811) 1820 1821 1822 1823 1824 k5, 1827 lei'- . 1825a )Ut . 1825b at- to . . 1820 list 182ea es- <27a, 1828. HtH ler ind es- is hie ►les be ae- lis- ov- ui- or su- AllTS. ServantN, domicile of, is at the residence of those for whom they serve or woric if they reside in the same house 84 of notaries cannot witness authentic wills 844 services of, may b- leased or hired 1«0(J can only be hired for a limited period or for a de- terminate undertaking . . . 1667 how engaf^en)ent termin- ates 10(W in action for wages by, mas- ter may tender his ojith in certain matters 1669 general rules governing the hire of 1670 prescription of wages 2261 55 3, 2202 § 3 privilege for wages upon . moveable property . . 1994 Ji 9, 2006 ' privilege for wages upon inrimoveables 2009 § 9 , wages of are exempt from ' registration 2084 duties of. Vide R. S. Q. 5614 et seq. Servitudes, definition of real 499 arise from natural position of property, from law or act of man 500 Arisiry from situutioi} of ^■' property.— 1\o\\ of water . . 501 springs 502 running stre»ims. Vide R. S. Q. 55:35 50:i boundaries between con- tiguous lands 504 • fences and separations 505 Established by law, their object 506 Established by law, public utility, such as t o w - ' paths 507 Established by latr, obliga- tions of proprietors regard- ing 508,509 Established by law, divi- Servltutlee.-- arts. sion-walls and ditches and clearances 510 to 531 Established by law, dis- tance and intermediate works required for ceriain structures 532 Established bylatr, of view- on tlie propertv of a neigh- hour ' 5:« to53H Established by lair, of the eaves of roofs 5^it> Established fty lair, of the right of way 540 to 544 Establishea by act of man, how constituted 545 Established by art of man, are either urtmn or rural. . . 546 Established by act of man, continuous or discontinu- ous 547 Esta blifihed by act of ma n , apparent or unapparent. .. 548 hstablished by act of man, title requisite for 549 Established by act of man, must be registered 211()a Established by act of man. want of, can only be sup- plied by an act of recog- nition from prf>prietor 550 Established by act of man., destination made by pro- prietor is equivalent to a title 551 Established by act of man. granting a servitude, in- volves the grant of what is requisite for iis exer- cise 552 Established by act of man, rights of the proprietor of the land to wnich the ser- vitude is due and obligations of the proprietor of the servient land 553 to 558 when they cease 559, 561 when they revive 5<)0 non-user for 30 years ex- tinguishes 562 when the 30 years com- mence to run 563 442 INDIX TO CIVIL CODB. I ServitudeH.— akth. maDner of exerciHiiif(, may be preHcribed (HH effect of owiierHhip by un- divided HharaH on preHcrip- tion 565 and of minority of one of the co-proprietors 5fl(J Set OIT: 1 7ther8, mar- riage is prohibited between, whether legitimate or natural, and between those connected in same degrees by alliance 125 Vide Brothers n Law. ARTS. Slander : Vide Libel. Soil : Vide Land. Soldiers, how wills of inay be made WO" Sole Corporations : Vide Corporations Sols. SoleinnixatiotuO/mm'7'iage, must be open and by a compettMit otticer 128 Of inarriaye^ who are com- petent officers 129 Sovereign, the, means the King or Queen, etc 17 § 1 (pound sferHnff) !« equiv- alent to |l4.8f{ii or £1.4.4 cur- rency 17§ 20 Spiritual Adviser, gifts made in favor of, are valid. 769 Spring, of water, ho who has one on his land may use and dispose of it as he pleases. . 502 Stables, near common wall or wall belonging to a_^ ncighl>our • . "532 § 4 Stairs.how made when difTer- ent stories of a house be- • long to difTerent proprietors .521 Statement, a deed of f^ift need not be accompanied by 786 when an appreciatory is required of wife's property in marriage contract 1418 establisiiingincreased value of property for privilege of builders 2013 Status, of children : Vide Acts of Civil Status, Filiation. * Statutes, imperial and pro- vincial, definition of : I ide Laws 17 § 2 Stores, for salt or other cor- rosive substances, near a common wall or wall be- longing to a neighbour, how built 532 §4 Stray Property, ownership of fe4,5W Streams, owners of land bordering on running INDEX TO CIVIL CODK. 44a ▲ RT8. nay ide lage, a om- tlie H4» 128 129 17 § I uiv- cur- ...17§2(> ;iftH iia. im has and es . . 