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Cornell University Library 
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 An essay on the registry laws of Lower C 
 
 olin 
 
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AN 
 
 ESSAY 
 
 REGISTRY LAWS 
 
 LOWER CANADA. 
 
 BY JOHN BONNER, A.M., 
 
 (fUnebec : 
 
 PRINTED BY JOHN LOVELL, MOUNTAIN STBEET, ? I 
 1852. 
 
^vziB 
 
 
The Author trusts that the importance of familiarising 
 the Public with Laws which ought to be " household 
 words," will serve as his apology for publishing this 
 Essay. It contains little that is new; but nothing, he 
 hopes, that can mislead. 
 
 A preface might perhaps have been dispensed with, had 
 it not afforded him an opportunity of acknowledging his 
 obligations to Mr. Lafontaine's Analyse de V Ordonnance 
 sur les bureaux d? Hypotheques — a work which, had it 
 been translated into English, and enriched with the recent 
 Statutes and Decisions, would have rendered this Essay 
 superfluous — and to the Honbles. Judge Meredith, Judge 
 Duval, Henry Black, Q. C. and Thomas Pope, Esq., to 
 whose friendly counsels and judicious suggestions, what- 
 ever is valuable in the following pages may be ascribed. 
 
AST 
 
 ESSAY 
 
 ON THE 
 
 REGISTRY LAWS 
 
 OF 
 
 LOWER CANADA. 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 1. Importance and extent of the subject. 
 
 2. It is entitled to the grave attention of all. 
 
 1. There is no Law in our Statute Book which claims 
 a more careful examination at the hands of the public 
 than the Registry Ordinance. For, whether we consider 
 the extent of the reforms it introduced into our jurispru- 
 dence, or the increased stability it has given to financial 
 operations, or the magnitude and variety of the interests it 
 affects, it stands alone, and without a rival. As the Law 
 of mortgages, in the language of M. de Saint Real, when 
 founded on just and sound principles, gives life to public 
 and private credit, but, when ill-digested, is the ruin of 
 both (a) : any statute, which effects a thorough revision 
 of that Law, and places it on an entirely new basis, must 
 (a) Rapport du Cit.. St. R6al. Conferences sur le Code Civil, "VIL, p. 98. 
 
6 ESSAY ON THE 
 
 be of the highest practical importance either for good or 
 evil. 
 
 2. Though its prime object was merely to establish 
 Registry Offices, it sweeps, in fact, over the whole field 
 of the Law of Real Property : creating obligations and 
 imposing duties on every individual who possesses any 
 stake whatever in the Country. As such, it is entitled 
 to the grave attention of all. To the Lawyer, to the 
 Notary, to the Merchant, to the Landholder, to the Capital- 
 ist, to every one who may be placed in the position of 
 borrower or lender, purchaser or vendor of Real Estate, a 
 thorough knowledge of its provisions would seem indis- 
 pensable. 
 
 And while policy, and a due regard to their own in- 
 terests require the rich man and the speculator to make 
 constant reference to its text, an acquaintance with its 
 bearings on the social relations of life is no less indis- 
 pensable to all who have contracted, or who contemplate 
 marriage, to every man who hopes to occupy the position 
 of a father of a family. On the rules it establishes depends 
 the scanty pittance of the widow : the ignorance of a 
 single clause or paragraph may snatch from the orphan 
 the means which parental foresight and affection had laid 
 up for his maintenance. On a correct interpretation of 
 its doctrines rests the minor's right to claim his patrimony : 
 the faithful observance of the formalities it prescribes, can 
 alone preserve to the helpless interdict, the provision which . 
 humane friends or relations have made for his support. 
 In fact, there is no one so insignificant who may not some 
 day be affected by its provisions. In whatever sphere of 
 life we are placed — by whatever social ties we are bound 
 — whatever responsibilities we have accepted — and what- 
 ever domestic authority we exercise — it is our bounden 
 duty to ourselves, and to those over whom we are set, to 
 acquire a personal knowledge of a Law on which so 
 much of our happiness and their welfare depends. 
 
REGISTRY LAWS. 
 
 To estimate the alterations it effected in our Common 
 Law, it is necessary to east a hasty glance over the dif- 
 ferent systems which have obtained in France. 
 
 SECTION I. 
 
 OF THE HYPOTHECARY LAW OF FRANCE. 
 
 8. Of the secret hypothecs of the Roman Law. 
 
 4. Of the Registres de nantissements in certain Provinces of France. 
 
 6. By the Common Law of France, all encumbrances were secret. 
 
 6. All Hypothecs were general. 
 
 1. And were granted for indeterminate sums of money. 
 
 8. Fruitless attempts to introduce a system of publicity. 
 
 9. Law of Messidor, an III. 
 
 10. Law of 11 Brumaire, an VII. 
 
 11. Code Civil; deviations from the Law of Brumaire as to Transcriptions 
 
 of title deeds. 
 
 12. As to the inscription of Legal Hypothecs. 
 
 13. As to hypothecations of future property . 
 
 14. As to Hypothecs for undetermined amounts. 
 
 3. Under the Roman Law, hypothecs were not necessa- 
 rily known to any but the contracting parties : the purcha- 
 ser or lender had no other guarantee than the good faith of 
 his vendor or borrower, and no other remedy in case of 
 deception, than a prosecution for the fraud, which was 
 technically called Stellionatus. 
 
 4. A similar Jurisprudence prevailed in mosl of the 
 ' French Provinces, slightly modified by its contact with 
 
 the feudal system. In Laon, Rheims, Ribermont, Mont- 
 reuil, Chauny, Ponthieu, Bonlonnais, Peronne, and Roye, 
 public Registers were kept, in which mutations and cer- 
 tain encumbrances on real estate were recorded (a). 
 
 But the formalities attending entries in these Registers 
 
 ____ __^_.. — •■ . 
 
 (a) Guyot, Repertoire Vo. Hantissement. 
 
8 ESSAY OKT THE 
 
 (called Registres de Nantissements, de Saisines, de Vest 
 et Devest, de Contr61e) were cumbrous and troublesome; 
 they afforded no evidence of tacit or legal hypothecs, and 
 had, according to M. Lamoignon, in his time fallen into 
 disuse. ( a ) 
 
 5. In that part of France where the Custom of Paris 
 was law, there was no means of ascertaining the en- 
 cumbrances on real property, or its mutations from one 
 proprietor to another. The purchaser and hypothecary 
 creditor were at the mercy of the party with whom they 
 dealt. The former, who had paid the purchase money, 
 was exposed to be ejected by a claimant under a sale 
 prior to his own : the latter might discover, after he had 
 lent his money, that his security was already pledged 
 beyond its value. A prosecution for Stellionat was a 
 very poor consolation, savouring more of vengeance than 
 redress. The position of the hypothecary Creditor, in 
 fact, under a system which clothed all notarial instru- 
 ments with a general hypothecary character, was so little 
 improved by the authentic security, that we learn with- 
 out surprise, that frauds were of constant occurrence, and 
 the flow of capital into the rural districts extremely 
 limited. 
 
 6. Again, at common Law, all hypothecs were general, 
 and affected all the immoveable property of the debtor. 
 Thus, where the owner of several estates, each worth 
 10,000 livres, had borrowed 8000 livres, and granted an 
 obligation for that sum, each estate was separately hypo- 
 thecated to within a trifle of its full value, and the debtor 
 could not, without selling part of his property, obtain 
 further loans. Landed estate worth three or four times 
 the amount of a debt was thus rendered unavailable. 
 
 7. To this evil was added another of no less magni- 
 tude. Hypothecs were granted for indefinite and unde- 
 
 (a) Lamoignon Arr§t6s, II. p. 103, 105. 
 
REGISTRY LAWS. 9 
 
 termined sums of money. Thus, when a faithful state- 
 ment of the presumed amount or value of the encum- 
 brances on a property, was laid before a purchaser or a 
 capitalist, he was often unable to form anything but a 
 vague conjecture as to the actual amount of liability, with 
 which the property would be charged on their final liqui- 
 dation. Did he consent to advance money, prior claims 
 which had appeared insignificant from being underrated, 
 often swallowed up the whole proceeds of his pledge : 
 did he allow the risk to deter him from lending, the li- 
 quidation of his predecessors' hypothecs sometimes proved 
 that he had lost a good investment, and the owner of the 
 property the benefit of a loan. 
 
 8. These defects in the law were not unnoticed by 
 Statesmen and Jurists. Though Basnage, D'Aguesseau, 
 and one or two others, professed alarm at new-fangled 
 systems, Loyseau and D'H6ricourt are loud in their de- 
 nunciations of secret encumbrances ( a ) : the learned 
 President Fabre calls it a monstrous state of things, (b) 
 while Sully, Colbert, and other magistrates applied their 
 intellects to the search of a remedy for the evil. 
 
 The able men who, while the kingdom was distracted 
 by civil and religious strife, had just given to the world 
 that monument of wisdom, the Edit de Blois, had at- 
 tempted, in 1581, to apply to the whole of France a sys- 
 tem somewhat similar to that of the Registres de nantis- 
 sements ( c ) : but the experiment had been a failure, and 
 the Edict had been repealed in 1588. Colbert, with 
 more practical sagacity, drew an Edict establishing Bu- 
 reaux d'Enregistrement, and containing the germ of the 
 
 (a) Loyseau, de l'act. hyp., Liv. Ill, No. 16 ; D'Hericourt, Vente d'im- 
 meubles. 
 
 (b) De error, pragm., Dec. 1. 
 
 (c) Edit de creation d'un bureau de eontrole des actes extra-judiciaires 
 en chaque siege royal. Juillet 1851 
 
 B 
 
10 ESSAY ON THE 
 
 principle of publicity (a) : but it shared the fate of its 
 predecessor, and was annulled in 1674, one year after 
 its promulgation. Any attempt, says Persil, to bring to 
 light the condition of the large landed estates would have 
 ruined the credit of the courtiers of the day ( b ), and was 
 not to be thought of for a moment. 
 
 The expensive expedient of a dicret volontaire, and the 
 recourse to a ratification, under the Edict of June 1771 
 (which afforded no relief to lenders of money), were the only 
 meanSjprovided by the old French Law, for ascertaining 
 the liabilities, and facilitating transfers of real property. 
 
 9. The first attempt of the statesmen of the revolution 
 to supply the deficiency, the law of Messidor, An HI, is 
 barely worthy of a passing notice. It would have had 
 the practical effect of converting all real estate into mo- 
 veable property, and giving it a forced circulation by 
 means of Registrar's certificates. Framed more with a 
 view to relieve the temporary embarrassments of the 
 public Treasury, than to afford any security to private 
 capitalists, it was nevex carried into execution, and was 
 soon replaced by the memorable law of the 1 1 Brumaire, 
 An VII. 
 
 10. To this Law — the work of Sieyes, and the circle 
 of eminent men by whom he was surrounded — France 
 and many foreign countries owe their systems of registra- 
 tion. Adopting, as a starting point, the principle shadowed 
 forth in the Edict of 1673, the Law of Brumaire esta- 
 blished three main rules : 1st. That all conventional 
 hypothecs should be special ; 2ndly, That all encum- 
 brances should be registered, and the registers open to the 
 
 (a) Edit de Mars, 16'73, portant 6tablissement de. greffes pour l'ener- 
 gistrement des oppositions des oreanciers hypothecates. 
 
 (b) Persil, Reg. Hyp., Introd., p. 6. — " I<es gens de la cour n'eussent pu 
 trouyei 1 des ressourees quandleurs affaires eussent 6t6 d^couYertes." Tes- 
 tament politique de Colbert. 
 
REGISTRY LAWS 11 
 
 public ; and Srdly. That all titles to real estate should 
 be recorded. 
 
 Thus all voluntary hypothecs, which did not contain a 
 specification of the property affected, were declared to be 
 illegal, null, and void (a). Legal and judicial hypo- 
 thecs were confined to the property possessed by the 
 debtor at the time of the inception of the hypothec (b). 
 All hypothecs, legal and judicial, as well as voluntary, 
 were to rank according to the dates of their inscription, 
 in the Registres of the conservateur : and privileges were 
 inert until so incribed (°). No conveyance or transfer of 
 real estate passed the property to the purchaser, until it 
 was transcribed in the Registre des Transcriptions (d) . 
 
 By this Law, the evil under which France had groaned 
 for centuries, was at length cured. No creditor or pur- 
 chaser could, under its operation, complain that he had 
 been the victim of fraud or concealment : the Registers 
 were open to the public : every one could tell, at a glance, 
 the exact position of his debtor. Such a system was cal- 
 culated to revive public confidence, and to place private 
 credit on a sounder basis than it had occupied for years. 
 
 11. It was not, however, adopted in its integrity by the 
 Code Civil. On grounds which Mr. Troplong justly cha- 
 racterises as " d'wne incroyable UgireU^ (e) , the Con- 
 sett d'Etat rejected that portion of the Law of Brumaire, 
 which made transcription an essential ingredient in sales, 
 and transfers of real estate. Against this retrogression, the 
 soundest lawyers in France have exclaimed. Mr. Treil- 
 hard fought manfully for the system of Brumaire in the 
 Council (o) . M. Troplong is unceasing In his attacks 
 upon the doctrine of the Code. In one place he says : 
 
 (a) Loi de Brumaire, An VII, Art. 4. 
 
 (b) lb., Art. 2. 
 
 (c) lb., Art. 26. 
 
 (d) Troplong, Privileges et Hypotheques, Preface, No. 20. 
 
 (e) Conferences sur le code "civil, Vol. VII, Liv. 8, Tit. 18. 
 
12 ESSAY ON THE 
 
 " It is the absence of an extrinsic formality, destined to 
 publish all mutations, and to effect the transmission of 
 real property as against third parties, that has given 
 the death blow to our hypothecary system" ( a ). The fatal 
 consequences of this omission ; the perilous position of 
 the purchaser who may be ousted by a prior grantee, 
 whose title has been kept concealed ; the inextricable 
 confusion introduced into the case of the privileged ven- 
 dor ; the difficulty of ascertaining whether the party 
 granting a hypothec is really proprietor or not ; are for- 
 cibly pointed out in various passages of his commentary 
 
 12. Another deviation from the LawofBrumaire is found 
 in the articles of the Code which refer to legal hypothecs. 
 The former directed that of the minor and interdict to be 
 inscribed by the subrogate Tutor, or Curator, and the 
 parens composing the conseil -de famille, under a joint 
 and several responsibility in damages (°) ; and that of 
 the married woman to be inscribed in like manner by her 
 husband ( d ); declaring that, like conventional hypothecs, 
 they should rank only from the date of their inscription. 
 Several members of the Council were strongly opposed 
 to this harsh rule. The question was put by the First 
 Consul in the following succinct shape : Are we to prefer 
 the security of purchasers and lenders to that of minors 
 and married women ? Are the former, who are in pos- 
 session of their full civil and naturalcapacity, entitled to 
 the same protection as the latter who are incapable of 
 defending their rights ? Almost as a matter of course, it 
 
 (a) Troplong, Privileges et Hypotbeques, Preface, No. 27. 
 
 (b) lb., ib. Nos. 20 et seq, 81, 267 et seq, 564 bis et seq. See also 
 XIX Duranton, p. 21, No. 18 ; Persil, Begime Hyp, Pref. p. 6 ; M. Jour- 
 dain in Y Tbimis, pp. 228, 229 481, et VI Ib, p. 193. See also, post, chap. 
 3, sect. 1, art. 1. 
 
 (c) Loi de Brumaire, art. 41. 
 
 (d) Ib. ib. 
 
REGISTRY LAWS 13 
 
 passed in the negative ( a ) : and, while for the informa- 
 tion of the public, the Code requires husbands and tutors 
 to inscribe the legal hypothecs on their property, it ex- 
 pressly declares that their failure to inscribe shall not 
 involve any prejudice to those under their authority (*>). 
 
 13. It was decided by the Law of Brumaire that future 
 property could not be affected by hypothecs of any nature 
 whatsoever (°) . This the Council of State appears to 
 have considered as an infringement on the liberty of the 
 subject, whose right to pledge his future properly seems 
 as clear as his right to dispose of his future labour. 
 While, therefore, an indirect mode of executing voluntary 
 hypothecs of future property was devised by the Code 
 (<i) , judgments and legal hypothecs were made to weigh 
 equally on all property present and future ( e ) . 
 
 14. No precautions had been taken by the Law of Bru- 
 maire to prevent the execution of voluntary hypothecs for 
 unliquidated and uncertain amounts. The Code sup- 
 plied the deficiency by enacting that all deeds of hypo- 
 thec, which did not express the exact sum for which 
 they were granted, should be null and void ( f ). 
 
 In other respects, the two systems bear a close analogy 
 to eaeh other. 
 
 (a) Conferences sur le C. C, Vol. VII, pp. 116, 136, 142 et passim.' 
 
 (b) 0. C. 2135. 
 
 (e) Loi de Brumaire, art. 4. 
 
 (d) C. 0, 2130. 
 
 (e) CO., 2122,2123. 
 
 (f) C. 0., 2132. 
 
14 ESSAY ON THE 
 
 SECTION II. 
 
 OF THE REGISTRY ORDINANCE. 
 
 IB. Of the Law of Lower Canada before the Ordinance. 
 
 16. Attempts to introduce a new By stem : 9 Geo. IV., cap. 20. 
 
 11. Establishment of Register Offices in the English Counties. 
 
 18. The Registry Ordinance — its character. 
 
 19. Its sources : all encumbrances must be registered. 
 
 20. Query: should the hypothecs of the married woman, andminor be sub- 
 
 ject to registry ? 
 
 21. Registration of privileges. 
 
 22. Case of the unpaid vendor : necessity for legislative interference. 
 
 23. Registration of title deeds and conveyances. 
 
 24. All voluntary hypothecs must be special. 
 
 25. Registration of wills. 
 
 26. Query: must servitudes be registered I 
 
 21. Leases carrying with them proprietary rights must be registered. 
 
 28. Query : must usufructuary rights be registered ? 
 
 29. Review of the Registry Ordinance. 
 
 30. What a perfect system of registry would require : its drawbacks. 
 
 15. The old system of- general and secret hypothecs 
 was introduced into Canada as part of the jurisprudence 
 of the Prevot6 of Paris. Every notarial deed bore a tacit 
 general hypothec. The evils inseparable from such a 
 system were as severely felt here as in France : and as 
 soon as the members of the Canadian Parliament began 
 to legislate in earnest for the country, sojiemes of Registry 
 Laws were mooted. 
 
 16. Bills introducing systems somewhat similar to 
 that of the Code Civil were drawn by Messrs. 
 Vallieres de St. Real, and Fletcher; but the public, ac- 
 customed to the old regime, and viewing the innovations 
 in the light of fiscal laws, were slow to render their 
 authors justice, and the projects were never fairly laid 
 before the House. M. Viger framed and carried a bill, 
 
REGISTRY LAWS. 15 
 
 the aim of which was to encourage dicrils volontctires, or 
 voluntary sales by the Sheriff: but the great expense of 
 this process, which had been the cause of its abandon- 
 ment in France, soon made it very unpopular here, and 
 the public were rejoiced when the Act to provide for the 
 extinction of secret incumbrances (9 Geo. IV., cap. 20) 
 was substituted for it. This Act was drawn by Mr. (now 
 the Honorable) Henry Black. 
 
 It was a close imitation of the French Edit of 1771, by 
 which parties who .were desirous of purging their pro- 
 perty, were enabled to do so, by obtaining from the. Court 
 letters of ratification of their title, without being forced to 
 incur the expense of a sale by the Sheriff. Though warmly 
 supported by the late Mr. A. Stuart and the Honbje. Mr. 
 Valli&res, it encountered much opposition both in the 
 Assembly and in the Council, traces of which may be 
 seen in the contradiction between the 7th and 8th sections 
 ( a ). It became, however, a Law; and under its opera- 
 tion, purchasers were enabled to discharge all encum- 
 brances, except dower non ouverl and substitutions, by a 
 judgment of ratification. 
 
 This was a grand step towards a system of Registry. 
 It opened the eyes of the public to the iniquity and incon- 
 venience of general hypothecs. It paved the way for the 
 publication of all encumbrances. It. exposed, while it 
 partially cured, the evils of the existing regime. 
 
 Though a temporary Act, which is continued in force 
 from session to session, the 9 Geo. IV., cap. 20; is ob- 
 viously an essential complement to an imperfect system 
 of Registry like ours. ' No prudent man, at the present 
 
 (a) It is hardly necessary to remark that the allusion to dower in the 
 7th section is an oversight ; dower non ouvert is not purged by a judgment 
 of ratification. Aliter, however, in the case of property purchased by a 
 Railway Company, or the Board of Works. See 14 and 15 Viot., cap. 51, 
 11 ter, and 9 Vict., cap. Si, sect. 9. 
 
16 ESSAY ON THE- 
 
 day, would pay the price of an estate without a judgment 
 of ratification. 
 
 17. Shortly after the passing of this Act, Registry Of- 
 fices were established in the English Counties of Drum- 
 mond, Sherbrooke, Stanstead, Shefford and Missisquoi ( a ). 
 By 1 Will. IV., cap. 3, the Act establishing these offices 
 was amended, and its provisions extended to the lands held 
 in free and common soccage in the Counties of Ottawa, 
 Beauhamois and Megantic ; and by 4 Will. IV., cap. 5, 
 lands held by the same tenure in the Counties of Acadie 
 and Two Mountains were placed on the same footing. 
 
 It is hardly necessary to refer to the tenour of these 
 Acts, as they only applied to a small portion of the Pro- 
 vince, and were repealed in 1841, when the Registry Or- 
 dinance (4 Vict., cap. 30) was passed. 
 
 18. The Registry Ordinance was draughted by Sir 
 James Stuart, Bart., the present Chief Justice of Lower 
 Canada, while a member of the Special Council in 1840. 
 It became a Law, by the sanction of the Governor, Lord 
 Sydenham, on 9th February, 1841, the day previous to 
 the Union : but was not put in force till the 31st Decem- 
 ber following. 
 
 It is to be regretted that we have no accounts of the 
 debates of the Council at its various readings in commit- 
 tee. Much light is thrown on the obscure portions of the 
 Code Civil by a reference to the Conferences; and a simi- 
 lar assistance would have been extremely valuable to the 
 student of the Ordinance. But though we cannot read 
 its text by the light of the arguments on which it was 
 based, though we are compelled to grope through its 
 many obscurities without a guide, no one can fail to 
 recognise., on a careful perusal, the substantial testimony 
 it bears to, the extensive learning, and sound practical 
 wisdom of its framer. 
 
 (a) 10 & 11 Geo. IV., cap. 8. 
 
REGISTRY LAWS. 17 
 
 19. It resembles closely the law of Brumaire, and the 
 Code Civil, in the sections which relate to hypothecs and 
 privileges; and the English Statutes, establishing Register 
 Offices in York and Middlesex, in its provisions respect- 
 ing titles to land, conveyances, and wills. The phraseo- 
 logy of these Imperial Acts has, in some instances, been 
 strictly followed. 
 
 Thus blending the two systems, it requires all convey- 
 ances, and titles to land, all hypothecs, whether conven- 
 tional, judicial, or legal, and nearly all privileges, to be 
 registered, in order to be operative against subsequent 
 bona fide registered purchasers, or hypothecary or pri- 
 vileged creditors, for valuable consideration. ( a ) 
 
 20. It has been pretended by some critics that the ad- 
 vantages of publicity have betrayed the framer of the Or- 
 dinance into a dangerous extreme. Having rendered it 
 compulsory on husbands and tutors to register the hy- 
 pothecs on their property in favor of their wives and 
 wards, it places these latter on the same footing as con- 
 ventional mortgagees — among whom priority of registra- 
 tion is superiority of right. Grave objections have been 
 urged against this enactment. It has been said that it is 
 inconsistent with the principles which grant to $e mar- 
 ried woman and minor a legal, instead of a conventional 
 hypothec, to make the effect of that hypothec depend on 
 the observance of a formality, with which the parties really 
 interested are too often incapable of complying. It has 
 been doubted whether the civil and criminal responsi- 
 bility of the husband and tutor, be a sufficient safeguard 
 to protect those under their authority from fraud and loss. 
 It has been asked whether the beggared wife, or the 
 ruined orphan, would esteem it any consolation for the 
 loss of fortune, to send a bankrupt husband or guar- 
 dian to expiate his negligence in a prison. Finally, it 
 
 (a) 4 Vict. cap. 30, sect. 1. 
 
18 ESSAY ON THE 
 
 has been questioned whelher it would not have been 
 more judicious, and more consistent with the spirit of 
 our Law, to have followed the prudent course of the 
 Code Civil and the Code of Louisiana ( a ) ; which, 
 having to choose between two evils, have preferred to 
 expose the wary capitalist to a remote risk of loss, which 
 he ought to have foreseen and guarded against, rather than 
 jeopardise the patrimony of the helpless widow andorphan. 
 
 On the other hand, the advocates of unrestricted publi- 
 city appeal to the German Codes, and argue that the 
 system would have been so imperfectly carried out as to 
 be comparatively valueless, had hypothecs of so common 
 occurrence as those of the wife and minor been allowed 
 to remain concealed. Lectoris sit judicium. 
 
 21. The Ordinance requires that four classes of privi- 
 leged creditors, viz. the Architect, builder, or workman, 
 and his subrogated assignee, the coheir or copartilioner, 
 and the creditor, or legatee, who demands a separation of 
 the property of his deceased debtor or testator from that 
 of his heir, should register their Claims. Registration is 
 not, as in the case of simple hypothecary creditors, the 
 test of rank among these : privilegia non ex tempore, sed 
 ex causa estimantur. The safety of the public requires 
 that all encumbrances, as well those which are privileged, 
 as those which are merely hypothecary, should be readily 
 ascertained, and accurately known : but it would be doing 
 violence to-the nature of a privilege, to make its right of 
 precedence, as such, depend on the dale of its registration. 
 A certain delay is therefore fixed by the Ordinance, during 
 which the above mentioned creditors must register their 
 claims. If they are enregistered within that delay, they 
 rank as privileged claims : if they are not, they lose their 
 privileged character, and fall into the rank of mere hypo- 
 thecs, ranking from the dale of their registration. 
 
 (a) C. C. 2185 ; Code of Louisiana, Art. 8298. 
 
REGISTRY LAWS. 19 
 
 22. It is stated in the Ordinance that the unpaid vendor 
 must register his privileged claim on the property he has 
 sold. But no delay having been fixed for this, as for the 
 other cases of privileged claims, it would seem that he 
 is always in time to register so long as the property exists, 
 or at all events until a Sheriffs sale, or a judgment of 
 ratification purges all encumbrances upon it : and the 
 Courts, viewing the question somewhat in this light, have 
 solved the problem, by deciding that the vendor need not 
 register at all. ( a ) 
 
 It is impossible to conceive any more glaring violation 
 of the principle of publicity, than the immunity thus 
 granted to the vendor. No considerations of humanity, 
 as in the case of the feme coverte, or the minor, can be 
 urged in his favor. His exemption from the general rule 
 goes far to nullify the utility of the whole Ordinance. 
 
 The omission of a clause fixing a delay during which 
 he must register — which is the real source of the diffi- 
 culty — was obviously intentional. It was an imitation 
 of the Code Civil. The propriety of culling from the 
 Code an article which all the Commentators have con- 
 curred in assailing, may well be questioned. M. Trop- 
 long, Valette, and others of equal eminence, have vied 
 with each other in the severity of the censures they have 
 pronounced upon it. ( b ) 
 
 It is to be hoped that but a short period of time will be 
 allowed to elapse, before the legislature interferes, to 
 supply this deficiency of the Ordinance. 
 
 23. In framing the sections which relate to the regis- 
 tration of deeds and conveyances, it is manifest that the 
 Special Council had in view the English Statutes esta- 
 blishing Registry offices in the Counties of York and 
 
 (a) See post, Chap. 4, Sect. 1, Art. 1. 
 
 (b) Troplong, Privil. et Hyp., Ifo. 267, et passim ; Valette, Revue des Re- 
 
20 ESSAY ON THE 
 
 Middlesex. ( a ) Under these acts, as under the Ordi- 
 nance, priority of registration gives superiority of title. 
 Of two claimants under deeds, conveyances, or wills, he 
 whose title has been registered the first is to be preferred, 
 whether that title be or be not prior to his rivals. The 
 object of the law — publicity — was thus attained Un- 
 fortunately, the Legislature has since thought proper to 
 modify this rule ; and now, the want of registration 
 cannot be opposed to a proprietor " in open and public 
 possession of his estate." (b) 
 
 There might perhaps have been occasionally some 
 hardship, in the strict application of the rule of the Ordi- 
 nance to an honest though negligent proprietor. But it 
 is the duty of the Law to punish negligence as well as 
 fraud, and not, as has been done in this instance, to 
 sacrifice a principle to a mistaken fear of rigour. " The 
 "principle that every immoveable must bear record of the 
 "encumbrances attaching thereon, has been lost sight 
 "of "(°): and the wise intentions of the framer of the 
 Ordinance, in founding a register, which, in course of 
 time, would have contained the titles of every proprietor 
 in the Province, have been thus frustrated. 
 
 24. The proscription of general hypothecs has been 
 carried out more fearlessly. Not only does the Ordinance 
 prohibit the granting of voluntary hypothecs on unspeci- 
 fied property, but it declares also that judicial hypothecs 
 shall not affect any property of which the debtor or party 
 against whom judgment was rendered, was not in pos- 
 session at the time of the judgment(d): following, in this 
 particular, the law of Brumaire, in opposition to the 
 Code(e). Nothing but a legal hypothec can affect future 
 
 (a) 2 & 3 Ann. cap. 4 ; 6 Ann. cap. 35 ; 1 Ann. cap. 20 ; 8 Geo. IV, cap. 8, 
 
 (b) 7 Vict, cap. 22, sect. 9, and 8 Vict, cap. 2*7, Sect. 7. 
 
 (c) Troplong, Privil. et Hyp., No. 266. 
 
 (d) Ord. 4 Vict, cap. 80,-sect. SO. 
 
 (e) Loi do Brumaire, An VII, Art. 4 ; 0. C. 2128. 
 
HEGISTRY LAWS. 21 
 
 property. The principle of speciality has even been in- 
 troduced into this latter class of encumbrances: the 
 general hypothec of the minor or interdict may be made 
 special or certain property only, either by the act of ap- 
 pointment of the Tutor or Curator, or by a subsequent 
 order of a Judge, on the advice of a Conseil defamille (a) . 
 But this power of restriction does not extend to other 
 legal, or to judicial hypothecs, as in the Code Civil (b). 
 
 25. We can trace the English Statutes, already men- 
 tioned, in those sections of the Ordinance which require 
 wills to be registered. Neither the Law of Brumaire nor 
 the Code Civil contain any similar provision: the Freijph 
 Jurists do not seem to have considered it necessary. In 
 the Register counties in England, the requirements of the 
 Register Acts with respect to wills are rarely complied 
 with ( c ). 
 
 26. Many of the soundest writers in France have advo- 
 cated the registration or transcription of all real rights, 
 which are subject to enrolment in the German Codes (d). 
 It seems probable that servitudes or easements are in- 
 cluded among the "encumbrances" affecting lands, which 
 the first section of the Ordinance classes with hypothecs 
 and conveyances. This interpretation is confirmed by the 
 language of the Act 6 Victoria, which expressly exempts 
 seigniorial "servitudes" from registration (e): and of the 
 8 V ict, which states that "the registration of any title to, 
 or instrument creating a charge . . . or servitude upon 
 
 (a) Ord. 4 Vict. cap. 30, sect. 26, 27 ; C. C. 2161. 
 
 (b) C. C. 2161, et seq. A Bill was introduced by Mr. Badgeley in 1846, 
 or 184'7, to amend the Ordinance, which required that judicial hypothecs, 
 and that of the minor on his tutor's property, should be special ; but it was 
 thrown out in consequence of defects in the machinery by which the author 
 proposed to carry out his scheme. 
 
 (c) Stewart's Conveyancing, III. p. 320 ; Rigge on Registry, p. 42. 
 
 (d) See post, Sect. Ill, Hos. 33, et seq. 
 
 (e) 6 Vict. eap. 15, sect. 2. 
 
22 ESSAY ON THE 
 
 any immoveable properly", subsequent to the title of the 
 proprietor who is in open and public possession, shall 
 not affect the title of such proprietor (a). 
 
 27. The reason which suggests the registration of 
 leases in France does not apply here. By the Code 
 Civil, the purchaser of an immoveable cannot, without an 
 express auihority from his vendor, expel a lessee under 
 an authentic lease (b). Thus where the lessee conti- 
 nues to enjoy the property in defiance of the purchaser, 
 the latter finds its value diminished in proporlion to the 
 length of time the lease has yet to run. In our Law it is 
 different. Emptor em fundi non necesse est stare colono. 
 The purchaser may expel the lessee of his vendor ( c ). 
 The same necessity does not therefore exist for the regis- 
 tration of leases in Canada as in France. Notwithstand- 
 ing which, the Ordinance, by expressly exempting leases 
 for a less period than nine years from registration, has, 
 by implicaiion, directed that all leases for a longer period, 
 which, as is known, confer proprietary rights on the 
 lessee, shall be registered ( d ). 
 
 28. It seems probable that usufructuary rights are in- 
 cluded in those rights secured, or evidenced by " con- 
 tracts and instruments in writing . . . whereby . . . lands, 
 tenements, &c. . . , are affected," which, according to 
 the first section, must be registered. 
 
 29. The Registry Ordinance has now been in force for 
 upwards of ten years; and, as will be seen in the course 
 of the following pages, has given rise to much litigation. 
 Wide differences of opinion still exist on the meaning and 
 intent of several sections : it is perhaps Utopian to hope 
 that they will be reconciled, or silenced by decisions of 
 
 (a) 8 Vict. cap. 27, sect. 7. 
 
 (b) C. C. 1743. 
 
 (e) Poth., Louage, Nos. 62, 101, 288, et seq. 
 (d) Ord. 4 Viofe, cap. 30, aect. 17. 
 
