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Msps, pistes, cherts, etc., may be filmed at different reduction ratioa. Thoae too large to be entirely included in one exposure ere filmed beginning in the upper left hend corner, left to right end top to bottom, as many framea aa required. The following diegrema illustrate the method: Lea cartes, planchea. tableeux, etc., peuvent Atre filmte k dee taux de reduction diff6rents. Lorsque Ie document est trop grsnd pour Atre reproduit en un seul ciichA, 11 est film6 A partir de I'angle aupAriaur gauche, de geuche A droite, et de haut en bea, en prenant Ie nombre d'imeges nAcesssire. Les diegrammes suivanta illuatrent Ie mAthode. 1 2 3 1 2 3 4 5 6 A.F v^ REPORTS / OF CASES ARGUED AND DETERMINED IN THE COURTS OY KING'S BENCH AND IN THE PROVINCIAL COURT OF APPEALS OF LOWER CANADA. WITH A. FEW OF THE MORE IMPORTANT CASES IN THE COURT OF VICE ADMIRALTY AND OM APPEALS FROM LOWER CANADA BEFORE THE LORDS OF THE PRIVY COUNCIL ; COLLECTED BY GEORGE OKILL STUART, ESQ. BARRI8TER AT LAW. V*" QUEBEC.- rniNTED BY NEILSON k COWAN. 1834. ,l4.:*v; ;<. ;-;'^ir^.; -'.;H-:r PREFACE. I In the absence of any regular reports of the decisions of the superior courts of this country, persons entering upon the practice of the law find it a matter of much difficulty to make themselves acquainted with many of these decisions, settling important principles of law. The dangers to which parties must every where be subjected from the want of reports of judicial decisions, are peculiarly aggravated under a system derived from such various sources as is the law of Lower Canada. Feeling this inconvenience, I was early induced to direct my attention to the collection of the more important cases, and as they increased in number, I was led to believe that the publication of them might not be with- out use to the profession. I was encouraged to publish them by several of my friends in the profession, and was further induced to make the attempt by the offer which the Honorable the Chief Justice of the Province, Mu. Sewell, was pleased to make, in the most obliging manner, to afford me access to his original minutes. With this aid, and with the cordial co-operation of seve- ral members of the profession, I trust, that it will be found that the judgments are reported with strict accu- racy as to the chief grounds and substance of them. Much will, doubtless, yet remain to be done ; but if the present humble effort serve only to mitigate the evils incident to the absence of regular reports, and to hasten the period of their publication, I shall not regret the time and labor bestowed upon the present collection. Quebec, 16th October, 1834. M i I f I f i CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH FOR THB DISTRICT OF QUEBEC. In the Case of Pierre Bedard, I. HIS day, A. Stuart moved for a Writ of Habeas ^^^^fj;"'' Corpus, directed to the Keeper of the Common Gaol of v^-v^ the District of Quebec, to produce tlie body of Pierre foraWritof Bedard, returnable within fourteen days, and filed the JJfs^top^"'^" following Documents in support of his application : — duce the body of a person in custody, (un- -1st. A notice of Motion to the Attorney General, ?romthrc7°' dated the day previous. Members of , _,, v. I, . •/. •■ /.^ . the Executive 2nd. Ihe followmg certined copy of Commitment : — Council for " treasonable {tract ices,") To the Keeper of the Common Gaol of Quebec. vrieje"'a8 J"' Member of the Provincial Whereas Pierre Bedard, of Quebec, Barrister at Pa«i'a«nent. . , t'*'* papers Law, stands charged before us upon oath, with treason- purporting to be two Inden- tures of Elec- tion produced in support of the motion, are not sufficient evidence of his bein^ such Member, to entitle him to the benefit of the Writ. A Member of the Provincial Parliament held at Quebec, the place ivhere be is resident, arrested eijfhteen days after its dissolution for " trea- sonable practices," and during; his confinement elected a MemJier of a new Parliament, is not entitled to privilege from such arrest, by reason of his elec- tion to either Parliament. B i CASES IN THE COURT OF KING'S BENCH \- m 1810. able practices, these are, therefore, in His Majesty's ^ name, to require and command you to receive the body P. Bedabo of the said Pierre Bedard into your custody in tlie Common Gaol of this District, and him safely there to keep and detain until he shall thence be delivered in due course of law. Given under the Hands and Seals of us, Thomas Dunn, FRAN901S Baby and John Young, three of His Majesty's Executive Council, of and for the said Pro- vince, at the City of Quebec, in the said Province, this 19th day of March, 1810, in the 50th year of His Ma- jesty's reign. (Signed) "Thos. Dunn," " F. Baby," " John Young." (A true Copy.) (Signed) William Reid, Keeper. 3rd. The Quebec Gazette containing the proroga- tion of the Provincial Parliament by His Excellency Sir James Henri/ Craig then Governor-in-Chief, &c., on Monday the 26th February, 1810. 4th. The Quebec Gazette containing Proclamation, dated 1st March, 1810, dissolving the Provincial Par* liament and calling a new Parliament, Writs to bear test the 12th March, 1810, and to be returnable on Saturday the Slst day of April following, for every place but Gasp6. 5th. An Indenture, dated 25th October, 1809, by which it appeared that Pierre Bedard was returned as Member of the Provincial Parliament for the Lower Town of Quebec. 6th. An Indenture, dated March 27th. 1810, by which it appeared that the said Pierre Bedard was re- turned as a Member for the County of Surrey. It (( <( (( tc (( «( fl ENCII Majesty's ! the body \y in the y there to liverecl in , Thomas ree of His said Pro- vince, this f His Ma- N YOUKG." D, Keeper. proroga- Ixcellency )hief, &c., iclamation, ncial Par* lits to bear irnable on for every 1809, by leturned as the Lower 1810, by ird was re- FOR THE DISTRICT OF QUEBEC. 1810. A.Stuart [in support of the Motion] said, that this application was grounded upon the proviso of the Pro- j,^^^ ^^ vincial Act 43, Geo. III. c. 1, s. 6., which provides P. Bedard. ** That nothing in that Act shouhl extend, or be con- " strued to extend, to invalidate or restrain the lawful •* rights and privileges of either branch of the Provin- ** cial Parliament in this Province," and that the ques- tion submitted to the Court was, whether this proviso embraced the present case ? and whether it does not destroy the force of the 4th clause, which enacts *• That " such Writ of Habeas Corpus, or the benefit thereof, ** shall not be allowed by such Court or Courts, Judge or Judges, to any person or persons detained in prison, at the time of his, her, or their application for such Writ of Habeas Corpus, by such Warrant of His said Majesty's Executive Council as afore- said, for such Causes as aforesaid, or any or either of them ; and that in all and every case, where such Writ of Habeas Corpus shall be allowed, no Court or Courts, Judge or Judges, shall bail or admit to bail, the person or persons to whom such Writ of Habeas Ccrpus shall be allowed, if upon the return " made to such Writ of Habeas Corpus at the expiration of fourteen days, from the day on which such Writ of Habeas Corpus shall be so allowed, it shall appear that such person or persons shall be then detained in « prison, by such Warrant of His said Majesty's Exe- " cutive Council, as aforesaid, for such causes as aforesaid, or any or either of them, any Law, Sta- tute, Act or Ordinance to the contrary notwith- ' Standing." (a) (n) The provisions of this Act, which was intituled " An Act for the better prcstrvatioii of His Majesty's ({overiunent as by law happily esta- blished in this Province," ar* ni substance as follows : — (( (( li f( (I {( (i (( (( tt <( ti tt tt tt kS CASES IN THE COURT OF KING'S BENCH 810. Case of P. Bedarp. ;i; Th6 House of Assembly must, of necessity, have those privileges >vhich are essential to its very exis- tence. To ascertain what those privileges are, we must look to the House of Commons in England, where the applicant would undoubtedly have been entitled to his privilege. Parliamentary privilege, as to the freedom from arrest, not only exists during the actual sitting of Parliament, but extends to forty days after a dissolution. There are but three Cases to which it does not extend, JVeason, Feloni/, and an actual breach of the peace. The charge against the applicant comes under neither of these descriptions* " Treasonable practices" are not treason : they possess, indeed, some of the qualities of treason, but are en* tirely destitute of other essential qualities necessary to constitute treason. As for example, in the case of Sydney, among whose private papers were found some Tbe Ist Clauset after declaring that it was necessary to defend and soonre His Majesty's good and loyal subjects within this Province against every ti'aitorous attempt that might be formed for subverting the existing laws and constitution of the said Pro^'ince, and for introducing the horrible system of anarchy and confusion which had so fatally prevailed in France, for the bet- ter preservation of His Majesty's Government, and for securing the peace, the constitution, laws and liberties of the said Province, enacts, " That per- sons committed by the Executive Council, for high treason, misprision of liigh treason, suspicion of high treason, or treasonable practices, might be detained in custody, without bail or mainprize, during the continuance of the Act, nor should be bailed by apy Court, &c. without a Warrant from the Executive Council. The 2nd Clause enacted, that it should not be lawful for any Justice of the Peace to adroit any person to bail for the above named offences during the continuance of the Act. The 3rd Clause enacted, that during the continuance of the Act, in cases where persons were charged with the offences above named, and to whom a Writ of Habeas Corpus had been allowed, the same should not be returna- ble in less than fourteen days, and that as soon as the application was made for tbe Writ in any case, it became the duty of the Court to give notice, &c. of the same in writing, to the Governor. Tbe 5th Clause limits the duration of the Act, and provides, that after its expiration, every pereon so committed, shall have the beneiit and advantage of the luws relating to, or providing for the liberty of tbe subject in this Province. Me the! FOR THE DISTRICT OF QUEBEC. as ihe Jays s to \ an the ,ions» ssess, e en- iry to ise of some i spoure »8t fvury laws and iygtCDQ of r the bet- ihe peace, ThHt per- iprision of , wight be nee of the I from the Justice of ces during ,ct, in cases ,d to whom be returna- a was made notice, &c. hat after its ,d advantage jeci in this writings of a treasonable tendency ; but they had nei- ther been published, nor did any intention ol' publish- ing them appear. So also, in the case oi'a person pre- paring to make communications to the King's enemies, without having taken any steps to carry his intention into effect. In both cases will be found " treasonable pracliccs" but in both, the overt Actt absolutely essen- tial to constitute treason, is wanting. *• 'Treasonable practices" are certainly not Felony, nor do they amount to an actual breach of the peace. This is a commit- ment for " treasonable practices" and commitments must at all times be construed stricilv. The offence cannot be constructive, it must be an actual breach of the peace. The charge, t he i fore, not coming under any of the three exceptions, the applicant ought not to be barred of his privilege. The cnse of ll'ilka^ is in point, who was anesied fo'" hu.ing published an infamous and seditious libel. ( /) lie was brought before the Court of Common Pleas by a Writ of Ha- beas Corpus, and claimed the privilege of Parliamenl : Lord Chief Justice Pralte (afterwards Earl Camden') was of opinion that he was entitled to his discharge, and discharged him. Upon the point of privilege, the applicant claims as well upon the ground of having been a Member of the late, as of having been elected a Member of the new Parliament, {b) 'The Attorney General, (Uniacke,) contra. Before the Counsel for the applicant can avail himself of the (a) 2 Wils. 151. (6) Holiday & al. v. Colonel Pitt {Strange, 985.) was cited to prove that the privilege of Patliament extends to a certain period after a dissolution. Also 1 Siderfia 4s». 