5055 >vall a ..132 §4 liflTer 521 786 1418 aoia be- tors is 3rty alue e of ide I'US, )ro- ide or- a be- >ur, . .532 § 4 hip ..584,5W nd ing 17 §2 HtreaiiiH.— arta. HtreamM, not fnrvn\nft, part of public (loniain.s, may make use of, Vtdr R. S. Q. 55:^5 m\ Siibtfect : Vide British 8ub- JKCT. Hub-Iieane, lessee has a ri^ht to in the absence of a stipu- lation to the contrary I(i38 but he who cultivates land on shares cannot 1(U3 8ub-le«see, liability towards principal lessor 1639 privilege of principal lessor on effects of 1621 Subroiicate Tutor, in every tutorship there must be a. 22 effect of a pending con- dition preventing the >*ub- stitution opening on death of the institute 96H alienation of substituted • property during the sub- stitution {HXi(t legatee charged as trustee to deliver over does not re- tain property in the event of the lapse of the ulterior disposition 9(>4 966 596 599 599 600 Subt^titutioiis.— ARTS, how institute delivers over the property 965 ellect of confusion and right of institute to separ- ation of property i'idf Prohibition to Aliknatk. Succe»Hloii8, definition of. . are either ai)in testate or testamentary 597 abintestate are either legitlaiate or irregular 598 in law a succession forms bnt one inheritance . . duties or taxes, Vide refer- ences in note to Of the oj)(ni)ig of, where a succession devolves OJ the opening of, they de- volve by natural or civil death..; 601,602 Of the open ing of, presump- tion of survivorship of heirs in case of death bv acci- dent '. .608,(505 of the seizin of heirs (>06, 607 qualities requisite to in- herit U)8to613 Diff' rent orders of, degrees of relations} I. 5 in collateral and tlirect lines 614 to 618 of representation, what it is and when admitted . ()19 to 624 devolving to descendants. . 625 devolving to ascendants. 626 tolK^O of collateral successions. (531 to (535 of irregular successions.O;^ to (>40 Acceptance of, no one is bound to accept (>41 Acceptatice of, nu'^.y be ac- cepted purely and simply or under benefit of invent- ory (>42, ()G0 et se(i. Acceptance of, h jw effected by married women, mi- nors, &c 643 Acceptance of, effect of reaches back to day succes- sion devolved (>44 Acceptance of, may be either express or tacit INDEX TO CIVIL CODB. 445 iver and par- ARTS. 965 966 TO of., or ther inns efer- re a 590 597 59S SJK) 599 (KM) f de- civil ...601, ()02 inip- leirs acci- . (30H, ()05 ..(VMl, 607 ii'.- U)8 to 618 ;rees eial .611 to 618 t it (>19 to 624 t,s.. 625 .626to();W .(531 to (5:^5 636 to 640 is 641 ac- iply ent- m et 80(1. •led nii- 643 of ces- (W4 be . . . (V45 Successions.— arts. Acceptance of, what are and what are not acta of :- acceptance 645 to 647 Aeceptdnce of, right of heirs of the person to whom a succession has devolved to accept or reject 648 Acceptanct' of, effect of the'r not accepting or re- jecting ()49 ■ Acceptance of, when an ac- ceptance may be impugned. (JoO Acceptance of, how letters of verification are obtained. 650a Renunciation of, a person cannot repiesent him whose succession he has renounced 624 Eenviiciation of, is never preeamed and is effected by notarial act or judicial de- : I claration ()51 Renunciation o/,effect8 of (i52, t)53 Renunciation «/,no one can take as representative of an heir who has renounced. 654 Renunciation of, creditors may procure rescission of. . <)55 Renunciation of, heir may always effect ()56 Renunciation of, when heir may rtsume after (i57 Renunciation of, of living persons only valid wlien by marriage contract . 