REGISTRY LAWS. 2S 
 
 the courts, before the general codification of the Laws 
 has commenced. Questions respecting servitudes, and 
 quasi-proprietary rights must necessarily arise, and give 
 birth to much discussion. The mode of registering the 
 legal hypothec of married women for dotal property 
 accruing to them during the marriage is quite unsettled : 
 and the opinions of lawyers differ widely on the subject 
 It is far from" being generally admitted that this hypothec 
 requires to be registered at all. The case of the vendor 
 will now be appealed from the Courts to the Legisla- 
 ture. 
 
 Nor have transitory questions, on the retroactive effect 
 of the Ordinance, arisen less frequently, or involved less 
 weighty considerations. Of these, the number is gra- 
 dually decreasing: but a fund of litigation still remains, 
 which will put the acutest intellects of the Bench and the 
 Bar to the test. 
 
 These facts convey no reproach. Dealing with a sub- 
 ject of so vast a scope as the whole Law of real properly, 
 no man, however great his powers, could hope to leave 
 no problem unsolved, no contingency unforeseen. We 
 should rather wonder that a [jaw of iwenty-five pages 
 could have accomplished so much, and'worked so well, 
 than complain that any thing has been omitted. 
 
 SO. How difficult a thing it is to devise a perfect sys- 
 tem of Registry, may be learnt from the reports of the 
 English Commissioners, and their criticisms on the Laws 
 of other countries. 
 
 Such a system would require, in the first plac ', the 
 registration of all deeds transmitting, hypothecating, or 
 encumbering real property. It ought even to include a 
 record of transmissions by inheritance. Obedience to 
 such a rule could not probably be enforced, without a 
 decree of absolute nullity against unregistered deeds. 
 Under such a system, no tacit or general hypothec could 
 
24 ESSAY ON THE 
 
 be permitted to exist. The claims of married women, 
 minors, and the Crown, as well as judicial hypothecs, 
 would be specially recorded, for a fixed sum, against 
 some specific property. It might be advisable to impose 
 the duly of registering the former upon the notary or 
 judge. All privileges would be abolished, and special 
 hypothecs granted in their stead. To registers based 
 upon this principle, the index ought to be one of estates, 
 and not of proprietors, the latter being obviously an un- 
 safe guide, in a country where property is continually 
 changing hands. An index of estates, to be worth any- 
 thing, would require to be based on a survey and a map 
 of the whole Province, dividing it into ranges and lots 
 like township lands ; every town lot would be marked 
 under a separate number. 
 
 On no principles but these, or others not less stringent 
 and complete, could a perfect system of registry be based. 
 Whether the advantages to be derived from such a sys- 
 tem would counterbalance its draw-backs — its expense — 
 • its cumbrousness — its harshness towards married women, 
 minors, and privileged creditors — the dangerous power it 
 would place in the hands of the Registrar, and the great 
 responsibility of his office — and, finally, the embarassment 
 and confusion which would r 'ign during the period of 
 transition from the old to the new regime, is a question 
 which may possibly engage the attention of the legisla- 
 ture at no very distant period. 
 
REGISTRY LAWS. 25 
 
 SECTION III. 
 
 REVIEW OP FOREIGN SYSTEMS. 
 
 81. Reasons for a review of foreign legislation. 
 
 32. Origin of feudal registers in Germany, &c. 
 
 33. Teutonic systems— Prussian Code. 
 
 34. Austrian Code. 
 
 35. Transition systems— Law of Bavaria. 
 
 36. Law of Wurtemburg. 
 SI. Law of Greece. 
 
 "38. Pr.ojet de lot laid before the Council of Geneva in, im.—Its character 
 and fate. 
 
 39. French Systems.— Neapolitan Code. 
 
 40. Sardinian Code. 
 
 41. Belgian Law. 
 
 42. Code of Louisiana, 
 
 43. Historical view of Registration in England— unsuccessful attempts to 
 
 pass a General Registry Act. 
 
 44. Strange aversion of learned men to the system, 
 46. Registry in Scotland. 
 
 46. Registry Laws in the States and the British North American Colonies. 
 
 31. Before closing this Chapter, it may not be irrele- 
 vant or uninteresting to cast a cursory glance over the 
 hypothecary systems of some foreign countries. In the 
 language of M. Troplong, " The sludy of comparative 
 legislation is the best school for learning to grapple with 
 the deep problems which the science of law presents" (a) 
 
 32. While France was sinking into bankruptcy, under 
 a r6gime of secret encumbrances, Germany, Austria, 
 Prussia, and Hungary owed to the feudal system their 
 exemption from a similar evil. By their feudal lords, 
 laws had been established, which assimilated hypothecs 
 to alienations, and gave to the Seignior a mutation fine 
 on both. The protection both of their usurped and their 
 
 (a) Troplong, Privil. et Hyp., Preface, Mb. 5. 
 
 D 
 
26 ESSAY ON THE 
 
 lawful rights required the enrollment in a General Register 
 of all deeds affecting real estate wilhin their Seigniory : 
 and thus, the very machinery which modern jurists con- 
 sider the safeguard of private credit, was, in its origin in 
 Germany, an instrument of spoliation, and a guage of 
 rapine, (a) 
 
 33. The transition from these fiscal Registers, (not un- 
 like the French Registres de nantissements) to the strin- 
 gent rales of the modern hypothecary Laws of the Teu- 
 tonic nations, was easy and natural. Tutored by the 
 symbolical rites of the feudal law, and accustomed to the 
 cumbrous formalities attending hypothecations, and con- 
 veyances of lands held en fief or vassalage, the Prussians 
 cannot have looked upon the Code which was promul- 
 gated by Frederic William II in 1794, as an innovation. 
 The title which referred to hypothecs was a mere tran- 
 script of the Hypotheken Ordnung of the previous year, 
 and introduced no new doctrines. The Courts of Justice 
 were substituted for the Seigniors : all mutations were re- 
 quired to be notified to them within a year. In these Courts, 
 Cadastres, or land registers, with map-indexes, were 
 kept, and a description of all the real estate within their 
 jurisdiction succinctly entered therein, a separate number 
 and leaf being appropriated to each immoveable (b). AH 
 hypothecs, legal, conventional, and judicial, and all 
 real rights were ordered to be inscribed in this register 
 under pain of absolute nullity (o): the only exemptions 
 from registration being granted to a few unimportant 
 privileges, such as funeral expenses, servants' wages, two 
 years taxes, &c. The Judges were instructed to refuse 
 
 (a) Rapport du 0. B. de Priaumeneu, Conferences sur le C. C, v. VIL, 
 p. 81. 
 
 (b) Prussian Code, Arts. 390, S92. 
 (e) lb., Arts. 391, 411, 486. 
 
REGISTRY LAWS. 27 
 
 to register any deed or claim which did not specially 
 affect some certain specific property, (a) 
 
 The great advantage of the Prussian Law thus consists 
 in the unrestricted publicity which it imposes on all 
 transactions affecting real property : in which respect it 
 is probably unsurpassed by any other Code. On the other 
 hand, the grievous restraints which it places on the trans- 
 fer of real estate, its cumbrousness, (the Registers are 
 counted by tens of thousands), prolixity, and expense are 
 grave objeclions. , 
 
 34. Few points of difference exist between the Prus- 
 sian and the Austrian Codes. The Gesetzbuch of Aus- 
 tria, published in 1810, embodies with some slight 
 modifications the Hypothecary Institute of 1758. It 
 declares that a deed of hypothec only confers a personal 
 right: the jus in re, or hypothec, is acquired by inscrip- 
 tion in the Register of debts (b). In like manner the 
 delivery consequent upon the sale or transfer of an im- 
 moveable, is made by transcription in the Grundbuch 
 or Land Register ( c )- 
 
 Both in Prussia and Austria, and likewise in some of 
 the Swiss Cantons and Sweden and Nprway ( d ), regis- 
 tration is a judicial Act. Property is transferred or hypo- 
 thecated by sentence of a Court of Justice. It would 
 be an enterprise of great difficulty to naturalize so arbi- 
 trary and inquisitorial a system, however obvious were 
 its advantages, among a people accustomed to constitu- 
 tional liberty. 
 
 35. The hypothecary systems of Bavaria, Wirtemberg, 
 and Greece, though obviously of Teutonic origin, have 
 some points of resemblance to the French Code. 
 
 (a) lb., Art. 449. Rhenish Prussia, which -was formerly a dependency of 
 France, ia still governed by the Code Oivil. 
 
 (b) Gesetzbuch, or Aust. Code, Art. 461. 
 
 (c) lb., Arts. 437, 438. 
 
 (d) See St. Joseph's collection of Foreign Codes. 
 
28 ESS AT ON THE 
 
 In Bavaria, as in Austria, deeds confer neither hypo- 
 thec nor title. To the public authorities alone, belongs 
 the power of imposing encumbrances on property. Hy- 
 pothecs and titles are operative from the moment of their 
 entry in the Registers only (a). No hypothec can be 
 inscribed unless it be for a fixed sum of money : thus the 
 conjugal rights of married women, and the claims of 
 minors against their tutors, are estimated by the Court at 
 a fixed sum, for which the hypothec is inscribed (b). 
 General hypothecs are expressly prohibited: even in the 
 case of minors, the hypothec must be entered against 
 some specific property belonging to their tutor (°). On 
 the Board of Hypothecs devolves the duty of registering 
 the legal hypothec of married women, and unpaid ven- 
 dors : and in case of omission on their part, the registra- 
 tion fund is held responsible ( d ). In like manner and 
 under a similar responsibility, the judge who appoints a 
 tutor must see that the Acte of appointment is registered 
 ( e ) . The registers are open to the inspection of any one 
 who isinterested in examining them (f) . 
 
 36. The Law of Wirtemburg so closely resembles the 
 Bavarian Law in its general principles, that it is hardly 
 necessary to mention it separately. It may, however, be 
 observed, that no deed affecting real property acquires 
 any validity in Wirtemberg, until it has been approved by 
 the Hypothecary Court ; after their sanction has been ob- 
 tained, the owner is discharged from further concern or 
 responsibility in the matter. The Court is liable for all 
 errors or illegalities, (g) 
 
 (a) Law of Bavaria, 1st June 1822, Arts. 1, 9, 21, 26. 
 
 (b) lb., Arts. 11, 19, 20, 
 
 (c) lb., Arts, 12, 22. 
 
 (d) lb., Art. 98. 
 
 (e) lb., Art. 20. 
 
 (f) lb. Art. 24. 
 
 (g) law of Wirtemberg, 15th April 1825, Articles 2, 67, 96, 238, et seq. 
 
REGISTRY LAWS. 29 
 
 37. The Hypothecary Law of Greece, framed in 1836, 
 also starts with the announcement, that hypothecs are acj 
 quired by inscription in the Registers (a), but betrays the 
 fatal influence of the French Code, in the omission of any 
 provision for the transcription or enrolment of titles to 
 real estate. 
 
 38. Perhaps the most complete, logical and consistent 
 of the systems which have resulted from a judicious fusion 
 of the Teutonic and French elements, the most remark- 
 able compromise ever attempted between the two classes 
 of Codes — is the scheme laid before the Conseil (PEtat of 
 Geneva, in 1827, by MM. Bellot, Girod, and Rossi. 
 
 No real right, said this bill, shall be held such in law, 
 unless it be entered in the Register of real rights' (b). 
 Thus, under its provisions, all titles to property, whether 
 by gift, sale, exchange, cession, partition, devise, inherit- 
 ance, or otherwise, were invalid against a subsequent 
 purchaser unless registered (o). No hypothec was effec- 
 tual unless the name of the hypothecator appeared in the 
 Register as proprietor (d) . Besides holding out these in- 
 ducements to purchasers to register, notaries were directed 
 to inscribe all deeds of mutation executed before them 
 within a week after their execution, (e) 
 
 Having thus secured the publicity of titles to real estate, 
 the bill next directs that all other rights connected with 
 property, jura in re, such as usufructuary rights, rights of 
 occupation, servitudes, authentic leases, antichrises, tes- 
 tamentary dispositions involving substitutions, rights of 
 redemption or remere!, judgments, sequestrations and sei- 
 zures shall be likewise entered in the register (f). Pas- 
 
 (a) Law of Greece, 11th August 1836, Articles 1, 16. 
 ' (b) Prqjet de loi, Art. 1. 
 
 (c) lb., Arts. 17, 18, 27, 35, 48. 
 
 (d) lb., Art. 82. 
 
 (e) lb., Arts. 17, 18. 
 
 (f) lb., Arts. 67, 58, 71. 
 
30 ESSAY ON THE 
 
 ing to hypothecs, it follows the German doctrine in de- 
 claring that until registration is effected, the creditor shall 
 have a mere personal right, un droit a Vhypothdque ; and 
 this applies equally to all classes of hypothecs ( a ) . Under 
 the head of legal hypothecs are enumerated, besides the 
 claims of married women, minors and interdicts, the 
 donor's claim for the charges of the gift, the vendor's for 
 his purchase money, the copaistitioner's for soulte et retour, 
 and the architect's for labour and materials (b) . The Con- 
 servatewr, or Registrar, is bound ex officio to register the 
 claim of the donor, copartitioner and vendor ( e ). The 
 notary who executes the marriage contract is required to 
 fyle it with the Conservateur within one week after it is 
 passed. And the duty of inscribing the hypothec of the 
 minor falls upon the Chambre de Tutelles (d). In the 
 two last cases, the hypothecs must -be inscribed for a 
 fixed sum, at which the future rights of the parties are 
 estimated, and on property specially described (e). 
 
 This brief sketch would be very incomplete, if no notice 
 were taken of the scheme of prenotations, which, in com- 
 mon with most of the German Codes, this bill adopted. 
 "Any party," says M. Bellot, "who brings an action 
 claiming either a real right in an immoveable, or the dis- 
 charge or reduction of an inscription (against him) may, 
 during the litispendency, make his claims public by 
 means of a prenotation (or provisional registry) in the 
 Registerof real rights." (f) The effect of this prenota- 
 tion is to prevent any inscriptions being taken on the pro- 
 perty until the rights of the prSnotant are determined by 
 
 (a) lb., Art. 128. 
 
 (b) lb., Art. 86. 
 
 (c) lb., Arts. 86, 87, 88, 140. 
 
 (d) lb., Arts. 98, 107. 
 
 (e) lb., Arts. 95, 99, 106, 108, 109. 
 
 (f) lb., Art. 209. 
 
REGISTRY LAWS. 31 
 
 the Court ( a ). If he succeed in his suit, the registrar is 
 bound, on sight of the judgment, to convert the prenota- 
 tion into a definitive inscription (b). In like manner, a party 
 whose title cannot, from some temporary reason, be validly 
 inscribed for the present, may preserve his rights by a 
 provisional prenotation ( c ). So, architects must effect a 
 prenotation of their first Procis Verbal, as a basis for their 
 hypothecary claim for labour and materials (d); and cre- 
 ditors or legatees must enter a prenotation within three 
 months after the- inscription of the heir's title, if they de- 
 mand a separation of his property from that of the de- 
 ceased ( e ). 
 
 These are the leading features of this admirable project. 
 It was presented in 1827, by the Conseil d'Etat to the 
 Grand Council, who referred it to a Committee of Jurists. 
 The latter body> at the suggestion of Judge Lafontaine 
 and M. Forget, members of the Committee, declined to 
 report until a law of transition, " Loi transitoire" had 
 been laid before them. M. Bellot appears to have under- 
 taken the task : but the events of 1830 diverted his atten- 
 tion and that of his Colleagues from the subject : and at 
 his death, which occurred shortly afterwards, no com- 
 plete sketch of his design was found among his papers. 
 Since then, no official notice has been taken of his projet 
 de loi, though it has served as the basis of some foreign 
 legislation. The Canton is governed by the Code Civil, 
 us modified by some local enactments — the most impor- 
 tant of which are^the Law of 28th June, 1830, making 
 registration of deeds of alienation compulsory, and the 
 Law of 28th June, 1820, requiring deeds creating rights 
 of usufruct, leases, servitudes, &c, to be inscribed, (f) 
 
 (a) lb., Art. 213, 214. 
 
 (b) Ib. ; Art. 215. 
 
 (c) lb., Art. 211. 
 
 (d) lb., Arts. 91, 92. 
 ^(e) lb., Arts. 230, 231. 
 
 (f) Letter from Mr. Forget to the author, Geneya, 8th March 1852. 
 
S2 N ESSAY ON THE 
 
 39. These systems are all derived from one common 
 stock. The Teutonic element pervades them all to a 
 greater or less degree. The Code Civil has also given 
 birth to several cognate systems : such are the Codes of the 
 Two Sicilies, of Sardinia, of Belgium, and of Louisiana. 
 
 Few deviations from the Code Civil are to be found in 
 the Code which was published at Naples, after the res- 
 toration of the Bourbons. Notaries are required to re 
 gister marriage contracts passed before them, and Jus- 
 tices of the Peace and their Clerks to present Actes de 
 tuteUe to the Registrar, (a) But, notwithstanding thege 
 additional precautions, the legal hypothecs of the wife 
 and minor exist independently of registration, (b) En- 
 rolment is of no value whatever as a test of title to pro- 
 perty. («) 
 
 40. The Sardinian Code has at least the merit of more 
 originality of design. In some of its provisions^ it re- 
 minds the reader of the German systems. Thus, legal 
 as well as voluntary and judicial hypothecs, are inert 
 until registered, (d) As though this deviation from the 
 Code had alarmed the Piedmontese legislator, a formi- 
 dable array of functionaries — Notaries, Judges, Clerks, 
 parents, tutors, and husbands — are enjoined to register 
 the hypothecs of the wife and minor, (e) Legal and ju- 
 dicial hypothecs attach on all the property present and 
 future of the debtor, within the limits of the Registry 
 Office wherein they are inscribed, (f) Both privileges 
 and legal hypothecs may be validly registered within a 
 delay of three months after their creation (g) . 
 
 (a) Code of Two Sicilies, Arts. 2027, 2028, 2031. 
 
 (b) lb., Art. 2021. 
 (e) lb., Art. 2081. 
 
 (d) Sardinian Code, Arts. 2202, 2214, 2215. 
 
 (e) lb., Arts. 2221, et seq. 
 
 (f) lb., Art. 2246. 
 
 (g) lb., Arts. 2205, et seq.— When M. Troplong observes that according 
 
REGISTRY LAWS. 33 
 
 41. There does not seem to be any practical difference 
 between the hypothecary system in force in Belgium, and 
 the Code Civil, except that in the former State, the laws 
 of the 3rd January, 1824, and 1st April, 1845, make tran- 
 scription necessary in all cases of alienation of real pro- 
 perty (a). 
 
 42. In the Code of Louisiana, as revised in 1828, the 
 chief deviations from the Code Napoleon are the articles 
 requiring notaries to inscribe the deeds passed before 
 them, and judges to register appointments of tutors and 
 curators ( b ); and the rule that privileges must be enre- 
 gisternd within six r days (°). If not registered within 
 that delay, the claims of the vendor, the architect, &c, 
 lose their privileged character, and fall into the rank of 
 mere hypothecs (d). This six day rule has been also 
 extended to voluntary hypothecs, which, if registered 
 within that period, rank from the date of the execution 
 of the deed of hypothec ( e ). Whether any advantage is 
 derived from this system, which can counterbalance the 
 danger arising from the retroactive effect given to entries 
 in the Registers, is perhaps, a matter of doubt. 
 
 43. Such are a few of the foreign systems which are 
 traceable to the example of the Code. The English Re- 
 gister Acts form a separate and distinct category. 
 
 As early as 1535, it was thought expedient to guard 
 against fraudulent and secret transfers of land by enact- 
 ing (27 Henry VIII, cap. 16) that all Bargains and Sales 
 should be enrolled at Westminster. In 1617, Sir Francis 
 
 to the Sardinian Code, the vendor, and some legal Mortgagees are dispensed 
 from registering (Priv. et Hyp. Pref. No. 8), he refers to the old hypothe- 
 cary system of Sardinia, M. Troplong wrote in 1832 : the Sardinian Code 
 was promulgated on 1st, January, 1838. 
 
 (a) Beglement pour la conservation du Cadastre de Belgfque, Art. J, 
 
 (b) Code of Louisiana, Art. 3334. 
 
 (c) lb.,. Art. 3240, 
 
 (d) lb., Art. 3241. 
 L (e) Ib„ Art. 3319. 
 
 E 
 
34 ESSAY ON THE 
 
 Bacon prevailed upon James I, to establish, by letters 
 patent, an Office called the " Office of general remem- 
 brance of matters of record," which corresponded very 
 closely to our Registry Office ; but no successors appear to 
 have been named to the original incumbents. During the 
 Commonwealth, Bills for " abstracting and registering all 
 conveyances and matters of "record," were, on several 
 occasions, brought into Parliament : Mr. Commissioner 
 Whitelock and St. John appearing to have taken the lead 
 in the matter. Ten years were consumed by the Com- 
 mittees in hearing evidence and deliberating ; a draught 
 of a Bill was even printed; but, in 1659, the subject 
 seems to have been dropped. 
 
 A few years afterwards, a committee of the Lords 
 reported that the insecurity of titles to real property was 
 one of the causes of " the decay of rents and the value 
 of lands," and a general Register was again spoken of. 
 No bill was however presented, nor indeed do any further 
 steps appear to have been taken in Parliament, until, 
 in consequence of a pamphlet, published by Sir Matthew 
 Hale, in 1694, earnestly recommending a system of regis- 
 try, the Act 2 and 3 Anne, Cap. 4, establishing a local 
 Register in the West Riding of York, was passed. This 
 again drew public attention to the subject ; and the 
 example of West Riding was followed, shortly afterwards, 
 in 1707, by the East Riding, and in 1708, by Middlesex. 
 The inhabitants of the North Riding of York obtained a 
 similar Act in 1735. By these Acts it was declared that 
 all deeds, conveyances, and wills, should be deemed 
 fraudulent, and void, against subsequent purchasers or 
 mortgagees, for valuable consideration, unless a memo- 
 rial of the same had been registered before the registering 
 of the conveyance under which such subsequent pur- 
 chasers, oi mortgagees claimed ( a ) : and that no judgment, 
 
 (a) 6 Anne, o. 35, seot, 1 ; 7 Anne, cap. 20, sect. 8 ; 8 George IV., cap, 6. 
 
REGISTRY LAWS. 35 
 
 statute, or recognizance (except those entered into on be- 
 half or in favour of the Crown) should affect lands until 
 they were registered ( a ). 
 
 Attempts were made by the Counties of Surrey and Derby 
 to obtain similar local Register Offices, but without suc- 
 cess. Public attention being now, however, thoroughly 
 awakened, a general Register Act was again introduced 
 in 1736, and, having passed the Commons, was read and 
 amended by the Lords ; but the sudden prorogation of 
 Parliament seems to have stopped its progress. The fear 
 and cupidity of those who conceived their revenues would 
 be affected by such a law were now aroused ; and peti- 
 tions from the Clerks in Chancery, the Solicitors and At- 
 torneys poured with such effect into the Commons, that, 
 when introduced again in 1758, the Bill did not survive 
 a second reading. So well organised, in fact, was the 
 opposition of these parties, that more than half a century 
 elapsed before the subject was again mooted in Parlia- 
 ment. 
 
 Even in 1815 and 1816, when Sir Samuel Romilly, and 
 others attempted to carry bills framed on the basis of 
 that of 1739, the enemies of Registration succeeded in a 
 motion that the bills be read that day six months. 
 
 In consequence of the Report of the Real Property Com- 
 missioners, in 1830, Mr. John Campbell (now Lord 
 Campbell) made repeated but unsuccessful endeavours 
 in me Commons to carry a general Registry Act: but 
 the current of public opinion was decidedly against the 
 innovation. Renewed exertions by Lord Campbell in the 
 Lords, and by Mr. William Brougham, Mr. Cayley, and 
 Mr. Tooke in the Commons, met a similar fate. 
 
 Finally the report of the Committee appointed to in- 
 quire into the burdens on Land in 1846, jevived the ques- 
 
 (a) 6 Anne, cap. 35, sect. 19 ; 1 Anne, cap. 20, sect 18. The other pro- 
 visions of ttae Acts will be noticed hereafter. 
 
36 ESSAY ON THE 
 
 tion of the expediency of a general register. A Com- 
 mittee consisting of Lord Lang lale, Lord Beaumont, 
 Jos. Humphrey, Henry Ker, Walter Coulson, George 
 Frere, and Franc. Broderip, was appointed in 1848, to 
 inquire "whether the burdens on land could be dimi- 
 nished by the establishment of an effective system for the 
 registration of deeds." They reported in the affirmative, 
 in 1850. It remains to be seen what legislative action 
 will be taken on their advice. 
 
 44. The opposition which the various attempts to esta- 
 blish a general register in England have encountered, is 
 a matter of some astonishment. That the Clerks of 
 Enrollment, and Solicitors, and Attornies should strain 
 every nerve to defeat a bill, by which the dignity and 
 emoluments of their offices might have been diminished, 
 was perhaps to be expected, and is hardly worth notice : 
 but' when Sir William Blackstone, and Sir Edward 
 Sugden throw their weight into the scale against a Re- 
 gister Act, the prestige of their authority will unsettle 
 the convictions of many minds. Still, however profound 
 be the respect due to the sentiments of such eminent men ; 
 a candid enquirer can hardly fail to perceive that the 
 weight of reason is on the side of their adversaries. 
 Even the illustrious name of the author of the Commen- 
 taries cannot — when he argues that, because the careless- 
 ness of registrars in York and Middlesex has given rise 
 to lawsuits, therefore the system is bad (a) — make the 
 reasoning pass current among thinkers : nor can the high 
 reputation and judicial fame of the Baron of St. Leonards 
 induce us to coincide with him, when he says that having, 
 in his extensive practice, seldom heard of fraudulent 
 mortgages or conveyances, their occurrence cannot be 
 sufficiently frequent to warrant a general register, (b) 
 
 (a) Blackstone, Commentaries, Book II., p. 342. 
 
 (t) Shall we register our deeds? By Sir E. Sugden, London, 1862, p. 22. 
 
REGISTRY LAWS. 37 
 
 The Law should guard against the possibility as well as 
 the probability of frauds. His objections founded on the 
 expense of a system of Registry ( a ), and indeed all the 
 other arguments which he has brought to bear upon the 
 question, have been amply refuted by the Commissioners 
 in their Report, to which reference may be made by those 
 whose respect for his name begets a reluctance to admit 
 that he can be in error. ( b ) 
 
 45. Scotland has long enjoyed the benefits of a system 
 of Registry. In 1617, the Act of the 22nd. Parliament of 
 James VI. Cap. 16 established " Registers of Sasines," in 
 which all deeds transmitting, or creating, or extinguishing 
 encumbrances on real property, are required to be record- 
 ed. This Act has since been amended by various Acts 
 of Parliament, and acts of sederunt by the Courts of Ses- 
 sion; and the system is said to have been brought to a 
 high pitch of perfection. 
 
 46. Most, if not all, of the States of the American 
 Union, have passed laws similar in their effect to the Sta- 
 tutes of Anne. Purchasers and mortgagees are every- 
 where directed to record their conveyances, and deeds of 
 mortgage ; the penalty of neglect being, in most cases, 
 loss of right when opposed to a more vigilant adversary, (o) 
 
 The legislatures of Upper Canada, Nova Scotia, and 
 New Brunswick, have, in like manner, adopted with 
 some modifications, the rules which govern the local 
 Registers in York and Middlesex, (d) 
 
 (a) lb., p. 4 ; Report of Commissioners published by order of the House 
 of Commons. 
 
 (b) lb., p. 13. 
 
 (c) Rev. Stat., New York, Part 2, Chap. S, Sect. 1 ; R. S. Vermont, 
 Chap. 6 et aeq., &a., &c. 
 
 (d) IT. C. Stat, 9 Viet., cap. 34, repealing 35 Geo. Ill, cap. 6 ; N. S. 
 32 Geo. II, Chap. 2 ; N. B. 26 Geo. Ill, cap. 3. 
 
CHAPTER II 
 
 OP THE EFFECT OF THE REGISTRY LAWS ON TITLES 
 TO REAL PROPERTY. 
 
 47. Modes of acquiring Property in Lower Canada. 
 
 47. By the Common Law of Lower Canada, real pro- 
 perly is acquired by inheritance, by prescription, by devise, 
 by gift, or by the effect of contracts and obligations, (a) 
 Titles by inheritance, ( b ) and by prescription, being 
 granted by the Law, independently of any act of the 
 parties, do not require registration. 
 
 All other titles must be registered, to be operative 
 against subsequent bond fide registered privileged or hypo- 
 thecary creditors, or purchasers for valuable considera- 
 tion, (c) 
 
 SECTION I. 
 
 OF THE REGISTRATION OF TITLES. 
 
 48. All titles to property must be registered. 
 
 49. The nullity consequent on non-registration is only relative. 
 
 50. Requisites necessary in order to invoke this nullity. 
 61. Both titles must be derived from the same auteur. 
 
 52. That of the party invoicing the nullity must have been registered. 
 
 63. It 'must have been granted for Valuable consideration. 
 
 64. It must have been obtained bond fide — contradiction involved in the 
 
 first section. 
 
 (a) 0. O, Arts. 711, 712 ; IV Toullier, No. 62, p. 60. 
 
 (b) Aliterin Bavarian law, and M. Bellot's prqjet: see supra Nos. 35, 38. 
 (o) Or'd. 4 Vict., eap\ 80, Beet. 1. 
 
REGISTRY LAWS. 39 
 
 55. The party sought to be ousted must not be in open and public possession. 
 
 56. Where these requisites are combined, priority of registration is supe- 
 
 riority of right. 
 51. Suggestion to purchasers. 
 58. Titles prior to 31st Dec. 1841, need not be registered. 
 
 48. It has already been observed that no system under 
 which title deeds escape registration, can claim to be 
 based on principles of publicity. All the mischief pro- 
 duced by the Code Civil has been traced to this source. (a) 
 In Germany, the enrolment of title deeds is as essential 
 to the transmission of property as the inscription of hy- 
 pothecs is to their effect, (b) 
 
 Our law lays down the broad rule that " all deeds, 
 conveyances, contracts, and instruments in writing (exe- 
 cuted subsequently to 31st Dec, 1841), whereby any 
 lands, tenements, hereditaments, real or immoveable es- 
 tates, in this Province, shall, or may be alienated, or con- 
 veyed" maybe registered, (o) The words " deed, con- 
 veyances, contracts or instruments in writing" include, 
 it is presumed, all the various modes, (with the excep- 
 tion of wills and deeds of gift) by which, under our law, 
 one man can transfer to another his right of property of 
 an immoveable. Such are sales, exchanges, partitions, 
 cessions, dationes in solutum, leases for a longer period 
 than nine years, &c. 
 
 49. But the Ordinance has not, like some foreign sys- 
 tems, declared that an unregistered title is absolutely 
 null, and of no effect in passing the property from vendor 
 to purchaser. As between these the contract is complete 
 without registration, and the property passes. But quoad 
 third parties, hypothecary or privileged creditors, or pur- 
 
 (a) Troplong, Priv. et Hyp., No. 21 ; M. Jourdain, Droit de Proprie^e, 
 p. 481. 
 
 (b) Supra, Chap. I., No. 83 et seq. 
 
 (o) Ord. 4. Vict. cap. SO, see. 1 ; So in York and Middlesex by 6 Anna 
 cap. 35 — 1 Anne, cap. 20 ; 8 Geo. 2, cap. 6 ; U. C. 9 Vict, cap. 34. 
 
40 ESSAY ON THE 
 
 chasers, registration alone aixthenticates a title. Among 
 rival claimants of an immoveable, it is the test of right. 
 Thus, the Law decides that, where a question of title 
 arises between two bona fide purchasers for valuable 
 consideration, from the same vendor, he whose title has 
 been registered the first shall be preferred. So a pur- 
 chaser who has neglected to register cannot oppose his 
 title to registered privileged or hypothecary creditors of 
 his vendor, though their hypothecs or privileges were 
 registered after the execution of his title. ( a ) In regard 
 of them, the unregistered conveyance is waste paper : and 
 the property is still liable for their claims. 
 
 50. To enable a subsequent purchaser or hypothecary 
 creditor to avail himself of the nullity consequent upon the 
 non-registration of a proprietor, his title or hypothec must 
 be derived, directly or indirectly, from the same grantor 
 or mortgagor as such proprietor holds under ( b ) — it must 
 be registered — it must have been granted for valuable 
 consideration — and must have been obtained, bond fide, 
 in good faith ( c ). 
 
 51. The first requisite is obvious. Registration cannot 
 give validity to a title or hypothec granted by one who 
 had no power to convey or hypothecate : nor can the 
 neglect of one man to register, be, of itself, a title of ad- 
 ventitious acquisition to another. An appeal to the 
 Registers lies only in the case where the titles of both 
 contending parties are traceable to the same auteur. 
 
 52. The title of the party pleading the non-registration 
 of his adversary, must itself have been registered. On 
 his superior diligence rests his claim to be preferred : 
 else, in pari jure melior est conditio possidentis (d). 
 
 (a) Pouliot vs. Lavergne, 1 L. C. Rep., 20. 
 
 (b) Ord. 4 Vict., cap. 30, sect. 3. 
 (e) lb., sect. 1. 
 
 (d) So in 6 Ann., cap. 35 ; 1 Ann., cap. 20. 
 
REGISTRY LAWS. 41 
 
 53. It must have been granted for or upon valuable 
 consideration, and must not be a collusive contrivance 
 with a dishonest vendor, or debtor, to defraud the first pur- 
 chaser, or hypothecary creditor ( a ). 
 
 54. Finally, the subsequent purchaser or creditor 
 must have acted bond fide. The proviso at the end 
 of the first section of the Ordinance, renders the inter- 
 pretation of this requisite a matter of no small difficulty. 
 It is therein declared that no knowledge of a prior unre- 
 gistered sale or hypothec shall vitiate the title of a sub- 
 sequent purchaser ( b ). According to the Ordinance, 
 therefore, the man who buys a piece of land which he 
 Imows has been sold the day before to another, who has 
 neglected to register his title — he who speculates on the 
 carelessness of his neighbour — may notwithstanding be 
 acting bond fide. And while his vendor commits the 
 crime of stellionat, and may be indicted, he, no less 
 guilty in intention, and clearly an accomplice in the fraud, 
 is not only held to have acted in good faith, but is entitled 
 to claim the arm of the law to despoil the victim of his 
 cunning. 
 
