PUBLIC RECORD OFFICE
Reference:
TLC.O. 882
חיי!
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2 PUBLIC RECORD OFFICE, LONDON
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the field of conveyancing which belongs of right to the profession at home, and in all the Colonies where English law prevails, and for enacting such a table of fees and such professional rules with regard to the drawing of deeds and the conducting of general business by the united class of practitioners as shall give fair professional remuneration with proper guarantees to the public.
25. I cannot explain clearly how the professions of Notary and Attorney may be united without a retrospective glance at the nature and origin of the functions of Notaries. Cariously enough the Attorneys in matters of conveyancing have got very much into the position which the Notaries themselves occupied in ancient times, viz., that of taking notes (hence the name) of the conventions, the parties desired to put into writing, while the actual drawing and engrossing of the deed was done by a class called "Tabellions." Even the sealing was at one time done by a different functionary. It was only by slow and painful steps of reform that the Notariat assumed its present shape.
26. The system of public registration of deeds was then unknown. Notaries were in fact the public conveyancers and registrars of their districts. After the French revolution the system of public registration was adopted applicable to all legal documents. In this Colony it was introduced, or at least completely regulated by the Arrêté of 16 Frimaire, an XII. It will be observed by paragraph 4 that one of the objects of passing acts before Notaries was to fix their dates. But the date can be fixed by the date of registration in a public office equally well as by the action of another public officer, the Notary. In fact the system of registration was taken advantage of by the framers of the Code for fixing the date of "sous seing privé," or acts under private signature, and may be taken advantage of by us for further reforms in the same direction. All notarial acts require to be registered, upwards of 5,000 being annually entered in the books of the Registration Department. There seems, therefore, to be no valid reason, when notarial Acts are already registered, and registration fixes the date of "sous seing privé," why the date of registration alone should not be employed to "fix" the dates of all deeds.
27. Another modification of the law has materially altered the position of viz.. Notaries, and rendered their existence as a separate class, much less necessary, the law of inscription, of mortgages, and of transcription, of a numerous class of deeds relating to real property.
28. The mortgage is a deed which "ought by law," to quote the words of the Arrêté of the year In, "to have the character of authenticity attached to an act done under public sanction." It required to be passed before a Notary. The deed had then its date "fixed," and the Minute was preserved among the Notary's deposits. Mortgages must now be inscribed as well as passed before the Notary, and the order of ranking being according to the date of inscription, the act of inscription in the Public Registers fulfils in a much more satisfactory manner all that the Notarial Act was intended to accomplish, This subject will be found more fully treated in paragraphs 24 and 32 of the Report on the Land Laws.
29. The inscription is for purposes of publication of mortgages, and also of certain privileged claims which, under the law of the code, have a preference when inscribed in the same manner as mortgages. Publication could not be obtained under the old Notarial régime, and the defect of the system in this particular was one of the chief moving causes of those reforms which, when logically followed out and completed, the raison d'étre of the Notary as a special public functionary different from the Attorney will be found to have ceased. The definition of the conventional mortgage would, of course, require modification.
30. Another step in the same direction was taken by Ordinance 36 of 1863, which requires, in additicu to registration, transcription of a numerous class of documents relating to real property which may be Notarial deeds, but which also may be and are, in fact, very frequently "sous seing privé." Until transcription, the rights resulting from the deeds are not maintainable against third parties who have secured their rights according to law. The mere passing of these deeds before Notaries is not sufficient, therefore, as formerly, for making such acts effectual, and deeds “sous seing privé” may, if transcribed, first cut out a Notarial deed of prior date.
31. The object of transcription was also to secure publicity, but the system of public registration (including in this phrase the three technical terms of registration, inscripiton, and transcription) being in force and well understood by the profession, can be applied to the two other purposes for which Notaries have hitherto been
'” and “execution." employed, viz., those of "preservation
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32. A Notary is the custodian of the documents passed before him, and he gives out such extracts and copies as may afterwards be required. He is also the custodian, by the law of the year xu, of the acts of his predecessors in business, so that while we have a Registration Office for the deposit of archives, all those valuable documents are still scattered about the various bureaux of the Notaries, subject to countless accidents. Quite recently we had a case before us where a notarial deposit of recent date was sworn to as having been lost.
33. I propose that duplicates of all deeds which do not otherwise require at present to enter a public Register be deposited for preservation in the public Registration Department, and copies and extracts to be given out at moderate rates By the Conservator. I propose also that all the deposits of deceased Notaries be transferred to the public archives. That the public interest will be promoted by the facility of obtaining copies from the public Register at a reasonable charge may be judged of from the fact that, in a recent case, a litigant who wished to produce a copy of a deed of mortage executed, not by himself, but by some previous possessor of the estate, was charged 1471. by the Notary as fees of copy and of the original deed, which it was alleged had not been paid for.
34. One other peculiarity of notarial acts must be referred to and provided for. They are executory without further ceremony or judgment. The parties having given their consent to the conventions stipulated in the Act before a public functionary, are taken to have confessed judgment, as it were, to the matters contained in the deed, and when it is desired to enforce the execution, a copy or extract from the Notary's Minutes is applied for, and he being a public officer authorized to that effect, gives out an executory copy with a form added, charging the debtor to fulfil his obligations in the name of the Sovereign just as a summons is issued from the Supreme Court. Attorneys, not being public officers in the same sense as Notaries, could not be entrusted with this power of issuing executory write. But here the Scotch system supplies a plan which works perfectly. Parties to deeds by a formal clause give their consent to registration (which is equivalent to our transcription), for "preservation and execution.” When it is desired to put the execution in force, an extract or copy is obtained from the Registry, which begins with a form which shows that the charge to fulfil the obligations is in the name and authority of the "Lords of Council and Session," or the Supreme Court. Here the formal clause would be for "deposit and execution," the section of the Ordinance authorizing and requiring this form to be inserted, would set forth that it was for the purposes equivalent to the former notarial deposit and execution. and granting authority to the head of the Mortgage and Registration Department to issue the necessary executory extracts.
35. It may be contended that no inconsiderable part of the authenticity of the Notarial Act is derived from the fact that it is signed in presence of the Notary. believe that, in practice, this obligation on the Notary has not been regularly attended to, but that it has been customary to send the deeds to the parties to be signed, and that they are in numerous cases signed out of the presence of the Notary. That part also of the form which sets forth that the parties appeared before a Notary "et son collégue," is also merely traditional. The colleague is not, as a rule, present, or, indeed, it may be said is not present at all.
36. The "sous-Being privé," on the other hand, is not signed before witnesses, and consequently wants the guarantee which the attesting clause gives to English and Scotch deeds. I propose that, under the new system, it be required that all deeds should be signed before witnesses, and an attestation clause added, setting forth the dates and witnesses to each signature. This; if not so absolute a guarantee of genuineness as signing before a Public Notary, is at least better than the more statement of the Notary that he has seen the parties sign, where, in point of fact, he did not; and, on the other hand, it will be very much better than the present system of "sous saing privé," which has no guarantee at all.
37. The Scotch attestation clause is better than the English, in this respect that it mentions the writer of the deed, and, as he is generally, a clerk in an attorney's office, it is at once shown where the deed has been prepared, and who are responsible, professionally, for the drawing up of the document. This, alo greatly assists the officers of the Registration Department. Here, I think, such an additional guarantee would be extremely useful. In a recent case before the Assise Court, I found that a deed of sale of a house in town, alleged to be fictitious, had been drawn up by an attorney's clerk (without the cognisance of his master), and registered and transcribed in the office of the Conservator of Mortgages.
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