658 Renunciation of, heir who has abstrac» ed or concealed property cannot effect 650 Benejit of inventory, how obtained , . (560 Benefit of ivventory, judg- ment granting must be re- gistered (kil Benefit of inventory, en- tails making of inventory. ()62 Beneft of inventory, and giving of hecurit}, if de- matuleu 6(>3 B( nefitofinrentory, delays for making inventory and deliberation 71 Benefit of inventory, ad- ministration of i)eneficiarv heir 672 to 676 Benefit ot inventory, bene- ficiary heir may always re- noun9t offer o!ie with certain qualifications. 1988 how sol\<-iicy of surety is estimated 1989 effect of surety becoming insolvent 1940 Ejfect of, between creditor n'nd surety. surety only liable on default of debtor v/ho must pre- viously be discussed . , . 1981, 1941 but swrety must demand discussion 1942 and must indicate property and advance money for effect of his so doing when several persons be- come sureties for same debt each is bound for the \> ho'e debt but may require creditor to divide fi is action . effect of creditor voluntar- ily dividing his action 1947 1948 1944 1945 1946 INDEX TO CIVIL con. 447 AMTS. not of 1186 > > • 1199 on IJKJl, 1941 — 1954 E... 1929 jgal im) ilfll- on. 1931 •oua ion, . . . • 1932 [;on- nn- 1<)34 lUSt 19Ji5 • • • • 1936 :. ex- /ion. 1611 to aish 19137 one ons. 1938 y i« 1939 iinjs 194(» itor iUlt pre- 1931 , 1941 and 1942 Jrty \\m 1944 be- iebt lo'e \r to Itar- 1945 1946 1947 Suretyship. arts. what exceptions surety Dnay set up against creditor 19.58 Effect of^ between debtor and surety. what surety bound with consent of debtor may reco- ver from the debtor 1948 and what surety bound without the consent of the debtor can recover 1949 surety who pays is subro- gated in rights of creditor. 19.50 ' and in case cf several prin- cipal debtors bound jointly and severally, he can re- cover all that he has paid from each cr them 1951 effect of not notifying prin- cipal debtor of fact of pay- ment 1952 when surety may proceed ■against debtor before pay- ing 19.5:3 Effect of between co-sitreties 19.55 j^xtincfion of, arises from same causes as other obliga- tions 19.56 when confusion does not eflect 1957 what exceptions surety mav set up against credit- or.'. 19.58 arises when surety, by the act of the creditor, can no Tacit l?eiiewal, emphy- teusis is not subject to 579 of lease, when it takes place 1609 persons holding real estate by sufferance are liable to rules relating to 1608 when notice has been given to the leasee, he cannot claim 1610 surety i.- not bound for 1611 Taxes, usufructuary is liable for • 471 Surety Hhip. arts. long;er be subrogated in his rights and privileges 19.59 also when creditor accepts any object whatever in pavment of the principal debt 1960 delay given by creditor to the debtor does not effect. . 19(51 legal and judicial, qualifica- tions for 19(52 pledge may be substituted for 19(5;J judicial surety caimot claim benefit of discu.ssion. 19(>4 nor can the surety of a judicial surety 19(55 Surrender, by holder of hypothecated property 2075 of original title to one of joint and several debtors is available in favor of his co- debtors 1183 Survivorship, rights of, effect of separation from l>ed and board on 208 dower is a right of 1438 presumption of amongst several persons perishing by same accident 603 to (505 Suspensive, condition, a sale on trial is deemed to be made under a 1475 conditions in obligations 1079, 108'/, 108(» Taxes.