 This proviso was added to the Bill in the Council on 
 motion of the Crown Lawyers. ( c ) It was opposed by 
 Sir James Stuart, who deemed it so injurious and con 
 tradictory to the spirit of the first section, that he actually 
 voted against his own Bill after it was incorporated with 
 it. ( d ) The object of the Attorney and Solicitor General 
 
 (a) So in 6 Ann., cap. 35 ; 1 Ann., cap. 20. 
 
 (b) Ord. 4 Vict., cap. 30, sect. 1, in fine. 
 
 ■ (c) Journals of the Special Council, 24 Dec. 1840. The division was as 
 follows : for the proviso, Moffatt, Quesnel, Molson, Austin, Mondelet, Har 
 wood, Hale, Ogden, Daly, Day : against, the Chief Justice, McGill and 
 Knoulton. — See for a review of the doctrine of notice, Hargrave and Butler 
 on Co. Lit. Inst. 1 ; Lord Hardwicke, in Hine vs. Dodd, therein quoted ; 
 Commentaire sur l'ordonnance de 1747 ; (Euvres de D'Aguesseau; Rigge 
 on Registry, p. 10, et seq. 
 
 (d) lb., ib. 
 
 F 
 
42 ESSAY ON THE 
 
 was doubtless to prevent intricate questions arising, as to 
 what constituted notice of a prior sale or encumbrance — 
 questions which might often have involved much uncer- 
 tainty, confusion, and perjury — and to establish one gene- 
 ral invariable rule, that nothing short of actual registration 
 should confer an indisputable title. Whether the evil 
 thus avoided be or be not of greater moment than the evil 
 introduced by the proviso — the temptation it offers to 
 parties disposed to commit frauds — is a question which 
 may admit of controversy. In the Courts of Eqtiity in 
 England ( a ), and in Louisiana (°), where notice to a 
 subsequent purchaser protects the rights of the prior grantee, 
 the judges do not seem to have considered the question 
 as one of unusual difficulty. But, at all events, after the 
 clause had been carried, consistency would seem to have 
 required the expurgation of the words " bond fide" in the 
 previous clauses. As they stand, it is difficult to assign a 
 reasonable interpretation to them. 
 
 55. When these requisites are combined in the person 
 of a subsequent purchaser or hypothecary creditor, it is 
 further necessary, in order that he may invoke the forfei- 
 ture pronounced by the Ordinance, that the party sought 
 to be molested or ousted, should not be "in open and 
 public possession" of the property (°). This relaxation 
 of the rule of the Ordinance (which was effected by sub- 
 sequent statutes) contrasts somewhat strangely with the 
 proviso above mentioned. The latter seems to aim at a ' 
 stringency unknown to the systems whence this portion of • 
 our law was borrowed ; the former exempts from the rule 
 of publicity a large category, perhaps a majority, of the 
 cases of alienations of real estate. The purchaser who 
 
 (a) Oowp. Rep. '712; Cheval vs. fficholls, 1 Str. 664; Beatniff vs. Smith," 
 1 Eq. Cases Abr., 35*7, pi. 11 ; Blades vs. Blades, 1 Eq. Cases Ab., 368, pi 
 12 ; 3 Sugden on Vendors and Purch., 222. 
 
 (b) Code of Louisiana, Art. 3315. 
 
 (e) 1 Vict., cap. 22, see. 9, and 8 Viet., cap. 27, sec. 1, 
 
REGISTRY LAWS. 43 
 
 enters upon, and occupies the house or land he has bought, 
 need not register ; so long as he remains in possession 
 he can defy all subsequent hypothecary creditors or pur- 
 chasers, even under registered titles. 
 
 56. Where, however, the first purchaser has neglected 
 to register, or to take open and public possession of his 
 property, and a subsequent bond fide purchaser (or hypo- 
 thecary creditor) for valuable consideration has registered 
 his title — the law will give to the latter the property of 
 (or an hypothecary right in) the immoveable estate in 
 dispute. The former is reduced to his recourse against 
 his vendor for the fraud. Besides his civil remedy, he 
 may provoke a criminal prosecution for stellionat; for 
 which the penalty pronounced by the law, is imprison- 
 ment not exceeding twelve months, and a fine not exceed- 
 ing £500 ( a ). But his right to the property is irretrie- 
 vably lost. 
 
 57. In every case of acquisition by deed, therefore, 
 where the purchaser does not intend to occupy the lands, 
 tenements, &c, he has acquired, at once, common pru- 
 dence will dictate the "registration of his title : and as 
 what constitutes " open and public possession", may fre- 
 quently be a matter of evidence and argument, it will in 
 every case be safest to register. The delay for registra- 
 tion is left to the diligence of the purchaser ; and those 
 who wish to protect themselves from the creditors of their 
 vendor, or rival purchasers, will doubtless present their 
 deed to the Registrar as soon after its execution as pos- 
 sible. 
 
 58. These rules apply only to title-deeds and convey- 
 ances executed since the Ordinance came into force and 
 effect. It is expressly provided by the first section, that 
 " the original grant, letters patent, conveyance, or title by 
 which lands have been granted and conveyed, and are 
 
 (a) Ord. 4 Vict., cap. 80, see. 1. 
 
44 ESSAY ON THE 
 
 now (i. e., on 31st December, 1841,) held en fief, it titre 
 de cens, en franc aleu, or in free and common soccage " 
 do not require to be registered. This provision has always 
 been strictly carried out : proprietary rights of whatever 
 nature, which were in existence on 31st December 1841, 
 enjoy the same validity, though unregistered, as they 
 would have enjoyed had the Ordinance never been passed. 
 
 SECTION II. 
 
 OF THE ALIEKATION OF LANDS IK FREE AND COMMON 
 SOCCAGE. 
 
 69. The Registry Ordinance did more than establish Registry Offices. 
 
 60. Introduction of English Law of Tenures into this Province. 
 
 61. Definition of a bargain and sale. 
 
 62. Deeds of bargain and sale to convey not only the use but the estate 
 
 and freehold. 
 
 63. The words " grant, bargain, and sell " to imply covenants for title. 
 
 64. Deeds of bargain and sale must be registered. 
 
 65. Copies of deeds before witnesses, certified by the Registrar, are evi- 
 
 dence of the originals in Courts of Justice. 
 
 59. The Registry Ordinance, as its somewhat lengthy 
 title imports, has done something more than establish Of- 
 fices of Registry. It has " altered and improved the law, 
 " in certain particulars, in relation to the alienation and 
 " hypothecation of real estates, and the rights and interest 
 " acquired therein." The laws governing the alienation 
 of lands held in free and common soccage, have thus 
 undergone considerable modification. 
 
 60. The Quebec Act, while declaring as a general rule 
 that the old laws and customs of Canada should govern 
 in controversies respecting property, made an express 
 reservation of those lands which had been, or which 
 
REGISTRY LAWS 45 
 
 might be thereafter granted in free and common soccage 
 ( a ). A few years afterwards, this exception was con- 
 firmed by the 31 Geo. Ill, which enacted that lands 
 granted by the Crown in Lower Canada, might, if the 
 grantees desired it, be granted in free and common soc- 
 cage (*>) ; and lands so held, as was subsequently 
 explained by the Imperial Act, 6 Geo. IV, were subject 
 to the English laws governing lands held in free and 
 common soccage, in respect of alienations, descent, and 
 dower ( e ). The next, and last statutory enactment on 
 the subject, which is known as Bowen's Act, ( d ) autho- 
 rised proprietors of lands held in free and common 
 soccage, to grant, bargain, sell, enfeoff, alienate, give, 
 exchange, dispose of, devise, or convey such lands, either 
 according to the laws of England, or according to the 
 laws and customs of this Province, (e) 
 
 6 1. One of the most usual modes of conveyance accord- 
 ing to the laws of England, is by Bargain and Sale. A 
 bargain and sale, according to Blackstone, is " a kind 
 " of real contract, whereby the bargainor, for some pecu- 
 " niary consideration, bargains and sells, that is, contracts 
 " to convey the land to the bargainee, and becomes by 
 " such bargain, a trustee for, or seized to the use of the 
 
 (a) 14 Geo. Ill, cap. 83, s. 8, 9. 
 
 (b) 31 Geo. Ill, cap. 31, s. 43. 
 (e) 6 Geo. IV, cap. 59, sect. 8. 
 
 (d) 9 Geo. IV., cap. 11, sect. 2. Doubts have been entertained whether this 
 Act is in force or not ; it having been reserved for His Majesty's Assent, and 
 that assent having been granted nearly two months after the expiration of 
 the two years fixed, by 31 Geo. Ill, as the latest period at which the royal 
 assent can be validly given. A special Act of the Imperial Legislature 
 was passed to cure the defect. Some judges have expressed a conviction 
 that the Act was not law ( Vanfelson, J. in Stuart vs. Bowman, S. C. Mon- 
 treal, 26 March, 1851); but the'Oourts have generally held a. different 
 doctrine. (Boston vs. Classon, S. C. Montreal, 20th October, 1851, &c.) 
 
 (e) See, on the Tenure in free and common soccage, Mr. Robert Abra- 
 ham's little work on the tenure en franc aleu roturier, a learned and inge- 
 nious performance, which ought to be in every lawyer's library. 
 
46 ESSAY ON THE 
 
 " bargainee" ( a ) . The conveyance was completed in 
 England by the operation of the Statute of Uses ( b ), 
 which, in such contracts, in the technical language of the 
 Courts, " executed the use," and made the cestuy que 
 use, or bargainee, complete owner of the lands both at 
 law and equity ( c ) . 
 
 62. Even if it had been held that the Statute of Uses, 
 with its attendant cumbrous machinery, was part of the 
 law of Canada, so as to complete the otherwise inchoate 
 Bargain and Sale : the doctrine of use^ was very foreign 
 to the simplicity of our jurisprudence, and repugnant to 
 the notions of a majority of the landholders in the Pro- 
 vince. To obviate the necessity of a recourse to it, the 
 Ordinance enacts, ( d ) that "any indenture, deed or wri- 
 " ting of bargain -and sale, made, sealed and delivered 
 " before two witnesses, or made and executed before a 
 " notary and two witnesses, or two notaries, whereby 
 " the intention of the bargainor to sell, and of the bar- 
 " gainee to purchase an estate of inheritance, or freehold, 
 " in any lands "and premises, held in free and common 
 " soccage, shall be made manifest, shall be a good and 
 " valid conveyance for transferring, passing and assuring 
 " to the bargainee, his heirs and assigns, not only the use 
 " of and in the same, but also the lawful seizin, estate of 
 " inheritance or freehold, and possession of the bargainor 
 " of, and in such lands, &c, without any livery of seizin, 
 " attornment ( e ), or other formality whatsoever." And in 
 
 (a) Blackstone, Comm., II, 338. 
 
 (b) 27 Hen. VIII, cap 10. 
 
 (o) Blackstone, Comm., II, 333. 
 
 (d) Ord. 4 Vict, c. 30, a. 38. 
 
 (e) Livery of seizin was a symbolical delivery of the immoveable sold 
 from the vendor to the purchaser. Blaekst. II, 315. It does not appear 
 that livery of seizin was required in Bargains and Sales, to vest the 
 property in the purchaser : See Blaekst, II, 331 ; 1, Saunders on uses, pp. 
 128,129; II Sand, 44; IV. Taunt, 20 ; Willes, 682; Shep. Prec. of Convg, 
 
REGISTRY LAWS 47 
 
 order to enlarge the narrow rules of English conveyan- 
 cing, it was added, that such bargains and sales should 
 be susceptible of any covenants which might, under the 
 English law, be introduced into a conveyance by feoff- 
 ment, or a lease and release ( a ). 
 
 63.' According to the English rales, a Bargain and Sale 
 only conveys to the bargainee the estate which the bar- 
 gain or possessed, and could lawfully convey at the time 
 it was executed ( b ). To borrow the phraseology of the 
 English conveyancers, a Bargain and Sale cannot effect a 
 discontinuance of an estate tail ( c ), or destroy a contin- 
 gent remainder dependent on a particular estate (d) : a 
 purchaser in fee, by Bargain and Sale, from a tenant in 
 tail, only takes therefore a base fee, determinable on the 
 death of the tenant in tail ( e ) : and a purchaser in fee, by 
 the same deed, from a tenant for life, with a contingent 
 remainder dependent thereon, only takes an estate for 
 life (f). 
 
 With a view to prevent the frauds to which this rule 
 occasionally gave rise, and to obviate the necessity of 
 lengthy covenantsin deeds of Bargain and Sale, a sugges- 
 tion thrown out by Sir Matthew Hale in his pamphlet, was 
 acted upon in 6 Anne, cap. 35, which declared that in all 
 
 289 ; " Indeed," says an old writer, " if a man by deed bargains and sells 
 land to A and his heirs, and livery be made, it is a feoffment." 2 Roll., 
 Abr. 2. An attornment was the consent of the vassal to the grant of the 
 seigniory, or a rent, or of the donee in tail, or tenant for life or years„to a 
 grant of reversion or remainder made to another. See Co Litt. It does 
 not appear that attornments were necessary to perfect Bargains and Sales, 
 . 1 T. E., 384 386 : II. Saund on uses, 44, <fcc. : and before the conquest the 
 e Stat. 4 and 6 Anne, c. 15, s. 9, 10, had rendered them absolete and 
 unnecessary in England. 
 
 (a) Ord. 4 Vict., cap. 30, s. 38. 
 
 (b) Burton's Conveyancing, IV, 278. 
 
 (c) Co. Litt. .332, 6. Gilb. on uses, 297. 
 
 (d) Gilb. on uses, 140 : Fearne, 472. 
 
 (e) Markill vs. Clarke, 2 Salk, 619. 
 
 (f) Gilb. onuses, 140. 
 
48 ESSAY ON THE 
 
 deeds of bargain and sale of lands within the East and 
 West Ridings of York, the words : " Grant, Bargain, and 
 Sell" should imply Covenants for title. Our Ordinance 
 has adopted this rule. It says that " in all indentures, 
 " deeds, or writings of bargain and sale," (made after 
 31st December 1841) "whereby an estate of inheritance 
 " in fee simple is limited to the bargainee and his heirs, 
 " the words ' grant, bargain and sell' shall import and be 
 " construed and adjudged, in all Courts of Judicature, to 
 " be express covenants to the bargainee, his heirs and 
 " assigns, from the bargainor for himself, his heirs, &c, 
 " that the bargainor, notwithstanding any act done by 
 " him, was at the time of the execution of such indenture, 
 " deed or writing, seized of the hereditaments or premises 
 " thereby granted, bargained, and sold, as of an indefea- 
 " sible estate in fee simple, free from all encumbrances 
 " (rents and services due to the lord of the fee only ex- 
 " cepted) and for quiet enjoyment thereof, against the 
 " bargainor, his heirs, and assigns, and all claiming 
 " under him, and also for further assurance thereof, to be 
 " made by the bargainor, his heirs and assigns, and all 
 " claiming under him ; unless the same shall be restrained 
 " and limited, by express particular words, contained in 
 " such indenture, deed, or writing; and the bargainee, 
 " his heirs, &c, shall and may, in any action to be brought, 
 " assign a breach or breaches thereupon, as they might 
 " do, in case such covenants were expressly inserted in 
 " such bargain and sale." (a) 
 
 64. Deeds of bargain and sale, it is hardly necessary to 
 remark, must be registered in like manner, and with the 
 like effect, as deeds of alienation of property held under 
 the French tenures. 
 
 65. Another inconvenience of the system of conveying 
 land by deeds before witnesses, was also removed by the 
 
 (a) Ord. 4 Viet., cap. 30, sect. 89. 
 
REGISTRY LAWS. 49 
 
 Ordinance. It was enacted that all " deeds, conveyances, 
 wills, and writings executed before witnesses" (whether 
 prior or posterior to 31st December, 1841J which consti- 
 tuted the title of any party to real property in this Pro- 
 vince, might be registered at full length, in separate 
 books, by the Registrar : and copies from these books, 
 duly authenticated by the Registrar, were declared to be 
 good and sufficient evidence of the originals, when the 
 latter were lost or destroyed ( a ). 
 
 SECTION III. 
 
 OF THE REGISTRATION OF WILLS. 
 
 66. Wills must be registered; wilder pain of a relative nullity. 
 61. The party invoking the nullity need not have registered; nor need" his 
 title have been obtained bona fide. 
 
 68. Devisees are allowed a certain delay to register. 
 
 69. This delay may be further extended by a premutation. 
 
 •70. Rules with regard to wills made by a testator dying before 31 si Decem- 
 ber, 1841. 
 
 t 66. The Registry Ordinance, following the example of 
 he English Register Acts, while it exempts titles by in- 
 heritance from registration, directs that wills and devises 
 of real property, made by a party dying after 31st Des- 
 cember, 1841, shall be enregistered Q>). 
 
 It does not declare that unregistered wills or devises 
 shall be absolutely null. It merely pronounces their re- 
 lative nullity when opposed to subsequent purchasers, 
 mortgagees, hypothecary or privileged creditors for valu- 
 
 (a) Ord. 4, Vict. cap. 30, Beet. 40. AlUer with respect to Notarial deed*, 
 though registered at full length. Dessein vs. Ross, 2 Revue, 58. 
 
 (b) Ord. 3 Vict., eap. 30, seat 1 ; 6 Annev cap. 35 - T 1 Anne, cap. 30/y 8 
 Geo. H cap. 1. 
 
 a 
 
50 ESSAY ON THE 
 
 able consideration. As against these, the will which 
 does not appear in the books of registry is inoperative 
 and void. But the want of registration does not invali- 
 date the claims of the devisee against the heir-at-law. (a) 
 
 67. It is not requisite that the subsequent purchaser, 
 mortgagee, hypothecary, or privileged creditor should 
 have registered his own title or hypothec, as in the case 
 of other titles to real estate : though his pretensions 
 would be void against a registered purchaser subsequent 
 to himself, it seems that he can, nevertheless, without 
 having registered, defeat the claims of a prior devisee 
 who has neglected that formality. ( b ) 
 
 Nor does it appear that he must necessarily show good 
 faith in the transaction : at least, such is the natural in- 
 ference from the omission of the words bona fide, which 
 occur in the other clauses of the section. His purchase 
 or hypothec must, however, have been for valuable con- 
 sideration, (e) 
 
 68. The delay which frequently occurs between the 
 death of a testator and the communication of his will to 
 the devisees, entitles the latter to a degree of favour 
 which the law has not extended ~to proprietors under 
 other titles. Devisees are allowed six months, if the 
 Testator has died in Canada, and three years, if he has 
 died abroad, to register his will. A registration effected 
 within these peiiols has a retroactive effect to the day of 
 his death, so as to defeat any purchases or hypothecs 
 granted and even registered since that event. ( d ) 
 
 69. If " by reason of the concealment, suppression, or 
 contesting of the will, or other inevitable difficulty, with- 
 out wilful neglect, or default on the part of the devisee", 
 
 (a) Ord. 4. Vic. cap. 30. sec. 1. 
 
 (b) lb. ib. . 
 
 (c) Ib. ib. 
 
 • (-l)ibid. a, 14; Imp. Stat. 6 Anne, cap. 35, sec. 14; 7 Anne, cap. 20, sec 
 8, <to. ' 
 
REGISTRY LAWS. 51 
 
 he be unable to present the will to the Registrar within 
 these delays, he may preserve his rights by a pr£nota- 
 tion ( a ), or provisional registration of a memorial of his 
 pretensions, and the obstacle which prevents his taking 
 the usual means of publishing them. If such a memorial 
 be registered, within the above mentioned delays of six 
 months or three years, the devisee will be permitted to 
 register the will within six months after the removal of 
 the obstacle, and such a registry will be " a sufficient 
 Registry within the meaning of the ordinance." (b) 
 
 But the effect of the prenotalion will cease after five 
 years have elapsed from the death of the testator. After 
 the lapse of that period, no will can be registered so as 
 to interfere with the rights of purchasers for valuable 
 consideration, or judgment, or hypothecary or privileged 
 creditors, accrued after the death of the estator (°). 
 
 70. These rules apply to wills made and published by a 
 testator dying after the 31st December, 1841. No allu- 
 sion being made to wills in the 4th section of the Ordi- 
 nance, (the only one, according to Chief Justice Stuart, 
 which affected #the past) ( d ), the nature of the right 
 claimed, will probably be the true test to ascertain whe- 
 ther a devisee under a will made and published by a 
 devisor who died before 31st December, 1841, ought to 
 register or not. If he claim a sum of money secured by 
 a hypothec under the will, he would seem to fall under 
 1he same rule as other hypothecary creditors, and his will 
 must have been registered before 1st November, 1844, 
 to be valid against other creditors who have registered 
 
 (a) See Supra, chap. I, Sect. 3, Mo. 38. 
 
 (b) Ord. 4 Vict. cap. 30, sec. 14; Imp. Act. 6 Anne, cap, 35, see. 15; 
 and 7 Ann, cap. 20, sec. 9. 
 
 (c) lb. ib. 
 
 (d) Sir James Stuart, Ch. J., in McLaughlin vs. Bradbury, reported in 3 
 Eevue 340. 
 
52 ESSAY ON THE 
 
 before him ( a ). If he claim a proprietary right, it would 
 seem that he is under no obligation to register. 
 
 SECTION IY. 
 
 OP THE REGISTRATION OF DEEDS OF GIFT. 
 
 71. The Roman and French Laws required donations to be recorded. 
 
 72. Substitution of the Registers for the Greffe des Insinuations. 
 
 73. Where deeds of gift must be enregistered. 
 
 74. Suggestion to donees : query, as to the retroactive effect of registra- 
 
 tion. 
 
 71. At the earliest periods to which we can trace our 
 law, publicity was an essential element in deeds of gift. 
 Constantine first required that all donations of property 
 worth more than 200 solidi, should be entered in a public 
 register. This rule was slightly modified by Justinian. 
 " And whereas the ancient laws," says the Institute, 
 " required that all donations wherein the value of the 
 " thing given, exceeded 200 solidi, should be insinuated, 
 " our constitutio extended the exemption to donations of 
 " 500 solidi, to which it gave full validity without insi- 
 " nuation." ( b ) The French Ordinances contain similar 
 dispositions. That of Villars Cotterets of 1539, required 
 that all donations should be enregistrees et insinuees, 
 under pain of nullity, (c) This was confirmed by a de- 
 claration of Henry II, in February 1549, and further 
 explained by the Ordinance of Moulins, which fixed four 
 months, when the parties resided in France, and six 
 months, when they lived abroad, as the periods within 
 
 (a) See Pest, Ch. 8, Sect. 3. Duchesnay vs. BfSdard, I L. C. Rap. 435. 
 
 (b) lust. De Don. II. 7. 2. 
 
 (o) Art. 132; Poth., Don. Entre Vifs, Sect. 2, Art. S, § 1. 
 
REGISTRY LAWS. 53 
 
 which donations were to be insinvdes. ( a ) These delays 
 were computed from the execution of the deed of dona- 
 tion, if it was accepted at the time : if the donee accepted 
 subsequently by a separate acte, the delay to insinuate 
 began to run from the date of the acceptation. ( b ) When 
 insinuSes within this delay, the insinuation had a retro- 
 active effect, to the date of the donation. ( c ) After the 
 lapse of the four (or six) months, if the donor were still 
 living, the donee might register at any time, and the 
 donation became operative against third parties from the 
 date of its insinuation. ( d ) After the death of the donor, 
 the donee could no longer validly insinuate his deed, (e) 
 These rules applied to all donations of immoveables, and 
 to donations of moveables worth 1000 livres and over, 
 where delivery was not made immediately, (f) 
 
 72. The Registry Ordinance made no radical change 
 in the law. It merely substituted the Books of the Re- 
 gistrar for the Greffe des insinuations, in the cases where 
 the French Ordinances directed insinuation 'to be made, 
 and declared that a registry of a deed of gift intervivos of 
 real property, in the former, should be clothed with all 
 the legal effects of an insinuation under the old law (g). 
 Whether from error or design, this section of the Ordi- 
 nance was so worded as only to apply to donations of 
 real property made after its date (J 1 ). A recent statute (i) 
 has extended its operation to deeds of gift of moveables 
 which would have required insinuation under the French 
 
 (a) Art. 58 ; Poth. lb. § 3. * 
 
 (b) Poth., ib. ib. 
 
 (c) Ib. ib. 
 
 (d) Ord. Art 26 ; Ferriere on Paris, Art. 284. 
 
 (e) Ord. Art. 26. 
 
 (f) Ord. Arts. 20, 22 ; Poth. Don. entre vifs, Sect. 2. Art. 3, § 1. 
 
 (g) Ord. 4 Viet., cap. 30, s. 33. 
 
 (h) Ex parte Ordnance and Pemberton and Parent, Oppts., 2 Revue, 299. 
 (i) 14 et 16 Vict, cap. 93, s. 4. 
 
54 ESSAY ON THE 
 
 law; and of immoveables, whether executed before or 
 after the Ordinance came into force and effect : with a 
 reservation, however, of rights acquired by third parties 
 at the time of the passing of the Act, viz., 30th August, 
 1851 ( a ). 
 
 73. Deeds of gift of real property must be registered 
 in the Registry Office of the District, County, or Division 
 wherein the immoveables are situate. If they are scat- 
 ered, and lie in several Districts, Counties or Divisions, a 
 registry must be made in each, but each registry will be 
 separately valid for the lands situate within the limits of the 
 office, whether the donation have been regularly registered 
 in the other offices, or not. Deeds of gift of moveables 
 must be registered in the Registry Office of the District, 
 County, or Division wherein the donor resides (b) . 
 
 74. As the want of registration is so fatal a defect in a 
 deed of gift that it can be validly urged by any creditor, 
 by the heir of the donor, or by any one who has an inte- 
 rest in having the donation annulled with the single ex- 
 ception of the donor himself (°), it is hardly necessary to 
 suggest to donees the propriety of registering within the 
 shortest possible delay. When the Ordinance says that 
 a registry under its provisions " shall have the same force 
 and effect (in respect of the property given) to all intents 
 and purposes whatsoever, as a registration at full length 
 (on insinuation) under the old laws, would have had " (d), 
 it may be a question whether it was meant to give to the 
 former formality, the same retroactive effect as the latter 
 
 (a) By a typographical error in the printing of the statute 14 and 15 Vict, 
 cap. 93, the -word "these" in the proviso at the end of the 14th section has 
 been substituted for " third," thus destroying the sense of the clause. The 
 Legislature 'will propably remedy the error without dela.y. See Archam- 
 bault vs. Roy, 2 L. C. Rep. 25. 
 
 (b) 14 and 15 Vict, cap. 93, sec. 4. 
 
 (c) Ord. des Donations, Art. 27 ; Poth., Don. ent vifs, Sect. 2, Art. 3, § 4. 
 
 (d) Ord. 4 Vict, cap. 80, sec. 33. 
 
REGISTRY LAWS. 55 
 
 enjoyed. If such was the intention of its framer, a regis- 
 try made within four months after the acceptance of the 
 gift, when the parties reside in Canada, and within six 
 months when they reside abroad, would operate from the 
 day of the acceptance of the donation. These delays 
 past, the general rule would apply; the donee's rank 
 would depend on the date of his registration. If the words 
 above mentioned do not clothe registration with the same 
 retroactive effect as insinuation formerly had, donations 
 are subject to the same rule as all other deeds. 
 
CHAPTER III. 
 
 OF THE REGISTRATION OF HYPOTHECS. 
 75. Definition, and various kinds of hypothecs. 
 
 75. A hypothec is a real right possessed by a creditor 
 in the immoveable property of his debtor, by virtue of 
 which he is preferred on the proceeds of sale of such 
 property to other creditors ( a ). That right is, of its 
 nature, indivisible ; and follows the property into the 
 hands of subsequent proprietors ( b ). 
 
 Hypothecs are either legal, judicial, or conventionale ). 
 
 Legal hypothecs are those which are created by the 
 law alone. 
 
 Judicial hypothecs are those which result from judg- 
 ments or judicial proceedings. 
 
 Conventional hypothecs are those which are granted 
 by contracts or agreements (d). 
 
 The Ordinance requires that all hypothecs created after 
 it came into force shall be enregistered, to be operative 
 against subsequent bond fide registered purchasers, mort- 
 gagees, privileged or hypothecary creditors, or encum- 
 brancers, for or upon valuable consideration ( e ). 
 
 (a) Poth., Hyp., Art. Prel.; lb., Cout. d'Orl, Tit. XX, No. 2.; Domat, Liv. 
 S, Tit. 1 ; Louisiana, S245 ; Prussia, 436, 439 ; L'hypotheque est un droit 
 r6el sur les immeubles affecte's a l'acquittement d'une obligation, 0. C. 
 2114. But see Troplong, Priv. and Hyp., No. 386. 
 
 (b) CO 2114; Domat, Liv. 3, Tit. 1, Sect. 1, Sect. 18; Poth., Hyp., 
 oh. 2 ; L. 65, ff. de evict. 
 
 (c) C..C. 2116 ; Domat, Liv. 3, Tit. 1, Sect. 2, Sect. 4 ; Poth, Hyp, Art 
 PrǤl. 
 
 (d) Poth. and Domat, loc. eit. 
 
 (e) Ord. 4 Vict., cap. 80, Sect 1. 
 
REGISTRY LAWS. 57 
 
 SECTION I. 
 
 OF LEGAL HYPOTHECS. 
 ARTICLE I. 
 
 IS. Of the legal hypothecs of the Roman and Old French Law. 
 
 *I1. Of those recognised by the Code Oivil. 
 
 *I8. TJie three legal hypothecs of the Ordinance. 
 
 79. Exception. 
 
 76. The legal hypothecs of the Roman law were very- 
 numerous. One author has counted as many as twenty- 
 six (a). Of these many were adopted in France. Pothier 
 enumerates several of them ; and classes under the same 
 head claims which we style privileges, as the vendor, 
 copartitioner, &c. (*>). 
 
 77. The principles of publicity and speciality on which 
 the Code Civil was based, reduced these legal hypothecs 
 to three, viz : That of the wife ; that of minors and in- 
 terdicts, and that of the Crown, commtmes, and public 
 institutions, on the property of comptables and adminis- 
 trators (<>). But though the Code specifies these as " the 
 rights and claims to which a legal hypothec is attached," 
 it does not state totidem verbis, that no other legal hypo- 
 thec shall exist. On the contrary, the 1017th. Article gives 
 legatees a legal hypothec on the property of the heirs for 
 the payment of their legacies ( d ) And the Code of Com- 
 merce gives the assignees of a bankrupt a right in his 
 
 (a) Neguzantius, quoted by Basnage, ch. ,6, No. 1. 
 
 (,b) Po£h„ Hyj>., ch. 1, Sect. 1, Art. 3; lb., Cout. d'Qrl., Tit XX, JTpe. 18, 
 19. See also Domat, Liv. 3, Tit. 1, See. 5 seg. 
 
 (c)C. C. 2121. 
 
 (d) Troplong, P. and H., No. 432 ter ; 1 Tarrible, No. 95 ; Dalloz, Oh. 2, 
 Sect. 2, Art. 3, No. 7; Praudhon, de l'usufruit, Nos. 120, SSI.— Per «ontra 
 V Toullier, No. 561. 
 
 H 
 
58 ESSAY ON THE 
 
 property more nearly resembling a legal hypothec than 
 any thing else (a). 
 
 78. Our Ordinance has imitated the Code Civil in res- 
 tricting the number of legal hypothecs. But its language 
 is more unequivocal and precise. " No legal or tacit 
 hypothec," says the 29th section, " shall for any cause 
 " whatsoever be constituted or subsist on lands, &c. in 
 " this Province, except for the causes, and in the cases 
 " following :" and then follows the enumeration of the 
 three legal hypothecs of our law, viz : 1st. that of the 
 wife, 2nd. that of minors and interdicts, and 3rd, that of 
 the Crown. 
 
 Thus, neither public institutions, nor legatees, nor hus- 
 bands on the property of their wives, nor tutors on that 
 of their wards, (all of whom formerly enjoyed hypothecary 
 rights) (b), nor any other class of creditors, but the three 
 mentioned above and the following exception, are entitled 
 to-day to a legal hypothec. 
 
 79. An exception to the general rule has been intro- 
 duced by a recent statute, in favour of school assessments, 
 which, if not paid, are " a special charge bearing hypo- 
 tMque on all the immoveable property of the debtor," 
 not requiring registration to preserve it (c). 
 
 ARTICLE II. 
 
 OF THE LEGAL HYPOTHEC OF MARRIED WOMEN". 
 
 80. Seasons for granting a legal hypothec to married women. 
 
 81. Their rights in the Roman and old French Law. 
 
 82. Claims seemed by the legal hypothec under the Ordinance : contrast 
 
 with foreign systems. 
 
 (a) Art. 500. 
 
 (b) Poth., Hyp., Oh. 1, Sect. 1, Art. 3 ; II Pigeau, 58 ; D'Hencourt, Cb. 
 XI, Sect. 2, Nos. 19, et seq. 
 
 (o) 9 Vict, cap. 21, Sect. 86. 
 
REGISTRY LAWS. 59 
 
 83. The hypothec of the wife for antenuptial dotal property, conventions 
 
 matrimoniales &c, is conventional. 
 
 84. As such it must be special, and for a sum certain. 
 
 85. Period from which the legal hypothec is accounted: property on 
 
 which it attaches. 
 
 86. It only exists in cases where property has been given to or inherited 
 
 by the wife as a propre to her. 
 
 87. Query: Does it exist independently of registration ? Reasons for the 
 
 affirmative. 
 
 88. Reasons for the negative. 
 
 89. Suggestions in case the latter sentiment should prevail. 
 
 90. The hypothec for remploi de propres. 
 
 91. No hypothec exists for indemnity for debts. 
 
 92. The husband must register the wife's hypothecs : penalties and dis- 
 
 abilities in case of neglect. 
 
 93. Registry may be effected by other parties. 
 
 94. Women married without a contract since Slst December, 1841, need 
 
 not register their claims for customary dower. 
 