1 Hatseil's Precedents 163; and Bacon, under the word privilege, to shew that a person aheady in custody is entitled to claim his privilege as soon as he is elected. luiu. Cask oi' P. Ukuahu, MI 3;i c CASES IN THE COURT OF KING'S BENCH 1810. Cash: ov V. Bedako. argument he has made use of, he must distinctly esta- blish what are the privileges of the Members of the House of Assembly of Lower Canada. The present question is, whether an express Act of Parliament is to be evaded by extending to the Members of the Pro- vincial Parliament, all the privileges of the Members of the Imperial Parliament ? This cannot be the case ; because it is no where to be found that such privileges have been extended to them : — nor have any such been given to them by the Constitutional Act. Every traitorous attempt is treason ; nor is it necessary that treasonable designs should be ripe for execution, and have actually commenced their operation, to bring them under the denomination of treason ; nor does privilege any more extend to treasonable practices than to treason itself. The argument founded upon the case of Wilkes must fall to the ground. For the House of Commons solemnly disavowed the decision of the Court of Common Pleas in the very same year in which it had been made (1763) ; and the House of Peers, five days subsequent to the resolve of the Com- mons, passed a similar resolution. Of late years the privileges of the House of Commons have been much curtailed, and if the question before the Court were now raised in England, the applicant would, most cer- tainly, not be allowed his privilege, (a) Indeed there is no instance of a Member being allowed privilege in a criminal case, neither is the charge against the ap- plicant for a supposed or constructive offence. The Warrant of Commitment shews it to be a charge of »* treasonable practices" vpon oath, and this charge {a) I Hatscll, 200. and 5. Bacon 631— No. i. EI FOR THE DISTRICT OF QUEBEC. esta- f the esent ent is J Pro- mbers case ; ileges such Every y that 1, and bring • does 58 than ^n the 'or the ecision le year >use of ! Com- ars the much were st cer- there cge in he ap- The irge of Icharge unquestionably incUides a breach of the peace. It would surely be absurd to say, that in the case of a common assault upon an individual, a Member of the Legislature shall not be privileged, and yet, — that on a charge of " treasonable practices," affecting the wel- fare and tranquillity of the whole population of a coun- try, he may claim and have his privilege. The obvious intent of the privilege of Parliament is to protect a Member from the sufferance of wrong, not to enable him with impunity to commit wrong j *• it must not be used for damage to the Common Wealth." The Advocate General, (Perrault,) on the same side. This question is not without difficulty. By the 4th Clause of the Statute 43, Geo. III. c. 1. all persons, accused of certain offences therein specified, are di- vested of the right to sue out a Writ of Habeas Cor- pus. The Counsel on the opposite side has fallen into an error in the application of the two authorities he has cited. The decision of the Court of Common Pleas, in the case of Wilkes, was against every princi- ple of law, («) and was formally disclaimed by the Bri- tish Parliament. The privilege of Parliament extends only to civil cases ; there exists no precedent of the extension of it to indictable offences, of which descrip- tion is the offence the applicant is charged with. The spreading false and raalicious reports against the Go- vernment must be considered as a breach of the peace. The writing and publishing seditious libels, also, is an offence not entitled to privilege, which is taken away in all criminal cases. The case o^ Holiday v. Pitt, was entirely a civil case, and therefore not applicable to the (o) I Black. Com. 165.166 and 4. 149. 1810. Casb of P. Bedard. 8 CASES IN THE COURT OF KING'S BENCH 1810. Case op P. )3edard. >ll! present question. The Warrant of Commitment is sufficient proof that the ofi^ence with which the appli- cant is charged is an indictable offence, and ist, there- fore, sufficient ground for the Court to reject the pre- sent apph'cation for a Writ of Habeas Corpus. Bowen, on the same side. Should the argument in support of the motion be admitted, the House of Assembly might be composed of fifty traitors, and no remedy be had against them ; it would be to say, that under the shield of privilege, might be found protec- tion and security from the consequences of crimina. lity. But before entering into the consideration of " what may he the privileges of the Provincial Parlia- ment" let us examine whether the applicant, at the time of his arrest, could be considered as a Member of that Parliament, or was entitled to claim any lawful privi- lege that may attach to that character. For this pur- pose it is necessary to advert to dates. The proroga- tion of the Provincial Parliament took place on Mon- day, February Q6th, 1810. The Proclamation, dis- solving the House of Assembly, issued on Thursday, 1st of March. The Writs for a new Election bear teste on Monday, March 12th. The arrest of the applicant was on Monday, March 19th, and he is said to have been elected one of the Members for the County of Surrey, on Tuesday, March 27th. It is very material to keep these dates in view, for the prin- ciples of this application are, that the applicant is enti- tled to obtain his Writ on two grounds. 1. As having been a Member of the late P.ovincial House of As- sembly. 2. As having been elected a Member of the new Provincial House of Assembly. And, as such, entitled to his privilege. He ought not to succeed on FOR THE DISTRICT OF QUEBEC. i) the first ground, because, if we refer to English autho- rities, it will be found that the period after a session, during which a Member of Parliament is privileged, for the purpose of his return home from the perform- ance of his public duty, is a reasonable time for that purpose, and not, as has been argued, Jbrty days. And this was decided in the case oi Martin* (a) The case cited of HoUday v. Pitt, only shews that the Members had privilege, after a proropration or dissolu- tion, so long as they were paid, that is to say, till they reached their own houses. Eighteen days had elapsed between the dissolution of the late Parliament, and the arrest of the applicant ; and can it be seriously argued that this was not a reasonable and sufficient time for him to go from the House of Assembly to his own house, when both are in the same city ? If he could have claimed any privilege, therefore, it could only have been the privilege of a single day. — He must fail on the second ground also, because, at the time of his arrest, he was not a Member of any Parliament \ and, consequently, the 4th Clause of the Provincial Act, cited by the Counsel for the applicant in openi""" his case, is in full force and effect, and is a perfect bar to his claim of those privileges referred to in the proviso, be they what they may. The case of Wilkes has been cited to shew, that as the applicant has been elected, since his confinement, a Member of the new Parlia- ment, he is entitled to privilege. But the decision of the Court, in that case, has long ceased to be r<>cog- nized as law } and was set aside by the Parliament itself. The privilege of a Member of the House of Commons IdlO. Case op *. Beoabd. I m id) See Martin's case in 1586. C m^mm^ to CASES IN THE COURT OF KING'S BENCH 1810. Ca8B of p. Bedard. i'^ commences only at his election ; ** but if he be arrested, or taken in execution, before his election, he shall not have privilege." (a) But, even here, the reference is only to civil suits : how then can it be contended that privilege exists, previous to election, in criminal cases ? In England Members of Parliament are privileged from arrest in all cases, treason, felony, or breach of the peace only excepted, (b) The 6th Clause of the Sta- tute 43, Geo. III. c. 1, says, that "nothing in this " Act shall invalidate or restrain the lawful rights and «* privileges of either branch of the Provincial Paiiia* " ment ;" and the question necessarily arises. What are the lawful rights and privileges of the third branch of the Legislature of Lower Canada? — Are they, in every respect, the same with those immemorially en* joyed by the House of Commons in England ? — Most assuredly not. Where then shall we find them enu- merated, or by what means can we trace them out ? The Act of the 31st Geo. III. c. 37, by which the Le- gislature of Lower Canada was created, and by which our constitution is given to us, defines and limits that constitution. Will the Court admit that the Provin* cial Legislature is entitled, under that Act, to all the pri- vileges of the Imperial Parliament ? It is impossible. A Member of the Provincial House of Assembly can claim no privileges, but such as are there given him. In that statute is comprised our whole constitution ; that statute forms our only charter. A, Stuart, in reply. When I first made this application to the Court, I was under a strong impression that, in point of law, it ' t (a) 5. BaooD 681. (b) 4. lut. 25. ■ ^, FOR THE DISTRICT OF QUEBEC. /. it ought to be granted : and this impression has been i^io. matured to perfect conviction by the arguments ad- ^.^^ duced by the Counsel who have opposed the motion. P. Bedard. They have founded their arguments on an assertion the most questionable. They deny that the House of Assembly has any privileges whatever ; although those privileges have been constantly claimed and recog- nized, — are inherent in every Legislative body, — and are essential to its very existence. But it is said that they are neither mentioned, or defined, in the Act of the 31st of the King. I know no reason why a more strict rule of construction should be applied to this statute than to any other ; — but I can conceive many strong ones why it should receive a more liberal con- struction than an Act which, perhaps, solely relates to and regulates mere private rights. It follows, d Jbr- tiori, that the British Parliament, in granting to this country a Provincial Legislature, granted also those necessary privileges without which that Legislature could have no political existence. It would be diffi- cult, and Sir William Blackstone thought it would be inexpedient, to define with accuracy the extent of Par- liamentary privilege. The privileges of the Imperial Parliament are not fixed by, nor to be found in any statute. The authorities, cited by the Attorney Ge- neral from Hatsellt prove, what I have urged, the ne- cessity of Members of Parliament being free to proceed ■ to the performance of their public duties. If it were true that the House of Assembly have no privileges, it would be in the power of the other branches of the Legislature to annihilate it. And, if it have privi. leges, from whence can we derive so correct informa- tion of their nature and extent, as from the British :1^ r k hmMMh 5R 12 1810. Casb op P. Bedard I* W H!. CASES IN THE COURT OF KING'S BENCH House of Commons itself? But it has been said that, in England, a Member of the House of Commons, confined upon a charge of treasonable practices would not be entitled to privilege. The dictum of Sir Wil» liam Bhckstone, cited in support of this assertion, is contradicted by the decision of the Court of Common Pleas in Wilkes's case, and by the law authorities re- ferred to by Chief Justice Pratie. The Resolutions of the two Houses of Parliament, consequent upon this decision, were passed in times not the most calm ; and are not entitled to carry the same weight with them, that the decision of Chief Justice Pratte carries. " Treasonable practiced* may exist, and yet the party not be guilty of an indictable offence. If the principle be admitted — that privilege never extends to any case of a criminal nature, why are treason, felony, and breach of the peace alone specifically excepted ? If the Provincial Act of the 43rd of the King is to be construed in the manner contended for by the Counsel for the Crown, the proviso is altogether nugatory. The case of Martin has been cited, to shew that privi- lege extended to a reasonable time only, after a proro- gation. In that very instance, twenty days were considered to be a reasonable time : yet it is cited as an authority to shew that eighteen days are more than a reasonable time. The case of Pitt incontrovertibly establishes that the privilege of Parliament extends as well to a certain period after a dissolution, as after a prorogation. I will conclude with repeating my for- mer observation, that, in the present case, privilege is claimed upon the double principle of the applicant having been elected, and being at the present moment, a Member of the new Provincial Parliament as well as FOR THE DISTRICT OF QUEBEC. 