— on successions. \'idt- note on art .590 privilege upon immoveables for 2009 §.5, 2011 prescription of. See cases noted at 2242, 2250 saels for, how registered 2161/ to 2161/ Teachers : ^'^de School- mi astkrs. Tenant : Vide Les.see. 448 INDEX TO CIVIL CODE. ■ " ' * AIITr4. Tender, when and how made and elt'ect of 1162 what is necessary to the validity of 11(53 when notification has the eflTectof 11()4 of a thinp; deliverable in the spot where it is or of a thing difficult to transport, how effected 1165 may be withdrawn as long as it is not accepted 116() but not after Court has de- clared it valid 1167 Term, obligations with a : Vldr Oblkja'i IONS ivifh a fmn. Testamentary Executors : Vi(fe Exec UTORH. Testator, except by m^^r- riage contract, cannot fore- go his right to dispose of his property by will 898 may name one or more testamentary executors and modify their legal obligations 905 et seq. may impose a substitutioii upon the donee or legatee whom he benelits 934 Vide ExEcu'i'ORs, Wills, SunsTiTUTioNS, Trustees. Testimony, what proof may be madt' by 1233 cannot b* received to con- tradict or vary the terms of a valid written instrument 1234 in comm'ercial matters over ^50 i2a5 in cases under f5() when admissible 1236 in cases over .1^50 when ad- missible 1237 Texts, difference between English and PVench in articles of the Code, how interpreted 2615 Thief, or his heirs and suc- cessors cannot prescribe. . . 2198 but acquirers in good faith, from thief, can prescribe . . '^'^"'■ ARTS. Things found, ownership of 584, .586, 589 et seq. Thinj^s unclaimed, in hands of wharfingers and others ,594 Things, distinction of : Vide Immoveables, Moveables, Property 374 et seq. Third Parties, effect of von- tracis with regard fo. ,;, a party can contract that another shall perform an obligation 1028 when he may stipulate for the benelit of 1029 creditors may impeach acts of their debtors in fraud of their rights : Vide Credit- ORs 10Ji2 et seq. compensation does not take place to prejudice of rights of 1196 nor can the omission to set up compensation be recti- fied at the expense of 1197 lessor is not bound to war- rant lessee against acts of . 1616 usufructuary must notify owner of encroachments by 476 trustees are not responsible towards 981i Third Persons, obligations of mandatary towards ^ 1715 et seq. dissolution of partnership ^-~:Z affects rights of 1900 Tilling, owner of property . enjoys fruits, subject to . ij obligation of restoring cost of 410 costs of, are privileged >t m 2009 § 4, 2010 Time, for prescription, how reckoned 2240 when it runs in case of . ^ violence and fear and with regard to interdicts 2258 Tithes, carry a privilege on 1 1 C"^i moveables' 1994 § 2 on what crops 1997 INDEX TO CIVIL CODE. 449 ARTS. hip 89 et seq. in ind ... 594 LES, ;74 et seq. •on- A\aX an for 1028 1029 acts dof ;i)iT- m2 et seq. take Erhts ) set ecti- war- lOf . )tify nts jilDle ions 1196 1197 1616 476 981i 715 et seq. ship ^^ 1900 erty . to J cost ,. 410 WlIM 9 §4, 2010 ow . . 2240 of . JD ith . . . 2258 on <\\, t ..1994 8 2 ,. . 1997 Tithee.— akts. right to is imprescriptible, but arrears of can only be demanded for one year .... 2219 must be paid at rector's residence 2219 Titles, to whom delivered in cases of partitions of suc- cessions 711 help to establish defects of iossession 2244 prescription under trans- atory : Vide Prescription 2251 et seq. no servitude can be estab- lished without a 549 acts of recognition do not make pioof of primordial. . 1213 Vide Renewal Deed. Tow PHth, is a servitude established for public utility 507 obligation of owner of alluvion contiguous to rivers, to leave a 420 Trader, a wifemaybeapublic 179 a minor is reputed of full age when engaged as a 323 Trad ir ion : Vide Delivery. Transaction, what is the contract of 1918 who can enter into it 1919 a tutor cannot, unless au- thorized 307 has the authority of res adjudirata 1920 error of law is not a ground for annulling 1921 when the nullity of a title is a ground for annulling. . 1922 upon a false writing is null 1922^ upon a suit terminated by an unappealable judgment is null 1924 when subsequent discovery of documents is a cause for annulling 1925 errors of calculation !n may be reformed 1926 power of attorneys to < flfect. See certain of the • 290 U8t . . . 291 ust 292 inst blic . . . . 293 U8t s of . . . . 294 ft'HO ►ex- 295 de- s m- . . . . 