 95. Alterations in the law of dower ; release of dower. 
 
 96. Query : Does the legal hypothec of wives married before 31 December 
 
 1841, require to be registered ? Case in which the negative was 
 held. v 
 
 97. Case in which the affirmative was held. 
 
 98. The question turns on the meaning of the ith section. 
 
 99. Hypothec of the wife married before Z\st Dec, 1841, for conventions 
 
 matrimoniales, &c, must be registered: proprietary rights. 
 
 80. The policy of maintaining marital authority, with- 
 out permitting the position of dependence in which the 
 wife was placed to prejudice her rights, dictated those 
 'dispositions of the old law, which exempted married 
 women from the obligation of taking the same precau- 
 tionary measures for securing their rights, as other credi- 
 tors were required to adopt. Where the latter were 
 obliged to exact a voluntary pledge from their debtor, the 
 law intervened in favour of the former, and gave them a 
 tacit lien on all their husband's property. 
 
 81. Under the early Roman Law, the rights of married 
 women on their husbands' estate appear to have been 
 secured by a personal privilege, which, though it placed 
 them in a higher rank than mere chirographary creditors, 
 
60 ESSAY ON THE 
 
 could not take precedence of a mortgage. Extending a 
 further degree of protection to the sex, Justinian gave 
 them a tacit privileged hypothec on all the property of 
 their husbands, ranking above all the creditors of the 
 latter, including those whose hypothec was prior to the 
 celebration of the marriage. ( a ) The iniquity of this law 
 was the means of its rejection by the French Parliaments. 
 In the jurisdiction of that of Paris, it was held that the 
 wife had a tacit hypothec for her dot, but from the date 
 of the marriage contract only. ( b ) 
 
 82. There is no portion of the Ordinance which is 
 involved in more difficulty, than the sections which refer 
 to married women. 
 
 The twenty-ninth section states, that after 31st Decem- 
 ber 1841, " no legal or tacit hypothec shall, for any cause 
 " whatsoever, be constituted or subsist on lands, &c... ex- 
 " cept.... upon the lands, &c. of married men, to and in 
 " respect of their wives, for securing the restitution and 
 " payment of all dotal sums of money, claims, and 
 " demands which they may have upon their husbands, 
 " for or by reason of any succession or inheritance, which 
 " may devolve upon, and accrue to such married women, 
 " and of any donation which may be made to them, dur- 
 " ing the continuance of their marriage, which hypothec 
 " shall be accounted from the respective periods at which 
 " such succession or inheritance shaM so devolve or accrue, 
 " or such donation shall receive execution, &c, &c." 
 
 Thus, the legal hypothec of married women is restricted 
 to their claims resulting from post nuptial acquisitions, 
 which are supposed to have fallen into the hands of their 
 husbands ; and can no longer be exercised for the other 
 portions of their dot. This enactment has at least the 
 
 . (a) Cod., Lib. V, Tit. 13. De rei. ux. act. 
 
 (b) Poth, Hyp., Oh. 1, Sect. 1, Art. 3 ; Ferriere on Paris, 232 ; Domat, Liv. 
 S, Tit. 1, Sect. 1, No. S ; Basnage, Oh. XII. 
 
REGISTRY LAWS. 61 
 
 the merit of originality. The Code Civil, the Codes of 
 Naples, of Piedmont, and of Louisiana, have preserved 
 the wife's legal hypothec for all those claims which col- 
 lectively constitute her dot ( a ): viz., her claim for the 
 restitution of the dotal property she possessed at the time 
 of the marriage, that for the price of her propre estate 
 sold during her coverture, (remploi de propres), and that 
 for her indemnity for debts contracted by her on behalf of 
 her husband. The three former grant the same legal 
 hypothec to her claim for her "conventions matrimo- 
 niales," such as donations made to her, and rentes con- 
 stituted in her favour by her husband, preciput, conven- 
 tional or prefix dower, &c. (*>) 
 
 The language in which the above section of the Ordi- 
 nance is couched, the last clause especially, is conclusive 
 against any attempt to give a similar latitude to the legal 
 hypothec of the wife in our system. To her claims for 
 dotal sums of money, given to, or inherited by her during 
 the marriage, alone, has the Ordinance attached a legal 
 hypothec. 
 
 83. Not that the other claims which she has against her 
 husband's estate are chirographary. There is nothing in 
 the law which could be construed to deprive her claims 
 for the restitution of the dotal property she possessed at 
 
 (a) For the extensive signification attached in France to the word Dot, 
 see I Bourjon, p. 667, 7e. part- de la Comm. ch. 2, sect. 9, nos. 114, et s. ; 
 Lebrun, Comm., Liv. 3, ch. 2, sect. 3, Dist. 6, No. 29, p. 623 ; Merlin 
 Repr., vo. Dot, and Troplong, Kos. 674, 585. Bourjon did not consider that 
 the wife's indemnity for her propre estate, when sold voluntarily, formed 
 part of her dot ; but restricted the privilege to that for necessary aliena- 
 tions (remploi de propres force'ment alienees). But this jurisprudence, if it 
 ever obtained in the Ohatelet, was absolete when Pothier wrote : the courts 
 do not seem to have made any distinction between voluntary and forced 
 alienations. See Poth., Comm., No. 611 ; Ferriere, D. D, Vo. Remploi de 
 propres. 
 
 (b) C. C, 2121, 2135 ; Code of Two Sicilies, 2007, 2008 ; Code of Sar- 
 dinia, 2169, 2170, 2171 ; Code of Louisiana, 3287. 
 
62 ESSAY ON THE 
 
 the time of the marriage, and for her conventions matri- 
 moniales, of their hypothecary character. On the contrary, 
 special provision is made for their registration. The hy- 
 pothecs therefore continue to exist ; but instead of being 
 as they were in the old law, and are in all modern cognate 
 systems, legal hypothecs, they are merely conventional, 
 and must be expressly stipulated in the contract of mar- 
 riage. 
 
 84. Are they, then, subject to the same rules as other 
 conventional hypothecs ? Must they be special, and for a 
 certain sum ? 
 
 However startling such a statement may appear, it is 
 impossible to sustain a reply in the negative. The Ordi- 
 nance says, that from and after 31st December 1841, "no 
 ' general hypothec shall be stipulated in, or constituted 
 ' by, or result from any deed, contract or obligation in 
 ' writing whatsoever, to be thenceforward made and 
 ' entered into ; and no conventional -hypothec, charge, or 
 ' encumbrance on lands, tenements, etc., shall, from and 
 ' after the day last aforesaid, be constituted, or acquired, 
 ' in or by virtue of any deed, contract, or obligation in 
 ' writing, which shall be executed or made after that 
 ' day, before a notary and witnesses, or before notaries, 
 ' or before any Court of Justice, or Judge, or otherwise 
 ' however, unless the lands, tenements, etc., intended or 
 ' alleged to be hypothecated, charged, or encumbered, by 
 ' such deed, contract, or obligation in writing, or such ac- 
 ' knowledgment thereof (sic) , or by which any such hypo- 
 ' thee may be claimed, be therein specially described, 
 ' &C, &C." (a). 
 
 No exception is made to this rule. The common 
 
 meaning of words will not tolerate such an interpretation 
 
 of the clause as would exclude contracts of marriage 
 
 from its operation. It cannot be pretended that a con- 
 
 (a) Ord. 4 Vic, cap. 30, s. 28. 
 
EESISTRY LAWS. 63 
 
 tract of marriage is not a " contract" : nor can we, in the 
 face of the 29th section, class the hypothec claimed by the 
 wife in virtue of her contract of marriage otherwise than 
 as a conventional hypothec. 
 
 An additional argument in support of the belief, that 
 the fratner of the Ordinance intended to subject marriage 
 contracts to the same rules as other deeds creating con- 
 ventional hypothecs, may be extracted from the means 
 provided for reducing the wife's claim to a sum certain. 
 Her hypothec for indemnity for debts contracted on behalf 
 of her husband, was abolished by the clause which prohi- 
 bits her incurring any individual liability with him. 
 That for the price of her propre estate sold during the 
 marriage, was also taken away by the clause which pres- 
 cribed an examination in private before a Judge, &c. 
 These two claims disposed of, those which remained — 
 her claims for restitution of her antenuptial dotal property, 
 for settlements made on her by her husband, for prtciput, 
 conventional dower, &c, — could, without the slightest 
 difficulty, be set down in the contract at a fixed sum of 
 money. 
 
 There is no clause in the Ordinance which could serve 
 as the basis of an exception from the general rule, in fa- 
 vour of the wife's hypothec for these claims. On the 
 contrary, if it be held that it is not governed by the sec- 
 tion last cited, then we must assert that in spite of that 
 section a general hypothec can be constituted by a con- 
 tract, and a conventional hypothec can be acquired in 
 virtue of a contract, without any description of the lands 
 hypothecated. 
 
 Such an interpretation would be equally destructive of 
 the spirit and the letter of the law. Gravely enough do 
 the legal and general hypothecs which are formally re- 
 cognized, militate against the advantages of a system of 
 publicity and speciality : how much more would these be 
 
64 ESSAy ON THE 
 
 impaired, if a husband were permitted to encumber his 
 property with general mortgages for undetermined debts 
 due to his wife ! 
 
 In fine, it seems beyond all reasonable doubt, that the 
 intention of the framer of the Ordinance was, in cases of 
 marriages occurring after 31st December, 1841, to rank 
 all the hypothecary claims of the wife (except those men- 
 tioned in the 29th section) in the general class of ordi- 
 nary conventional hypothecs. 
 
 Thus, where a woman about to contract marriage 
 possesses, or receives from her relations, property or 
 money, which is to be settled on her, the contract must 
 stipulate, if she desires to have a hypothecary claim on 
 her husband's estate for its restitution, that the husband 
 specially mortgages in her favour, for a fixed sum, some 
 certain specific property, which must be described in the 
 contract. So, where her husband settles a sum of money, 
 a life rent, a preciput, a prefix dower, or other pecuniary 
 advantage upon her, he must secure them by a like 
 special hypothec, if he means her to enjoy a preference 
 on his estate over his other creditors for their recovery. 
 In short, all the rules which are hereafter (ch. 4, sec. 3) 
 prescribed for voluntary hypothecs apply to these claims. 
 The contract of marriage must be registered, and the 
 hypothecs resulting from its covenants will rank, against 
 bona fide registered purchasers or hypothecary creditors 
 for valuable consideration, from the date of such registry. 
 
 85. The legal hypothec of married women, resulting 
 from post-nuptial acquisitions is, of course, very different 
 in its character : no express stipulation is required to 
 give it birth : it derives its existence from the law alone. 
 It dates, as we are told in the 29th section, from the 
 moment when the succession devolves, that is to say, 
 from the death of the defunct (a), or from the moment the 
 (a) Le mort saisit le yif, Paris, 318. 
 
REGISTRY LAWS. 65 
 
 legacy or donation is accepted (a). From these periods, 
 all the property possessed or acquired by the husband, 
 whether as conquets or propres, is tacitly hypothecated 
 "in favour of the wife, for the restitution of the sums of 
 money or moveables so given to, or inherited by her, 
 and which are presumed to have fallen into his hands (b) . 
 It matters not whether such property be or be not in the 
 possession of the husband or his heirs, when the wife 
 is entitled to institute her demand : possession for a mo- 
 ment of time subjects them to the legal hypothec. It has 
 even been held that, where an immoveable owned by the 
 husband is exchanged for another, the legal hypothec 
 attaches upon both (°). It is clear, however, that she 
 cannot e sercise her hypothec on property which has been 
 sold by her husband, without renouncing the commu- 
 nity ; for, until she does so, she is equally bound with 
 him to guarantee the purchaser's title (d). But the fact 
 of her having been a party to the deed of alienation has 
 been held to be no bar to her hypothecary claim : for it 
 has been decided that, as she can incur no individual 
 liability with her husband, she gets rid of whatever ob- 
 ligation she had thus contracted, by renouncing the com- 
 munity, and is free, afterwards, to institute her demand 
 against the tiers detenteur ( e ). 
 
 (a) Persil, Reg., Hyp. I, 48"7, sur Tart., 2135, and other Commentators. 
 
 (b) Poth., Comm., No. 610 ; Ferriere on Paris, 232 ; Bourjon, 1e Part, 
 de la Comm. chap. 2, Nos. 1\, 136 ; Lebrun. Comm., Liy. 1, ohap. 2, see. 2 ; 
 Dist. 5, Nos. 88, et seq. ; Renusson Comm., part. 2, chap, 3, Nos. 4*7, et seq, ; 
 Rousseau de la Combe, Yo., Hypotheque. For a refutation of Pothier's 
 theory of mandat tacit, (fee., see xii. Toullier, No. 219, et seq. ; xiii. lb. Nos. 
 262, et seq., 268. 
 
 (e) Domat, Liv. 3, tit. 1, see. 1, No. 12 ; Troplong, P. et H., No. 434 bis ; 
 Arret de la Cour de Cassation, du 9 Nov., 1815. 
 
 (d) Troplong, P. et H., No. 433 ter. ; Persil, Questions, chap. 5, § 4 ; 8 
 Delvincourt, p., 97 ; Duranton, No. 329. 
 
 (e) _ vs. Brosseau and Daigneau, Oppt, 2106 of 1846, Q. B. Montreal. 
 The accuracy of this decision may perhaps be questioned. A married woman 
 
 I 
 
66 ESSAY ON THE 
 
 It is hardly necessary to remark that the hypothecary 
 rights of married women are always subordinate to, and 
 dependent on the proprietary rights of their husbands : 
 where the latter are conditional, the former must be con-* 
 ditional also. Thus, a married woman has no hypothec 
 upon the real property of a partnership in which her hus- 
 band is a partner, until it is dissolved, and the share of 
 each partner definitely fixed and made over to him (a). 
 
 86. Nor will it be requisite to do more than mention 
 the obvious principle, that the tacit hypothec preserved by 
 the Ordinance to the wife for post-nuptial acquisitions, 
 only applies to the case where they are given to, or inhe- 
 rited by her, as her sole property. If they are acquired 
 in such a manner as to fall into the community, of course 
 no hypothec will be created. 
 
 87. It is a question whether this legal hypothec exists 
 independently of registration. Those who contend that' 
 it need not- be registered, argue that the words of the 29th 
 section, which fix a period from which it shall rank, have 
 done away with the necessity of registration ; that the 
 neglect to register cannot involve any loss of rank, as the 
 latter is thus expressly settled. They further assert that 
 it is, in most instances, physically impossible to register 
 this legal hypothec. The registry of the deed of gift, or 
 will, would afford no evidence of the hypothec ; that of 
 the certificate of marriage would be equally nugatory ; 
 and in some cases, as where the wife claimed as heiress 
 of a person who died intestate, there would be no docu- 
 ment at all to register. A receipt from the Imsband would 
 be obviously unworthy of faith, as liable to suspicion on 
 the ground of fraud. The Ordinance, contemplating no 
 other mode of registration than that by memorial, required 
 
 may certainly renounce her hypothec. (Troplong, Wos. 596, 59*7) Query, 
 •whether her being a party to the deed of alienation does not comprehend 
 a tacit renunciation? See Domat, liv. 3. tit. 1, sect. 7, No. 12, et seq. 
 (a) 4 Pavdessus, Droit Commercial ; Arr&ts in Dalloz. 
 
REGISTRY LAWS. 67 
 
 that with the memorial of a hypothec, the deed or docu- 
 ment on which it was founded should be presented to the 
 Registrar : what deed or document answering the pur- 
 pose, could be tendered in this case ? If none, registra- 
 tion is an impossibility. 
 
 88. On the other hand, reference is made to the first 
 section which requires in plain language that " all ... 
 " hypothecary rights, and claims, and encumbrances, from 
 " whatever cause they may result, and whether produced 
 " by mere operation of law or otherwise " shall be regis- 
 tered, io show that it was not intended to exempt legal 
 hypothecs from the formality. And this view is corrobo- 
 rated by the 21st section, which enjoins on " married men 
 " to cause and procure to be registered without delay a 
 " memorial of all and every the hypothecs and encum- 
 " brances to which their lands, &., shall become or be 
 " subject or liable to in respect of their wives ; " and im- 
 poses a penalty upon them, in case their neglect in this 
 respect should be the means of permitting a subsequent 
 creditor to rank before their wives. Again, it is urged 
 that had the framer of the Ordinance intended to exempt 
 tie legal hypothec of the wife from registration, language 
 similar to that used in referring to leases, and seigniorial 
 rights and privileges would have been employed ( a ) . 
 
 It is not impossible to believe that the clause which 
 fixes the period from which the legal hypothec shall be 
 accounted, was merely intended to derogate from the old 
 common law, which made it rank from the date of the 
 marriage, and that the vitality thus given to it is subject 
 in all cases to its registration in due course ; whereas it 
 is doing some violence to the letter of the law, to suppose 
 that when married men are told to register all the hypo- 
 thecs of their wives, they were only meant to register 
 some, while others were kept secret. If the framer of the 
 
 (a) Ord. 4 Viet,, eap. 30, sect 2, lY. 
 
68 ESSAY ON THE 
 
 Ordinance intended this hypothec to rank independently 
 of registration, it is to be regretted that, while the Code 
 Civil, and Code of Louisiana served as originals for the 
 many of the main doctrines of his bill, he should have 
 omitted those most important words which occur in both: 
 Uhypotheque existe, independamment de toute inscription, 
 en faveur de la femrne mariee, &c. 
 
 89. If, on the contrary, the belief should obtain that, as 
 against subsequent bond fide registered ' purchasers cr 
 mortgagees for valuable consideration, the legal hypothec 
 of women married after 31st December 1841, was inten- 
 ded to rank from the date of its registration, husbands 
 whose wives receive sums of money or moveables by gift, 
 or inheritance, to remain their separate property, would 
 do well to effect a registration of the hypothec resulting 
 therefrom, following the rules of the Ordinance as far as 
 they are applicable. Prudence might suggest in this case 
 the registry of the deed of gift, or will, where such exist, 
 the marriage certificate, and the husband's receipt for the 
 money or property, which ought to contain some notice 
 of the hypothec. In cases of succession, a document to 
 which the coheirs of the wife were parties, and which 
 established the fact of the delivery of the money or pro- 
 perty to the husband, would probably rebut any suspicion 
 of fraud, and might possibly be advantageously registered. 
 
 90. Allusion has been made above to the legal hypothec 
 formerly enjoyed by married women, for the price of their 
 propre estate, sold during the marriage. This was taken 
 away by a clause of the Ordinance, which provided that 
 if a married woman, whose propre estate was about to be 
 disposed of, acknowledged in private before a Judge, that 
 she was a consenting party to the transaction, she should 
 have no claim on her husband for indemnity by reason of 
 such alienatio n ( a ). However desirable it may have been 
 
 (a) Ord. i Vict. Cap. 30, s. 84. 
 
REGISTRY LAWS. 69 
 
 in theory to get rid of such claims as that for remploi de 
 propres, there is little doubt that the means employed 
 were not calculated to attain their end ; and it is not sur- 
 prising that the clause was repealed in 1849, and the law 
 was declared to revive as though it had never been enact- 
 ed (a). On referring therefore to the old system, we find 
 that married women have a legal hypothec for the price of 
 their propre estate sold during their coverture ( b ). It 
 seems that this class of claims falls under the same rules 
 as those for post-nuptial acquisitions, and that it is, like all 
 other hypothecs, subject to registration, the documents to 
 be registered being probably the deed of alienation, and 
 the receipt of the husband for the price of the property 
 sold. 
 
 91: The wife's hypothec for indemnity for obligations 
 contracted on behalf of her husband, has been more ef- 
 fectually destroyed.- The Ordinance declared that after 
 31st December, 1841, it should not be " lawful for a mar- 
 " ried woman to become security, or responsible, or incur 
 " any liability whatever, in any other capacity, or other- 
 " wise, than as commune en Mens with her husband for 
 " the debts, contracts, or obligations" contracted by her 
 husband before, or during the marriage (o). The power 
 to bind herself being thus taken away, her right to in- 
 demnity ceases, and the hypothec which secured it can 
 no longer be recognised in our law. It seems to have 
 been doubted at one time in Montreal, whether this enact- 
 ment applied to women who were separated as to pro- 
 perty from their husbands, either by their contract of mar- 
 riage, or by the sentence of a Court (d). It is now, how- 
 ever, indisputably settled that no married woman, whe- 
 
 (a) 12 Vic. cap. 48, o. 1. 
 
 (b) See Bourjon, loo. cit. supra. 
 
 (c) Ord. 4 Vie. Cap. 30, a. 36. 
 
 (d) Vallee vs. Guilbault, 30tb March, 1846; Hudon V3. Dubord, Oct., 
 1846. Q. B., Montreal. 
 
70 ESSAY ON THE. 
 
 ther commune or separated as to property, can incur any 
 Individual liability, by joining with her husband in an 
 obligation or contract (»), unless, of course, it were for 
 her own individual benefit. 
 
 92. All the hypothecs which women married since 
 December 1841, are entitled to exercise on their hus- 
 bands' estate, have now been passed under review. As 
 is the case in the Code Civil, ,and in all other Codes in 
 which the hypothecary rights of married women are 
 required to be registered, particular rules respecting 
 the mode of their registry are laid down by the Ordi- 
 nance. 
 
 When the parties are of age, the duly of registering the 
 wife's hypothecary claims devolves upon the husband. 
 If he fail to do so, he is liable for all damages which his 
 wife may suffer, by being postponed to subsequent credi- 
 tors, or defeated by subsequent purchasers, and may be 
 imprisoned until they are fully paid. His neglect, when 
 followed by these consequences, is even held to amount 
 to a fraud, for which he may be indicted. In like man- 
 ner, if he " consent to, or permit any subsequent pri- 
 vilege or hypothec to be acquired" on his property, with- 
 out disclosing in the instrument creating such privilege 
 or hypothec, the fact that his property is already hypo- 
 thecated in favour of his wife, and reserving a right of 
 priority for her, and in consequence, such subsequent hy- 
 pothec or privilege takes precedence of her claims, he is 
 held to be guilty of fraud, and may be indicted ( b ). He 
 is, moreover, disabled from bringing any action in any 
 Court of Justice, for any cause derived from or under his 
 contract of marriage, until it is registered ( c ). 
 
 (a) Bertram! vs. Saindoux, 1 Revue, 333 ; Moffatt vs. De Lotbioiere, July 
 1848, Q. B. Montreal ; Gibson vs. Dodridge, 238 of 1832, and Duchesnay 
 vs. Goudrault, 496 of 1852, Sup. Court, Quebec. 
 
 (b) 4 Vict., cap. .80, see. 1. 
 (e) lb,, see. 24. 
 
REGISTRY LAWS. 71 
 
 93. When either of the parties is a minor, the Ordinance 
 directs the father, mother, or tutor of the minor,- to register 
 the hypothecs established by the contract of marriage, 
 and makes them jointly and severally liable in damages 
 to the minor, in case of neglect (a"). 
 
 Finally, if neither the husband, nor the father, mother, 
 or tutor of the minor, effect the necessary registration, it 
 may be ■validly made by any friend, or relation of the 
 husband or wife, by the wife herself, or by any person 
 whomsoever ( b ). 
 
 94. Questions can hardly arise as to the effect of the 
 Ordinance on the matrimonial rights of women married 
 after 31st December, 1841, without a contract of marriage. 
 At common law, they are entitled to customary dower, 
 in lieu of all hypothecary claims on their husbands' es- 
 tates. Their right to customary dower is not one of those 
 " hypothecary rights, and claims, and incumbrances," 
 which the first section directs to be registered; nor is 
 it (when the parties are married without a contract) 
 claimed in virtue of any " deed, contract, instrument in 
 writing," or other document mentioned in the Ordinance. 
 In point of fact, it is evidenced by nothing which could 
 be registered. It may therefore be boldly asserted, that 
 the law did not contemplate its registration. The pro- 
 perty on which it attaches, passe.s, first to the wife, then 
 to the children, like transmissions by inheritance, quite 
 irrespectively of the Registry Laws. 
 
 It is left to purchasers, and parties advancing money 
 on property, to secure themselves against customary 
 dower, by tracing the pedigree of the property to its 
 source, and obliging the vendor or borrower to procure a 
 release of dower from such married women, as would be 
 entitled to demand it. 
 
 (a) lb., sec. 25. 
 
 (b) lb., sec. 23 ; 8 Vict. cap. 27, sec. 1, 2. 
 
72 ESSAY ON THE 
 
 95. This release of dower requires a brief notice. 
 
 As the strict rules of the French law respecting the 
 inviolability of dower, were considered by the Special 
 Council to be rather injurious than beneficial ina young 
 couutry like Canada, it was resolved by* that body to 
 strike a blow at the root of the system, by permitting 
 married women to release their dower. This was follow- 
 ed up, a few years afterwards, by an Act of Parliament 
 in the same strain. By these laws, a married woman of 
 21- years of age (semble whether her marriage was prior 
 or subsequent to the Ordinance) (a), may, either in the deed 
 of alienation of her husband's property, or, by a separate 
 subsequent deed, relinquish her right to customary, or. 
 her hypothec for prefix dower thereon; and such relin- 
 quishment bars the action which the widow, or her chil- 
 dren or heirs, might, at common law, have brought against 
 the purchaser of such property for such dower, without 
 giving the wife any claim against the husband for in- 
 demnity (b). The children of the dowager are thus en- 
 titled to claim dower, 1st, on such property as' their father 
 shall die possessed of, there being no provision in the 
 Ordinance for the release of dower, so long as the property 
 remains in the possession of the husband ; and 2ndly, on 
 such property as he may have alienated, but without a 
 release or relinquishment of dower by his wife ( c ). It is 
 manifestly incorrect to suppose — as some have done — .that 
 mere alienation by the husband, without a release from 
 the wife, can discharge the dower of the children ; there 
 is no clause in the Ordinance, or in any other law, which 
 ascribes such legal consequences to deeds of alienation. 
 
 96. The provisions of the Ordinance respecting the 
 
 (a) An unsuccessful attempt 'was made by Messrs. Harwood and Mondelet 
 to restrict the privilege of releasing dower to -women married after 31st 
 December, 1841. Journ. of the Special Council, 18th December, 1840. 
 
 (b) Ord. 4 Vict. cap. 30, s. 35 ; 8 Vict. e. 21, s. 3, 4. 
 
 (c) 4 Vict. cap. 30, sec. 31. 
 
REGISTRY LAWS. 73 
 
 hypothecs actually, existing in favour of married women, 
 at the time it came into force and effect, remain to be 
 considered. Whether the legal hypothec of women mar- 
 ried before 31st December, 1841, for their dot, can, with- 
 out registration, enjoy a preference over subsequent bona 
 fide registered mortgagees for valuable consideration, or 
 not, is a question which has been much agitated. The 
 affirmative was held by the late Court of Queen's Bench 
 in the following case: — Mrs. Sheppard was married in 
 1 809, under a contract,- which stipulated that no commu- 
 nity of property should exist between her husband and 
 herself, and that, at his death, she should be entitled to 
 claim from his heirs all sums of money, or moveables, 
 which she possessed at the time of the marriage, or might 
 afterwards acquire. At the time of the marriage, she re- 
 ceived a dowry from her father of £200, and, during the 
 marriage, a legacy of £1150 from a female relation. The 
 contract of marriage and the will were registered on 7th 
 December, 1846. Mr. Sheppard's property having been 
 brought into Court, she claimed the usual hypothec for 
 these sums, and was collocated accordingly. A subse- 
 quent bona fide creditor for valuable consideration, whose 
 hypothec had been registered on 8th July, 1846, contest- 
 ed the report of distribution, and claimed a preference 
 over her, in virtue of his prior registration. The Court 
 held that he was not entitled to such preference ; thus in- 
 timating that, in cases of marriages prior to 31st 'Decem- 
 ber 1841, the legal hypothec of the wife for dotal sums 
 did not require to be registered to preserve its rank ( a ). 
 
 97. On the other hand, it appeared, in a recent case, 
 that Mrs. Blais had possessed at the time of her marriage, 
 in 1S27, a sum of 4075 livres, which had been constituted 
 apropre to her by the contract of marriage ; and that her 
 
 (a) Ex parte Gibb, 1885 of 1847, Q. B., Quebec. Present: Stuart, Ch., J., 
 Bowen, and Aylwin, J. 
 
 K 
 
74 ESSAY ON THE 
 
 children claimed as heirs of their mother, a hypothec for 
 the same on their father's estate. A subsequent bond fide 
 creditor, whose hypothec had been registered before Mrs. 
 Blais' contract of marriage, claimed a preference over her. 
 The Court granted it, holding that in case of marriages 
 prior to 31 Dec. 1841, the legal hypothec of the wife re- 
 quired to be registered to preserve its rank ( a ). 
 
 98. The question involved in these two contradictory 
 decisions, turns upon the interpretation of the 4th section 
 of the Ordinance, which is in these terms : " And be it 
 " further ordained, and enacted, that a memorial of all 
 " notarial obligations, contracts, instruments in ivriting, 
 " judgments, judicial acts and proceedings, recogniz- 
 " ances, privileged, and hypothecary rights and claims, 
 " now in force, or which shall be in force on the day 
 " when this Ordinance shall come into force and effect, 
 " whereby any debt or debts, sum or sums of money, 
 " goods or chattels have been contracted, stipulated or 
 " secured, or have been recovered, or made, and are pay- 
 " able, or deliverable, and whereby any lands, &c, have 
 " been and are hypothecated, charged, or encumbered, for 
 " the payment, satisfaction, or delivery thereof, shall be 
 " registered within twelve months, &c." The section 
 goes on to say that if so registered, such hypothecs shall 
 preserve their rank : if not, they shall be " inoperative, 
 " void, and of no effect whatever, against any subsequent 
 " bond fide purchaser, mortgagee, &c, for valuable consi- 
 " deration" [whose title or mortgage has been registered 
 before them] ( b ) . 
 
 Future Judges will decide between the opinions of the 
 late Court of Queen's Bench, and the Superior Court. 
 
 99. Less doubt prevails respecting the hypothecs of the 
 
 (a) Girard vs. Blais, 2 L. C. Rep. 87 ; Present, Boiven, Ch. J., Duval, and 
 Meredith, J. 
 
 (b) 6 Vict., c. 15, s. 1 ; 1 Viet., cap. 22, s. 12. 
 
REGISTRY LAWS. 75 
 
 wife, who was married before 31st Dec. 184 1^ for her 
 conventions matrijmonialcs. These fall clearly under the 
 4th section : and unless the contract of marriage was 
 registered before 1st Nov. 1844 (the day when the delay 
 for the registration of old hypothecs expired), it confers 
 no hypothec to the prejudice of subsequent bond fide 
 mortgagees, or purchasers, for valuable consideration, 
 whose hypothecs or titles were registered before it ( a ). 
 The same rule applies to prefix dower and priciput (b). 
 The right to customary dower being in the nature of a 
 usufructuary right in the wife, and a proprietary right in 
 the children, is, like all other proprietary rights in exist- 
 ence before 31st Dec. 1841, exempted from registration. 
 Thus, where a contract of marriage prior in date to that 
 day, which had not been registered, stipulated that the 
 wife might claim either prefix or customary dower at her 
 option, the Prothonotary collocated her as a matter of 
 course for the latter (°). So also, where the contract 
 stipulated an amevblissernent gtne'ral, the claim of the 
 wife's heirs to the proceeds of one half the immoveable 
 property thus vested in the. community, was held to be a 
 proprietary right, not requiring registration to preserve 
 it( d )- 
 
 (a) Ex parte Gibb, Q. B. Q., 1885 of 1847 ; Panet vs. Larue, 2 L. C. Rep. 
 83. 
 
 (b) Girard vs. Blais, 2 L. 0. Rep., 87 ; Garneau vs. Fortin, 2 L. C. Rep. 
 115 ; Carrier vs. Gauthier, S. 0. Quebec, 1645 of 1861. 
 
 (c) Fraser vs. Chouinard, S. C„ Quebec, 869 of 1852. 
 
 (d) Nadeau ve. Dumont, S. C, Quebec, 2195 of 1852. 
 
76 ESSAY ON THE 
 
 ARTICLE III. 
 
 OF. THE LEGAL HYPOTHEC OF MINORS AND INTERDICTS. 
 
 100. Of the nature of the hypothec. 
 
 101. Claims which it secures under the Ordinance. 
 
 102. On what property, it attaches. 
 
 103. It may be made special in certain cases. 
 
 104. Its rank in cases where the appointment was prior to Z\st December, 
 
 1841. 
 
 105. Its rank in- cases_where the appointment was subsequent to ZXst Dec, 
 
 1841. 
 
 106. Obligation of tutor and curator to register; penalties and disabili- 
 
 ties in case of neglect. 
 
 107. Obligation of subrogate tutor to see that the acte is registered. 
 
 108. The appointment may however b£ registered by any one. 
 
 100. Whenever a.Tutor is appointed to a minor, there 
 is formed by the effect of law, a quasi-contract between 
 such tutor and minor, by which the former binds himself 
 to discharge faithfully the duties of his office, and} when 
 his -administration terminates, to render a true account to 
 the minor, and pay over to hirn any sums of money which 
 may remain in his hands. ( a ) A similar obligation is im- 
 posed upon those who accept the office of Curator to an 
 interdicted person, and upon those who undertakcthe office 
 of Tutor or Curator without authority ( b ). In order to 
 secure the performance of these duties, the common law 
 hypothecates all th& real property of such tutor or curator, 
 or party acting as tutor or curator, as a security to the 
 minor or interdict, from the date of their appointment or 
 first interference in the concerns of the minor or inter- 
 dict (°). 
 ■ ■ 1 
 
 (a) Poth., Gout. d'Orl, Tit. IX, No. 17 ; lb, des Personnes, Tit. 6, sect. 4, 
 art. 4, and sect. 5, art. 1 ; Domat, Liv. 2, Tit. 1, sect. 3, Nos. 9, 32 ; lb, Iiv. 
 2, Tit. 2, sect: 2, No. 3; Ord. of 1667, Tit. 29, art. 1. 
 
 (b) Battur, No. 364. 
 
 (c) Same authorities. 
 