13 that he was a Member of the late Provincial Parlia- ment. Per Curiam, Sewell, Ch. J. We are fully satisfied that the mo- tion cannot be granted. The facts which constitute the case before us are few in number. The late Pro- vincial Parliament was dissolved by Proclamation on the first of March last, and, by the same Proclamation a new Parliament was summoned to meet on the $21 st of April. On the 19th of March Mr. Dedard was arrested, and committed to the common gaol of this District, by a Warrant under the hands and seals of three Members of the Executive Council, for ** trea- sonable practices," and the object of the motion before us, is to release him from confinement upon the grounds that he served in the last Parliament as a representative of the City of Quebec. That on the 27th of this present month, he was elected to serve in the same capacity for the County of Surrey in the new Parliament, and therefore that he is entitled to his discharge, by reason of his privilege as a Member of the House of Assembly. The' commitment of Mr. Bedard is made under the authority of the Provincial Statute 43rd Geo. III. c. 1. which authorizes the deten. tion of every person committed by Warrant, signed by three of the Executive Council, for High Treason, Misprision of High Treason, or " treasonable prac- tices," without bail or mainprize, during the conti- nuance of the Act. It is, however, provided by the sixth Clause of this Statute, ** That nothing in the " Act contained shall extend, or be construed to ex- ** tend, to invalidate or restrain the lawful rights and «« privileges of either branch of the Provincial Parlia- 1810. Case op P. Bedard. F iwMiHNBinn 14 1810. Case op P. Bedard. CASES IN THE COURT OF KING'S BENCH " ment ;" and it is contended that Mr. Bedard is within the letter of this exemption. But to bring thi^ case within this proviso, it is obvious, that in the first instance he must be proved to be a Member of the Legislative Council, or of the Houseof Assembly ; and, in point of fact, there is no evidence of either. We have nothing, indeed, before us but two papers, which we are told are Indentures, executed between Mr. Bedard and the Electors of the City of Quebec, and of the County of Surrey. I say "told," because of this assertion no proof whatei'er has been offered, nor is any thing adduced, from which the authenticity of these papers can in any way be inferred. In the case of , John Wilkes there was a formal admission (a) on the part of the King's Serjeants, that he was a Member of the House of Commons ; and, upon that admission the proceedings of the Court of Common Pleas were founded. In this case there is no such admission, and as there is a total absence of every thing which, by law, we are permitted to receive as evidence of the fact upon which this claim of ex- emption is entirely built, we must necessarily, for this defect alone, reject the motion. I should be sorry, however, to have it supposed that this Court concedes what has been argued, viz., " That there is privilege of Parliament against arrest for treasonable practices," or to have it believed that we should hold ourselves bound by law, in any future instance, to admit a claim of privilege against arrest under circumstances similar to the present. The circumstances to which I allude, (assuming all facts to be as they have been stated,) are (a) 2. Wilson 151. FOR THE DISTRICT OF QUEBEC. 15 the arresi of Mr. Bedard eighteen days after the dissohi^ tion of the last Parliament and his Election to the new Parliament during his confinement, if Mr. Bedard was entitled to privilege upon the day oi his arrest> (the 19th of March,) it is evident, (as he was not elected for the County of Surrey until the 27th day of March,) that his right to it must be solely founded on the fact of his having been a MIfmber of ihf" last House of Assembly; and if he was not entitled to piivilege upon the day of his arrest, then, it is equally evident, that his claim to privilege must be entirely founded upon his election to the new Parliament. In England, the privilege from arrest is claimed and allowed to every Member of the House of Commons, " veniendo, moran- do, etexinde ad propria redeundo" (a) and extends to forty days after every prorogation, and to forty days before the next appointed meeting, (b) But although, to the effect which has been stated, there are several legal decisions, yet it does not appear that any precise period, for the duration of this privilege after a disso- lution, has been fixed. Prynne is of opinion, that it continues for the number of days during which (afler a dissolution) a Member formerly received wages ; (c) and those wages were in proportion to the distance between his residence and the place where the Parlia- ment was held, (tf) Upon this principle, in the case oH Holiday v. Pitt, (e) which has been cited at the bar, it was held by all the Judges that this privilege ex- tends only to a convenieni time afler a dissohiion, that is, to a sufficient time to enable the Member, with IS10. Cabr of P. Bedaro, (a) 4. Ins. 46. folio edition, (d) Stet. 35. Hen. 8. c. 1 1. \b) 2. Lev. 72. (e) Strange 985, and Fort. 159. c) 4. Pari, WriU. 68. r IG 1810. Ca>b of P. Bboard. m r CASES IN THE COURT OF KING'S BENCH convenience, to return home. Now, the last Provin- cial Parliament met in Quebec, in the very place for which Mr. Bedard was returned a Member, and in which he resides ; and as, therefore, it is impossible to say that he had not a convenient time for his return home, for transporting himself from one, to another, part of Quebec, between the first and the nineteenth day of March, it is clear llkat the day on which he was arrested was not within the period to which the privilege of the last Parliament extended. Let us now examine whether this claim can be sup- ' ported under the privilege of the new Parliament. There is certainly a material difference between the election of an individual who is at large, and the elec- tion of one already in con6nement, which is the pre- sent case. In the former instance, the electors, having chosen a free man, are without blame, and ought not to be deprived of his services by any act of his, to which the privilege of Parliament extends ; in the latter they make choice of one who visibly is not in a situation to perform the services which they require of him, and they have, therefore, only themselves to blame if they are deprived of them. In England, again, upon these principles, it has been decided that the privilege of a Member of the House of Commons from arrest, commences at his election, (a) unless he has been arrested, or be in execution before his election, in which case it has also been decided, that he is not en- titled to privilege, (b) Freedom from arrest, in all cases to which privilege legally extends, may be considered to be as indispensably necessary to the existence of a (a) 4. Bacon, fol. ed. S33. (b) 2. Siderfin 42. R. in Pari. IStli Marcb, 1598. FOR THE DISTRICT OF QUEBEC. Provincial House of Assembly, as to an English House of Commons. But there is no principle upon which it should be admitted in this Province, under circum- stances which are held in England to be such as must exclude it.' It is argued that " there is privilege of Parliament from arrest for treasonable practices," and to support this assertion it is contended that this privi- lege extends to all offences except treason, felony and breach of the peace, (which may be admitted) and that treasonable practices do not amount either to treason, to felony, or to bre^v^h of the peace. The Court is of opinion that " treasonable practices** are within the meaning of the words " breach of the peace" and that the privilege from arrest does not extend to cases of this description. All indictable crimes (and all trea- sonable practices must be indictable) are held in law to be contra pacem domini regis ; and upon this ground, in England, it is now understood that the claim of privilege does not comprehend the case of any indicta- ble crime. Such being the opinion of the Court, we are not called upon to make any enquiry as to the dis- tinction between treason and treasonable practices. It may be well, however, to observe, after what has been argued, that the precise import of the phrase " treasonable practices*' has never been settled by any legal decision ; and if by the word ** practices** we are to understand ** Act§** it certainly will be dif- ficult to mark the line of distinction. In the course of the argument, to shew that " treasonable prac- tices" are entitled to privilege, the case of John Wilkes has been entirely relied on. It has been said, that by this decision it was settled that a Member of Parlia- ment charged with having written and published a D 17 1810. Cask op P.DUOABU. I r 18 CASES IN THE COURT OF KINGS BENCil 1810. seditious libel was entitled to privilege ; and from "^"""^ thence it has been inferred that a Member, charged p. DroARD. with ** treasonable practices," must also be entitled to his privilege. Now, admitting this case for the pre- sent, to be law, it by no means follows because a seditious libel is entitled to privilege, that treason, able practices must also be entitled to it. If indeed, the latter was the minor offence of the two, it might be inferred ; but this is not the case, for in point of fact, it is the major and not the minor offence. To consti- tute treason, there must be an actual design against the King or his Government in contemplation ; and it is in this that it is distinguishable from sedition, which comprehends such offences (not being capital) as are of like tendency, but without any actual design against the King or his Government. A charge therefore, of doing a thing seditiously cannot amount to a charge of high treason ; since that which is seditious, and no more, can only partake of the nature of sedition. But, lor the same reason, that which is treasonable must partake of the nature of treason, and consequently be a crime of greater mag^iitude than any act which is merely seditious. The case of Wilkes then, if admit, ted to be law, proves that the privilege of Parliament extends thus far^ that is, to seditious acts, but affords no jwoof whatever that it extenas beyond them to " treasonable practices" But the decision in the case ofJolm Wilkes the Court cannot receive as law, be- cause it has been solemnly disclaimed by both Houses of the British Parliament. The Judgment, in this well known case, (pronounced May 3rd, 1763,) at the first meeting of Parliament afterwards, was taken into the consideration of both Houses^ and the discussion FOR THE DISTRICT OF QUEBEC. 