29« also faiin ..1078 §:^ hen y or im- er ..297 ,29H ;ep- n :m) lOW iUC- . ;^oi ,302 md 867 md ..30H ,789 !an to 304 tot ti- 305 ot ;a- 306 ot >r- • • 307 T^ors.— / ' AVtfs. Accmirtt of, due Wh'^h adf- ministratidn tei'infnated; . . vim Account of , ma^ alAb be re- quired to a7 obligations of, what repairs he is liable for 468, 469 obligations of, not obliged to rebuild 470 obligations of, is liable for ordinary charges 471 obligations of, liability for legacies, pensions and life rents 472 obligations of, for heredit- ary debts 473 obligations of, how he con- tributes to payment of debts 474 obligations of, liability for costs of suits 475 obligations of, duty in case of encroachments by third parties 476 obligations of, not obliged to replace an animal dying 477 obligations of, liability in case of a herd or flock dying 478 Eights of, enjoys natural and civilfruits 447 ABTS, ty ri- ll- . 482 u- ts 483 to •e- • • 4&5 3h n- i£ d- ys bis 486 ns n- , , 463 ie- 464 ot .465. 4(36 le- • • 467 rs .468 ,469 }d , , 470 or , , 471 )r fe , , 472 J' , , 473 11- 3f , 474 )r , 475 !e d 476 d g 477 n K 478 ,1 • 447 INDEX TO CIVIL CODE. 453 Usufructuary.— arts. Bights of, what are natural fruits 448 Rights of, what are civil fruits 449 Rights o/\ what natural and indu.strial fruits belonjr to usiifructuary and pio- Srietor 45() lights of, civil fruits are acquired day by day 451 Rights o/,in regard to goods which are consumed by use 452 i?t^/i<.9 o/, in regard > life rents 4.53 Rights of, in regard to goods which deteriorate by use 4.54 Rights of, in regard to trees growing on land subject to usufruct 455, 456 Usufructuary.— arts. Rights of, he may sell or lease his rights 457 Rights of, enjoys alluvion to land . ' 458 Rights of, and rights of servitune and passage 459 Rights of, in regard to minors and quarries. ...... 460 Rights of, in regard to treasure found 461 Rights of, cannot claim in- demnity for improvements, but may remove ornaments he has placed 462 Utensils, necos.sary for tna- nufactories, placed on real property for a permanency, are inmioveable by destina- tion 379 V. Vacant Estates, belong to the Crown 401 Vacant Successions, : Vide Successions meant. ..684 et seq. Vendor : Vide Seller. Vessels, carriage of pascen- gers in merchant vessels 2461 et seq. Vide Ships and Merchant Shipping. Viable, infants who are born not, are incapable of in- heriting 608 V^iew, on the property of a neighbour, windows and openinus in common walls f)rohibited 533 low built in walls adjoin- ing neighbour's land .534, 535 overlooking directly fenced or unfenced land of another SJiO View.— ARTS, oblique views or side open- ings 537 how distances are reckoned 538 Violence, a cause qf nullity in contracts : Vide Fear 994 et seq. action for rescission of con- tracts for, prescribed by ten years from day it ceased 2258 Vis Major : Vide Fortui- tous Event 17 § 24 Voluntary Administra- tion : Vide Ne(tOtiokum Gestio 1043 et seq. Vows R^lif^ious, disa1)ilities arising from 34 registers for keeping 76 Voyageurs, engagement of. Vide R. S. Q. 5(i2/ et seq. m inde;c to civil codje. -''ft W- ARTS. Wa^er : Ft28 >yVagcf>, minor of 14 may sue for up to ,$50 304 path of maJiit'er in regard to W\9 privilege upon moveables for 1094 §9 for what period privilege exifjt^ 2006 privilege upon immove- ables for 2000 prescription of 2261, 2262 when workman may claim wages although thing on which he has worked be lost pefore delivery 1686 of seamen, how artion may be brought for 2405 when prescription for begins to run 2406 bottomry and respondentia loans may not be effected on 2600 Vide WORKML.^ . lVall8 : Vide CowMim Pro- pp:rty. Servitudes. . 510 et seq. Warranty, resulting from partit^ion Qf^ucce8ftions.74H to 750 0/ vendor, is either legal or conventional apd is against eviction and latent defects 1506 Of vendQr, legal. Is implied by laV without stipulation 1507 Of ven dor, again st eviction and encumbrances 1508 0/ j;c?jd'c>?', against his per- sonal f^cts 1509 Of vendor, effect of stipula- tion exc^ xding warranty. . 