REGISTRY LAWS. 77 
 
 101. This legal hypothec was confirmed by the Ordi. 
 nance, and declared to exist "as a security for the due 
 " administration of such tutors or curators, and for the 
 " payment of all sums of money which they may be 
 " found to owe at the close of their administration ( a )." 
 
 Thus, the hypothecary action of tbe minor or interdict, 
 lies not only for the balance shewn by the account ren- 
 dered him, but also for. the damages to which he is legally 
 entitled in consequence of the maladministration or ne- 
 gligence of his Tutor or Curator ( b ) . This hypothec ex- 
 tends also to all debts due to the minor or interdict by 
 the tutor or curator at the time of his appointment ; and 
 to those which he has incurred during his administration 
 
 (?)■ 
 
 102. It attaches on all the real property possessed by 
 
 the Tutor or Curator at the time of his appointment,. or 
 acquired by him before the termination of. his adminis- 
 tration by his legal discharge ( d ). 
 
 103. But it may, in certain > cases, be converted into a 
 special hypothec. The Tutor or Curator may, at the time 
 of his appointment, demand that the hypothec of the 
 minor be made special on certain property only, and pro- 
 vided the relations and friends composing the assemblee 
 advise, and consent to the proposal, the judge making the 
 appointment may so order it. In this case, all; the other 
 property of the tutor is exempted from the legal hypothec 
 (e). Moreover, in cases of tutorships and curatorships, 
 
 • where no such restriction was made at the time of the 
 appointment of the Tutor or Curator, if the latter can 
 
 (a) Ord. "4 Vict., cap. 30, sect: 29 ; C. C, 2121. 
 
 (b) Domat, Liv. 2, Tit. 1, sect. 3, No. 36, and Lit. 2, Tit. 2, sect. 2, No. 3 ; 
 Troplong, Prir. et Hyp, No. 421; XIX Duranton, No. 3157 ; Basnage, ch. 6. 
 
 (c) Troplong, loc. cit.; I Grenier, 620; TPersil, Questions, p. 231. 
 
 (d) Ord. 4 Vict, c. 30, sect. 29 ; C. C. 2122 ; Domat, Liv. 3, Tit. 1, sect. 1, 
 No. 6 ; XX?Duranton, Nos. 3a6,,326 ^PersilTReg. Hyp. sur l'art. 2121, No. 
 25. 
 
 (e) Ord. 4 Viot, cap. 30, sect. 26 ; C. C. 2141. 
 
78 ESSAY ON THE 
 
 establish, at any time afterwards, that the property affected 
 by the general hypothec, " notoriously exceeds a suffi- 
 " cient security for their administration," a judge may 
 restrict it to certain specific real property. In order that 
 he may exercise this power, it is requisite that the con- 
 sent of the subrogate tutor of the minor be first obtained ; 
 and in the case of interdicts, that the restriction be made 
 upon the advice of an assembly of relations and friends 
 specially convened for the purpose (a). There is no pro- 
 vision in our law, like that of the Code Civil, which 
 enables a legal mortgagee to compel his debtor to restrict 
 or reduce his hypothec (*>). 
 
 104. Before the Ordinance came into effect, the legal 
 hypothec of the minor and interdict ranked from the date 
 of the acceptance of the tutorship or curatorship, that is 
 to say, from the day of the appointment, if the Tutor or 
 Curator was present at the Assembly, and from the date 
 of the notification thereof to him, if he was absent (°). 
 And this applied as well to claims arising out of succes- 
 sions or donations which accrued to the minor or inter- 
 dict, during the tutorship or curatorship, as to all other 
 claims ( d ). 
 
 This is still the case where the Tutor or Curator was 
 appointed before 31st December, 1841, provided the acte 
 of appointment was registered before 1st November, 1844. 
 If it was not registered before or upon that day, the legal 
 hypothec of the minor or interdict will rank, against sub- 
 sequent bona fide registered purchasers, or mortgagees for 
 valuable consideration, from the date of its registry only( e ). 
 
 (a) Ord. 4 Viet, cap. 30, sect. 2*7 ; C. C. 2143. 
 
 (b) C. C, 2143, 2161 
 
 (e) Basnage, des Hypoth., chap. 6 ; 19 Duranton, No. 14 ; Troplong, Priv. 
 et Hyp., No. 428 ; Pcrsil, R«5g., Hyp., art, 2136, § 1, No. 2. 
 
 (d) 19 Duranton, No. 12. 
 
 (e) Ord. 4 Vict, cap. 30, sec. 4 ; 6 Vict, cap. 16, sec. 1 ; 7 Vic. cap. 
 22, sec. 12. 
 
REGISTRY LAWS. 79 
 
 105. In like manner, where the appointment was sub- 
 sequent to 31st December, 1341, the legal hypothec of 
 the minor or interdict, when opposed to subsequent pur- 
 chasers, privileged or hypothecary creditors for valuable 
 consideration, ranks from the date of its registry ( a ). 
 
 106. To secure the performance of this formality, Tu- 
 tors and Curators are required to register their actes of 
 appointment without delay. If they neglect to do so, 
 and, in consequence of such neglect, the hypothec of the 
 minor is postponed to any subsequent registered hypothec, 
 the law makes them liable for all damages and costs sus- 
 tained by the minor or interdict, and subject to imprison- 
 ment until the amount of such damages be paid. More- 
 over, the Tutor or Curator who fails to register his ap- 
 pointment, and who allows a privilege or hypothec to be 
 established on his property, without mentioning in the 
 instrument creating such privilege or hypothec, that his 
 property is already mortgaged in favour of the minor or 
 interdict, and reserving a right of priority in favour of 
 the minor or interdict," is held guilty of an indictable mis- 
 demeanour (*>). 
 
 He is further disabled from suing in any action in any 
 Court of Justice, in his capacity of Tutor or Curator, 
 until his appointment has been registered (c) ; though he 
 may fyle an opposition afin d'annulier or de distraite, to 
 prevent the sale of the minor's property, under a writ * 
 issued against his own (d). So essential, indeed, has the 
 performance of this duty been held, that a Tutor or Cura- 
 tor, suing as such, must allege the registration of his ap- 
 pointment in his declaration, or his action will be dis- 
 missed ( e ). 
 / 
 
 (a) Ord. 4, Vic, cap. 30, see. 1 ; Girard vs. Blais, 2 L. C. Rep. 81. 
 
 (b) Ord. 4 Vict., cap. 30, sect 21 ; see supra, No. 92. 
 (e) Ord. 4 Vic, cap. 30, sect. 24. 
 
 (d) Boswell ts. Murphy, S. C, Quebec, 1851. 
 
 (e) Murray vs. Gorman, 2 L. C, Rep. 1. 
 
80 KSSAY ON THE 
 
 107. Subrogate Tutors are also required to see that the 
 appointment of the Tutor is registered ; and are liable in 
 damages to the minor in case of neglect ( a ). 
 
 108. Finally, any friend of the minor or interdict, or 
 the minor himself, or any person whosoever, may have 
 the appointment of the Tutor or Curator enregistered (b). 
 
 ARTICLE IV. 
 
 OF THE LEGAL HYPOTHEC OF THE CROWK 
 
 109. Of the hypothec of the State at Home and in France. 
 
 110. Of the debts which it secures in Lower Canada. 
 
 111. Of its rank before and after the Ordinance. 
 
 112. Who must register it. 
 
 113. Contestation between two legal mortgagees on property acquired by 
 
 their debtor since the creatidn of both hypothecs. 
 
 109. The third and last of the hypothecs created by the 
 law alone, is that enjoyed by the Crown. According to 
 the Roman law, the property of all debtors to the State 
 was tacitly mortgaged as a security for the discharge of 
 their obligations. " It is certain," says the Digest, " that 
 " the property of a person who contracts with the State is 
 " bound as a pledge for the fulfilment of his obligations, 
 " though there be no express stipulation to that effect." 
 
 We have the unanimous testimony of all the French 
 writers, to show that the Fisc in France enjoyed the same 
 
 (a) Ord. 4, Viet, cap. 30, see. 22 : 12 Vict., cap. 48, sect. 1. 
 
 (b) Ord., 4 Vic,, cap., 30, sec. 23 ; 8 Vict., cap., 27, sect. 1, 2. 
 
 (c) Certum est ejus qui cum fisco contrabit, bona veluti pignoris titulo 
 obligaii, quamvis id non specialiter exprimatur. L. 2, C. in quib. caus. pig. 
 
REGISTRY LAWS. 81 
 
 hypothec as the Fiscus at Rome, (a) It was always re- 
 puted a hypothecary creditor, whatever was the nature of 
 the debt, or the form of the instrument evidencing it. (*>) 
 " Thus, for example," says Domat, " those who farm the 
 " King's taxes, and all persons who contract obligations 
 " towards the rise, by leases, sales, contracts of hire, or 
 " other agreements, hypothecate their property by the sim- 
 " pie effect of the obligation while makes them debtors, 
 " though no mention be made of a hypothec." ( e ) 
 
 1 10. It is fortunate that we can adduce such precise 
 and unquestionable authority on the point, for the Ordi- 
 nance carefully abstains from pronouncing on the nature 
 of the claims which are secured by the legal hypothec it 
 confirms. It merely says that it shall exist upon the 
 lands, &c, of " debtors and persons who have contracted 
 " or entered into any debt, suretyship, engagement, or lia- 
 " bility to Her Majesty, her heirs, or successors, for and 
 " in respect of which, an hypothec is established by the 
 " existing laws of this Province." (d) 
 
 It may, therefore, be laid down as a general principle 
 that, in Lower Canada, the Crown enjoys a tacit hypothec 
 on all the property of its debtors, whatever be the origin 
 of the debt, or the nature of the instrument under which it 
 claims. Deeds of sale or lease, contracts, recognizances, 
 bonds, (as Custom House Bonds) and all other instru- 
 ments establishing a debt or liability to the Crown, bear 
 
 (a) Domat, Dr. Pub., lib. I, tit. 6, sect. 1 § 1 ; Poth., Hyp., eh. 1, sect. 2, 
 art. 3 ; Basnage, ch. XIII ; F6vre de la Planclie, Traits du Domaine, vol. 3, 
 p. 287, L. XL, ch. 3, §. 2; Lebret, Souverainete du roi, p. 116, L. Ill, 
 ch. 10 ; Ferriere, D. D., to. Fisc. 
 
 (b) Fevre de la Planche, v. 3, p. 246, Liv. X., ch. 1 ;Basnage, ch. XIII. 
 
 (c) " Ainsi, par exemple, les fermiers, ou les traitans des droits du do- 
 maine, et toutes personnes qui s'obligent envers le fisc par des baux, rentes, 
 louages, ou par d'autres conventions, engagent tous leurs biens par le simple 
 effet de 1'obligation qui les rend d^biteurs, encore qu'il ne soit pas fait men- 
 tion de l'hypotheque." Domat, loc. cit. 
 
 (d) Ord. 4 Vict., cap. 80, s. 29. 
 
82 ESSAY ON THE 
 
 a tacit general hypothec upon all the real property pos- 
 sessed by the debtor or obligor, at the time the debt was 
 contracted, or the obligation executed, or acquired by him 
 previous to its discharge. On all the property of public 
 officers who farm the public taxes, or handle the public 
 monies, the Crown enjoys a like tacit hypothec, as a se- 
 curity for their fidelity. ( a ) 
 
 111. This hypothec ranked formerly from the period at 
 which the debt was contracted, or the public officer ap- 
 pointed. ( b ) Under the Ordinance, if it was created be- 
 fore 31st December 1841, it was allowed the same delay 
 to be registered as other hypothecary claims, viz., till 1st 
 November 1844. If registered within that delay, it ranked 
 from the date of its creation : if not, its rank against sub- 
 sequent registered purchasers, or hypothecary or privile- 
 ged creditors for valuable consideration, was accounted 
 from the date of its registry. ( c ) So, where the hypothec 
 was created on a day subsequent to 31st December 1841, 
 it ranks, when opposed to the same classes of claimants, 
 from the date of its registry. ( d ) 
 
 112. Registration of the legal hypothec of the Crown 
 is directed to be made by the Receiver General of the 
 Province, the Secretary, or Registrar, the Inspector Gen- 
 eral of Her Majesty's domain, or any public officer in 
 whose Hands the documents requiring registration happen 
 to be. But there is.no reason for doubting that registra- 
 tion may be validly effected in this, as in the other cases 
 of legal hypothecs by any person whomsoever. ( e ) 
 
 (a) Edit du 13 aout, 1669. 
 
 (b) Basnage, and the other authorities above quoted. 
 
 (o) Ord. 4 Vict., cap. 30, s. 4 : 6 Viet., cap. 15, s. 1 ; 1 Vict, cap. 22, s. 12 ; 
 Regina vs. Parent es qual, S. C, Quebec, 1852. 
 
 (d) Ord. 4 Vict., c. 3Q, s. 1. Except in the case of bonds to the Crown 
 under 9 Viot., cap. 62, which rank independently of registration, 9 Vic, c. 
 62, B . 18. 
 
 (e) Ord. 4 Viot, cap, 30, sec. 52 ; 8 Vict., cap: 2,1, sect. 1, 2. 
 
REGISTRY LAWS. 83 
 
 113. There has been much controversy on the question 
 whether, when two legal mortgagees, as the Crown and 
 a minor, claim to be collocated on the proceeds of an 
 immoveable acquired by their debtor subsequently to the 
 creation of both hypothecs, they should be collocated 
 concurrently, or the most ancient in date should be pre- 
 ferred. On the one side, it is urged that both hypothecs 
 attach upon the property at the same moment of time, 
 that is to say, the moment of its acquisition by' the deb- 
 tor, and that thus the Crown and minor are in pari jure. 
 On the other, it is urged that general hypothecs, when 
 affecting property acquired by the debtor subsequently 
 to the creation of the, hypothec, have a retroactive effect, 
 and by a fiction of law are deemed to have attached at 
 the moment of their creation. This latter sentiment has 
 prevailed in the Courts, (a) 
 
 SECTION II. 
 
 OF JUDICIAL HYPOTHECS. 
 
 114. Definition : there was no judicial hypothec in the Roman law. 
 
 115. They were established in France by royal Ordinances. 
 
 116. Rides by which they are governed under the Ordinance. 
 
 117. The judgment must be registered to be valid against a subsequent 
 
 purchaser, &c. 
 
 118. Case where the sum awarded by the Court below is reduced in Appeal. 
 
 119. Judgments against tutors and married men. 
 
 120. Judicial acts and proceedings. 
 
 114. Judicial hypothecs are those which are established 
 by the authority of a Judge or Court of Justice. They 
 were not recognised by the Roman law : the pignus 
 
 (a) Poth., Hyp., e. 1, sect. 2, § 2 ; Battur No. 369 ; Ernst, p. 162, quest 8. 
 Per Contra, Duranton, XIX., No. 370 ; Persil, Reg. Hyp., sur l'art 2121 ; 
 Nos. 1 and 8. 
 
84 ESSAY ON THE 
 
 pratorium and pignus judiciale were clearly mere sei- 
 zures ( a ). 
 
 115. The judicial hypothec was first introduced into 
 France by the Ordinance of Francis I, in 1539, which 
 established that the proof or acknowledgement of the 
 signature of a maker of-a promissory note, or cidule pri- 
 vee, in a Court of Justice, should have the effect of hypo- 
 thecating his property as security for the payment of the 
 note or Cedule ( b ). A few years afterwards, a similar 
 hypothec was attached to all final judgments by the Ordi- 
 nance of Moulins. It says : " from and after the moment 
 " the final judgment is rendered, the party succeeding 
 " shall have a hypothecary claim upon the property of the 
 " party condemned, for the execution and satisfaction of 
 " the judgment and sentence rendered in his favour (°)". 
 It was soon found expedient to extend these provisions 
 of the Ordinance J,o the judgments of Courts of original, 
 as well as those of final appellate jurisdiction ; and in 
 accordance with this view, a royal declaration of 10th 
 July of the same year (1566) decided that all judgments 
 carried with them a general hypothec, the effect of which 
 was suspended by an appeal ; and that, while the hypo- 
 thec created by the original judgment was destroyed by 
 the reversal of that judgment in appeal, it was confirmed 
 from its date, when the judgment was affirmed ( d ). 
 These laws were ratified by the Code Civil of 1667, 
 which enacted that judgments by default should bear no 
 hypothec until signified to the Defendant's Attorney (e). 
 The decisions of arbitrators were clothed with this hypo- 
 
 (a) Troplong, Priv. et Hyp., Mos. 435 bis, et seq. 
 
 (b) Ord. of 1539, arts. 92, 93. 
 (e) Ord. of Moulins, art. 35. 
 
 (d) Declaration of 10th July 1566, art. II. 
 
 (e) Ord. of 1667, Tit. 35, art. 11. 
 
EEGISTRY LAWS. 85 
 
 thecary character from the day of their judicial homolo- 
 gation ( a ). 
 
 116. The Ordinance interfered with these doctrines of 
 the common law, only to introduce the rules laid down 
 by the law of Brumaire an VII, viz., 1st— That no hypo- 
 thec shall be established by any judgment, judicial act 
 or proceeding, which does not award a specific sum of 
 money : and 2nd — That future property shall not be affect- 
 ed by a judicial hypothec ( b ) . Hence the problems which 
 have exercised the ingenuity and acuteness of the Com- 
 mentators on the Code Civil, as to whether judgments 
 quod computet, judgments removing a tutor, &c, bear 
 hypothec or not, as well as those which arise out of the 
 unlimited effect given to the judicial hypothec, both in the 
 ancient and modern jurisprudence of France, are devoid 
 of immediate interest in this Province. Our law on the 
 subject is clear, simple, and precise.. All judgments 
 awarding a specific sum of money, bear a general hypo- 
 thic for such sum on all the property actually in the pos- 
 session of the debtor, at the time of the rendering of the 
 judgment. So also, judgments containing an adjudication 
 of interest and costs of suit, or of interest and costs only, 
 bear a similar hypothec for such interest and costs, with- 
 out its being necessary to specify in the judgment the 
 sum to which they amount ( c ). No other judgments bear 
 hypothec. • 
 
 117. To render this hypothec valid and operative 
 against subsequent bona fide registered purchasers, or 
 mortgagees, or privileged or hypothecary creditors, for 
 valuable consideration, the judgment must be registered. 
 If it was rendered before 31st December, 1841, a regis- 
 tration made at any time before 1st November, 1844, will 
 
 (a) Poth, Hyp., eh. 1, sect. 1, art. 2 ; DespeisBes, part 3, sect. 3, No, lg. 
 
 (b) Ord. 4 Viet., cap. 30, see. 30. 
 
 (c) Ord. 4 Viet, cap 30, sec. 30. 
 
86 ESSAY ON THE 
 
 be as good and valid as though it had been made imme- 
 diately after the promulgation of the Ordinance, and will 
 save all the rights of the judgment creditor, as though no 
 Registry Law had been passed ( a ) : if that delay have been 
 allowed to expire, or if the judgment be posterior in date 
 to 31st December, 1841, the judicial hypothec, when op- 
 posed to the above mentioned parties, will rank only from 
 the date of its registration ( b ). 
 
 118. If a judgment of an inferior Court, awarding a 
 sum of money, have been registered, and afterwards that 
 judgment be reformed in appeal, and the sum awarded 
 reduced, the hypothec for the reduced amount will sub- 
 sist from the original registration (°). 
 
 119. It is very obvious that a judgment rendered against 
 a Tutor or Curator in those capacities, bears hypothec, 
 when registered, on the property of the minor or interdict 
 only ( d ). A judgment rendered against a husband for a 
 debt contracted by him previous to his marriage, bears 
 no hypothec on those couquets of the community which 
 fall to the share of his wife at the dissolution ; but if the 
 debt had been contracted by him during the marriage, 
 the hypothec would attach on all the conquets of the 
 community ( e ). 
 
 120. The above rules are applicable to such judicial 
 acts and proceedings, as award or secure a specific sum 
 of money ( f ). Among these, recognizances, bail bonds, 
 (except these to the Sheriff,) cautionnements judiciaires, 
 &c, have usually been classed. It may, however, be 
 
 (a) lb. sec. 4 ; 6 Vie. cap. 15, sec. 1 ; 7 Viet, cap. 22, sec. 12. 
 
 (b) lb. ib. ; and Ord. 4 Vict., cap. 30, sec. 1. 
 
 (c) Poth. Hyp., cap. 1, sec. 1, art. 2 ; Ferriere on Paris, 170 ; Troplong, 
 Priv. & Hyp., No. 448 ter ; 1 Grenier, 196. 
 
 (d) Poth., loc. cit. 
 
 (e) Poth., CommunautiS, No. 752, 758 ; Troplong, Priv. et Hyp., Wo. 436 
 ter; Persil, Reg. Hyp., art. 2123, KTo. 29; Per Contra, Eollandde Villar- 
 gues, and some other jurists. 
 
 (f) Ord. i Viet., cap. 30, sect, 80. 
 
REGISTRY LAWS. 87 
 
 be a question whether a judicial bond carries with it 
 such a judicial hypothec as to affect all the property 
 possessed by the debtor at the time of its execution, or 
 whether, under the section governing voluntary hypothe- 
 cations, it ought not to contain a description of the pro- 
 perty the debtofintends to hypothecate. Parties to whom 
 bonds are granted will do well to adopt this lalter view, 
 as the safest, and insist on a special hypothecation of 
 sufficient property to guarantee the debt. 
 
 SECTION III. 
 
 OF CONVENTIONAL HYPOTHECS. 
 
 121- Design. 
 
 122. Mode of hypothecation at Rome and in France. 
 
 123. Reforms introduced by the Ordinance : three rules. 
 
 124. General principles : Who tan grant a valid hypothec. 
 425. What property may be validly hypothecated. 
 
 126. Rank of hypothecs attached to conditional obligations. 
 
 127. Rules of the Ordinance ; the property hypothecated must be spe- 
 
 cially described. 
 
 128. What " description" will suffice. 
 
 129. No hypothec can be granted except for securing the papment of a 
 
 sum of money expressed in the deed. 
 
 130. Comparison with Code Civil. i 
 
 131. Suggestions to creditors when the debt is indeterminate. 
 
 132. Rank of conventional hypothecs. 
 
 133. How the arrears of interest are secured in cases prior to the Or- 
 
 dinance. 
 
 134. How in cases where the hypothec is subsequent to the Ordinance. 
 
 135. Interpretation of a clause in the Statute. 
 
 138. Mode of hypothecating property in free omd common soceage. 
 
 121. It does not form part of the design of this Essay 
 to give a history of hypothecs, or to treat all the interest- 
 ing questions which have been mooted respecting their 
 
88 ESSAY ON THE 
 
 legal effect. A very brief sketch of the leading historical 
 data, and elementary principles, is all that can be 
 attempted. 
 
 122. At Rome, real property could be hypothecated by 
 parol : written deeds of hypothec were merely used as 
 evidence, and were of greater or less vakfe, in proportion 
 to the solemnity with which they had been executed, and 
 the authenticity of their character (a) . 
 
 We find a very different system in operation in France, 
 at the time when the earliest jurists wrote. All authen- 
 tic actes carried with them a general hypothec, whether 
 the formula by which the debtor formally created a hy- 
 pothec was expressed or not. This rule is traced by 
 Loiseau to the habit into which the notaries had been 
 permitted to fall, of coupling the clause binding the 
 property of the debtor, with that binding his person, as a 
 matter of course, and without any express signification 
 of such design on the part of the debtor (b). In point of 
 fact, an acknowledgment of indebtedness and a promise 
 to pay, comprehend, as a matter of necessity, an engage- 
 ment to take all feasible means of effecting payment. 
 This can only be effected out of the debtor's property. 
 In the abstract, therefore, every promise to pay is a hy- 
 pothecation. But as the maxim Prior tempore, potior 
 jure — a rule founded on common sense and equity — pre- 
 vented a Creditor from availing himself of this tacit 
 pledge until his predecessors' claims had been satisfied ; 
 a fraudulent debtor was enabled to avoid payment of his 
 just debts, by confessing a previous liability to a fictitious 
 creditor. Hence the necessity of a rule by whfch the 
 rank of a debt might be unquestionably determined : and 
 hence the law, declaring that hypothecs on real property 
 should only result from those instruments, which, from 
 
 (a) L. 4, Dig. De pig. et hyp. ; Basnage Hyp., ch. XII. 
 
 (b) Loiseau, du Deguerp., liv. 3, chap. 1. 
 
REGISTRY LAWS. 89 
 
 their official character, bore an authentic date. It still 
 remained to make that date a matter of such notoriety, 
 that no interested party could be defrauded through ig*. 
 norance of it. 
 
 123. The defects of the French system, the attempts 
 made to remedy them, and the regime which succeeded, 
 have been mentioned elsewhere (a). Here it will suffice 
 to add that the Ordinance did not fall short of the Code 
 Civil, in remodelling this branch of our Jurisprudence. 
 
 The reforms it established may be reduced to three 
 rules : 1st, All conventional hypothecs must be speeial, 
 and the property hypothecated must be specially des- 
 cribed : 2nd, No voluntary hypothec can be created, ex- 
 cept for securing the payment of a sum of money : and 
 3rd, That sum must be distinctly stated in the deed crea- 
 ting the hypothec (*>). With the exception oft hese three 
 points, our common law remains in this particular as it 
 was before the passing of the Ordinance. 
 
 124. Thus, those only who are capable of alienating, 
 can grant a valid hypothec (e). A married woman can- 
 not hypothecate her propres without the sanction of her 
 husband ( d ) : and if she have granted a hypothec during 
 her coverture, without such sanction, and ratify it after 
 her husband's death, it will rank from the date of the ra- 
 tification only ( e ). A hypothec granted by a minor is 
 not legally valid ; but if ratified by him when he comes 
 of age, it will rank from its original creation (f). The 
 hypothec granted by a Tutor or Curator on the property 
 
 (a) Supra, chap. 1, sect. 1. 
 
 (b) Ord. 4 Vie., cap. 30, sect 28. 
 
 (c) Basnage, ch. 3, No, 3. 
 
 (d) Paris, art. 223. 
 
 (e) Poth., 0out.d'Orl., Tit. 10, No. 144; lb., Obligations, No. 50; lb. He- 
 traits, No. 125 ; lb. Hypotheque, chap. 2, sect. 2, § 2. 
 
 (f) Poth., loe. cit.; Ferriere on Paris, 239; See Basnage, chap. 3, No. 3, 
 for several contradictory arrets. 
 
 M 
 
90 ESSAY ON THE 
 
 of his ward, or the interdicts under his control is only 
 valid when it turns out to have been advantageous to the 
 latter (a). 
 
 No one but the proprietor, or his attorney duly consti- 
 tuted (b) can grant a valid hypothec (c). But when 
 a debtor hypothecates a property which does not be- 
 long to him, and afterwards becomes owner of the 
 same, the hypothec will be valid from its date, (<*) with- 
 out prejudice, however, to hypothecs granted by the real 
 proprietor before his purchase. If, subsequently to the 
 creation of hypothecs by the proprietor, his right of pro- 
 perty determines, and his title is either annulled or be- 
 comes inoperative, Loiseau furnishes a test to ascertain 
 whether such hypothecs continue to attach on the pro- 
 perty or not. "When the proprietor's title," he says, 
 " is annulled in consequence of some cause operating in- 
 " dependently of his will, then the hypothecs contracted 
 " by him cease to exist (sont resolues) ; but, when the 
 " avoidance of his title is an act of volition on his part, 
 " the hypothecs continue to attach" (e). Hypothecs 
 granted by ah heir whose title to the succession turns out 
 afterwards to be bad, and who is compelled to surrender 
 it, are invalid ; resoluto jure dantis, resolvilurjus accipi- 
 entis (f). An heir, greve de substitution, may validly 
 hypothecate the property subject to the substitution : if 
 the substitution takes place, the hypothec ceases to exist 
 from the date of the delivery to the substitue : if, on the 
 contrary, from the death of the latter, or from some other 
 
 (a) Basnage, Hyp., chap. 3, No. 3. 
 
 (b) It is not necessary that tbe power should be a notarial act. A 
 letter is sufficient. Poth, Mandat, No. 28 ; Troplong, Priv. et Hyp., No. 
 510 ; Arret de Cassation, 27 May, 1819. 
 
 (c) Basnage, chap. 3, sec. 3 ; Troplong, Priv. et Hyp., No. 464. 
 
 (d) Basnage, chap. 3, §. 4 ; Merlin, quest, vo. Hypotheque, and auth. 
 there cited. . 
 
 (e) Loyseau, du deguerp., liv. 6, chap. 3, noa. 6, et seq. 
 
 (f) Troplong, priv. et hyp., No. 468. 
 
REGISTRY LAWS. 91 
 
 cause, the property never passes from the grev6, the hy- 
 pothec is as good as if he had been unconditional pro- 
 prietor (a). 
 
 125. All immoveables which are susceptible of being 
 sold, separately and by themselves, may be hypothecated. 
 Thus not only lands and tenements, but rentes foncUres 
 and constituee's, rights of censive and usufructuary rights, 
 are susceptible of being hypothecated (b). And so may 
 an undivided share in any real property (e). It is gener- 
 ally held now that servitudes urbaines cannot be hypothe- 
 cated without the property on which they depend (d). 
 Pothier held that a hypothec, being a real right, could 
 be hypothecated (e); but this has been doubted by 
 writers of grave authority (f). 
 
 126. In treating of conditional obligations to which 
 hypothecs are attached; the French jurists make a dis- 
 tinction between those whose condition is casual, or de- 
 pendent upon chance, and those whose condition is po- 
 testative, or dependent on the will of the debtor. In the 
 former, the hypothec ranks from the date of the execution 
 of the deed (i. e., in our law, from its registration), though 
 the condition be not accomplished till long afterwards (g). 
 In the latter, the general rule is that the hypothec only 
 dates from the performance of the condition (h). But if 
 a banker opens a credit to a merchant, and takes a hy- 
 pothec on his property as collateral security, the hypothec 
 will rank from the execution (i : e : registration) of the 
 deed, though no monies be advanced till some time after- 
 
 (a) Battur, No. 237 ; Persil, reg. hyp., but l'art, 2124, No. IV. 
 
 (b) Poth, Hyp., cap. 1, see. 2 § 1 ; lb., Cout d'Orl, Tit. xx, No. 21. 
 (e) Guenet vs. Roy, S. 0, Quebec, No. 276 of 1851. 
 
 (d) Pardessus, servit, p. 8, No. 6 ; Duchesnay vs. Bedard, 1 L. C. Rep. 43. 
 
 (e) Poth, loe. cit. ; lb, Cout. d'Orl, tit. des criees, No. 141. 
 
 (f) I Pigeau, 822 ; D'Hericourt, Vente, p. 313. 
 
 (g) Ferridre on Paris, 170; Domat, liy. 3, Tit .1, see. 3, No. 17; BaBnage, 
 cap. xi. 
 
 <h) Basnage, eap. xi ; Troplong, Prir. et Hyp., Nos. 474 & 689. 
 
92 ESSAY ON THE 
 
 wards (a) : the reason being, that the banker is presumed 
 in law to have set apart, on the day of the execution of 
 the deed, the sum of money fixed as the limit of the 
 credit, for the special use of his borrower. 
 
 127. Passing to the rules of the Ordinance, it is re- 
 quired, in the first place, that " the lands, tenements or 
 hereditaments, real or immoveable estates," hypothecated 
 or encumbered by a conventional hypothec, be " specially 
 described " in the deed constituting the hypothec (b). 
 Thus, at one blow, general hypothecs, and hypothecs of 
 future property, are abolished. The Code Civil, strictly 
 as it adheres to the principle of speciality, tolerates an 
 indirect mode of hypothecating future property (e) ; but 
 the Ordinance allows no exception to the rule. 
 
 128. Questions may arise as to the nature of the 
 " description" required. If the title of the Ordinance of 
 1667, which requires pleadings to contain a "descrip- 
 tion" of the real estate in litigation (<1), be taken as a 
 guide, it will be found that in the case of lands, it is 
 necessary to state the " bourg, village or hameau" (parish 
 and county, or township, &c. ?) in which they are situ- 
 ate, their size, boundaries on the four sides, and condi- 
 tion, i. e., whether in meadow, wood, or under cultiva- 
 tion, &c. ; and in the case of houses, their neighborhood, 
 situation and boundaries. It was sufficient to state the 
 name and position of an entire and well-known estate or 
 mttairie. 
 
 If reference be made to the article of the Code Civil 
 which declares that no voluntary hypothec shall be valid 
 
 (a) I Grenier, No. 26 ; I Persil Quest, oh. 4 ; IV Pardessus, 281 ; Tarrible, 
 Hypotheque, sec. 2 § 3, art. 6, No. 3 ; XIX Duranton, No. 244; Battur, No. 
 283 ; Arrets dela C. de Cass, 24th Jan., 1814, 26th June, 1814, 12th Jan., 
 183 1 ?, (fee., Ac. Per Contra, Troplong, Priv. et Hyp, No. 4'?8 et seq. 
 
 (b) Ord. 4 Viet., cap. 30, see. 28 ; 0. C, 2129. 
 (cj C. 0, 2130. 
 
 (d) Ord, 166'7, Tit. IX, arts. 3 <fc 4, 
 
REGISTRY LAWS. 93 
 
 unless the deed " specially declares the nature and situa- 
 " tion of each of the immoveables actually belonging to 
 " the debtor, on which he grants the hypothec ( a )," it 
 will be seen that the Courts have held that a hypothec 
 constituted " sur tons les immeubles poss6d6spar un d6bi- 
 " teur dans la commune de Succieu" Q>) was valid : and 
 that a hypothec " sur tons les Mens situes dans la com- 
 " mune de Saint-Sardis" (e) was sufficiently special. 
 Several other arrits in the same sense are to be found in 
 Sirey and Dalloz under the proper heads. 
 
 The true test of the sufficiency of the description would 
 seem to be whether the object of the law— speciality — 
 has been obtained, or whether subsequent hypothecary 
 creditors or purchasers have been misled by a meagre or 
 erroneous description. If doubts may reasonably be en- 
 tertained on view of the Registrar's certificate, as to what 
 property is hypothecated, the Creditor who has contented 
 himself with an imperfect description ought to suffer : if, 
 on the contrary, the property be plainly identified, though 
 errors of detail may occur in the description, the hypothec 
 will be upheld by Courts of Justice. 
 