19 ended on the 29th Nov. 17C3. in a joint vote, by which '*^'o. it was resolved, " That the privilege of Parh'amcnt ^^^^^ ^^ doth not extend to the case ol' writing and publishing P. Bvwv^i. seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an of« fence." (a) Let the order therefore be, ** that he take nothing by his motion." Williams, J. I shall not touch upon all the points that have been so ably stated by the Chief Justice* In the case of Wilkes, it was the admission of the Counsel for the Crown, that established the fact of his * being a Member. In the present case there is no such admission ; nor is there any evidence before the Court that Mr. Bedard either was, or is, a Member of the Provincial Legislature. The decision of Lord Camden was, certainly not correct ; nor can it be received as legal authority j— for the offence with which Mr. Wilkes was charged was clearly an indictable offence. — The Members of the House of Assembly of Lower Canada are, without doubt, entitled to the enjoyment of their lawful privileges, which ought not to be invalidated or restrained. But what are those privileges ? They are those which are granted them upon the claim made by their Speaker, at his presentation to the King's Representative for approval, after his election to that of- fice. The principal of which are *• freedom of Speech," for the purpose of managing their debates ; and " frcfe- dom of person" during the Session of Parliament, and while going to and returning from thence, in order to m I' i («) Comm. Journ. 24th Nov. 17C3. Lords* Journ. S9th Nov. ITfiS. Almon's Deb. Com. for 17G3. !tii^ 20 1810. Casb op P. ££OABD. CASES IN THE COURT OF KINC'S BENCH enable them to perform their public duty there. I entirely agree in opinion with the Chief Justice that the motion cannot be granted. Kerr, J. I do not think it necessary to give any opinion upon the important questions raised in the course of the argument upon this motion. The first point submitted to our consideration, is whether the two Indentures supposed to be the returns of Mr. Bedard as a Member of the last House of Assembly and of the present, are sufficiently proved, or in other words, if his Counsel has offered legal evidence of his being within the exception contained itj the 6th Sec- tion of the Provincial Statute. I am entirely of opi- nion with the Chief Justice, that we have not evidence of his being a Member of the last, or of the present Parliament, and consequently, we have not now to decide whether a Member of the Assembly has his privilege in the case of " treasonable practices.'' I will not follow this question then ab omnibus qimrendat but should it come regularly before the Court, we .must not shrink from the execution of our duty. It is suffi. cient for me to state, that I agree in opinion with the Court, that this Motion ought not to be granted. Motion denied. It is but justice to the memory of Mr. Bedard to notice that on the 12th day of Deer. 1812, be was elevated to the Bench, and continued to discharge the duties uf his office until his death, a iicriod of about sevcutceu years. FOR THE DISTRICT OF QUEBEC. Hamilton and AnotIier against Fraser and Others. 21 ).J 12th "Tiargo (< ({ xN this case a rule was obtained, calling on tiie De- fendants to sliew cause why a Writ of Prohibition should not issue to stay proceedings in a certain suit in the Court of Vice Admiralty brought by the pre- sent Defendants, for work and labour, in the Salvage of a certain Ship and cargo, at the bail ure of Mille Vaches, in the River St. Lawrence. The Libellants in the Court of Vice Admiralty, — Fraser and others, — alleged in the first count of their libel, " That the Respondents, as owners and pro- prietors of a certain ship or vessel, called the Trio, on the third of November last, upon the high and open seas, within the jurisdiction of the Court of " Vice Admiralty of this Province, to wit, at the « Batture qf Mille Vaches in the River St, Lawrence, " were indebted to the Libellants in £^2000 for the " work and labour, care and diligence of the Libel- " lants before that time on the high and open seas " aforesaid, done and performed by the Libellants in " the Salvage of the said ship, and of the cargo where- *' with the said ship was forced and driven on shore <* and stranded, and after she was got afloat, to wit, •« on the third day of November last, at the Batture ** of Mille Vache aforesaid, was loaded, and for money by the said Libellants in that behalf laid out and expended." And the Libellants averred ** that the Respondents being so indebted promised to pay (« (( <« 20th Fcbry, 1811. A Prohibition may issue from the Court of Kind's I3cnch to stay pro- ceeding's in the Court of Vice Admi- ralty. A suit for Salvage of a Ship stranded on a sandbank in the River St. Lawrence, the locus in guo being in- fra corpus cO' milatus, held that the case was not one of Adniiriilty jurisdiction, and a prohi- bition granted to stay fur- ther proceed- ings therein. The Kivcr St. Lawrence, from tho west eud of Anti- costi to tho eastern line of tho District cf Tluoti Ki- vcrs, is within the Distrivtuf Quebec. m m S2 1811. Hamilton V. Fraser. CASES IN THE COURT OF KING'S BENCH " this sum of ^€000 on the high and open seas and " within the ebbing and flowing thereof, to mt, " at the Batture of Milk Vackes aforesaid" This promise is repeated in a second count against the Respondents ** as Agents and Consignees or Factors of tiie ship Trio,** — is laid in a third count by way of quantum meruit, the Respondents being therein charged as *< owners and proprietors of the ship Trio,**— and is again laid in a fourth count by way of quantum meruit, the Respondents being therein charged as ** Agents and Consignees or Factors of the ship Trio." The locus in quo with respect to the work and labour performed by the Libellants and to the promise made by the Respondents being averred in each of these counts to be " on the high and open seas and within the ebbing and flowing thereof, to wit, at the Batture qf MiUe Vacftes aforesaid" To this Libel, the Respondents put in a plea to the jurisdiction of the Court of Vice Admiralty averring the Batture of Mille Vaches (the iocus in quo) to be " in the County of Northumberland, in the District of Quebec, in the Province of Lower Canada, without the jurisdiction of the Court of Vice Admiralty and within the jurisdiction of this Court.*' — And issue having been joined upon this point, the plea to the jurisdiction by the Court of Vice Admiralty was over- ruled without the adduction of any proof whatever on either side. These facts were set forth in the sugges- tion and verified. — 1st. By sworn copies, of the Libel, of the plea to the jurisdiction, of the Replication, and of the decree overruling the plea, — and Sndly. By affidavits, in M'hich it is sworn " that the place called m n; J ^^0 k 1 r I ;.'.!> I m m u 1811. Hamilton V. Fraskr. CASES IN THE COURT OF KING'S BENCH the pica of Key and Hubbard to the jurisdiction being refused, they obtained from the Court of King's Bench of that Province, a Writ of Prohibition. The issue in the cause was, " whether the ship seized was prize or no prize," a question over which the Court of Admi- ralty holds an unequivocal and exclusive jurisdiction, and it was accordingly determined at the cockpit, that the prohibition had been improperly issued, but the general authority of the Provincial Court of King's Bench, to award the Writ of Prohibition, was not at all doubted. The Lord Chief Justice Lee, in deli- vering the judgment, said : — ** As this is a question " upon prize, I think the Common Law Court had no " right to prohibit," and Lord Mansfield, (referring to this decision,) afterwards said, in the case of Lindo v. Rodney : — " This case (^Key & Hub' " bard v. Pearsct) was argued, and could only be ** argued as a mere question of law, just as if it had " arisen in Westminster Hall, upon a capture in the " River Thames, within the body of a county. The " Courts of Law in the Colonies prohibit the Court of " Admiralty Just as the Courts qf Westminster Hall do ** here" (a) The power of prohibiting the Court of Vice Admiralty when it exceeds the limits of its jurisdiction, must then be vested in some or other of His Majesty's Ordinary Courts of Law in this Pro- vince, and as the Courts of King's Bench and of Appeals are the only Courts of ordinary jurisdiction in the Province, we have to inquire in which of them it is vested. For this purpose it must be remarked, that the distinction between the Writ of Prohibition and (a) Douglas G19. in notis, 2. Chnlmer's opia 207-215. ;:r I I FOR THE DISTRICT OF QUEBEC. 9a do of its of ro- of in n it {( <( the Writ of Appeal is essential. When a Court has jurisdiction, and gives a wrong sentence, that sentence is the subject matter of Appeal, and not of prohibi- tion ; but if it has not jurisdiction, prohibition is the legal remedy. The Writ of Appeal removes the cause into the Superior Tribunal for investigation upon the merits of the case itself, in reference to the parties and their respective rights. The Writ of Prohibition does not remove the proceedings, nor does it leac\ to any investigation of the merits, except in so far as they tend to elucidate the question of jurisdiction. Now, the jurisdiction of the Court of Appeals is limiced by Statute, (^a) and extends only ** to causes appealed frora civil jurisdictions wherein by law an appeal is al- lowed;" so that the Court of Appeals cannot take cognizance of the proceedings of the Admiralty, unless it be by Writ of Appeal, and it is certain that no appeal is by Law allowed from any decision of the Court of Vice Admiralty, except to the High Court of Admiralty in England, or to the Court of His Majesty in Privy Council.(^) It follows, that the Provincial Court of Appeals has no jurisdiction whatever with respect to the Admiralty. A Writ of Prohibition to the Admiralty cannot therefore, issue out of that Court, and conse- quently must issue out of the Court of King's Bench. To what I have said upon this part of the subject, I I shall add, that the power and authority of this Court to award the Writ of Prohibition, and to award the Writ o£ Certiorari, (^wh'ich we daily issue,) stand in principle upon the same ground. Both Writs are designed for the control of limited Tribunals, to restrain and keep 1811. IIauilton V. Fraser, f ,< % 1:? I! it', 1 f (a) 34 Geo. III. c. 6. s. 23. E (b) 3. Black. Com. 69. fl I ; ! liii ^ I81I. Hamilton V. Fraser. I; t CASES IN THE COURT OP KING'S BENCH them within the true bounds of their respective juris- dictions, and both are equally necessary for preserving inviolate the legal distribution of judicial authority, (a) The general question which arises out of the facts set forth in the suggestion and in the Affidavits fyled in support of it, is this : " Whether the Court of Vice ** Admiralty has jurisdiction in a case of Salvage ** arising and entirely completed within the limits of " the Province?" And we are of opinion, as already intimated, that it has not. The ground of this opinion shall now be shown, and to this end, certain proposi- tions, on which we rely, shall be stated with the autho- rities on which they are founded. We hold then, as a general rule, 1. That according to (he Civil and Maritime Law of England, the High Court of Admiralty of England, cannot hold plea of any matter arising within the jurisdiction of the ordinary Courts of Law ; and that it cannot hold plea of any matter arising within the limits of the Realm, or King- dom of England, because the limits of the jurisdiction of the ordinary Courts of Law, are co-extensive mth the limits qf the Realm.