drove them to the necessity (if they noticed the plea 1810. FORBES against at all) of filing a general Replication, that being the only pleading to a Defense au fonds en fait permitted ATKINSON. by the Rules. (b) On the other hand, the plaintiffs, instead of taking advantage of the defendant's misconduct, as they might have done, have filed a replication to his plea, and they are thus as much in fault as the defendant; both parties have equally contributed to the irregularity of the pleadings, and a Repleader, from the declaration, must therefore be ordered, that being the point of pleading at which their mutual error commenced. Per Curiam, A Repleader ordered. BELAIR against GAUDREAU & WIFE. HIS was THIS was an action hypothicaire in which the Tuesday, February 20. A Notarial act executed en brevet does one not create a plaintiff by his declaration setforth, that Dominique Girard, by his obligation made and executed en brevet on the 1st of September, 1804, before Faribault, Notary, and two witnesses, did acknowledge to owe to the plaintiff the sum of £9 18 2, which he did thereby promise to pay to the plaintiff with interest, and for securing the payment did mortgage and hypothecate generally all his property which he then possessed or might afterwards acquire. That on the 1st of April, 1808, he the plaintiff obtained judgment in this Court against Girard for the said sum together with interest and costs, amounting to £20 19 5, upon which judgment execution was sued out against the moveable and immoveable property of the defendant, which was afterwards returned by the Sheriff nulla bona. That at the time of executing the aforesaid obligation, Girard was owner and proprietor of a certain lot of land in the Bay of St. Paul, and which afterwards on (b) Rules and Orders 231. the mortgage. against and WIFE 1810. the 16th of September 1806 (long previous to the BELAIR judgment obtained against Girard) he sold and conGAUDREAU Veyed to the present defendants, and that therefore, inasmuch as Girard was the proprietor of the said lot, at the time of the making and executing of the aforesaid obligation in favor of the plaintiff, he the plaintiff by the acquisition of the said lot by the defendants, became their mortgage creditor for the amount of the said judgment, interest, and costs, and the defendants liable to pay the same, unless they should prefer to abandon the said lot of land, to be sold for the satisfaction of the said debt, which they had hitherto refused to do; and therefore concluding ing that by the judgment of the court the defendants. should be condemned to pay the debt or to quit and abandon the land, within a reasonable delay to be determined by the Court. To this action the defendants filed several pleas, one of which was a Defense au fonds en droit, upon which the parties being at issue were heard, when Vanfelson, for the defendants, contended that upon the face of the plaintiff's declaration the present action could not be maintained, as the plaintiff did not in law acquire any mortgage or hypotheque upon the land in question under and by virtue of the obligation executed en brevet on the first of September, 1804, mentioned and setforth in the plaintiff's declaration, and therein stated to have been so executed. That no obligation en brevet could create a mortgage, and that it was only those actes, executed before two Notaries, or a Notary and two witnesses, of which the minute or orignal remains with the Notary, which could give a right of mortgage. Berthelot, for the plaintiff, contended that by the obligation declared on, though executed en brevet, the plaintiff did acquire a mortgage or hypotheque upon upon the lot of land purchased by the defendants from Girard, the same having been executed before a Notary and two witnesses. The Court took time to consider the point, and on this day the opinion of the Court was delivered by SEWELL, CH. J. This is an action hypothecaire founded upon an obligation passed en brevet, before a Notary and two witnesses. Mortgages and all their consequences depend entirely upon the authenticity of their dates, and from hence arises the unquestionable principle "That no acte sous signature privée can create a mortgage ;" and by parity of reason, no acte ought to create a mortgage, which in respect to the certainty of its date, is not more than equivalent to an Acte sous signature privée. Now in all cases, in which the original acte remains in the custody and keeping of the Notary, the date of that acte can be accurately ascertained by the Notary from the minute which he has kept, but if no minute is kept, and the acte is delivered en brevet to the parties requiring it, the Notary has no better means for establishing the date of the acte than any common witness. And thus, as to the certainty of its date, the acte en brevet becomes no more than equivalent to an acte sous signature privée. Le Proust de Royer (a) states distinctly, that an acte en brevet does not create a mortgage, un autre privilege," says he, qu'ont les actes reçus 66 66 par des Notaires c'est qu'ils portent hypotheque, “mais il faut pour cela plusieurs conditions. Il faut que ces Notaires aient qualité pour instrumenter ; "ill faut qu'ils signent leurs actes; et il faut que les 66 66 actes ne soient point en brevet mais qu'il en reste minute." On the contrary Le Camus in his new edition of Denizart has the following observation, "Il n'y a point de doute que l'acte passé en brevet emporte hypotheque aussi bien que celui dont il "reste 66 1810. BELAIR against GAUDREAU and WIFE. 1810. BELAIR against GAUDREAU and WIFE. "reste minute, c'est ce qui est attesté par un acte de "Notorieté du Chatelet du 24 Avril, 1703." (b) But then it must be remembered that all actes passed before Notaries in France were, under the Edict of March, 1693, controlled and enregistered in a public office, in the Bureau de Controle. (c) That when an acte was executed en brevet, it was controled and enregistered before it was delivered to the parties, (d) so that the date of such an acte was the day on which it was controled, and no mortgage in point of fact was created, until the acte was enregistered. Let it be remembered also that Mr. Pothier is of opinion, that actes sous signature privée acknowledged before Notaries by the parties, will create a mortgage, "lorsqu'ils sont deposés chez un Notaire," and not otherwise; (e) and that Le Camus himself admits that the originals of all actes, in which third persons are interested, which is particularly the case in mortgages, ought to be kept in some public office; "Le bien de la société [says he] exige que les 66 originaux de tous les actes qui interessent, ou qui "doivent naturellement interesser des tiers, soient con"servés en quelque déepôt public et inviolable afin 66 qu'on ne puisse pas les soustaire, les alterer, ou "même seulement les tenir secrets au prejudice. "d'autrui." (f) It is evident therefore that in France an acte en brevet was more than equivalent to an acte sous signature privée, the date being authenticated by enregistration in a public office, and as upon the whole we cannot consider an acte en brevet to be in Canada any more than equivalent in this respect to an acte sous signature privée, for the want of that enregistration in a public office; for which the law provided in France, we are of opinion that an acte en brevet does not in Canada create a mortgage. Per Curiam, Action dismissed with costs. (a) Dic. des Arrêts, 2. V. 640....(b) 3. L. C. Denizart, 772. (c) Repertoire, V. 40. p. 106, Edict of March, 1693, 2. Neron, 245. (d) 5. Pothier, 422. L. C. Denizart, Verbo, Controle, Sec. 3. No. 6. V. 5. P. 514.... (e) 5. Pothier, 422....(ƒ) L. C. Denizart, V. 1. p. 184. Jud. MSS. MURE Το of damages, for 10 a demande in Chief, instituted by Wileys & In an action Hungerford, for the sum of £155 7, alleged the non-perfor to be a balance due upon the sale and delivery of a large quantity of pine timber, oak timber, and staves, mance of a special agreement in which a penalty is stipu failing, the pe be considered as stipulated therefore what lated to be paid under a special agreement in writing, the defend- by the party ants, Mure & Joliffe, filed a Défense au fonds en fait, nalty is not to and an incidental cross demande, in the last of which damages, and they on their part, alleged, that by the agreement, ever loss is prodeclared upon in the demande in chief, Wileys & Hun- been sustained, gerford had covenanted, and agreed, to deliver, at yond, below, Quebec, to them (Mure & Joliffe) certain quantities value of the peof pine timber, oak timber, and staves, on or before tiff will have the 15th of June, 1809, under the penal sum of £200. That the said Wileys & Hungerford, had not performed this agreement, but on the contrary had failed and made default therein; and that an action had thereby accrued to them, to have and recover, from Wileys & Hungerford, the entire damage occasioned by their breach of contract being £311, for which they concluded, praying to be admitted plaintiffs &c, as usual. To this incidental cross demande no answer whatever was filed by Wileys & Hungerford; and Mure & Joliffe, having obtained leave to proceed ex parte, the agreement for the timber and staves (dated the 4th of February, 1809, and in substance as stated in the incidental demande) was produced and proved at the enquête. It was further proved that no part of the pine, oak, or staves, had been delivered "on or before the 15th of June, 1809;' that after the 15th of June and before the 1st of August following, the stipulated quantity of pine had been delivered, with 800 feet of oak instead of the 10,000 feet which the incidental defendants by their agreement had engaged to deliver, but that of the quantity ved to have whether be or equal, to the nalty, the plain judgment for. |