 129. The second and third rules of the Ordinance are 
 that " no hypothec shall be constituted or acquired for 
 " any other purpose than for securing the payment of a 
 " sum or sums of money ; " and that " the sum of money 
 " intended to be secured by such hypothec" shall be spe- 
 cified in the deed (d). 
 
 130. This provision, like the preceding ones, was bor- 
 rowed from the Code Civil. But the Code adds : " if the 
 " claim resulting from the obligation be conditional as to 
 " its existence, or indeterminate as to its amount, the 
 
 (a) C. C 2129. 
 
 (b) Arret de Grenoble, 27 juillet 182*7, Dalloz 30. 2. 120. 
 (e) Arret de la 0. de Cass., 10 Feb. 1827, Dalloz 29. U 144. 
 
 (d) Ord. 4 Viet., cap. 30, sect. 28 ;. 0. C. 2132. : . 
 
94 ESSAY ON THE 
 
 " creditor shall not inscribe except for an approximate 
 " sum at which he shall state that he estimates his claims ; 
 " which sum may be afterwards reduced, on good cause 
 " shown by the debtor" ( a ). No such exception having 
 been made by the Ordinance, it is clear that a deed 
 evidencing a debt indeterminate as to its amount would 
 carry no hypothec with it. 
 
 131. But there does not seem to be any thing in the 
 law to prevent parlies securing the payment of indeter- 
 minate debts, or the performance of obligations to do or 
 to forbear from any act, by estimating the probable amount 
 of such debt when liquidated, at a certain sum, and 
 obliging their debtor to grant a. hypothec for that sum : 
 or by taking, in like manner, a hypothec for the sum at 
 which the parties shall agree to assess the damages in 
 case of breach or non-fulfilment of their obligation to do 
 or to forbear. The object of the section above quoted 
 being only to notify future creditors or purchasers of the 
 amount of encumbrances on a property, that object may 
 be attained without depriving a creditor of his right to 
 exact a hypothec, in any case in which he could have 
 had one under the old system. Hence there does not 
 seem any reason for doubting that a contractor may 
 validly grant a hypothec as a security for the due fulfil- 
 ment of his contract to build : that an agent may validly 
 hypothecate his property as a security for his faithful 
 administration : or that a merchant may grant a valid 
 hypothec to his banker as a security for advances or dis- 
 counts to be thereafter made (b). But in all these cases 
 the future debt must be approximately estimated at a 
 fixed sum of money, and the hypothec granted for that 
 sum. Any claim , however vague — any obligation, though 
 
 (a) 0. C. 2132. 
 
 (b) Tarrible, Rep., vo. Hypotheque, p. 969; R.~ deVillargues, No. 64, et 
 Beq. ; Dalloz, ch. 2, sect 4, art. 8, No. 16. 
 
registry Caws. 95 
 
 the breach only sound in damages — may thus apparently 
 be secured by a hypothec for a fixed sum : which is in 
 the nature of a penalty or tedit covenanted by the debtor 
 to be paid in case of failure on his part to perform his 
 obligation. 
 
 But if no sum be expressly mentioned in the deed of 
 hypothec, however easy and simple it may be to estimate 
 the creditor's claims, no hypothec will be created. 
 
 132. The general rule with regard to conventional hy- 
 pothecs, is, that when opposed to subsequent bond fide 
 registered purchasers, or hypothecary or privileged credi- 
 tors for valuable consideration, they rank only* from the 
 date of their registration (a). But hypothecs and hypo- 
 thecary rights prior in date to 31st December 1841, if re- 
 gistered before 1st November, 1844, rank from the date 
 of their creation. If they were not registered till after 
 1st November, 1844, they rank against the above mention- 
 ed classes of creditors and purchasers from the date of 
 their registry ( b ). 
 
 133. The registration of a hypothec prior in date to 
 31st December 1841, when effected before 1st November 
 1844, has been held to preserve the creditors hypothecary 
 rights for all arrears of interest due on the obligation or 
 deed {"). 
 
 (a) Ord. 4 Viet., cap. 30, sect. 1. 
 
 (b) lb. 4; 6 Vict, cap. 15, sect. 1 ; 1 Vict, cap. 22 sect. 12. 
 
 (c) Ord. 4 Viet, cap. 30, sect. 4 ; McLaughlin vs. Bradbury, 3 Revue, 
 340 ; Pelletier vs. Michaud, 1 L. C. Rep, 165 ; Latham vs. Kerrigan, ib, 
 489; Regina versus Petitclere, Ib. 284, There -would be, doubtless, 
 some presumption in venturing to assail the doctrine established by these 
 four judgments — recognised, as it has been, by so many and so eminent 
 judges. But still, as one court (that of Montreal in McLaughlin vs. Brad- 
 bury) expressed a contrary opinion, and as their views are shared by many 
 members of the bar, the author may be permitted to quote the word's of 
 16th section, as follows : 
 
 " Provided also, and be it further ordained and enacted, that no creditor 
 " shall be entitled, by reason of any registered memorial of a mortgage, 
 
96 ESSAY ON THE 
 
 134. In all cases of alimentary pensions, life rents, in- 
 terest due on the price of property sold, and rentes fon- 
 cieres and constitutes, granted, created, or constituted 
 since 31st December, 1841, the registration of the credi- 
 tor's title saves his hypothecary right to five years interest, 
 and the current year, " reckoning from the date of such 
 title." In all other cases of hypothecs created after that 
 day, registration preserves the hypothec for two years ar- 
 
 " hypothec, or privilege, to a preference or priority before others, for more 
 " than two years arrears of interest on the debt or capital sum thereby 
 " secured, unless a memorial of his claim for arrears of interest to a spe- 
 " cine amount, beyond'the arrears of two years, shall have been separately 
 " registered as being due under such mortgage, hypothec, or privilege, and 
 " unless such creditor do, at the time of presenting such memorial to the 
 " Registrar, or his" deputy, make oath before such Registrar or his deputy, 
 " (who is hereby empowered to administer such oath,) that the said speci- 
 " fie amount of interest remains due and unpaid to him, or unless an affi- 
 " davit to the same effect be sworn to before one of the Judges of the 
 " Courts of King's Bench? or Common Pleas for this Province, (who is 
 " hereby empowered to take such affidavit) and delivered with such memo- 
 " rial to the said Registrar, or his deputy." 
 
 The Courts have here interpreted the word " Creditor," to mean " cre- 
 ditor claiming under a hypothec created after 31st December 1841." It 
 might be worth while to inquire the motive of a reading of the law so ap- 
 parently arbitrary. Sir James Stuart is reported to have said in McLaugh- 
 lin vs. Bradbury, that the fourth was the only retroactive clause in the law. 
 Why, if such be the case, was the stereotyped restricting clause " from 
 and after the day on which this ordinance shall come into force and effect," 
 omitted in the 16th section? 
 
 Whatever reasons, however, may be urged against these judgments, the 
 point may now probably be considered as settled, as far as the Courts are 
 concerned. Of itB practical effect, an opinion' may be formed from the 
 following case : 
 
 In Regina vs. Petitclerc, (1 L. C. Rep. 284), Derouselle, an Opposant, 
 claimed the amount of an obligation, £100, with 17 years interest thereon, 
 and was collocated accordingly for £202. According to the Registrar's 
 books, his claim was thus one half what it turned out to be ! Had his 
 obligation been for £5000 on a property worth £10,000, his claims would 
 have swallowed up the whole proceeds of Bale, while the ostensible amount 
 of his encumbrance on the property was only half its value 1 Where, 
 under such a reading of the law, lies the advantage of a system of 
 registry ? ' 
 
REGISTRY LAWS. 97 
 
 rears and the current year only, " reckoning from the date 
 of the title" under which the creditor claims (a). Further 
 arrears of interest may be secured by the registration of 
 memorials of the amounts due ; but the hypothec for such 
 arrears only ranks from the registration of the memorial. 
 135. The expression above quoted, "reckoning from 
 the date of the title," must not be misunderstood. It 
 might be supposed at first blush, that it meant to restrict 
 the creditor's hypothecary claim for interest to the two 
 years and current year immediately following the execu- 
 tion of his title (*>). This interpretation might gain weight 
 from its having been formerly a question in France whe- 
 ther the three years granted by the Code Civil in the same 
 language, were those immediately following the date of 
 the hypothec, or those preceding the sale of the property (c). 
 Fortunately, the invariable practice of the Courts will 
 prevent such a point being raised here. The clause in 
 question has always been understood to mean, that the 
 " current year" allowed is to be computed from the same 
 day and month of the year preceding the collocation as 
 that on which the hypothec has been granted ; and there 
 is no doubt to-day that a creditor who has been regularly 
 paid the first five or six years interest on his hypothec, 
 and who afterwards allows his debtor to fall into arrears, 
 can, notwithstanding, claim a hypothec for the last two 
 years and current year, or last five years and current year, 
 according to the nature of his claim. Thus, where a 
 property, hypothecated on 1st February, 1846, is sold on 
 1st June, 1852, the creditor will be entitled to fyle a 
 hypothecary claim for the interest accrued since 1st Feb- 
 ruary, 1850; or, if his claim be on a rente constitute, 
 fonciere, &,c, for the arrears since 1st February, 1847. 
 
 (a) 1 Vict., cap. 22, see. 10. 
 
 (b) It has, in fact, been so interpreted by a Judge in Montreal ; Latham 
 vs. Kerrigan, 1 L. C. Eep., 492. • 
 
 (c) Cow de Riom, 16th December, 1813 ; see Dalloss Hyp., p. p. 409, 410, 
 
 N 
 
98 ESSAY ON THE 
 
 136. A member of the Upper House devised, some 
 years ago, " a short and inexpensive form of hypotheca- 
 tion" of lands, &c, held in free and common soccage, 
 which he incorporated in the act prolonging the delay for 
 the registration of old deeds and documents. It cannot, 
 therefore, be unnoticed here. The clause in question 
 says, that a simple acknowledgment of indebtedness, 
 whereby the intention of the debtor to hypothecate shall 
 be made manifest, shall be a valid hypothecation of the, 
 real property described in such acknowledgment, and of 
 which the debtor is, at the time of its execution, lawfully 
 and by right seized as of his own property. Such ac- 
 knowledgment need not be made before notaries, but 
 may be signed, sealed and delivered by the debtor, in 
 presence of two witnesses. It must distinctly specify the 
 sum for which it is granted. When made in accordance 
 with these rules, it will, like notarial deeds of hypotheca- 
 cation, rank on the property from the date of its registra- 
 tion (*). 
 
 (a) 1 Vict, cap. 22, sec. 11. 
 
CHAPTER IY. 
 
 OF THE REGISTRATION OF PRIVILEGES. 
 18*7. Definition of a privilege : classification. 
 
 137. A privilege is a right possessed by certain cre- 
 ditors in virtue of which they are preferred to all other 
 creditors, whether hypothecary or chirographary, on the 
 proceeds of sale of their debtors' property (a). It is derived 
 from the peculiar favour with which the law regards their 
 claims. Hence the rank of privileges is not determined 
 by their date, but by their nature : privilegia non ex tem- 
 pore, sed ex causa estimantur. 
 
 Privileges have been divided into three classes : those 
 which affect moveables : those which affect immoveables ; 
 and those which attach on both (b). It does not fall 
 within the compass of this Essay to examine privileges 
 on moveables. 
 
 Some privileged claims require registration to preserve 
 the privilege : others exists independently of that formality. 
 
 SECTION I. 
 
 OF PRIVILEGED CLAIMS REQUIRING REGISTRATION TO 
 PRESERVE THE PRIVILEGE. 
 
 138. Enumeration. 
 
 138. The thirty-first section of the Ordinance declares 
 that the following privileged claims must be registered : 
 1st. That of the vendor for the price of the real property 
 
 (a) C. C. 2096; IJasnage, Hyp., ch. 14; Loyseau, Offices, Liy. 3, cb. 8, 
 No.88. 
 
 O) 0. C. 2101, 2103, 2101 
 
100 ESSAY ON THE 
 
 sold by him ; 2nd. That of the lender of money for the 
 purchase of real property, for the repayment of his loan ; 
 3rd. That of heirs or other copartitioners for the warranty 
 incident to the partition, and the soulte and retour ; 4th. 
 That of architects, builders, and workmen, for the price 
 of their labour and materials ; and 5th. That of parties 
 who have lent money to pay such architects, builders, 
 and workmen, for the repayment of their loan. 
 
 How this enactment has been carried out in practice, 
 will be seen in the following articles. 
 
 ARTICLE I. 
 
 OF THE VENDOR. 
 
 139. Privilege of unpaid vendor at Rome and in France. 
 
 140. Cases in which, at common law, the privilege can be claimed. 
 
 141. Provisions of the Ordinance, ordering the registration of tJie vendor's 
 
 142. Seasons why it should not be registered. 
 
 143. A privilege does not rank from its date : if it ranks from its registra- 
 
 tion; it becomes a mere hypothec. 
 
 144. Reasons why the Ordinance did not intend to substitute a hypothec for 
 
 ■ the vendor's privilege. 
 
 145. There is only one possible mode of registering privileges, viz., by fixing 
 
 a delay. 
 
 146. No delay having been fixed for the vendor, must he be assimilated to 
 
 the negligent copartitioner, &c. 2 
 14'7. Reference to the Code Civil : interpretation given to it. 
 
 148. Analogy : the vendor's privilege is independent of registration. 
 
 149. Lamentable results of this decision. Query : whether the point could 
 
 160. Exception : case of property sold to Railway Companies. 
 
 151. This does not apply to vendors prior to the Ordinance, who must 
 
 152. Rule with regard to interest. 
 
 153. Unpaid vendors may demand the restitution of the property. 
 
 154. Contestation between hypothecary creditors and vendor, or several 
 
 vendors. 
 
REGISTRY LAWS. 101 
 
 139. The vendor had no privilege in the Roman law : 
 he was simply entitled to detain the thing sold until he 
 was paid (a). 
 
 The first instance we find in the jurisdiction of the 
 Parliament of Paris, of a vendor being collocated by pri- 
 vilege on real estate, is in a case in July, 1660, reported 
 by Basnage (t). After this date it became a settled point 
 in French jurisprudence, that unpaid vendors must be 
 preferred on the proceeds of the real estate sold by them 
 to all other creditors of their purchaser, for the price (o). 
 
 140. Purchasers who have bought under a covenant 
 to allow the vendor an equity of redemption {clause 'de 
 rem6re), do not enjoy a similar privilege for the sum they 
 are entitled to demand from the vendor, in case he re- 
 deems the property ;' there being no new sale, but only an 
 extinguishment of the old one (<*). A "majority of the 
 modern French writers concur in the opinion, that no 
 such privilege exists in the case of exchanges of real 
 estate ( e ), unless a soulte, or difference, or return in mo- 
 ney be stipulated, in which case the transaction has the 
 features of a sale, as well as those of an exchange (*). 
 
 141. The Ordinance says that " the privileged creditors 
 " of whose privileges and privileged rights and claims, 
 " memorials shall and may be registered in pursuance 
 " of this Ordinance, are, and shall be adjudged to be the 
 " following, that is to say, firstly, the vendor upon, and in 
 " respect of the real estate sold by him for the recovery 
 
 (a) L. 1, § 4, D, de minor. ; II. Poth. Pand, 161, No. 6 ; Poth. Hyp., chap. 
 1, Bee. 1, act 3, in fine; Basnage, Hyp., p. 61. 
 
 (b) Basnage, Hyp, chap. 14, p. 66. 
 
 (e) Poth. Hyp, ch. 1, see. 1, art. 3, in fine ; lb, ib, eh. 2, sec. 3 ; lb, Cout. 
 d'Orl, Tit. 20, No. 19 ; Domat, iiv. 3, Tit. 1, sec. 5, No. 4. 
 
 (d) Poth, Vente, No. 412 ; Troplong, Prir. et Hyp, No. 214. 
 
 (e) Troplong, Ib, No. 200 bis, 215 ; Persil, Reg. Hyp, sur 1'art 2103, 
 § 1, No. 11 ; Duranton, No. 155 ; Battur, No. 69 ; Per contra, Dalloz, Hyp, 
 p. 49, No. 9. 
 
 (f ) Troplong, priv. et hyp. No. 215 ; S Delvincourt, 280. 
 
102 ESSAY ON THE 
 
 " of the price thereof," ( a ) and declares that every "deed, 
 " conveyance. . . . privileged and hypothecary right and 
 " claim .... which shall, after the day last mentioned 
 " (31st December 1841,) be entered into .... acquired 
 " or obtained, shall be adjudged to be inoperative, void, 
 " and of no effect against any subsequent bond fide pur- 
 " chaser, grantee, mortgagee, privileged or hypothecary 
 " creditor or encumbrancer, for or upon valuable consider- 
 " ation, unless such memorial thereof as by this Ordi- 
 " nance is prescribed, shall have been registered before 
 " the registering of the memorial of the deed, conveyance, 
 " notarial obligation, contract, instrument in writing, 
 " judgment, judicial act or proceeding, recognizance, 
 " privileged or hepothecary right or claim, or encum- 
 " brance under which such subsequent purchaser, grantee, 
 " mortgagee, privileged or hypothecary creditor or encum- 
 " brancer shall claim." Q>) 
 
 This seems clear enough ; and, if to these clauses be 
 added the section of the subsequent Statute, enacting that 
 " the registration of the creditors title shall have the effect 
 " of saving his hypothec or privilege for five years inte- 
 " rest or arrears, and those for the then current year" . . . 
 in the case of " any real property sold for a sum payable 
 " at any fixed term or terms, or sold for an irredeemable 
 " ground rent, or for a perpetual but redeemable rent, 
 " commonly called a rente constitue " (°) — evidently show- 
 ing that the registration of deeds of sale by the vendor 
 was contemplated by the Legislature — it may probably 
 appear strange that in the face of such enactments, the 
 Courts should have held that the vendor was not required 
 to register. 
 
 142. Such, however, is the case. And on a review of 
 
 (a) Ori 4 Vict, c. 30, s. 81. 
 
 (b) lb., s. 1. 
 
 (o) 1 Vict., c. 22, b. 10. 
 
REGISTRY LAWS. 103 
 
 the reasons which may be urged in support of their judg- 
 ments, it cannot be denied that they possess great weight 
 and cogency. 
 
 143. In the first place, it is of the essence of a privi- 
 lege that in consideration of the favour with which the 
 
 ' law regards its cause, it ranks before all hypothecs 
 granted by the party by whom it has been created : and 
 this, independently of the time of its creation, (a) Destroy 
 this particular characteristic — make its lien on the pro- 
 perty operative from a certain day only — and the privilege 
 ceases to exist. It is no longer a privilege, but a mere 
 hypothec. If therefore, the rank of the privilege depends 
 on its registration, as would appear to be the case from 
 the above quotations from the Ordinance, the real effect 
 of that law has been to do away with the privilege of the 
 vendor altogether. 
 
 144. Such an intention is not easily reconciled with 
 the language of the 31st section already quoted. And if 
 it were still argued that it was the design of the Ordi- 
 nance to abolish a privilege which it recognises and con- 
 firms in the most emphatic terms — -it is unlikely that a 
 Court of Justice would lightly venture on despoiling a 
 large class of the community of rights which are firmly 
 established in our common law, and are founded on the 
 soundest reasons of public policy and equity, without a 
 direct, positive enactment to that effect. Something 
 more than the general expressions of the 1st section would 
 be expected by a judge, who was called upon to reduce 
 the vendor to the rank of a mere hypothecary creditor, 
 and thus to place a fatal check on the transmission of 
 property. 
 
 145. Again, ! it is true that equally powerful reasons 
 may be adduced in favour of the registration of privi- 
 
 (a) Poth. Hyp., Art. Pr61. ; lb. ib, c. 2, d. 3 ; Domat, liv. 3, s. 6, No. 2 ; 
 BaBnage, oh. XIV., p. 62. 
 
104 ESSAY ON THE 
 
 leges, as of hypothecs ; the interest of lenders and pur- 
 chasers requires that all encumbrances, as well those 
 which are privileged as those which are not, should 
 appear in the Registers. It is also obvious that it must 
 be made the interest of the creditor in all cases to register, 
 and that a certain penalty must be attached to his neglect. 
 Thus far, hypothecs and privileges agree ; but the same 
 mode of registration cannot apply to both. Hypothecary 
 creditors cannot object to their claims being made to rank 
 from the date of the registration, inste.ad of that of the 
 execution of their hypothec ; but the vendor or architect 
 would have just grounds of complaint, if their privileges 
 were taken from them, and a mere special hypothec, 
 ranking from the date of its registration, granted them 
 in its stead. The only possible compromise between the 
 demands of publicity on the one hand, and the just rights 
 of privileged creditors on the other, is the course which 
 has been adopted in the case of the copartitioner, the 
 builder, and his assignee. A delay is fixed within which 
 they are required to register ; if they do so, their privilege 
 exists as though no registry law had been passed; if 
 they fail to do so, their privilege is taken from them as a 
 penalty for their neglect, and they are only entitled to a 
 mere hypothec ranking from the date of its registration. 
 
 146. No such delay is fixed for the vendor. He can- 
 not therefore be governed by the rule which obtains with 
 respect to other privileges. Must the vendor, who exer- 
 cises due diligence, and is ready and willing to comply 
 with the requirements of the law, be placed on the same 
 level with the copartitioner and architect who have wil- 
 fully neglected and violated it ? 
 
 147. If a clue to the intentions of the framer of the Ordi- 
 nance is to be found in the Code Civil, which, like the Or- 
 dinance, obliges the vendor to inscribe his privilege, but 
 does not specify any period within which such registra- 
 
HEGISTRY LAWS. 105 
 
 tion must be effected (a), j,t will be found that in France, 
 it has always been held that so long as the property 
 remained in the hands of the purchaser, the vendor could 
 inscribe, and claim priority, in virtue of his privilege, 
 over hypothecary creditors who had registered before 
 him. ( b ); but that he could no longer beneficially ins- 
 cribe, after the alienation of the property by the purchaser, 
 such alienation having had the effect of discharging all 
 unregistered encumbrances on the property (o). The 
 effect here attributed to alienations is a consequence of 
 the article of the Code Civil, which states, that " Creditors 
 who have a registered privilege (privilege inscrit) or 
 hypothec upon an immoveable follow it into whatever 
 hands it passes ;" (<i) thus intimating tacitly that privi- 
 leges which are not inscribed do not-follow the property 
 when it changes hands. 
 
 148. But this article is an innovation upon the common 
 law, at which all hypothecs and privileges continue to 
 attach upon property, no matter how often it changes 
 owners ( e ). We have, in our law, no rule or enactment 
 of similar import to the article of the Code. TJie grounds, 
 therefore, upon which the vendor's right to inscribe his 
 privilege is made co-existent with the purchaser's tenure 
 of the property, in France, are unknown to our jurispru- N 
 dence, and the inference drawn from them is inappli- 
 cable here. In Lower Canada, nothing but a judgment 
 of ratification, or a Sheriff's sale can discharge a hypo- 
 
 (a) C. 0, 2108 ; Aliter, in the Code of Louisiana, arts. 3238, 3240. 
 
 (b) Troplong, Prir. et Hyp., No. 2*79 ; Duranton, No. 170, 210 ; Dalloz, 
 ch. 1, sect. 4, art. 1, § 3, No. 16, and arrets there quoted. 
 
 (e) Troplong Priv.et Hyp., Nob. 280, 896, et s. ; XVI Merlin, to. Inscrip- 
 tion, p. 451 ; II Grenier, 617. 
 
 (d) C. 0., 2166. Other rules no-w obtain in France, in consequence of 
 the 834 art. of the Code of Procedure ; but they are irrelevant to the ques- 
 tion at issue in the text. 
 
 (e) Poth. Hyp, cap 2, art. pre!. ; Paris, 101, 114, <fcc, and Ferriere there- 
 upon ; Basnage, &e. 
 
 O 
 
106 ESSAY ON THE 
 
 thee or privilege. Keeping this distinction in view, if 
 we construe the section of the Ordinance as the analo- 
 gous article of the Code has been construed in France, 
 it will appear that the vendor is bound to register ; but 
 that he is always in time to do so, until the property is 
 purged in due course of law, and that his registry has a 
 retroactive effect to the day of the sale. This amounts, 
 it is hardly necessary to say, to exempting him from 
 registering altogether. 
 
 On some such grounds, the Courts, both of original and 
 appellate jurisdiction, have held that the privilege of the 
 vendor does not require registration to preserve it ( a ) . 
 
 149. To point Wit that these decisions are diametrically 
 contrary to the spirit and object of the Registry Law — 
 that they fortify instead of destroying the secret encum- 
 brance system — is to assert a proposition which must 
 strike every reader. Still — between Scylla and Charyb- 
 dis — the letter and the spirit of the law — the rights of un- 
 paid vendors on the one hand, and the interest of hypo- 
 thecary creditors and purchasers on the other — it will 
 probably be admitted that the Courts have pursued the 
 safest and least inconvenient course of those which the 
 imperfections of the law offered them. The real source 
 of the difficulty — the omission of a delay for the vendor " 
 to register — has been elsewhere noticed (*>) . Until the 
 Legislature has supplied this deficiency, the Province 
 will not reap the full benefits of a system of Registry. 
 
 (a) In re Sleaven, 8 Revue 56 ; Shaw vs. Lefurgy, 1 L. C. Rep. 5, and 
 Wilson and Atkinson, 2 L. C. Rep. 5 ; Routier vs. Lachance, No. 482 of 
 1851, S. C. Q. Judgments are said to have been rendered by the old Court 
 of Queen's Bench, deciding that the vendor was bound to register ; but I 
 have not been able to find any trace of them. Mr. Justice Aylwin and 
 Mr. Justice Duval dissented from the judgments in S"haw vs. Lefurgy, and 
 Wilson and Atkinson : and Sir Jas. Stuart is believed to concur -with 
 them. The Judges who sat in these cases were the Honbles J. Rolland, 
 Panet, Duval and Meredith. 
 
 (b) Supra No. 22. 
 
REGISTRY LAWS. 107 
 
 150. Parties who, having sold lands to a Railway- 
 Company, are obliged or consent to allow the whole or a 
 portion of the .price to remain on the lands, require to 
 register the deed of sale in order to claim a privilege on 
 the Railway and the tolls (a). 
 
 151. The foregoing remarks apply only to sales made 
 after the passing of the Ordinance. In cases where the 
 privilege existed before 31 Dec. 1841, if the vendor have 
 failed to register before 1st November 1844, his privilege 
 cannot be invoked to the prejudice of subsequent bond 
 fide hypothecary creditors or purchasers for valuable con- 
 sideration, who have registered before him (t>) . 
 
 152. According to the laws in force before the Ordi- 
 nance was passed, the vendor was privileged for all the 
 interest due on the price of. the property sold (") The 
 Ordinance declared that no " creditors should be entitled 
 by reason of any registered memorial of a... privilege, to 
 a preference... over other creditors for more than two 
 years arrears of interest and the current year" ( d ) : and a 
 subsequent statute enlarged this period, in the case of 
 purchase money of real property, to five years and the 
 current year, which are secured by registration of the 
 deed of sale ( e ) . It is understood that these enactments 
 were prospective only : the fourth section of the Ordi- 
 nance being, according to Sir James Stuart, the only 
 retroactive provision in that law (*)• Since, however, 
 the vendors claim for the principal of his debt is now 
 considered to be valid against registered purchasers or 
 
 (a) 14 & 15 Vict., cap. 51, sect. 11 ter. 
 
 (b) Ord. 4 Vict., c. SO, s. 4 ; Dionne vs. Soucy 1 L. C. R. 3 ; Ensor vs. 
 Orkney 1481 of 1851, S. C. Q. 
 
 (c) Basnage Hyp., ch. 6, p. 16; 1 Despeisses, Tit. Achats et Ventes ; D'Heri- 
 court, ch. 11, sect. 2, No. 39. 
 
 (d) Ord. 4>Vict., ch. 30, s. 16. 
 
 (e) 1 Vict., c. 22, s. 10 ; Latham vs. Kerrigan 1 L. C. Rep. 489. 
 
 (f) Dictum of Stuart, Ch. J, in Bradbury vs. McLaughlin. 
 
108 ESSAY ON THE 
 
 mortgagees without registration, semble that no registry 
 is required to preserve his privilege for interest. 
 
 The Registration of deeds of sale anterior to 31 Dec. 
 1841 is held to preserve the creditors claim for all the 
 interest due at the time of such registration, and that to 
 accrue afterwards ( a ). 
 
 153. Besides this privilege, vendors had, in France, 
 the right of demanding that the contract of sale be annulled 
 and set aside, in consequence of the purchaser's failure 
 to pay the purchase money. Q>) 
 
 154. The privilege of the vendor is preferred to all 
 hypothecs granted by the purchaser. When several ven- 
 dors claim to be collocated by privilege on the same im- 
 moveable, the first is preferred to the second, the second 
 to the third, and so on. 
 
 ARTICLE II. 
 
 OP THE LENDER OF MONEY TO PAY THE VENDOR. 
 
 156. Origin of the privilege. 
 
 166. "When properly subrogated, the lender enjoys the same rights as the 
 
 vendor. 
 15*7. Period which must elapse between the deeds of loan and purchase. 
 158. Rule as to registration. 
 
 155. By the law of Canada, he who furnishes a pur- 
 chaser with money for the purchase of real property, may, 
 on certain conditions being fulfilled, enjoy the same pri- 
 vilege for securing the repayment of his loan as the 
 vendor. This was the law in the jurisdiction of the Par- 
 
 (a) See supra, clt. -3, sect. 3, No. 133. 
 
 (b) 1 Despeisses last sect., No, 19 ; Poth. Vente No. i% ; Trtfplong Priv. 
 Hyp., No. 222. 
 
REGISTRY LAWS. 109 
 
 liament of Paris (a), and has been adopted, without modi- 
 fication, by the Ordinance. 
 
 156. The conditions specified by the latter are, " that 
 it be ascertained by the instrument or writing evidencing 
 the loan, that it was intended to apply the money to the 
 purchase of real estate, and, by the acquittance of the 
 vendor, that the payment of the price was made by and 
 with the money so lent and advanced" (*>). 
 
 When the deeds «ef loan and of discharge establish 
 these facts, the lender is subrogated pleno jure in the 
 room and stead of the vendor (o), and, like him, is pre- 
 ferred to all other creditors. If the vendor had only been 
 paid a portion of the price by the bailleur or lender, who 
 was subrogated for such portion, the vendor would rank 
 before him for the balance remaining unpaid ( d ). Cre- 
 ditor non videtur cessisse contra se. It would be 
 different if the vendor had ceded or sold a portion of his 
 claim. ( e ) 
 
 157. No subrogation will take place, if the period of 
 time which elapses between the loan and the purchase 
 is unreasonably long. Various periods are assigned by 
 the old writers, from Renusson, who states that both 
 transactions must take place on the same day (f), to the 
 authors quoted in the Repertoire, who consider a delay of 
 ten days not too long (g). The real test, in such cases, 
 
 (a) Reglement du Parlement de Paris, 6 Juillet 1690; Louet, Lettre 
 H, Somme 21 ; Loyseau Offices, liv. III., ch. 8, Ho. 44. « 
 
 (b) Ord." 4 Vict., e. 30, see. 31 ; C. C. 2103. 
 
 (e) Troplong P. & H., Hos. 229, 230; VII Toullier, Ho. 129; Dalloz, 
 Ho. 20 ; Tarrible, &c. 
 
 (d) Troplong P. <fe H., Ho. 233 ; XIX Duranton, Ho. Vtt ; Dumoulin, 
 de cont. usur., quest. 89. 
 
 (e) Wurtele vs. Henry and Campbell, Op., 1983 of 1851, S.O. Q. Trop- 
 long, priv. et hyp., Ho. 367 ; Duranton, Ho. 228. 
 
 (f) Renusson, ch. IX, Ho. 12. 
 
 (g) Racquet, Droits de Just, ch. II, Ho. 241 ; Repertoire to. Subrogation, 
 p: 37, col. 2. 
 
110 ESSAY ON THE 
 
 will be to ascertain whether it is likely and probable that 
 the purchase was actually made with the money borrow- 
 ed, or with money derived from another source. 
 
 158. It is obvious that the privilege of the lender of 
 money to pay the vendor is not a separate and distinct 
 privilege. It is, in reality, the privilege of the vendor, 
 exercised by his assignee. The same rules will there- 
 fore apply to its registration as to the case of the vendor. 
 If the transaction out of which the »privilege grew, was 
 anterior to 31st December, 1841, the lender of money, 
 who has neglected to register before 1st November, 1844, 
 will be postponed to subsequent bona fide hypothecary 
 creditors, or purchasers, for valuable consideration, who 
 have registered before him. If, on the contrary, the loan 
 and purchase were subsequent to .31st December, 1841, 
 the same reasons exist for exempting the lender from 
 registering, as have been above applied to the case of 
 the vendor. 
 
 ARTICLE III. 
 
 OF HEIRS AND COPARTITIONEES. 
 
 159. Origin of the privilege. 
 
 160. On what property it attaches. 
 
 161. It must be registered within thirty days. 
 
 162. Case of contestation between vendor and copartitioner. 
 
 159. Equality is of the essence of partitions (»). Hence 
 where the lots which fall to the share of the several co- 
 heirs or co-proprietors, by the partition, are unequal in 
 value, it is usual to stipulate that a soulte, or return in 
 money, shall be paid by the owners of the most valuable 
 (a) Poth. communantS, No. 716. 
 
REGISTRY LAW. Ill 
 
 lots to those whose share of the common property is the 
 least : and the law secures the payment of such soulte 
 or return in money by a privilege on the lots of those who 
 agree to pay it (a). By a similar privilege, the warranty 
 incident to the partition, which copartitioners are bound 
 in law to hold out to one another, is also secured (b), and, 
 in like manner, in cases of sales by licitation, where the 
 purchaser is one of the heirs or copartitioners (e), the price 
 of the property sold is a privileged claim thereon (<1). 
 