— ^. That certain cases are excep- tions to this general rule, but that Salvage arising and completed within the jurisdiction of the ordinary Courts of Law is not one of the excepted cases.— -d. That the Provincial Court of Vice Admiralty has no greater or other authority than that of the High Court of Ad- miralty of England. It will follow from these propo- sitions (when established,) that as the High Court of Admiralty of England cannot, so the Provincial Court (a) Tho " Appel commo d'Abus," and the " defense d*cxecutcr." are ia fact prohibitions. See the introduction to the Edition of Dcnizart, by Lccamus, 73. L. (J. Den. Verb. " Defense d'executer," s. 1, No. I. 2. anil 3. Vol. G. p. 77. p. 78. FOR THE DISTRICT OF QUEBEC. 27 of Vice Admiralty cannot hold plea of any matter of Salvage arising and completed within the jurisdiction of the ordinary Courts of Law, and consequently that the Provincial Court of Vice Admiralty cannot hold plea of any matter of Salvage arising and completed within the limits of the Province, if the limits of the jurisdiction of the ordinary Courts of Law of the Pro- vince be co-extensive with the limits of the Province. I proceed to the consideration of the first proposition : — It is laid down as a general rule that the jurisdiction of the instance Court of Admiralty of England is con- fined to matters arising on the high Seas, (b). It is true that it does not seem to be agreed what shall be taken to be the high Seas in all cases, but it is equally true that a River, Creek or Haven within the limits of any country, constituting a part of the Realm or Kingdom of England, is clearly held not to be a part of the high Seas, and that the instance Court of Admi- ralty cannot take cognizance of any matters made or done in any such River, Creek or Haven, because all matters arising thire may be heard and determined in the ordinary Courts of Law. (b,) ** It is a rule," says McDouali, " in the Law of England, that the Admiral's ** jurisdiction is confined to matters arising on the " high Sea, and therefore he cannot take cognizance ** of Contracts &c. made in any River, Haven or ** Creek within England, for those are triable by the «« Common Law." (c) B> the Statute 13, Rich. IL " c. 5. it is enacted, " That the Admirals and their « Deputies shall not intermeddle from henceforth of " any thing done within the Realm, but only of a 1811. Hamilton V. Fraser. »■ , 1 1 V\ m (by 1. Bacon, 623. (c.) 2. McDooall's las. 543. ^ 1811. Hamilton V. Fraseb. mm CASES IN THE COURT OP KING'S BENCH ** thing done upon the Sea." By tlie Statute 15, Rich. ** II. c. 3, it is enacted, ** That of all manner of ^ Contracts, Pleas and Quarrels, and all other things ** rising within bodies of Counties, as well by wa* '* ter as by land, and also, of wreck of the Sea, the ** Admiral's Court shall have no manner of cognizance, *< power or jurisdiction, but all such manner of Con- « tracts. Pleas aud Quarrels, and all other things rising ** within the bodies of Counties, as well by water as by « land as afore, and also wreck of the Sea shall be ** tried, determined, discussed and remedied by the ** Law of the land, and not before, nor by the Admi- ** ral nor his Lieutenant in any wise." and by the Sta- tute 2, Henry IV. c. 11, it is enacted as follows, viz : ** Whereas in the Statute made at Westminster the *< ISth year of the said King Richard, among other ** things it is contained, that the Admirals and their ** Deputies shall not intermeddle from thenceforth of ** any thing done within the Realm but only of a thing ** done upon the Sea, according as it hath been duly M used in the time of the noble King Edward, grand ** father to the said King Richard, now our said Lord " the King wills, and granteth that the said Statute ** be firmly holden and kept and put in due execu- " tion." Such are the Statutes, which according to Stamford, are to be considered as Statutes declaratory of the Common Law. ** Per common ley (says he,) ** devant le Statut anno Sdo Henrici IV. c. 11. L'Ad- ** miral n'av6 jurisdiction, sinon sur le haul meer,** and by a series of decisions, the provisions which they con- tain, are adjudged to be the Law Civil and Maritime of England. In Cradock's case, it was said " the intent " of the Statute 13, Rich. II, was to prevent the Admi- FOR THE DISTRICT OF QUEBEC. 29 ** ral's Court from holding plea of any thing happening « within the Realm," and a prohibition ^as granted, (a) In Leigh v. Bur lei/, a prohibition was awarded be. cause, per curiam ; ** the Contract was made on land " and infra corpus comitatus, and therefore the Admiral <' can have no jurisdiction, for the Statutes 13 a.id 15 ** of Richard II. and 2d Hen. IV. c. 11» are that the " Admiral shall not have conusance but of things done " super altum mare and Cook, (Justice) said when a ** place is covered over with salt water and i::; out of «* any County or Town there, est altum mare, but " where it is within any County, there it is not altum " mare ; and trial shall be per vicinetum,** (li) In the case of the Lord Admiral v. Linsted, the suit was insti- tuted in the Admiralty for a ship as flotsam, left near an harbour in Norfolk, and it was agreed that flotsam ought to be tried in the Admiralty \ but a prohibition was ordered per curiam, " Because the suggestion was ** that the dereliction was infra corpus comitatus, (c) In the case of Culliver and Brand, a ship was wrecked by tempest in a creek of the Sea, " Infra corpus comi- " talus of Dorset." The Sailors upon pretence that the goods in the ship were bona peritura procured a commission of sale out of the Court of Admiralty, whereupon the owners to prevent the sale " brought " a supersedeas," and upon producing the libel to the Court, a prohibition was granted, •* because the cause «* of action did arise infra corpus commitatus and so the " Admiralty cannot hold plea thereof" (cT) In Coke's report of the anonymous case in the Reign of Edward I. it is said, the Sea within the jurisdiction of the Ad- 1811. Hahilton. 1 ■# V. Phaser. '4 1 1 l9i (a) 2. Brownlow, 37. (c)Sideriin, 178. p. 9. (J) Owen, 122. (rf) 2. Sid. 81. SO 1811. Hamilton V. Fraser. I I j i( i< « * coast by the River St. John, and from thence by a ** line drawn from the head of that River through the " Lake St. John to the south end of the Lake Nepis- *' sim, from thence the said line crossing the River ** St. Lawrence and the Lake Champlain in forty-five " degrees of north latitude passes along the high lands '* which divide the rivers which empty themselves ** into the said River St. Lawrence from those which ^ fall into the sea, and also along the north coast of M the Baie des Chaleurs and the coast of the Gulf of ** St. Lawrence to Cape Hosiers, and from thence '* crossing the mouth of the River St. Lawrence, by " the west end of the Island of Anticosti, terminates " at the aforesaid River St. John." The next Act is the StaJtute 14, Geo. III. c. 83, usually called the Quebec Jet, by which it is enacted, " that all the •• Territories, Islands and Countries in North Ame- FOR THE DISTRICT OF QUEBEC. « rica belonging to the Crown of Great Britain, and *< bounded as therein described, and all such Territo- ** ries, Islands and Countries which have since the " tenth day of February, 1763, been made part of the ** Government of Newfoundland, be, and they are " hereby during His Majesty's pleasure annealed to ** and made part and parcel of the Province of Que- " bee as created and established by the said Royal " Proclamation of the 7th October, 1763." The next Instrument in succession is the Order of His Majesty in his Privy Council of the month of August, 1791. by which under the power reserved to him by the 14th of Geo. III. c. 83. recognized in the Statute 31, Geo. III. c. 31. he divides the Province of Quebec into two distinct Provinces to be called the Province of Upper Canada and the Province of Lower Canada by separating the said two Provinces according to the following line of division, that is to say, " to com- mence at a stone boundary, on the north bank of the Lake St. Francis at the Cove west of Point au Baudet, on the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running along the said limit, in the direction of north forty-four degrees west to the westernmost angle of the said Seigneurie of New Longueuil, thence along the north-western boundary of the Seigneurie of Vaudreuil running north twenty-five degrees east until it strikes the Ot- tawa River, to ascend the said River into the Lake Temiscaming, and from the head of the said Lake by a line drawn due north until it strikes the boundary line of Hudsoa's Bay." — There are no other public In. struments or Acts, which relate to the boundaries of this Province, except those which I have cited, and 37 1811. Hamilton r. pBA^iEU. * 1 • ^ t V III pjj 'It ! I!! !f iliiiiJ ,:l as 1811. Hamilton V. Fraser. CASES IN THE COURT OF KING'S BENCH from these it is evident that the River St. Lawrence upwards from its mouth, that is, from a line drawn at the west end of the Island of Anticosti from Cape Ho- siers on the south shore to the mouth of the River St. John on the north shore, was originally included within the limits and constituted a part of the Province of Quebec, as created and established by His Majesty's Proclamation of October, 1763. and that all which constituted the Province of Quebec so created and established is now the Province of Lower Canada, eit- cept what forms the Province of Upper Canada, which commences at the line of division declared by His Majesty's Order in Council of the month of August, 1791. some miles above the City of Montreal. As to the limits of the District of Quebec it is ne« cessary only to refer to the first section of the Provin- cial Statute 34, Geo. III. c. 6, by which it is enacted, " that the Province of Lower Canada shall consist of three Districts, to be called the District of Quebec, the District of Montreal, and the District of Three Rivers ; that the District of Quebec shall be bounded to the westward by the eastern line of the Seigneurie d'Orvilliers, as far as it extends, and thence by a due north-west line to the northern boundary of this Pro- vince, on the north side of the River St. Lawrence, and by the eastern line of the Seigneurie of Saint Pierre les Becquets as far as it extends, and thence by a due south-east line to the southern boundary of this Province on the south side of the River St. Lawrence, and the said District of Quebec shall comprehend all that part oj this Province which lies to the eastward qf the bejorementioned western boundary lines of the said District,** From these public Instruments and Acts it s SI' . . FOR THE DISTRICT OF QUEBEC, is appaient that the Batture of Mille Vaches being very far above the west end of the Island of Anticosti, and as the h'ne drawn from Cape Rosier to the River St. John, is within the limits of this Province of Lower Canada, and being also very far below the eastern lines of the Seigneuries of D'Orvilliers and St. Pierre les Becquets, is also within the limits of the District of Quebec, so that all causes there arising are infra corpus comitatus and within the jurisdiction