1510 Of vendor, rights of buyer aiid obligation of vendor in case of eviction. .... . .li^ll.to 1516 Of vendor, effect of partial eviction 1517. 1518 Of vendor, effect of undis- closed servitude 1519 Of vendor, when warranty ceases 1520 Warrfinty.— arts. Of vendor, when buyer may enfprce warranty without obtaining judgment 1521 Of vendor, tor iat ent defects 1522, 1524, 1529 Of vendor, does npt tjxist for apparent defects 1623 Of vendor, latent defects in one of several things bought together 1525, 1520 Of vendor, effect of seller's knowledge or want of knowledge of ejcistence of latent defects 1527, 1528 Of vendor, when action niusf be brought 1530 Of vendor, in sales under execution 1531 Of vendor, of the existence of a debt sold 1576 Of vendor, of solvency of debtor 1577 Of vendor, in sales of rights of succession 1579 Wurehoii«?e Keepers, sale of goods by 594 AVarehoiiHe Receipts, are documents of titles 1745 Warrens, ownership of rab- bits going into another per- son's 428 Waste : Vide Dpjterior- ATION. ' ' Water, servitudes with re- gard to 501 et seq. Vide Rivers, Streams, Springs. Water Courses, right of im- proving, Vide Streams. Water Mills, when deemed immoveable 377 Way, Eight of, when a pro- prietor of enclosed land may claim on that of his neighbour 540 Right of, where it must be had .. .. 541,542 INDSX TO CIVIL OOOI. 465 ARTS. ut . 1521 its 524, 1521) 8t .. 1623 in . ht 525, 1526 r'w of of 527, 1528 )n . . 15130 er .. 1531 ce . . 1576 of . . 1577 its . . 1579 of 594 re . . 1745 3- r- 428 et seq. 377 540 41, 542 W»y.— AB'PH. Hif/ht ofy when nece*tttity for ariHes from a partition . 543 Right oJ\ ceases with tke necessity for it 544 WellH, reguhitiuiiH euncern- inK construction of 532 § 3 Whartlufcors, »«ile of goods by m\ •Wi may be conditional— effect of impossible or immoral conditions 760 Cftpacitj/ to (lice and re- ceire by, general rules. . . .759, 831 married women mav make 184, 83 but minors cannot 833 nor can tutors, either alone or jointly with them 8:34 nor can interdicted persons or their curators 8:34 of prodigals, and persons to whom judicial advisers have been given 8.34 .«>.. IMAGE EVALUATION TEST TARGET (MT-S) A ^/ A 7, 2a 1.0 I.I '^ liU III 2.2 1.8 1-25 1.4 III 1.6 ^ 6" ► VQ ^ /M ^Wm y -(^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY MS80 (716) 872-4503 fi estator fa conHidered . . . power of corporations and peritOHH in mortmain to receive by will flfpriiieipat to famffib* . . 25 Prinol itroi on tnatHiaicnt when un- name slgil^W a^iit' 20 forged sTgnignW...^^^^^.. 24 how far prbYh>rbtai M' tb "biUe*'aiflpltto:,... 88 of corporation undHt ieil without signature- — , — 00 payment ftupra nrotest — 67 Protest, what it IS 61 founded on noting. ......... 61, 02 may be eztendSff' from* noting-at any time 61, 02 notice of 49 consequence of not prbUiSt* ing 61 at what time'tbtjlBi'mAde; . . 61 Ratitloatlon of forged or unauttioriced signature. . . , 24 Reasonable Tlmtr present- ment for aeceutanoe 30 presentment ror payment . . 45 notice of dishonor Sef)Dtf«lB^lii €9a«eiofflotew.' 15, 67 estriotlTe Indorsement, what indorsements ani. ... 35 Hevooation, aeoeptance by drawee'. 2e indorsement by indorser; > 21 ofd^liTery 21 s. l3(DOiit1tJr;pW^Mt'fbrbi$tter. 61 8et(b«rmwta in) 7o ^ipiatttve, dellveff ' to «ttii' effeOttO. 2t,'83 immaterial by what hand, if ai^th«>riJNl| what sufficient in point ot form' of corporation .j.. . . Speolal Indoriefnent dettn- Ttion; SBC. !8 — ^M eifcct 1(1^84 distinaaisl»sd from rostrfct- Ive 85 IVansf^Breir tiff lleSiTery, defined 58 Usarious Cloiislderatlon, bill given for V. 30 Vniue, defined. 2^'2t Valae Received, construe* tion of the term 3 Waiver, of bill by holder. . . . 61 61 of liabilities of parties by holder of presentment for pay- ment .47 of protest . .. — 16, 61 of notice of dlshonoi*. 60 Without Recourse 10 S( 08 80 2.2t 8 61 01 47 16;61