 160. These privileges have been expressly recognised 
 by the Ordinance (e). The claim of the creditor of the 
 soulte or return in money is privileged upon the lots of 
 those of his coheirs or copartitioners who have agreed, 
 at the partition, to pay it. The privilege for the warranty 
 attaches upon each separate lot into which the property 
 is divided ; each copartitioner being bound to guarantee 
 his copartitioner's title. *The privilege for the price of a 
 property sold by licitation attaches upon the whole of 
 such property. 
 
 161. But the property is not held in law to be incum- 
 bered by such privileges, unless a memorial of the same 
 be registered within thirty days from the partition ( f ), or 
 sale by licitation (g). The day on which the partition or 
 sale by licitation is made is not iucluded in the thirty (b). 
 
 (a) Lebrun, successions, liv. 4, chap. 1, No. 34 ; Basnage, hyp., chap. 6, 
 p. 14 ; Eepre. vo. hypotMque, p. "798 ; Poth., successions, chap. 4, art. 5, § 4. 
 
 (b) lebrun, ib. Wo. 60 ; Poth. Vente, Nos. 633, et seq. 
 
 (c) If the property were sold to a stranger, the creditors of the price 
 •would enjoy the vendor's privilege for securing it. Duranton, No. 211, 
 Dalloz, No. 6. 
 
 (d) Poth, hyp, chap. 1, sect. 1, art. 3. 
 
 (e) Ord. 4 Vict, cap. 30, sects. 31, 32. 
 
 (f) For an elaborate argument as to the moment when the partition 
 takes place, see Troplong Priv. et Hyp, No. 318 bis. 
 
 (g) Ord. 4 Vict, cap. 30, sect. 32 ; C. 0, 2109, which fixes 60 days as the 
 delay. 
 
 (h) Troplong Priv. et Hyp, Nos. 295, et s, refuting Merlin to the con- 
 trary. 
 
112 ESSAY ON THE 
 
 If the copartitioners, or vendors by licitation, have 
 allowed this delay to elapse without registering, their 
 privilege is lost. Their claims, however, still retain a 
 hypothecary character, and rank on the property divided, 
 as special hypothecs, from the date of their registra- 
 tion (a). 
 
 The above applies to cases of partitions and sales by 
 licitation, subsequent to 31st December 1841. Cases 
 which occurred previous to that date are governed by the 
 same rules as sales prior to the Ordinance (b). 
 
 162. It is hardly necessary to observe that, the privileges 
 of the vendor and copartitioner being derived from the 
 same source, and identical in their nature, should a con- 
 testation occur between them, the preference must be 
 given to the most ancient in date ( e ) . 
 
 ARTICLE IV. 
 
 OF ARCHITECTS, BUILDERS, AND WORKMEN. 
 
 163. Origin of the Privilege. 
 
 164. For what claims it exists. 
 
 165. Means adopted for the prevention offrauds._ 
 
 166. Interpretation of a clause in tlie Ordinance. 
 
 Ifft. Both Procis-Verbauxmust be registered within thirty days. 
 168. Contestation between architect and vendor, &c. 
 
 163. The Emperor Marcus Aurelius was the first who 
 gave parties who advanced money for the construction of 
 buildings a tacit hypothec thereon for the repayment of 
 their loan, (d) His senatus-consultum was adopted by 
 
 (a) Ord. 4 Vict., 30, sect. '32; C. 0, 2113. 
 
 (b) Ord. 4 Vict., cap. 30, sect. 4; supra, No. 151. 
 
 (e) Dalloz, ch. 1, sect. 3, art. 1, §. 2, No. 3 ; Troplong, Priv. et Hyp., 
 No. 81. 
 
 (d) L. 1, D. in quib. caus. pig. vel hyp. tac. const. 
 
REGISTRY LAWS. 113 
 
 most of the French Parliaments, and a privileged hypo- 
 thec, as it was then called, was granted as well to the 
 builder who had repaired or constructed an edifice, as to 
 the capitalist who had advanced the funds required for 
 such works. ( a ) The Ordinance confirms this privilege 
 to " architects, builders, or other workmen employed in 
 " the building, rebuilding or repairing, of buildings, ca- 
 " nals or other erections or works." (*>) It has been held 
 that the language of the Code Civil, of which that of the Or- 
 dinance is a mere translation, did not extend to clearances 
 of wild lands, agricultural ameliorations, or mines ; and 
 special laws have been passed in France to extend the 
 privilege to these cases. ( c ) 
 
 164. It exists for the amount due to such architects, 
 builders, and workmen — a quantum, meruit, it is presu- 
 med, for their labour and materials : and attaches on the 
 buildings or constructions made or repaired by them," to 
 the extent of the increased value given to the premises 
 by their works — in quantum res pretiosior facta est. In 
 other words, if the balance due to the workmen is less 
 than the increased value given to the premises by their 
 works, they have a privileged claim for the whole of such 
 balance ; if, on the other hand, the sum due to them is 
 greater than the increased value their works have given 
 to the premises, their privilege can only be exercised on 
 the amount of such increased value, and they are chiro- 
 graphary creditors for the balance. The increase in value 
 is to, be computed at the time of the alienation of the pre- 
 mises by the proprietor, (d) 
 
 165. The necessity of providing against fraudulent 
 agreements between proprietors and builders, whereby 
 
 (a) Brodeau sur Louet, Lettre H., Somme 21, No. 3. 
 
 (b) 0rd."4 Viet., o. 30, s. 31 ; C. 0, art. 2103. 
 
 (c) Troplong, Priv. et Hyp., No. 242 bis. 
 
 (d) Ord. 4 Vic, ch. 30, s. 31 ; Basnage, oh. XIV; D'H&ioourt, Veate, 
 ch. XI, s. 1, No. 1 ; Loyseau, DeguerpiBBement, lav. VI, ch. 9, No, lfi. 
 
 P 
 
114 ESSAY ON THE 
 
 the creditors of the former were injured, obliged the 
 Chatelet of Paris to decide, in 1690, that no workman 
 should be entitled to a privilege, unless he could show a 
 notarial agreement, or devis et marche. This was after- 
 wards found insufficient to prevent the commission of 
 frauds ; and a reglement was issued by the Parliament, in 
 1766, providing a safe and reliable method of ascertain- 
 ing the nature and value of the works actually performed 
 by the builder ( a ). On the basis of this reglement the 
 rules-of the Code Civil (k) and of the Ordinance have been 
 framed. Its tenour cannot be more concisely, or more 
 explicitly given, than in the words of the latter. The 
 privilege shall exist, says the 31st section, " provided 
 " that by an expert, named by any Judge for the Court 
 " of King's Bench for the district, or by the Judge of the 
 " District Court in the judicial district within which the 
 " buildings or premises are situated, (Judge of Superior 
 " Court, or Circuit Court of the Circuit in which. &c. ?), 
 " there shall have been previously made a proces verbal, 
 " establishing the state of the premises in respect of the 
 " works about t<* be made ; and provided also, that within 
 "six months after the completion of such works, the 
 " same shall have been received, and accepted by an ex- 
 " pert in like manner named." 
 
 It is further requisite that the architect, builder, or 
 workman, who is desirous of exercising his privilege, 
 should show that both the above-mentioned proces ver- 
 baux have been registered, the latter of the two within 
 thirty days from its date (°). When they are so regis- 
 tered, the architect, builder, or workman, has the first 
 claim on the improvements made by him. 
 
 166. Some obscurity has been created by the clause 
 
 (a) 1 Pigeau, 810. 
 
 (b) C. C, 2103. 
 
 (o) Ord. 4 Vict., cap. SO, sec. 82 ; Elisor vs. Orkney, No. 1481 of 1851 ; 
 Kilbride vs. McAllister, No. 1T38 of 1851. 
 
REGISTRY LAWS. 115 
 
 in the Ordinance which states that the architect's privi- 
 lege "shall be accounted from the registration of a 
 memorial of the first proc€s verbal." It has already been 
 observed, that privileges do not rank according to their 
 date, but according to their nature — that their peculiar 
 properly is to precede prior hypothecs. If, therefore, the 
 architect's privilege upon the works erected by him is 
 postponed to the hypothecs of creditors prior in date to 
 the commencement of such works, it is no longer a privi- 
 lege, but a mere hypothec. 
 
 The question is fortunately not new : the Code Civil, 
 like our Ordinance, declares that the privilege shall exist 
 " d. la date de V inscription du premier prods verbal" (a) . 
 Tarrible, Grenier, Favard, and Rolland de Villargues are 
 of opinion, that these words mean nothing, and are a 
 vice de redaction : Troplong, Persil, Dalloz, and Delvin- 
 court, on the contrary, while they admit that the privi- 
 lege of the builder must be preferred to all hypothecs 
 prior to the beginning of the works, hold that it should 
 rank after hypothecs granted after the commencement of 
 the works, but before the registration of the first Prods 
 Verbal. (*>) Lenders, they argue, must not be misled by 
 the negligence of the builder, and be induced, from an 
 ignorance of his privilege, to believe the pledge offered 
 them of greater value than it really is. This latter senti- 
 ment would appear to have been uppermost in the mind 
 of the framer of the Ordinance when the clause in ques- 
 tion was inserted. # 
 
 167. However this be, it is clear that the privilege of the 
 builder, when duly preserved by registration of both Prods 
 Verbaux, is preferred on the works made by him, to all prior 
 hypothecs on the property. But, if the thirty days imme- 
 
 (a) C. 0, Si 10. 
 
 (b) Troplong, P. and EL, Nbs. 322 et s. ; Persil, Reg. Hyp, on art. 2110, 
 No. 3; Dalloz, Hyp., pp. 43, 114; III, Delvincourt, 288. 
 
116 ESSAY ON THE 
 
 diately following the date of the second Proces Verbal 
 are allowed to elapse without the registration of a memo- 
 rial of the builders' privilege, it is lost for ever. Like the 
 copartitioner, he may still, by a tardy registration, pre- 
 serve a hypothecary claim on the works for his debt ; but 
 his right of priority over prior hypothecs is irretrievably 
 destroyed. ( a ) 
 
 When the works were made "before 31st Dec. 1841, the 
 builders' privilege is subject to the same rules as the ven- 
 dors. ( b ) 
 
 168. It is obvious that in the case of a contestation be- 
 tween a builder and a vendor, or a builder and a copar- 
 titioner, the only mode of determining their respective 
 rights will be by a ventilation. The vendor or coparti- 
 tioner is entitled to rank before all other creditors on the 
 premises as they were before the commencement of the 
 works ; the builder occupies the first rank on the im- 
 provements made by him ( c ). 
 
 ARTICLE V. 
 
 OP THE PARTY LENDING MONEY TO PAY ARCHITECTS, 
 BUILDERS, OR WORKMEN. 
 
 169. The lender of money must be subrogated in the room and stead of 
 the architect or builder. 
 
 169. The position of parties who lend money for the 
 payment of architects, builders and workmen, is identical 
 with that of the creditors whose claims they discharge, 
 
 (a) Ord. 4 Viet., cap. 30, sect. 32. 
 
 (b) lb., s. 4 ; see supra, No. 161 ; and post, No. 175. 
 
 (c) Bedard vs. Dugal, No. 2Q01 of 1851, S. C. Quebec. 
 
REGISTRY LAWS. 117 
 
 when the proper means are taken to subrogate them in 
 their room and stead (a) 
 
 Such means are prescribed by the Ordinance. The 
 intended application of the money lent must be ascer- 
 tained by the instrument or writing evidencing the loan, 
 and it must be proved by the acquittance of the work- 
 men, that they were paid and satisfied by and with the 
 money so loaned (b). 
 
 All the remarks made on the case of the lender of 
 money to pay the vendor, will apply to this class of pri- 
 vileged creditors (<=). 
 
 SECTION II. 
 
 OF PRIVILEGED CLAIMS NOT REQUIRING REGISTRATION 
 TO PRESERVE THE PRIVILEGE. 
 
 110. Privileges which attach on moveables do not require to be registered. 
 
 111. Nor seigniorial rights or claims. 
 
 172. Nor arrears of rentes fonciires or ground rents. 
 
 113. Nor municipal assessments. 
 
 11 4. Nor city rates in the City of Quebec. 
 
 US. Nor the claim of Ser Majesty for the amounts lent to the sufferers 
 by tlie fires at Quebec. 
 
 170. Those privileges which attach as well on move- 
 ables as on immoveables — or rather, which attach on the 
 latter only in default of the former — are exempted from 
 registration ( d ). 
 
 Such are the privileges by which the law secures the 
 payment of 
 
 1st. The expenses of affixing seals for safe custody, 
 
 (a) Arret de reglement of 11 Aug. 1166 ; 1 Pigeau, 810. 
 
 (b) Ord., 4 Viet, cap, 30, sect. 32. 
 (o) Vide supra, Nos. 136, et seq. 
 (d) Ord. 4 Vict, cap. 30, s. 2. 
 
118 ESS AY ON THE 
 
 and for making an inventory, when required by law ; 
 which rank before the claims of all other privileged 
 creditors when they haye been beneficial to them (a). 
 
 2ndly. The costs of suit incurred for the common bene- 
 fit of creditors ( b ). 
 3rdly. Funeral expenses, providecj, they amount to a 
 moderate sum, and have not been extravagantly incurred. 
 They include the cost of the coffin and hearse, the hire of 
 persons to watch the corpse, the cost of the church ser- 
 vice (°), and the mourning of the widow (<!). 
 
 4thly. The expenses of the last illness of the debtor, 
 due to physicians, surgeons, apothecaries, and nurses (e). 
 
 And 5thly. Servants' wages for a period not exceeding 
 two years. In the jurisdiction of the Chatelet, this privi- 
 lege existed for one year's wages only, and was not en- 
 joyed by any but town servants ( f ). The Code Civil 
 grants it to " gens de service" which is interpreted by 
 the commentators to include clerks, secretaries, agents 
 and employes who are hired by the year (g). " Gens de 
 service" is not, however, precisely identical with servants. 
 
 171. Besides these claims, which it would be difficult, 
 if not impossible, to register, the law exempts from that 
 formality all seigniorial dues, rights; servitudes, reserva- 
 tions, or services, whether legal or conventional. This 
 includes the seignior's claim for arrears of cens et rentes, 
 
 (a) Domat Liv., Ill, Tit 1, see. 5, No. 25 ; I Pigeau, 682. 
 
 (b) lb. ib. ; Poth., Proo. civ., part 4, oh. 2, art. 12, § 2. 
 
 (c) Basnage, Hyp., ch. 9 ; Poth., proe. civ., loc. cit. ; Rousseau de la Combe, 
 vo. Frais Fune"raires ; II Bourjon, p. 681, No. 64. 
 
 (d) Poth. Communante, No. 678 ; Lebrun and Renusson, in eod. sens.; 
 Per Contra, Basnage. 
 
 (e) Basnage, ch. 9; Brodeau sur Lonet, Lettre C, sec. 29, No. 4; Bac- 
 quet, Droits de Justice, ch. 21, No. 274 ; Poth. Proo. Civ., part 4, ch. 2, art. 
 7 §2. 
 
 (f) Poth. loc. cit. 
 
 (g) Troplong, Priv. et Hyp., No. 142 ; Duranton, No. 68 ; Persil on Art. 
 2101, No. 2; Dalloz, <fcc. 
 
REGISTRY LAWS. 119 
 
 for lods et ventes, for the retrait conventionnel, and for 
 any other rights which may have been stipulated in the 
 concession deed (a). 
 
 172. The like favour is shown to arrears of rentes fon- 
 cidres, or ground rents, for a period not exceeding seven 
 years (b). 
 
 173. Assessments imposed by the Municipal Councils 
 of Lower Canada, or municipal rates, are likewise privi- 
 leged claims which are exempted from registration (<=). 
 The Act states that they shall be " a special charge bear- 
 ing the first hypothec on the property" of the ratepayer ; 
 but it is obvious that the word " privilege" would have 
 rendered the intention of the legislature more accurately 
 than " hypothec," which is probably a mere vice de re- 
 daction. 
 
 174. So the privilege granted by a recent act to the 
 Corporation of the City of Quebec, for five years and the 
 current year, of city rates and assessments, is, in order 
 to save expense, exempted from registration (d). 
 
 175. So the privilege enjoyed by the Crown for monies 
 lent under the Fire Debenture Act, to parties whose pro- 
 perty was destroyed by the fires at Quebec in 1845, for 
 the purpose of rebuilding the burnt district, is expressly 
 preserved, " without its being necessary to comply with 
 any of the provisions of the Registry Laws of this Pro- 
 vince (e). 
 
 (a) Ord. 4 Vict. cap. 30, sec. 2 ; 6 Viet. cap. 16, sec. 2. 
 
 (b) Ord. 4 Vict. cap. 30, sec. 2. 
 
 (c) 10 & 11 Vict, cap. 1, sec. 27 ; 13 & 14 Vict. c. 34, s. 18 ; Compare ,9 
 9 Vict., cap. 21, sec. 36. 
 
 (d) 14 & 15 Vict:, cap. 130, sec. 1, 2. 
 
 (e) 9 Viet., cap. 62, sec. 18. 
 
120 ESSAY ON THE 
 
 SECTION III. 
 
 OF THE SEPARATION' OF THE PROPERTY OF A DECEASED 
 FROM THAT OF HIS HEIR. 
 
 1*76. Origin of the right : it has been improperly classed among privileges. 
 
 177. What creditors are entitled to demand the separation. 
 
 1*78. At what period the action en separation could be brought in France. 
 
 179. Registration must be effected within six months. 
 
 180. Novation of the rights of the creditor or legatee. 
 
 176. When creditors, after the death of their debtor, 
 have reason to fear that his heir is insolvent, or is con- 
 tracting debts which will prejudice their rights, they are 
 entitled to demand that the property of the deceased be 
 separated from the property of his heir, and that their 
 claims be satisfied on the former in preference to those of 
 the creditors of such heir ( a ).' This operation is called 
 in law separation des patrimoines : and though it can 
 hardly be called a privilege, as privileges are properly 
 speaking, only exercised between creditors of the same 
 debtor (, b ) — still, the Code Civil ( e ), and most writers on 
 jurisprudence having classed it among privileges, it may 
 be briefly alluded to in this place. 
 
 177. All creditors, whether privileged, hypothecary, or 
 chirographary, and even the legatees of the deceased are 
 entitled to demand the separation des patrimoines ( d ). 
 
 178. Under the old French law, the action en separa- 
 tion might be brought at any time within thirty years 
 after the decease of the debtor or testator ( e ); but the 
 
 (a) Domat, Liv. 3, Tit. 2, Sect. 1 ; Poth. Successions, ch. 6, art. 4 ; lb., 
 Cout. d'Orl, Tit. 17, No. 12*7. 
 
 (b) Troplong Priv. et Hyp., No. 823. 
 
 (c) C. 0, 2111. 
 
 (d) Domat and Poth., loc. cit. 
 
 (e) Diet. Droit, to. Separation des patrimoines. 
 
REGISTRY LAWS. 121 
 
 Plaintiff could only demand a right of preference on such 
 portions of the property of the deceased as were still in 
 the possession of the heir at the time of the institution of 
 the action, and could be specially distinguished as having 
 formed part of the inheritance (a). In respect of those 
 portions of the property which had been alienated by the 
 heir, or had become so mixed with his private property 
 as to defy all endeavours to distinguish the one from the 
 other, his. right was lost. 
 
 179. This is still the law, with respect to moveables. 
 With respect to immoveables; the Ordinance provides that 
 the creditors or legatees may preserve their rights in full 
 force, by registering a memorial thereof within six months 
 after the death of the debtor or testator. Such memorial 
 must be specially registered on each and every of the 
 estates of the succession (*>). 
 
 When a memorial is so registered, within six months, 
 it has a retroactive effect, and gives to the chirographary 
 creditors of the deceased, a right of preference over all 
 hypothecary creditors, to whom the heir has granted hypo- 
 thec .in the interval of the six months (c.) 
 
 180. Creditors or legatees are deemed to have waived 
 their right to demand a separation, when they operate a 
 novation of their claims, by accepting the heir as their 
 debtor in the room of the deceased ( d ). 
 
 (a) Poth., loc. cit. ; Domat, liv. 3, tit. 2, scot. 1, No. 5, and sect. 2 ; Le- 
 brun, liv. 4, ch. 2, sect. 1, No.~ 24. 
 
 (b) Ord. 4 Vict., cap. 30, sect. 32. 
 
 (c) lb., ib. 
 
 (d) Domat, liv. Ill, tit. 2, sect. 2, No. 2 ; Poth., Successions, ch. 5, art. 4. 
 
CHAPTER Y. 
 
 OF THE FORM AND MODE OF REGISTRATION. 
 
 181. There are two modes of registering documents. 
 
 182. Formalities of executing, and attesting, memorials : they must he 
 
 accompanied by the document on which they are founded. 
 
 183. Contents of a memorial of a deed, conveyance, or contract in writing. 
 
 184. Of a will. 
 
 185. Of a notarial obligation. 
 
 186. Of a judgment, judicial act or proceeding. 
 18Y. Of a recognizance. 
 
 188. Of a document creating a hypothecary right or claim. 
 
 189. Of an appointment of a tutor or curator. 
 
 190. Of memorials on behalf of Her Majesty. 
 
 191. Memorials of interest. 
 
 192. Property need only be once described in a memorial. 
 
 193. Formalities of registration at full length. 
 
 194. Its effect. 
 
 195. Certificate of Registry. 
 
 Ig9. Rule of the Ordinance with respect to bankrupts. 
 197. Radiation or discharge of registered encumbrances. 
 
 181. Documents may be registered either at full length 
 or by memorial ( a ). 
 
 182. Memorials must be in writing, and attested by 
 two witnesses (b). They must be executed by the debtor 
 or creditor of the sum secured, or by some person having 
 an interest direct or indirect in their registry (°). When 
 executed in Canada, they may be attested before a notary, 
 a Commissioner for receiving affidavits to be used in the 
 Courts, a Justice of the Peace, or the Registrar or his 
 Deputy, before whom one of the witnesses to the memo- 
 rial must make affidavit of its execution ( d ). When 
 
 (a) Ord. 4 Viet., e. 30, s. 1, 11, 40, et seq. ; 1 Viet., c. 22, s. 5. 
 
 (b) Ord. 4 Vict, cap. 30, s. 10. 
 (o) 8 Vict., cap. 2*7, sect. 1. 
 
 (d) Ord. 4 Viot. c. SO, o. 12 ; 8 Vict, cap. 27, ». 1. 
 
REGISTRY LAWS. 123 
 
 executed in Great Britain, or Ireland, the execution of 
 the memorial must be proved by affidavit of one of the 
 witnesses to the same, made before the Mayor or Chief 
 Magistrate of any city, borough or town corporate. When 
 executed in any of the British Colonies other than Ca- 
 nada, the affidavit must be made before the Chief Justice 
 or a Judge of the Supreme Court of such Colony. When 
 executed in a foreign State, it must be sworn to before a 
 minister plenipotentiary, or a minister extraordinary, or a 
 charge d'affaires, or a consul of Her Majesty, accredited 
 and resident within such foreign Slate, who are authorized 
 by the Ordinance to administer the necessary oath ( a ). 
 
 The party registering must produce and exhibit to the 
 Registrar with the memorial, the document, whether a 
 " deed, conveyance, contract in writing, will, probate or 
 " office copy of a will, notarial obligation, instrument in 
 " writing, judgment, recognizance^ appointment of a Tu- 
 " tor or Curator, judicial act or proceeding, or privileged 
 " or hypothecary right or claim," of which a memorial is 
 to be registered. In the case of notarial deeds, it will be 
 sufficient to produce a notarial copy of the deed. Any 
 " office copy of a document or writing which may have 
 " validity," or proceed from the authority of a Judge or 
 Court of Justice, may, in like manner, be validly produ- 
 ced to the Registrar in lieu of the original, (k) 
 
 The contents of the memorial differ according to the 
 nature of the document on which it is founded. It may va- 
 lidly include only a portion of that doeramemt. General 
 rules respecting the form of memorials are supplied by 
 the Ordinance. 
 
 183- Memorials of deeds, conveyances, and contracts 
 in writing must state : 
 
 (a) Ord. 4 Vict., cap 80, sect. 12. 
 
 (b) Ib.,B. 11. 
 
124 ESSAY ON THE 
 
 1. The day, month, and year of the date of the deed, 
 
 conveyance or contract ; 
 
 2. The names, residences, and additions of the parties ; 
 
 3. The names and residences of the witnesses, or 
 
 4. The names of the notaries before whom it was passed, 
 
 or of the notary who kept a minute thereof; 
 
 5. The description of the property, conveyed, granted, 
 
 or affected by such deed, conveyance or contract ; 
 
 6. Its general purpose, nature, and character, -(a) 
 
 184. Memorials of wills must state : 
 
 1. The day, month, and year of the date of the will ; 
 
 2. The name of the devisor or testatrix ; 
 
 3. The names and residences of the witnesses, or the 
 
 names of the notaries before whom it was execu- 
 ted, or the name of the notary who kept a minute 
 of the same ; 
 
 4. The description of the real property devised or af- 
 
 fected ; 
 
 5. The nature, general purpose and character of such 
 
 will, (t) 
 
 185. Memorials of notarial obligations must state : 
 
 1. The date of the obligation ; 
 
 2. The names of the notaries- before whom it was exe- 
 
 cuted, or the name of the one who kept a minute 
 thereof; 
 
 3. The names, residences, and additions of the obliger 
 
 and obligee : 
 
 4. The sum or sums of money for which it was granted ; 
 
 5. The description of the real property hypothecated or 
 
 affected thereby. (°) 
 
 186. Memorials of judgments, judicial acts or proceed- 
 ings must state : 
 
 (a) Ord. 4 Vict, cap. 30, s. TO. 
 
 (b) lb., ib. 
 (o) lb., ib. 
 
REGISTRY LAWS. 125 
 
 1 . The names, residences, and additions of the parties 
 
 Plaintiff and Defendant ; 
 
 2. The sum or sums of money thereby recovered or 
 
 adjudged ; 
 
 3. The time of the jrecovering of the judgment, or the 
 
 completion and accomplishment of the judicial act 
 or proceeding. ( a ) 
 
 187. Memorials of recognizances must state : 
 
 1. The date of the recognizance ; 
 
 2. The names, residences, and additions of the cogni- 
 
 zors and cognizees ; 
 
 3. The sum or sums of money for which it was granted ; 
 
 4. The name of the party before whom it was acknow- 
 
 ledged ; 
 
 5. The description of the real property affected thereby. 
 
 188. Memorials of documents creating hypothecary 
 rights or claims must state : 
 
 1. The names, residences, and additions of the credi- 
 
 tors and debtors ; 
 
 2. The date of the written security or document ; (o) 
 
 (a) Ord. 4 Vict., cap. 30, o. 10. 
 
 '(b) lb., ib. 
 
 (o) As all memorials to be registered must be accompanied by the docu- 
 ments on which they are founded ; and as, in point of fact, the 'word " me- 
 morial " is simply equivalent to analysis or summary, it 'would seem to fol- 
 low that hypothecary or proprietary rights or claims which are founded on, 
 or evidenced by no written document — such as the legal hypothec, or cus- 
 tomary dower of married women — cannot be registered. This is an omis- 
 sion in the law which may lead to grave consequences. The authors of the 
 law of Brumaire were careful to provide that legal hypothecs might be 
 registered sur la simple presentation de deux bordereaux, specifying the 
 names, <fec, of the debtor and creditor, and the nature of the right (art. 21) : 
 and the Code Civil contains dispositions precisely similar (art. 2153). The 
 authors of the Ordinance would perhaps have done well to follow so excel- 
 lent an example. 
 
 The employment of the English word " memorial " in a law almost exclu- 
 sively French, has led to many obscurities. The expression " registration of 
 
126 ESSAY ON THE 
 
 3. The amount of the debt ; 
 
 4. The nature, character, and general purpose of the 
 
 document conferring or affording evidence of the 
 hypothecary right ; » 
 
 5. The description of the real property charged or af- 
 
 fected by such hypothecary right, (a) 
 
 189. Memorials of appointments of Tutors or Curators 
 must state : — 
 
 1. The name, residence, and addition of the Tutor 
 
 or Curator. 
 
 2. The names of each of the minors or interdicts. 
 
 3. The name and description of the Judge under 
 
 whose authority the appointment was made. 
 
 4. The description of the property hypothecated, if 
 
 the legal hypothec has been restricted to certain 
 property ; or a statement that the legal hypothec 
 is to attach on all the property of the Tutor or 
 Curator, if no restriction has been made. 
 
 5. The name, residence, and calling of the party 
 
 who has made the memorial, if it has been 
 made by any other than the Tutor or Curator ( b ). 
 
 190. Memorials on behalf of Her Majesty, her heirs or 
 successors, must state : — 
 
 1. The date of the document. 
 
 2. The name and residence of the author of the me- 
 
 morial. 
 
 3. The name, residence, and calling of the debtor, 
 
 or party against whom such memorial is to be 
 registeTed. 
 
 a memorial of a hypothec, or of a hypothecary right " is unintelligible, un- 
 less, by a powerful effort of the imagination, we succeed in identifying the 
 abstract-right called hypothec, with the document which serves to establish 
 the fact of its existence, 
 
 (a) lb., ib. 
 
 (b) Ord., 4 Vict., cap. 80, sect. 10. 
 
REGISTRY LAWS. 127 
 
 4. The nature of the document of which a memorial 
 
 is to be registered. 
 
 5. The nature and amount (if it be ascertained) of 
 
 the debt, right, claim, or liability so secured (a). 
 
 191. Memorials of interest are apparently subject to 
 all the above rules, except that, when founded on an au- 
 thentic deed or document, they need not be attested on 
 oath (*>). 
 
 192. When the conveyance or security is made and 
 perfected by several documents, eaeh or more than one of 
 which contains a description of the property affected, one 
 description will be sufficient in the memorial, which may 
 be taken from any one of the documents. Of the others, 
 it will be sufficient to give the dates, the names, resi- 
 dences, and additions of the parties and witnesses, and 
 to make a reference to the document of which a memorial 
 has been registered according to the general rules, with 
 directions how to find the registry of the same (e). 
 
 When memorials so made and executed, are presented, 
 in the manner above mentioned, to the Registrar, by any 
 person whomsoever, he is bound to enter them in the 
 Book of Registries by memorial ; and such registration 
 avails to preserve the rights of all parties interested in the 
 deed or instrument to which the memorial relates, with 
 respect to immoveable property within the Registration 
 District, County or Division in which the Registry Office 
 is situate ( d ). 
 
 193. In like manner,, if the Registrar be required by 
 any party to register a document at full length, he is 
 bound to do so. If the document in question be an au- 
 thentic act, the party requiring its registration must pro- 
 duce it to the Registrar, or exhibit to him, in lieu of the 
 
 (a) Ord., 4 Vie., cap. 30., sect. 52. 
 
 (b) 1 Vict., cap. 22, sec. 10. 
 
 (c) 8 Vict., cap. 2 1 ?, sec. 1. 
 
 (d) Ord. 4 Vict, cap. 30, sec. 13. 
 
128 ESSAY ON THE 
 
 original, an authentic notarial, judicial, or official copy (a). 
 If it be a deed executed before witnesses, such as a con : 
 veyance, mortgage, or will, the execution of such con- 
 veyance, mortgage, or will must be proved by the oath 
 of one of the witnesses thereto. If the conveyance, mort- 
 gage, or will have been executed or published in the 
 district in which the real property thereby conveyed, 
 mortgaged, or devised, is situate, such oath must be made 
 before the Registrar or his Deputy (k) . If it have been 
 executed or published in another district, the oath must 
 be made before a Judge of the Court of Queen's Bench, 
 or Common Pleas, or District Court, (Queen's Bench, 
 Superior Court, or Circuit Court?) ( e ). If it have been 
 executed or published in Great Britain or Ireland, the 
 oath must be made before the Mayor or Chief Magistrate 
 of any City, Borough, or Town Corporale ( d ) . If it have 
 been executed or published in any British Colony other 
 than Canada, the oath must be made before the Chief 
 Justice, or a Judge of the Superior Court, of such 
 Colony ( e ). If it have been executed or published in a 
 Foreign State, the oath must be made before a Minister 
 Plenipotentiary, a Minister Extraordinary, a Charge d'- 
 Affaires or Consul of Her Majesty, accredited and resident 
 within such State ( f ) . 
 
 194. A registry at full length, made in accordance with 
 the above rules, avails to preserve the rights of all parties 
 interested in the deed, instrument, or writing, with re- 
 spect to immoveable property within the Registration 
 District, County or Division in which the Registry Office 
 is situate (g). 
 
 (a) 1 Vict., cap. 22, sec. 5. 
 
 (b) Ord. 4 Vict., eap. 30, sec. 41. 
 
 (c) lb., bcc. 42. 
 
 (d) lb., ib. 
 
 (e) lb., ib. 
 
 (f) lb., ib. 
 
 (g) 7 Vict, cap. 22, eec. 8. 
 
REGISTRY LAWS. 129 
 
 195. The Registrar is further bound to grant a certifi- 
 cate of such registry. The certificate must state the day, 
 hour, and time at which such registry was made, and the 
 book, page, and number, in and under which it was 
 entered; and must be signed by the Registrar or his 
 Deputy (a) . It must be endorsed upon the document or 
 documents handed to the Registrar for registration; and 
 if it or they have been registered by memorial, it must 
 mention the circumstance. In the latter case, the memo- 
 rial must remain of record in the office of the Registrar 
 ( b ). Such certificates are evidence of the registry in all 
 Courts of Justice (c). 
 
 196. It was declared by the Ordinance, that no hypo- 
 thecs or hypothecary rights or claims could be effectually 
 registered within the ten days preceding the bankruptcy 
 of the debtor ( d ). As the bankrupt law has expired, it 
 may be a question whether this provision of the Ordinance 
 could be applied to cases of insolvency. 
 