of this Court. If the parties in this case are not satisfied with this opinion, they know that they are not bound by the present proceedings,— it is, particularly, in the power of the Libellants, to compel the Respondents to de- clare in prohibition, to perfect an issue upon the mat- ters contained in the suggestion, to obtain the Judg. ment of this Court on that issue, to appeal from that Judgment to the Provincial Courts of Appeals, and ultimately to obtain the decision of His Majesty, in His Privy Council, upon the whole case. Rule Absolute, (a) - (a) Sinco this decision, prohibitions have been awarded in the Court of King's Bench at Quebec, in the following cases : — Murphy r. Wilson, in 1 82ii, for an assault and battery in a foreign port. Jones v. Howard, the case of the Camillus for damage done by collision in the Port of Quebec, in 1823. Willis V. Soucy, for pilotage in the Rirer St. Lawrence, in 1827. Garret v. Morgan, Master of the Onandago, I2tb June, 1834, for the recovery of a capitation tax paid in Ireland. Hurley and another v. Short, for a loss of passenger's goods at Grosse Isle, June, 1834. In a Statute passed in the United Kingdom, 2 Will. IV. c. 51. intituled " An Act to regulate the practice and the Fees in the Vice Admiralty Courts abroad, and to obviate doubts as to their jurisdiction," the following Clause is contained : — " Whereas, in certain cases, doubts may arise as to " the jurisdiction ot Vice Admiralty Courts in His Majesty's possessions " abroad, with respect to suits for seamen's wages, pilotage, bottomry, " damage to a ship by collision, contempt in breach of the regulations and " instructions relating to His Majesty's service at sea, salvage and droits of " Admiralty ; bo it therefore enacted, that in all cases where a ship or " vessel, or the Master thereof, shall come within the locallimits of any Vice 89. m 1811. Hamilton V. Frassr. Vn if M f 1 • fcl ''Ml II w I 1 ! :^:i 40 CASES IN THE COURT OF KING'S BENCH 0% I :ir:i April 8th, 1811. It is not ne- cessary, in Ca- nada, in an ac- lion for a ma- licious arrest of property, tosetrorth, in the declara. tion, that the action in M'hi^^ '.■ '\r. rent . In hat* r uinhieu. Whitfield and Coaxes against Hamilton and Another. 1 HIS was an action of Damages for a malicious arrest of the Plaintiff's property by attachment or «« arret simple" The Defendants demurred to the De- claration, and Bowen and Fletcher, in support of the Demurrer, contended that no action for a malicious arrest lies be- fore the action in which the arrest was made is deter, mined, and that the declaration ought, therefore, to have set forth that the action instituted by the De- ft wNnts against the Plaintiffs had been terminated, that ihc determination of the former suit was required for such lights as it might happen to afford in evidence on one side or the other, and to prevent contradictory judgments, (a) — Also that the declaration was defec tive in this further respect, that it did not aver, that no debt was due by the Plaintiffs to the Defendants when their property was arrested, so that the former admitted a probable cause for the arrest, but that the u " Admiralty Court, it shall he laytM for any person to eommeoce proceed- " ings in any of the suits hereinbefore mentioned in such Vice Admiralty " Court, notwithstanding^ the cause of action may have arisen out of the local " limits of such Court, and to carry on the same in the same manner as if " the cause of action had arisen within the said limits." This enactment does not seem to remove, in any way, the doubts therein referred to. It would have been desirable that this Clause of the Statute had been more clear and explicit than it is. No question has yet arisen in the Courts herd upon the construction to be given to it. (a) Fisher v. Bristow, 1. Duug. 215. French v. Atkinson, Willes 517. Morgan v. Hughes, 2. T. K. 225. and Kirk v. French, I Esp. N. P. C. 60. Ii:1 ... FOR THE DISTRICT OF QUEBEC. want of a probable cause and malice were both neces- sary to complete the action, (fl) Perrault, on the other side, insisted that there was no analogy between the cases cited and the pre- sent case. That in England and in that class of cases to which the defendants had referred, the gist of enquiry was the existence of the debt sworn to, but that in this case the inquiry would be whether the plaintiffs, — when their property was seized, — were about to abscond, or otherwise to defraud their cre- ditors ; and that if the defendants had maliciously laid such an intention to their charge without any probable cause and the plaintiffs had sustained damage, it was plain that they must recover the amount of such da- mage whether a debt was or was not due by them ; and therefore, it was unnecessary to allege in the de- claration that the former action had been determined : and as it had been determined that contradictory affi- davits could not be filed to rebut the effects of an affidavit for an arrest of the person, and the same rule must necessarily obtain in cases of attachment by arret simple of property, there could not be contradic- tory judgments. Sewell, Ch. J. It is undoubtedly true that in an action for a malicious arrest, in England, it must ap« pear, and must therefore be alleged in the declara- tion, that the former suit in which the plaintiff was arrested is terminated by a judgment of nonpros,, a verdict or discontinuance, (c) In this case, the ar- (a) Sutton V. Johnstone, 1. T. K. 493.— Goslin v. Wilcock, 2. Wils. 305. Purton V. Morner, I. Bos. & Pull. 205. (A) 1. Cliitty on Plead. 133. Bac. Abr. Actions on the Case, letter H. (f)'l. Esp. N.P. C. 80.— 2. E8p.Dig.531. O 4)1 U 1811. J ■'' '; Whitfield i .1 V. Hamilton. t "% !$■ 1 1 Pi m 'lit -11 w 42 CASES IN THE COURT OF KING'S BENCH \\\ "pi !li'': . it-^'ll liVr . \ :iU 1811. Whitfield V. Hamilton. rest was of the Plaintiff's property, for which, — if it was malicious, — an action certainly lies in the law of Canada, (a) But it is essential to remark that the grounds on which the process of arrest is here obtained, are not the same as in England : there, it is obtained on the affidavit of the plaintiff, in which he swears that a debt is due to him, and no more, 'o that the question of malice or no malice turns entirely on the existence of the debt. Here, for the arrest of pro- perty, it is obtained on the affidavit of the plaintiflj who not only swears to his debt, but swears also that the defendant intends to abscond, or depart the Province, or to secrete his effects for the purpose qf defrauding his creditors, and the question of malice or no malice turns, sometimes on the inquiry whether the plaintiff had good cause to charge the defendant with such a fraudulent intention, sometimes on the existence of the debt, and sometimes on both. In many cases then, the debt may be due, and yet the arrest be ma- licious ; as for instance, where the plaintiff has charged the defendant with a fraudulent intention to abscond when he well knows that he had no such intention ; and ip such cases, quoad the action, it is immaterial whether the debt was due or not, although it may be material quoad the quantum of damages ; and it can- not be necessary to shew, either on the face of the declaration, or in evidence, that the former suit, in which the arrest was made, has been terminated. This may be the case in the present instance, for aught we can say, and the demurrer must, therefore! be dismissed. Demurrer dismissed. (a) 2. Domat. 218, Supp. au Dr, Pub. lib. 3. tit. 1 1, art. 4. ♦ *f FOR THE DISTRICT OF QUEBEC. y. 43 w Meiklejoiin v. Young and Another. A RULE was obtained for the homologation of an award of certain arbitrators who had been appointed by the parties in this case to decide upon alt matters in difference between them. The reference had been made to three arbitrators, and although the three had lieard the parties and were all present when the award was made, two only had signed it, and the third had refused. The cause shewn against this rule was that the reference was general to three persons, and that the award by two only was no award, that every award must quadrate with the terms of the submission, the whole authority of the arbitrators being derived from thence and founded on the consent of the parties. On the other side it was insisted that the award was good although the reference had been to three generally, (a) Per curiam. When a reference is made to three arbiters, or specifically to any two of them, an award by two of the persons named is good, provided the third has due nx)tice of the several meetings ap- pointed and of the several matters referred to them, and this is law, because it is the plain intent of the submission j (b) but when the reference is to three ge- nerally, not only notice of all the matters referred and of the meetings is necessary, but moreover, it is re- April 10th, I8II. Upon a re- ference to three arbiters, or, spcciHcaU ly to any two of them, an awprd by two is good, if the third has had due notice of the matters referred and of the several meetings ; but if the refe- rence be to three gene- rally, all should be pre- sent at the meetings', es- pecially when the uwai '1 is made, and then the award of two is valid, even if the third re- fuses to assent to it. ■ if :ll l^l >'s m m m- (a) 2. L. O. Den. v. Arbitrage 242. 2. Diet, do Dr. v. Sentence Arbi- trate, GOO. Kep. de Jur. v. Arbitrage. (h) See Willes Rep. 215. and Joussc, Traite dcs Arbitrages. 44 CASES IN THE COURT OF KING'S BENCH IBII. Meiki.fjoiim V. YufNO. quired that the three arbiters should be present at the meetings, and particularly >vhen the award is made ; yet if all these requisites are complied with, the award of two is sufficient, even where the third refuses his assent to it. As in the public tribunals of justice so in the private tribunals which the parties elect for them- selves, the sense x)f the majority prevails. («) Award homologated. MORROGH V. MUNN. t» ll' I'' April lOtb. 1811. The Pre- scription of a year, undjr the Custom of Paris.does not affect debts due to Mer- chants, trhich are not barred b^ a less pe- riod than six years. it J.N this action, for goods sold, the defendant pleaded the prescription annale. For the defendant it was contended that by the 127, art. of the Custom, the action of a merchant, for goods sold, was prescribed by the lapse of one year from the delivery of the last article sold ; and as upon the face of the declaration, it appeared that the sale and delivery had taken place fifteen months previous to the institution of this suit, the defendant was en- titled to a judgment, dismissing the action. Per curiam. The prescription annale is not, as the prescription of thirty years is, to the action, but to evi- deuce ', this is manifest from the fact that in an action (a) 1. Louet 149. L. C Den. r. Arbitrajrc, § 3. n.2. 1. Prat. Fran. 131. i. Henrys 517, Jousse, Tr. des Arbitrages, No. .56. 6°. FOR THE DISTRICT OF QUEBEC. brought even after the expiration of the year, the defen. dant cannot liberate himsclfwithout pleading and swear- ing that he is not in debt to the plaintiff for the causes set forth in his declaration, (a.) Danty, on the authority of Charondas and Guenois, declares that the 126th» and 127th articles of the Custom were adopted •« pour retrancher la longueur des proems et la preuve par tcmoins," (6.) And in the case of Meyrand v. Duber- ger, (c.) the court said, *• The plea must contain an avermeni that the debt has been paid, and a tender of the defendant's oath to that effect, by hoc paraltis est vertficare. The presumption of payment, from lapse of time, is the basis of this defence, and the law allows the defendant to prove it by his own oath, on account of the plaintifTs neglect to sue at an earlier day." The case of the Duke de Bouillon, reported in Denizart, is to the same purport, (rf.) The prescrip- tion of a year being then a prescription to evidence only, and in all commercial cases, (of which this is admitted to be one,) the rule of evidence, which for- merly obtained under the Custom of Paris, being abro- gated by the Ordinance 25. Geo. III. c. 2. s. IO. Sv; •1.5 . 