 197. When a debtor pays the whole or a portion of a 
 debt, for the security of which his property was mortgaged 
 or encumbered, he is entitled to demand from hi3 creditor 
 a certificate of discharge for the amount paid, or a notarial 
 act proving such discharge ( e ). Such certificate must be 
 in writing, signed by the creditor, or his legal representa- 
 tive, and witnessed by two witnesses, who make affidavit 
 before a "Judge of the Court of Queen's Bench, or Com- 
 mon Pleas, (Superior or Circuit Court ?) or the Registrar 
 or his Deputy, that the sums for which the discharge is 
 granted have been paid, and that they saw the creditor, 
 or his legal representative, sign the certificate (f ). If the 
 
 (a) lb., sec. 11, 44. 
 
 (b) 8 Vict., cap. 27, see. 1. 
 
 (c) 4 Vict, cap. 30, sec. 11, 45 j 1 Vict., cap. 22, sec. 5. 
 
 (d) 4 Vict., cap. 30, sec. 18. 
 
 (e) 4 Vict., cap. 30, sec. 45 ; 1 Viet., cap. 22, see. 8, 
 
 (f ) Ord, 4 Vict., cap, 30, sec. 45. 
 
 R 
 
130 ESSAY ON THE REGISTRY LAWS. 
 
 creditor refuses to grant such a certificate or discharge, 
 the debtor may institute an action against him therefor, 
 and the judgment in such action, besides awarding dam- 
 ages against the creditor, may declare the hypothec or 
 encumbrance reduced or discharged, (a) 
 
 On sight of such a certificate, notarial act, judgment, 
 or matter of record, proving the total or partial discharge 
 of any hypothec or encumbrance, the Registrar must 
 make an entry in the margin of the Register, against the 
 registry of the hypothec or encumbrance reduced or dis- 
 charged, to the effect that such hypothec or encumbrance 
 has been wholly or partially discharged. The certificate, 
 notarial deed, judgment, or matter of record, proving the 
 discharge, must remain of record in the Registry Office (t>). 
 
 (a) 1 Vict., cap. 22, sec. 8. 
 
 (b) lb., ib. There is no provision in the law for the radiation or erasure 
 of a registry erroneously made against the property of an individual. " The 
 Courts may order an inscription to be removed ", says the Code Civil, (art. 
 2160,) "when it haB been made without proper foundation in law, or on a 
 written dooument, or when the creditor's title has been defective in form, 
 &c." 
 
CHAPTER YL 
 
 OP THE OFFICE OF REGISTRAR. 
 
 198. A Registry Office established in each Count}/ in Lower Canada. 
 
 199. How the Registrar is appointed, and replaced in case of death or resi- 
 
 gnation, &6. 
 
 200. He must take the oaths of allegiance and office. 
 
 201. He must enter into a recognizance. 
 
 202. He must appoint a deputy. 
 
 203. His place of residence and office hours. 
 
 204. Two Registers are required by law. 
 
 205. Separate Registers may be kept for certain deeds. 
 
 206. Minute or Day Book. 
 
 207. Indexes. 
 
 208 - Form of these books ; must be- handed over to each successive Registrar. 
 
 209. Fees of Registrar. 
 
 210; Punishment of fraud or neglect in a Registrar. » . 
 
 211. Punishment of perjwry and forgery. 
 
 198. The Registry Ordinance established Registry 
 Offices in each of the judicial districts into which Lower 
 Canada was divided. When the Judicature Law was 
 remodelled, in 1843, and the District and Division Courts 
 abolished, the Legislature declared that a Registrar should 
 be appointed for each County, and confined his functions 
 to the registering of documents affecting real property 
 within the limits of the county (a). 
 
 199. He is appointed by the Governor, and in case of 
 his- resignation, death, or removal, his successor must be 
 named in like manner (b). 
 
 200. Before entering on the discharge'of his functions, 
 Ihe Registrar must take the oath of allegiance, (°) which 
 is in the following terms : 
 
 (a) 1 Viet., cap. 22, sect. 1, 2. Alterations in the limits of some of the 
 Registry Offices have been effected by special acts. See the table published 
 in- the almanacs. 
 
 (b) 1 Vict., cap. 22, sect. 2. 
 
 (c) Ord. 4 Vicfc> cap. 30, sect. 8. 
 
132 ESSAY ON THE 
 
 " I, A. B., do sincerely promise and swear that I will 
 " be faithful, and bear true allegiance to Her Majesty 
 " Queen Victoria (or the reigning Sovereign for the time 
 " being), as lawful sovereign of the United Kingdom of 
 " Great Britain and Ireland and of this Province, depen- 
 " dent on and belonging to the said Kingdom, and that I 
 " will defend her to the utmost of my power against all 
 " traitorous conspiracies or attempts whatever, which shall 
 " be made against her person, Crown and Dignity, and 
 " that I will do my utmost endeavour to disclose and 
 " make known to Her Majesty, her heirs and successors, 
 " all treasons, or traitorous conspiracies or attempts which 
 " I shall know to be (sic) against her or any of them — and 
 " all this I do swear without any equivocation, mental eva- 
 " sion, or secret reservation, and renouncing all pardons 
 " and dispensations from any person or persons whatso- 
 " ever to the contrary ; So help me God." (a) 
 
 He must also take the oath of office, in the following 
 form: 
 
 "I, A. B., Registrar (*>) for the County (or Registration 
 " District or Division) of , do solemnly 
 
 " swear that I will truly, honestly, and faithfully perform 
 " and execute the office of Registrar for the County (or 
 " Registration District or Division) of , 
 
 " and all and every the duties enjoined and required to 
 " be done and performed by me as such Registrar, in and 
 " by an Ordinance of the Legislature of this late Province 
 " of Lower Canada, made and passed by the Governor 
 " of the said Province, by and with the advice and con- 
 " sent of the Special Council for the affairs thereof, inti- 
 " tuled, ' An Ordinance to prescribe and regulate the 
 " ' registering of titles to lands, tenements, and heredita- 
 
 (a) 13 and 14 Viet, cap. 18, sect. 2. 
 
 (b) When this oath is taken by the Deputy Registrar (see Post No. 202) 
 the -words " Deputy Registrar " must be substituted for " Registrar " 
 ■wherever it occurs. 
 
REGISTRY LAWS. 133 
 
 " ' ments, real or immoveable estates, and of charges 
 " ' and encumbrances on the same ; and for the alteration 
 " ' and improvement of the law, in certain particulars, 
 " ' in relation to the alienation and hypothecation of real 
 " ' estates and the rights and interest acquired therein,' 
 " so long as I shall continue in the said office ; and that 
 " I have not given or promised, directly or indirectly, nor 
 " authorised any person to give or promise any money, 
 " gratuity, or reward whatsoever, for procuring or obtain- 
 " ing the said office for me. — So help me God." (a) 
 
 201. Before entering on the duties of his office, he' 
 must likewise enter into a recognizance with not more 
 than four and not less than two sureties, to be approved 
 by the Justice before whom the recognizance is taken, 
 who shall be jointly and severally bound to Her Majesty ; 
 as a security both to the Crown, and to all parties who may 
 recover damages against him in a Court of law, for or by 
 reason of misconduct, negligence, or default in the dis- 
 charge of his duties ( b ) . The amount of such recogni- 
 zances is fixed by the following scale : 
 That of the Registrar of the Counties of Quebec 
 
 and Montreal need not exceed £4000 
 
 Do. do. of the other Counties in Lower Canada . 2000 
 Do. do. of Registration Districts or Divisions being 
 
 less than the Counties 1000 (c) 
 
 The recognizance must be fyled of record in the Courts 
 of Queen's Bench or Superior Court ( d ) : and a duplicate 
 copy thereof must, within a delay of one month, if the 
 Registrar be within the Province, and of three months, if 
 he be without the frontier, be recorded at length by the 
 
 (a) Ord. 4 Viet., cap. 30, sect. 8, and Appendix. 
 
 (b) lb., ib. 
 
 (c) 14 and 15 Viet., cap. 93, sect. 2. By the same Act, all recognizances 
 granted, before its passing, for larger sums than these, are reduced in con- 
 formity with the scale given in the text. 
 
 (d) Ord. 4 Vict, cap. 80, sect. 8. 
 
134 ESSAY ON THE 
 
 Provincial Registrar,, and afterwards deposited in the 
 Office of the Inspector General of Public Accounts ( a ) . 
 If a Registrar neglect to comply with these requirements 
 of the law, his. commission may be declared avoided 
 within the above mentioned, delays, and another party 
 may be appointed to the office ( b ) . 
 
 If any of his sureties become insolvent or bankrupt, 
 die, or leave the Province, he must notify the circum- 
 stance to the Provincial Secretary within the same delays 
 as those above mentioned : under penalty, in case of 
 neglect, of a fine of one fourth the amount of the liability 
 of the surety so discharged (°). He must also within a 
 like period (which may be extended by the Governor to 
 three and five months, according to the residence of the 
 parties) provide a new surety in the room of the one so 
 discharged ; under penalty, in case of his failure so to do, 
 of the forfeiture of his office ( d ). 
 
 The recognizance granted by a Registrar becomes void 
 three years after his death, removal, or resignation, pro- 
 vided that no misconduct shall up to that time appear to 
 have been committed by him, or his Deputy ( e ). 
 
 202. Within twenty days after the Registrar has taken 
 the oaths he must appoint, a Deputy r under penalty, in 
 case of neglect, of fiye pounds fine per day (f). The 
 Deputy must take the same oaths as the Registrar ( g ) : 
 and is competent to discharge all the duties of the office. 
 He is hound to "execute the office of Registrar" in 
 case of the death of his principal (h) . It does not appear, 
 
 (a) 4 and 5 Vict., cap. 91, s. 3, 14. 
 
 (b) lb., sect. 5. 
 
 (c) lb., ». 6. 
 
 (d) lb., ». n. 
 
 (e) Ord. 4 Vict., cap. 30, s. 9. 
 
 (f) lb., „. 6. 
 
 (g) lb, s. 8. 
 O) lb, o. 6. 
 
REGISTRY LAWS. 135 
 
 however, that he is bound to give security or to enter into 
 a recognizance (a). If the Deputy die, resign, or be 
 removed, the Registrar must appoint another within a 
 delay of twenty days : under penalty of five pounds fine 
 for each day's neglect (b). 
 
 203. The Registrar must reside within five leagues of 
 his office (c). His office must be open for the transac- 
 tion of business on every day except Sundays and Holi- 
 days from 9 till 3 : during which time, the Registrar or 
 his Deputy is bound to register documents and memo- 
 rials, to grant certificates, and to make searches when 
 required so to do by any party ( d ). 
 
 Every Registrar is required to keep a set of books, the 
 form and object of which is prescribed by law. 
 
 204. He must have two Registers, one for registering 
 deeds and documents at full length, and the other for 
 memorials (e) . Each must be authenticated by a memo- 
 randum made by the Prothonotary on the first page, 
 stating the object for which the Register is intended, and 
 the number of pages it contains, and must be dated and 
 signed by the Prothonotary. Each page must be num- 
 bered in letters by the same officer, and the numbers 
 paraphes by him. Memorials must be entered in the 
 Register appropriated to them, consecutively, without any 
 blank or space between them. They must be numbered, 
 and the number and date must be mentioned in the 
 margin. This rules apply equally to the Registers for 
 the Registration of documents at full length (f). 
 
 (a) See, ho-wever, 4 and 5 Viet, u. 91, a. 14. 
 - (b) Ord. 4 Viet, c. 30, a 6 ; 12 Vict, c. 48, s. 3. 
 
 (c) 14 and 15 Vict, cap. 93, s. 3. 
 
 (d) Ord. 4 Viet, cap. 30; s. 49. No provision is made in our law- for the 
 deposit of the Registers and Deeds in fire proof Vaults : a grave omission, 
 ■which ought to be remedied without delay. The Upper Canadians have 
 evinced more prudence. See 9 Vict, cap. 34, sect. 19. 
 
 (e) lb, s. 19, 40-; 12' Vict, cap. 48, s. 2. 
 
 (f ) Ord, 4 Vict, cap. 30, sec. 19, 40 ; 12 Vict, cap. 48, sect. 2: 
 
136 ESSAY ON THE 
 
 205. By a recent act, the Registrars of the Counties of 
 Quebec and Montreal are permitted to keep separate re- 
 gisters for the registration of — 
 
 1. Bonds, recognizances, and other securities in fa- 
 
 vour of the Crown : also wills and testaments, 
 and office copies or probates of wills and testa- 
 ments. 
 
 2. Marriage contracts and donations. 
 
 3. Appointments of Tutors or Curators, judgments, 
 
 judicial acts or proceedings. 
 
 4. Deeds of alienation and conveyance not included 
 
 in the above mentioned classes, including leases 
 for more than nine years, exchanges and parti- 
 tions. 
 
 5. Documents creating mortgages, privileges, hy- 
 
 potheques, or encumbrances, not included in 
 any of the above classes. 
 
 6. All other deeds and instruments or writings not 
 
 herein above included (a). 
 
 206. Besides these registers, registrars must keep a 
 " Minute or Day-Book", " in which shall be entered the 
 " year, month, day, and hour when any memorial shall 
 " be brought for registration, the names of the parties in 
 " such memorial, and of the person by whom such me- 
 
 (a) 12 Viet., cap. 48, see. 2, 3. But the Law distinctly provides that no 
 legal consequences shall flow from the registration of any of these docu- 
 ments in the wrong register : and no practical benefit would appear to flow 
 from the adoption of a classification so obviously capricious. This new 
 enactment, moreover, is calculated both to increase the expenses of the 
 registrars without increasing their emoluments, or facilitating the public 
 service, and to cause much confusion, and risk of error in the indexes and 
 registers. Mb provision is made by the 12 Vict, for the numbering of the 
 documents in the separate registers, while other Laws in force require all 
 documents which are registered to be numbered in the order in which they 
 are received, and entered consecutively, so as to leave no blank or interval 
 between them. The adoption of the new system is also likely to produce 
 great difficulty and risk of error in making " searches" ; which, indeed, if 
 fully carried out, it would render entirely nugatory. 
 
REGISTRY LAWS. 137 
 
 " morial shall be brought, the nature of the instrument or 
 " right or claim, whereof registration is hereby (by the 
 " Registry Ordinance) required, and a general designa- 
 " tion of the real estate intended to be affected by such 
 " memorial" (a). 
 
 207. He must also keep two indexes : one containing, 
 in alphabetical order, the names of the parties against 
 or in favour of whom, documents have been registered, 
 and referring to the page of the register, the number of 
 the memorials or documents registered, and the situation 
 of the property affected : the other containing an alpha- 
 betical list of all parishes, townships, seigniories, cities, 
 towns, villages, and extraparochial places within the 
 county, and referring to the page of the register, the 
 number of the memorials or documents registered, the 
 names of the parties, and the property affected (*>). 
 
 208. These several books must be similar to those pro- 
 vided by the Province for the first Registry Offices that 
 were established under the Ordinance ( c ). 
 
 When a registrar is removed or resigns, he must sur- 
 render these books to his successor ; his neglect or refu- 
 sal so to do, besides exposing him to an action of da- 
 mages, is held to be a misdemeanour in laW; In case of 
 his death, a like duty is incumbent on his heirs or repre- 
 sentatives ( d ). 
 
 209. His fee's are as follows : — 
 
 For transcribing documents at full length, 
 or memorials, when they do not ex- 
 ceed 400 words, he is entitled to,. . . £0 2 6 
 
 For each additional 100 words, 6 
 
 (a) Ord, 4 Vict., cap. 30., sec. 20. 
 
 (b) lb. ib. This index is utterly useless. Without a registration map, 
 or Cadastre, an index to estates can afford no information to any one, and 
 may lead to serious inconvenience. 
 
 (c) Ib. sec. 54. 
 
 (d) lb., see. 47. 
 
 S 
 
138 ESSAY ON THE REGISTRY LAWS. 
 
 For each search when the names of the 
 
 parties are given, 1 
 
 For each search when the names are not 
 
 given, 2 
 
 Foreach certificate of registry by memorial, 16 
 For each certificate of registry at full length 2 6 (a) 
 When a registrar is convicted of undue or fraudulent 
 practices or neglect in the discharge of his functions, his 
 office is forfeited ; and he may be condemned to pay 
 treble damages, with full costs of suit, to any party in- 
 jured — to be recovered by action of debt or information ( b ) . 
 
 210. False oaths sworn before a Registrar, or his depu- 
 ty, or before a Judge, or a Court, under the provisions of 
 the Registry Ordinance, are held in law to be wilful and 
 corrupt perjury ( c ) . 
 
 211. The forgery of a certificate of registration, or of a 
 memorial of a deed, will, or other instrument, is declared 
 by the Forgery Act to be felony, and made punishable 
 by imprisonment in the Penitentiary for not less than 
 four, and not more than ten years ( d ) . 
 
 (a) Ord., 4 Vict, cap. 30, sec. 48 ; 8 Vic, cap. 2? , sec. 1. 
 
 (b) Ord.. 4 Vic, cap. 30, sec. 50. 
 
 (c) lb, sec. 51. 
 
 (d) 10 & 11 Vict, cap. 9, sec. 9. 
 
INDEX. 
 
 CHAPTER I. 
 
 fAGE 
 
 1. Importance and extent of the subject, 5 
 
 2. It is entitled to the grave attention of all, 6 
 
 SECTION I. 
 
 i 
 
 Of the Hypothecary Lavs of France, 
 
 3. Of the secret hypothecs of the Roman Lav, 7 
 
 4. Of the Begistres de nantissements in certain provinces of France, . ib. 
 
 5. By the Common Law of France, all encumbrances ■were secret, ... 8 
 
 6. All Hypothecs were general, ib. 
 
 1. And were granted for indeterminate sums of money, ib. 
 
 8. Fruitless attempts to introduce a system of publicity, 9 
 
 9. Law of Messidor, an III., 10 
 
 10. Law of 11 Brumaire, an VII, ib. 
 
 11. Code Civil ; deviations from the Law of Brumaire as to transcrip- 
 
 tions of title-deeds, _. 11 
 
 12. As to the inscription of Legal Hypothecs, 12 
 
 13. As to hypothecations of future property, 13 
 
 14. As to Hypothecs for undetermined amounts, ib. 
 
 SECTION IL 
 Of the Registry Ordinance. 
 
 15. Of the Law of Lower Canada before the Ordinance, 14 
 
 16. Attempts to introduce a new System : 9 Geo, IV., cap. 20, ib. 
 
 17. Establishment of Register Offices in the English Counties, 16 
 
 18. The Registry Ordinance — its character, ib. 
 
 19. Its sources : all encumbrances must be registered, It 
 
 20. Query: should the hypothecs of the married woman and minor 
 
 be subject to registry ? »b- 
 
 21. Registration of privileges, 18 
 
 22. Case of the unpaid vendor : necessity for legislative interference, . 19 
 
140 INDEX. 
 
 PAGE 
 
 23. Registration of title deeds and conveyances, 19 
 
 24. All voluntary hypothecs must be special 20 
 
 25. Registration of wills 21 
 
 26. Query: must servitudes be registered? ib. 
 
 27. Leases carrying with them proprietary rights must be registered. 22 
 
 28. Query : must usufructuary rights be registered ? ib. 
 
 29. Review of the Registry Ordinance,.. ib. 
 
 30. What a perfect system of registry would require : its drawbacks, 23 
 
 SECTION III. 
 
 Review of Foreign Systems. 
 
 31. Reasons for a review of foreign legislation, 25 
 
 32. Origin of feudal registers in Germany, &c ib. 
 
 33. Teutonic systems — Prussian Code, 26 
 
 34. Austrian Code, 27 
 
 35. Transition systems — Law of Bavaria, ib. 
 
 36. Law of "Wurtemburg, 28 
 
 37. Law of Greece, 29 
 
 38. Projet de loi laid before the Council of Geneva in 1827. — Its cha- 
 
 racter and fate, ib. 
 
 39. French Systems. — Neapolitan Code, r 32 
 
 40. Sardinian Code, ib. 
 
 41. Belgian Law, 33 
 
 42. Code of Louisiana,. ib. 
 
 43. Historical view of Registration in England — unsuccessful attempts 
 
 to pass a General Registry Act ib. 
 
 44. Strange aversion of learned men to the system, 36 
 
 46. Registry in Scotland, Si 
 
 46. Registry Laws in the States and the British North American 
 
 Colonies, ib. 
 
 CHAPTER II. 
 
 Of the effect of tlie Registry Laws on titles to real property. 
 47. Modes of acquiring Property in Lower Canada, 38 
 
INDEX. 141 
 
 SECTION I. 
 Of the registration of titles. 
 
 — PAGE 
 
 48. All titles to property must be registered 39 
 
 49. The nullity consequent on non-registration is only relative, ib. 
 
 60. Requisites necessary in order to invoke this nullity, 40 
 
 51. Both titles must be derived from the same auteur, ib. 
 
 52. That of the party invoking the nullity must have been registered,, ib, 
 
 53. It must have been granted for valuable consideration, 41 
 
 54. It must have been obtained bona ride — contradiction involved in 
 
 the first section,-. ib. 
 
 55. The party sought to be ousted must not be in open and public 
 
 possession, 42 
 
 56. "Where theBe requisites are combined, priority of registration is 
 
 superiority of right, 43 
 
 51. Suggestion to purchasers ib. 
 
 58. .Titles prior to 31st Dec. 1841, need not be registered, ib. 
 
 SECTION II. 
 Of the alienation of Lands in free and common soccage. 
 
 59. The Registry Ordinance did more than establish Registry Offices, 44 
 
 60. Introduction of English Law of Tenures into this Province, ib. 
 
 61. Definition of a bargain and sale, 45 
 
 62. Deeds of bargain and sale to convey not only the use but the 
 
 estate and freehold, 46 
 
 63. The words " grant, bargain, and sell" to imply covenants for title, 41 
 
 64. Deeds of bargain and sale must be registered 48 
 
 65. Copies of deeds before witnesses, certified by the Registrar, are 
 
 evidence of the originals in Courts of Justice, ib. 
 
 SECTION IIL 
 
 Of tKe Registration of Wills. 
 
 66. Wills must be registered ; under pain of a relative nullity, 49 
 
 61. The party invoking the nullity need not have registered ; nor need 
 
 his title have been obtained bona fide, 60 
 
 68. Devisees are allowed a certain delay to register, ib. 
 
 69. This delay majr be further extended by a prenotation ib. 
 
142 INDEX. 
 
 PAGE 
 
 70. Rules with regard to wills made by a testator dying before 31st 
 
 December, 1841, 51 
 
 SECTION IV. 
 
 Of the Registration of Deeds^ of Gift. 
 
 71. The Roman and French Laws required donations to be recorded, 52 
 
 1%. Substitution of the Registers for the Greffe des Insinuations, 53 
 
 73. Where deeds of gift must be enregistered, 54 
 
 14. Suggestion to donees : query, as to the retroactive effect of regis- 
 
 tration, ib 
 
 CHAPTER III. 
 
 Of the Registration of Hypothecs. 
 
 15. Definition, and various kinds of hypothecs, 56 
 
 SECTION I. 
 Of Legal Hypothecs. 
 
 ABTIOLE I. 
 
 16. Of the legal hypothecs of the Roman and Old French Law 57 
 
 11. Of those recognised by the Code Civil, ib. 
 
 78. The three legal hypothecs of the Ordinance, 58 
 
 79. Exception, it,, 
 
 ARTICLE II. 
 Of the Legal Hypothec of Married Women. 
 
 80. Reasons for granting a legal hypothec to married women, 59 - 
 
 81. Their rights in the Roman and old French Law, ib. 
 
 82. Claims secured by the legal hypothec under the Ordinance: con- 
 
 trast with foreign systems 60 
 
 83. The hypothec of the wife for antenuptial dotal property, conven- 
 
 tions matrimoniales, <fec, is conventional, 61 
 
INDEX. 143 
 
 » 
 
 PAGE 
 
 84. As such, it must be special, and for a sum certain, 62 
 
 85. Period from which the legal hypothec is accounted : property on 
 
 ■which it attaches 64 
 
 86. It only exists in cases where property has been given to or in- 
 
 herited by the wife as a propre to her, 66 
 
 87. Query : Does it exist independently of registration ? Reasons for 
 
 the affirmative, ib. 
 
 88. Seasons for the negative, 67 
 
 89. Suggestions in.ease the latter sentiment should prevail, 68 
 
 90. The hypothec for remploi de propres, ib. 
 
 91. No hypothec exists for indemnity for debts, 69 
 
 92. The husband must register the wife's hypothecs : penalties and 
 
 disabilities in case of neglect, 70 
 
 93. Registry may be effected by other parties, 71 
 
 94. Women married without a contract since 31st December, 1841, 
 
 need not register their claims for customary dower, ib. 
 
 95. Alterations in the law of dower ; release of dower, 72 
 
 96. Query : Does the legal hypothec of wives married before 21st De- 
 
 cember, 1841, require to be registered? Case in which the 
 negative was held, ib. 
 
 97. CaBe in which the affirmative was held, 73 
 
 98. The question turns on the meaning of the 4th section, 74 
 
 99. Hypothec of the wife married before 31st December, 1841, for con- 
 
 ventions matrimoniales, <fec, must be registered : proprietary 
 rights, ib. 
 
 • ARTICLE III. 
 Of the legal hypothec of Minors and Interdicts. 
 
 100. Of the nature of the hypothec, 76 
 
 101. Claims which it secures under the Ordinance, 77 
 
 102. On what property it attaches, ib. 
 
 103. It may be made special in certain cases, ib. 
 
 104. Its rank in cases where the appointment was prior to 31st De- 
 
 cember, 1841, • '8 
 
 105. Its rank in cases where the appointment was subsequent to 31st 
 
 Dec, 1841, T* 
 
 106. Obligation of tutor and curator to register ; penalties and disabili- 
 
 ties incase of neglect, ■ 1 ' 1 
 
 107. Obligation of subrogate tutor to see that the acte is registered, . . 80 
 
 108. The appointment may however be registered by any one, ib. 
 
144 INDEX. 
 
 PAGE 
 
 ARTICLE IV. 
 • Of the legal hypothec of the Grown. 
 
 109. Of the hypothec of the State at Rome and in- France, 80 
 
 110. Of the debts which it secures in Lower Canada, 81 
 
 111. Of its rank before and after the Ordinance, 82 
 
 112. Who must register it, ib. 
 
 113. Contestation between two legal mortgagees on property acquired 
 
 by their debtor since the creation of both hypothecs 83 
 
 SECTION II. 
 Of Judicial Hypothecs. 
 
 114. Definition: there were no judicial hypothecs in the Roman law,, ib. 
 
 115. They were established in Prance by royal Ordinances,. 84 
 
 116. Rules by which they are governed under the Ordinance, 85 
 
 117. The judgment must be registered to be valid against a subse- ' 
 
 quent purchaser, <fco., ib. 
 
 118. Case where the sum awarded by the Court below is reduced in 
 
 119. Judgments against tutors aiid married men, ib. 
 
 120. Judicial acts and proceedings,. ib. 
 
 SECTION III. 
 Of Conventional Hypothecs. 
 
 121. Design 87 
 
 122. Mode of hypothecation at Rome and in Wanee, 88 
 
 123. Reforms introduced by the Ordinance : three rules, 89 
 
 124. General principles : Who can grant a valid hypothec, ib. 
 
 125. What property may be validly hypothecated, ....'. 91 
 
 126. Rank of hypothecs attached to conditional obligations, ib. 
 
 127. Rules of the Ordinance ; the property hypothecated must be spe- 
 
 cially described,. 92 
 
 128. What " description" will suffice ib. 
 
 129. No hypothec can be granted except for securing the payment of 
 
 a sum of money expressed in the deed, 93 
 
 130. Comparison with Code Civil, ib. 
 
INDEX. 145 
 
 PAGE 
 
 131. Suggestions to creditors when the debt is indeterminate, 94 
 
 132. Rank of conventional hypothecs 95 
 
 133. How the arrears of interest are secured in cases prior to the Or- 
 
 dinance ib. 
 
 184. How in eases where the hypothec is subsequent to the Ordinance, 96 
 
 1S5. Interpretation of a clause in the Statute 9*7 
 
 136. Mode of hypothecating property in free and common soccage,. . . 98 
 
 CHAPTER IV. 
 
 Of the registration of privileges. 
 131. Definition of a privilege : classification 99 
 
 SECTION I. 
 
 Of privileged claims requiring registration to preserve the privilege. 
 
 138. Enumeration ib. 
 
 ARTICLE I. 
 Of the Vendor. 
 
 139. Privilege of unpaid vendor at Rome and in France, 101 
 
 140. Cases in which, at common law, the privilege can be claimed, ... ib. 
 
 141. Provisions of the Ordinance, ordering the registration of the 
 
 vendor's privilege ib. 
 
 142. Reasons why it should not be registered, 102 
 
 143. A privilege does not rank from its date : if it ranks from its re- 
 
 gistration, it bgcomes a mere hypothec 103 
 
 144. Reasons why the Ordinance did not intend to substitute a hypo- 
 
 , thee for the Vendor's privilege ib. 
 
 146. There is only one possible mode of registering privileges, viz., 
 
 by fixing a delay, ib. 
 
 146. No delay having been fixed for the vendor, must he be assimi- 
 lated to the negligent copartitioner, &o. ? 104 
 
 141. Reference to the Code Civil : interpretation given to it, ib. 
 
 148. Analogy : the vendor'g privilege is independent of registration, . 106 
 
 T 
 
146 INDEX. 
 
 PAGE 
 
 1 49. Lamentable results of this decision. Query: whether the point 
 
 could have been decided otherwise, 106 
 
 150. Exception : ease of property sold to Railway Companies, 10*7 
 
 151. This does not apply to vendors prior to the Ordinance, who must 
 
 register, ib. 
 
 152. Rule with regard to interest, ib. 
 
 153. Unpaid vendors may demand the restitution of the property,. . . 108 
 
 154. Contestation between hypothecary creditors and vendor, or seve- 
 
 ral vendors, , , ib. 
 
 ARTICLE II. 
 Of the lender of money to pay the vendor. 
 
 155. Origin of the privilege ib. 
 
 156. When properly subrogated, the lender enjoys the same rights as 
 
 the vendor, 109 
 
 15T. Period which must elapse between the deeds of loan and purchase, ib. 
 158, Rule as to registration, 110 
 
 ARTICLE III. 
 Of heirs and copartitioners. 
 
 159. Origin of the privilege, " ib. 
 
 160. On what property it attaches 1H 
 
 161. It must he registered within thirty days, ib. 
 
 162. Case of contestation between vendor and oopartitioner 112 
 
 ARTICLE IV. 
 Of Architects, Builders, and Workmen. 
 
 168. Origin of the privilege, ib. 
 
 164. For what claims it exists 118 
 
 165. Means adopted for the prevention of frauds, ib. 
 
 166. Interpretation- of a clause in the Ordinance 114 
 
 167. Both Proces-Verbaux must be registered within thirty days,. . . , 115 
 
 168. Contestation between architect and vendor, &c 116 
 
INDEX. 147 
 
 PAGE 
 
 ARTICLE V. 
 Of the party lending money to pay Architects, Builders, or Workmen. 
 
 169. The lender of money must be subrogated in the room and stead 
 
 of the architect or builder, 116 
 
 SECTION II. 
 Of privileged claims not requiring registration to preserve the privilege. 
 
 170. Privileges which attach on moveables do not require to be regis- 
 
 tered, Ill 
 
 171. Nor seigniorial rights or claims, 118 
 
 172. Nor arrears of rentes foncieres or ground rents, 119 
 
 178. Nor municipal assessments, ib. 
 
 174. Nor city rates in the City of Quebec,. ib. 
 
 176. Nor the claim of Her Majesty for the amounts lent to the sufferers 
 
 by the fires at Quebec, ib. 
 
 SECTION III. 
 Of the separation of the property of a deceased from that of his heir. 
 
 176. Origin of the right : it has been improperly classed among privi- 
 
 leges, 1 20 
 
 177. What creditors are entitled to demand the separation, ib. 
 
 178. At what period the action «n separation could be brought in 
 
 France, ib. 
 
 179. Registration must be effected within six. months,. 121 
 
 180. Novation of the rights of the creditor or legatee ib. 
 
 CHAPTER V. 
 
 Of the form and mode of Registration. 
 
 181. There are two modes of registering documents, 122 
 
 182. Formalities of executing and attesting memorials ; they must be 
 
 accompanied by the document on which they are founded, . „ ib. 
 
 183. Contents of a memorial of a deed, conveyance, or contract in writ- 
 
 ing, m 
 
148 INDEX. 
 
 VAOH 
 
 184. Of a will ,. ". 124 
 
 185. Of a notarial obligation, , . ib. 
 
 186. Of a judgment, judicial act or proceeding, . , ib. 
 
 187. Of a recognizance, 128 
 
 188. Of a document- creating a hypothecary right or elaim, . . . . . . ib. 
 
 189. Of an appointment of a tutor or curator 126 
 
 190. Of memorials on behalf of Her Majesty, ib. 
 
 191. Memorials of interest, 121 
 
 192. Property need only be once described in a memorial , ib. 
 
 193. Formalities of registration at full lengih ib. 
 
 194. Its effect, '. 128 
 
 195. Certificate of Registry, 129 
 
 196. Rule of the Ordinance -with respect to bankrupts ib. 
 
 197. Radiation or discharge of registered encumbrances, ib. 
 
 CHAPTER VI. 
 
 Of the Office of Registrar. 
 
 198. A Registry Office established in each County in Lower Canada,. 131 
 
 199. How the Registrar is appointed, and replaced in case of death or 
 
 resignation, kn ib. 
 
 200. He must take the oaths of allegiance and office, ib. 
 
 201. He must enter into a recognizance, 133 
 
 202. He must appoint a deputy, 134 
 
 203. His place of residence and office hours, 135 
 
 204. Two registers are required by Law, ib. 
 
 205. Separate registers may be kept for certain deeds, 136 
 
 206. Minute or ODay Book ib. 
 
 207. Indexes .' 137 
 
 208. Form of these books ; must be handed oyer to each successive 
 
 Registrar, ib. 
 
 209. Fees of Registrar, ,* ib. 
 
 210. Punishment of fraud or neglect in a Registrar, 13S 
 
 211. Punishment of perjury and forgery, ib. 
 
 END OF THE INDEX. 
 
iPiH