1 ii 1811. . 1' MoRKOUlf V. ♦ v\ i f I- (n) Danty, 698. No. 42. also p. 697. (b) The Analyse du Droit Franfuis, is even more distinct than Danty on this point, " De ocs expressions des articles 123 ^i \2&, " ne peuvent J'uirc action" il semble qu'on devrait conclure, qne ces creancien n'ont plus d'ac- tion, apres le delai prescrit par la coutunie ; cependant Tefprit de la loi n'est que d'accorder au dvbiteur une iin de non recevoir contre lotitre re- sultant des livres de ces Marcbands. Tin de non recevoir, fondle aur une pr^somption legale de paiement ; c'est pourqnoi la jurisprudence oblige, dans oe cas, celui qui oppose la fin de non recevoir resultante des articles 125, 126 et 127. de la Coutume d' affirm er qu^il a paye, et de ses heritiers " Qu'i/f n'ont pas connaissance de la dette" Pajje 521. (c) This case was decided in the King's Bench at (2'!>'^cc, in October 18()8, and was an action for board and lodging. As the plea of Prescrip- tion in this case did not aver that the debt was paid, or contain an offer to prove it, the plea was dismissed. (d) Don. V. Prescription, No. 93 99. 101. L. C. Den. v. Chirumlen, § I. No. 13. . 'n 46 1811. MUHROUII V. MUNN. CASES IN THE COURT OF KING'S BENCH which enacts, " that in proof of all facts concerning *' commercial matters, recourse shall be had in all ** courts, to the rules of evi('ence laiii down by the " Law of England." The rule of the Law of England which provides, — " that all debts due to merchants may be proved by witnesses, or otherwise in the ordin- ary course of evidence, until the expiration of six years from the date of such debts," — is tl" rule which we are bound to follow in the present ca nd conse- quently the plea of the prescription annate must be overruled. i»i/':: Plea of Prescription dismissed. Turner and others v, Whitfield. ■i-i i...'.»'i[ ' m ;i'^ ApiU 2Ctli. 1811. if^aiThici- -I o an incidental cross demand, fyled by tbe defen- dcntai plain- jgnt in this cause, the plaintiff in chief pleaded the ge- till doi's not * 1 . . 1 1 1 . .«., 1 on the face of neral issuc, and demurred to the incidental plaintin s de- shew tiiat claration — ,and beingthis day heard upon the pleadings ; Bowen, for the incidental defendants, (Turner etah) contended that this cross demand must be dismissed, as the incidental declaration did not, upon the face of it, shew any relation or connection between the de- mand in chief and the incidental demand, (^a). his declara- tion his demand is connected with the de- mand in chief, the defen- dant must avail himself of this omis- sion by an ex ception as to form; if he does not but answers, be waives the irregularity of the pro- ceedings and admits that ho is rectus in curia. (n) 1. Pig. 338.— Mure t\ Lafleur. K. B. Q. 1810. No. 41. ^' FOR THE DISTRICT OF QUKBEC. Sewell, Cii. J. An incidental cross demand is a de- mand instituted by the defendant in a suit against the plaintiff, for some cause of action connected vvitli the matter put in litigation by the demand in chief, and in some way accessary to it. It is a mode of de- fence to a demand in chief, to which a defendant re- sorts in cases where by the rules of pleading he can- not avail himself of the matter of Itis defence in any other way. (a.) If, therefore, an incidental plaintiff\^ does not, on the face of his declaration, make it appear that his demand is '•onnected with the demand in chief, and arises ea^ eoacm fonte, the incidental defendant may take advantage of his omission asa^/i dc non procedert by an exception as to form ; but if in- stead of so doing, he answers the demand against him, he waives the irregularity of the proceeding, and vo- luntarily submits the cause to the jurisdiction of the court, which he is permitted to do, unkuique licet juri pro se introducio renunciare. By answering he allows himself to be rectus in curidy and admits " that he ought to answer," and he cannot, therefore, after- wards plead that he ought not to answer. The inci- dental defendant in this case has answered the de- mand against him, by pleading ihe general issue and a demurrer, both of these pleas are answers au Jbnds, or, to the merits : the former is an answer to the facts stated in the libel of the declaration, the latter to the conclusions. The truth of the facts stated in the libel being denied by the general issue, and the legality of the conclusions by the demurrer. As the import of the demurrer amounts to this only — *• That the con- ^^7 I : 1811. V. m I' m i (a) 1. Pig. 338. Jousse. Tr. dcs Presidiaux, G9.74.— SerpilIon,149. !i'!': 48 V. Whitfield. i<# CASES IN THE PROVINCIAL ** elusions cannot ho granted, because taking all the *' facts stated to be true, they do not amo" *o a legal " cause of action;" the question whether the inciden- tal plaintiff, (supposing the facts stated in his demand, to be a legal cause of action,) can avail himself of them in the form and manner in which he has instituted his suit, is not before us ; and it is right to observe, that it ought to have been put, (if it was intended to put it,) by an exception as to form, because it is the proper province of an exception as to form, to shew, •• that by reason of some imperfection, defect, or want of form in the proceedings, as in the writ, or declaration, the court cannot proceed in the cause, nor compel the defendant to answer." (o'.) Then as the matter stands, the merits of the incidental demand in fact and in law, being solely before us, and not the form and manner in which this demand has been in- stituted, we can only decide upon the former ; and being of opinion that the facts stated in the libel of this declaration, if true, amount to an efficient cause of action, and consequently that the conclusions are legal and properly taken, The demurrer must be over-ruled, and proof upon the issue of fact ordered. (6.) ' s 'hit in) Forbes v. Atkinson, K. B. Q. 1810. (/') This decision wasaflirraed iu appeal in July 1813. COURT OF APPEALS. 49 I i On Appeal from Montueal. George Symes Appellant, and * Daniel Sutherland, Curator to 1 Patrick Robertson's Vacant >Respondents, ■ Estate, and Neil Robertson,} This was an appeal from a judgment of the Court of King's Bench, at Montreal, rendered in favor of the respondents. Per curiam. By the law of England where there is a partner- ship of any number oi persons, if any change is made in the partnership, and no notice is given, any person dealing with the partnership, either before or after such change, has a right to call upon all the parties who at first composed the firm, (a) for a secret disso- lution cannot discharge the partners. It must be pro- mulgated to the world in the usual and ordinary way, by particular notice to all who have had previous deal- ings with the firm, and general notice to all who have not, through the medium o^ the Gazette. (Ji) The same rule obtains in the law of France, and so long ago as the year 1564. was recognized in a judgment of the Parliament of Paris upon a secret dissolution of a copartnership of the 20th Nov. of that year (c) reported SOth April, 1811. The disso* lution of a partnership without parti- cular notice to persons with whom it has been in the habit of dealingf, and general notice in the Gazette to all with whom it has not, does not exonerate the several mem- bers of the partnership from payment of the debts due to third persons not notified and who contract- ed with any of them, in the name of the firm, either before or af- ter tho dtjso* lution. I'll ak. 'fill I ill (a) Parkin v. Caruthers et al, 3. Esp. N. P. p. 2(8. Willet v. Cham. bers, Cowp. 814, ip) Graoam v. Hope. Peake's nisi prius. 1^4. Gotham v. Thomson. lb. 42. Godfrey v. Turnbull, I. Esp. N. P. 371. (c) Charondas Pandect, lib. 4. o. 13. 2. Boruior 469. Poth. Soc.n. 157. H 50 CASES IN THE PROVINCIAL 1811. Syhrs V. Sutherland. I'll by Charondas / — " II faut" says this judgment, *♦ que celui qui ne veut plus etre associ6 fasse signifier i\ tous ceux avec lesquels il avait coutume de contracter ou de n6gocier pour le fait de la soci^t6, la dissolution d'icelle ; autrcment il demeureroit oblig6 envers eux \ income qu*il la denonce par proclamation et affiches publics a ceux qui lui sont inconnus." — It must not, however, be presumed that knowledge of the fact of dissolution acquired by other means is insufficient, for if there be an absolute knowledge of this fact in the party contracting with the firm at the time of the contract made it is enough. He can never be said to have contracted with the firm upon the faith of those persons whom he knew to be no partners in it, and consequently knew to be no parties to his contract. In the present case as the plaintiff's agent {fiuvil- lier) by whom the sale was made, has been examined by both parties, and has distinctly sworn that he had no knowledge of the dissolution of the copartnership in 1801, or of Neil Robertson's having retired from the house J the sole enquiry is whether such steps were taken at the time of dissolution or since, by the Ro- bertsons or either of them, that notice to the plaintiff may fairly be inferred, and his want of the knowledge of Neil Robertson's having retired from the copart- nership attributed to the plaintifTs laches ?— Now, the facts of this case as they appear in evidence, are these : — 1. That there was no alteration in the style of the firm, and the fair inference is, that it continued to be composed of the same persons. — 2. That regular notice was given to the creditors in England, and yet a similar notice was ict given to the creditors here. — 3. That no public notice of the dissolution was given i!, i 'I COURT OF APPEALS. here or elsewhere. — 4>, That so late as March I8O7. three of the principal merchants of Montreal had no knowledge of Neil Robertson's having retired 'rom the partnership, although the dissolution took place as far back as 1801, and acquired their knowledge of this circumstance at that time by private and particu- lar application to Patrick Robertson, on the behalf of some of the creditors of the house in England, to know who were the partners in the firm of Patrick Robertson & Co. Against such a weight of testimony notice to the plaintiff cannot be inferred, nor can we attribute the want of the knowledge of Neil Robert- son's having retired from the firm to any other cause than to the laches of Neil Robertson and Patrick Ro- bertson, of which they cannot avail themselves. A dissolution, it is proved, did take place ; but this is not a dissolution in point of law with regard to third persons unless they have been notified thereof. So far from the change being of public notoriety, upon which alone the question rests, we find that fact re- butted by the evidence. We have gone through the record more than once, and upon mature deliberation are clearly of opinion that the judgment of the court below must be reversed with costs, and that judgment must now be entered up for the plaintiffs for the sum demanded by the declaration. 51 1 1811. pi SVMES |.| V. SUTIIERLANU. II mi l"i Judgment reversed. 1 ss CASES IN THE COUUT OF KING'S BENCH iii: \m June 10th, 1811. proceeding; and for the plaintiff, the contrary was main- tained upon the authority of the case of Patterson v. Hart. (<7.) Barney v. Harris. larhy^nTn"" *^ ^'^'^ ^^^® ^" attachment was sued out against the affidavit to at- defendant's property, but the affidavit being consi- cannotbe dcrcd as irregular by the defendant, he fyled an ex> Se of *iry°an Caption as to fomi. It was argued for the defendant, exception as that an exccption as to form was the proper course of to form. ' ^ ^ In case of any irregu- larity in su- ingf out a " capias ad respondeii' dum" a motion to discharge the defendant from the ShoriflTs custody, for want of a sufficient affidavit to hold to bail, and not an exception as to form, is the mode of taking advantage of such irregularity. (a) In this case of Patterson v. Hart, determined in the Court of King's Bench at Qnebec in 1811. th§ defendant was held to bail upon an insuf- ficient affidavit, and an exception as to form founded on the irregularity of the proceedings in this respect, was fyled upon the return of the process. For the defendant it was maintained to be the most proper mode of taking advantage of the alleged irregnlarity : sed, Fer curiam. This exception must be dismissed. Every exception as to formi8a"^nc/e non procec/er," and must therefore shew that the Court cannot legally proceed on the plaintifTs demand or compel the defendant to answer to it in any manner, (vide the case of Forbes v. Atkinson, iu 1810. K.B. Q.) Now n capias ad respondinduvi \» two fold, it contains a summons which requires the defendant to answer the demand of the plaintiff, set forth in the declaration and annexed to the writ, and It directs the Sheriff to take the body of the defendant, and to keep him in his custody until he gives bail to the action. The exception pleaded in this case certainly shews that the defendant has been improperly taken into the SherifTs custodv, and that he is entitled to his discharge from that custody for want of a suficient affidavit, but it does not shew that the Court cannot proceed in the cause before them, because it docs not at all impeach either the regularity of the summons to answer, contained in the capias, or the form of the demand set forth in the declaration. It is the collateral proceeding to obtain bail or security, which is affected by the matter which IS pleaded, and not the principal proceeding to obtain judgment for the sum demanded ; and consequently the court can proceed in this action, as in all others instituted by summons. A motion to discharge the defendant from the custody of the Sheriff, for want of a sufficient affidavit to hold to bail, is the proper course iu such cases as the present. F.xcoption dismissed. ^t|.,. FOU THE DISTRICT OF QUEBEC. 5a l^er curiam. The pleading which has been called an •• exception as to form," i3 not a^n de non proceder as to the instance, wliich every true exception to the form is. It does not shew that the court cannot com- pel the defendant to answer the demand, but on the contrary it shews that notwithstanding the allegations which it contains, the defendant must answer, for the objection winch it urges relates merely to the security, which by virtue of the attachment has been taken to answer the demand, and not to the demand itself, or to any part of it. The case of Patterson v. Hart, is perfectly analogous, although the security there taken was upon a capias ad respondendum ; and the principle for which the plaintiff' now contends, although it was not decided, was fully recognized in the case of Bar- low V. Richardson, (Jb) Exception dismissed. 1811. Bauney I'. IlAUltU. Georgen v. McCarthy. Oitr. 2i.d, 1811. The plaintiff" had obtained ajudgment against the ofl^l.tlir defendant for the amount of an inland bill of ex- ^j''"J*'>" change, of which he was the drawer, protested for non* quoad'hocn payment, and upon a return of mdla bona the plaintiff" ^l]^p]aTudsa- this day moved for a capias ad satisfaciendum, Usfmimdum •f ' "• may be hnd iipo.T n jiidfj- ment thereupon obtained against him under the ordinance 25. Geo. III. C.2. ^ 38. {h) K.B. Q. iu I81U. r 54 1811. (iEORGEN V. McCarthy. liliillf 1 : ■^, ■ i 1 1 ^i 1 {'[ '!| , ; ■ . ■j'' iMiii: CASES IN THE COURT OF KING'S BENCH Per curiam. A capias ad satisfaciendum in the terms of the Ordinance (a) may be had for the satis* faction of all judgments given in commercial matters, between merchants and traders. A foreign bill of exchange in the law of France, is considered to be an act of trading in money. (/^) The bill itself there- fore, is a commercial matter, and the ^parties con- cerned in it must be traders ; and upon these princi- ples in this court, in the case of Ewing Bowie v. Skin- ner, (c) a capias ad sal is faciendum was awarded against Skinner, who was an officer in the army. We can- fa) 35. Geo. III. c. 2. § 38. (b) 2. Poth, 107. (c) In this case which was determined in June 1809. the plaintiffs had obtained a judgment against the defendant, an officer in the army, upon a bill of exchange, drawn by him, in their favor upon London, and returned under protest for non-payment. A writ of Ji, fa. was sued cut against his goods and chattels, lands and tenemeuts, upon which, the Sheriff having made a return of nulla bona, a rule for a capias ad satii- faciendum was obtained and .served on the defendant, who did not appear. Sgwell, Ch. J. said that impiisonment after judgment for the satis- faction of all, and of any debtfl without distinction as to their nature, was originally the law of France, and herein it differed from the law of Eiig> land. (Harbert's case, 3. Coke's re»i ' p. lii.) And this continued to be the rule in France, until the yt.;- . '4', when by the Ordinance of St. Louis it was abolished, except in c:.se& of debts due to the Croivn. (Vide Traite du Domaine par Lefevre de la Planche, vol. 3. p. 297.) By the 48th article of the Ordinance de Moulins, which passed in the year 1666. the old law was re-enacted, and the contrainte par corps was again allowed, in nil cases and against all persons, after the expiration of four months from the day on which a copy of the condemnation or judgment was served upon the person against whom it was pronounced, (Traits du Domaine, vol. 3. p. 297.) The 57th art. of the Ordinance de Blois, afterwards ex- empted persons in holy orders from the operation of this clause, and ulti- mately by the Code Civile, certain other characters were also exempted, and it was enacted generally that the contrainte par corps, except in certain cases, should not be allowed. Says this Ordinance : " defendons & nos cours et & tons autres juges de condamner aucuu de nos sujets par corps en roati<^re civile, si non, et en cas de r^int^rande, pour d^Iaisser un heri- tage en execution des jugemens, pour stellionat, pour d^pdt n^cessaire, con- signation faite par ordonnance de Justice, ou eutre les mains des per- sonnes publiques, representation de biens par les se^uestres commissaires ou gardiens, lettrea de change, quand il y aura remise de place en place, dcttes entre marchands pour faits do niarchandises dont ils se melent" It was the intention of the framcrs of tlie Code Civile to have continued the liability of defendants to imprisonmont in satisfaction of debts as it then stood, out the King iutiniat>ng his desire that it should be abolished, a new title was prepared which is the 31th, as it now stands. (Sec the proccs vet' / / FOR THE DISTRICT OF QUEBEC. not see that there is ground for any distinction between an inland and a foreign bill ot exchange, and there was none in France. ( TrJtf il () 1. T. R. 552. '!' ', Tf 60 1811. DORVAL V, L'ESPEBANCB. CASES IN THE COURT OF KING'S BENCH to the command of the writ. The Sheriff, if there be no impediment by oppositions, may pay and may re- turn that he has paid the money levied on a Fieri Facias to the plaintiff, (a) although in strictness the money ought to be brought into court as the writ requires. But this must be done at his risk, and if he does not do so, we cannut rule him on this account to return the writ before the return day. ExpARTE Frederick Grant and John Greenshields. On a Petition against Joseph Plants', a Notaryp October 19th, 1811. i.rUin^."EJn. JoHN PATTERSON, a merchant of Quebec and co- tainedina partner in trade with Messrs. Grant and Greenshields, Healed enve- . ^ . . • i • i. f • o i ,,.1 lope, pntport- the Petitioners in this case, died in September 1811, leav- a? holograph ^^g property to a large amount ; upon examining his Jd b' *** ?F te' P^P®''* ^^^^ ^'^ decease his surviving copartners found ry Public and a Sealed packet, upon which, in his hand writing, was retained by him after the decease of the testator ; snch notary cannot keep it on record in his office, but must produce the same before a Judge, that probate may be made, and the will is then to remain deposited with the records of the Court of King's Bench. A Notary Public has no authority to unseal an holograph will unless in the presence and by the order of a Judge. An holograph will of personal and moveable property is valionsible, without some peculiar cause to chai^ him. It appeared on the trial of this case, that the defen. dant, being clerk of the Assembly, had employed the plaintiff as a writer during a Session of the Provincial Parliament in copying the Journals. No special agree- ment had been entered into by the parties, and it was admitted by the Counsel on both sides, that it was a question of evidence and no more. Fer curiam. An individual in a public office cer. tainly may, by his contr acts for public service s, render (a) See the Ordon. of M. le Lieutenant Civil in the Chatelet of Paris of 13th Feb. 1668. ajpiinst Faudoire, a notary, oufwrcod by on attachment against the body on the 21 at of the same month. Actcs do notor. note (a) coll. 2. p. 336. The will in obodionce to this order was proved and deposited as it directs. FOR THE DISTRICT OF QUEBEC. 60 himself personally liable, but where he has plainly acted as a public officer, he cannot be personally liable un- less there is some peculiar cause to charge him. In th's case it is in evidence, that the plaintiff* knew that the defendant contracted with him as an officer of government, and that he looked to government for his reward. The account which he delivered to the de- fendant is headed ** Government to William F. Scott, Dr." and this of itself is a distinct admission on his part, as to the character of his agreement, that it was not personal but official. The defendant, therefore, cannot be personally answerable for the sum which the plaintiff* may have earned. As to the principle on which this decision is founded, the law q^ England and the law of Canada, are in perfect unison, (a.) Action dismissed. ISII. Scott V. LlMISAY Ml t '(rJ AsTOR V, Benn, Buchanan and Heath. 1 HE defendants drew at Quebec, a bill of exchange on Buchanan and Benn of Liverpool, in England, in favor of Proctor & Froste, of Montreal. By Proctor & Froste this bill was indorsed, in Montrefal, to the plaintiff*, a merchant of New York, and by him indorsed (a) Vide the cases referred to ia 1. Comyo on contracts >. 272. (Euy. 4« Cochin, vol. 5. p. 760. April 20th, 1812. The drawer of a bill of ex- change is lia- ble to the da- mages pro- vided by the laws of the country in which it is drawn, and to no other. n f i f'l 70 1812. AsTOR V. Bbnn, Buchanan AND Heath* "I CASES IN THE COURT OF KING'S BENCH at New York, to Strong & Dewis, merchants of that city. The bill was afterwards protested for non-ac< ceptance and non-payment, and returned to Strong & Dewis, who thereupon demanded and received from the plaintiff the principal and interest of the bill, with twenty per cent damages, according to the law of the State of New York, — in ordinary cases of protested bills : and the question in this action was, whether the de- fendants were responsible to the plaintiff for any more than the amount of the bill in principal and interest} with ten per cent damages, according to the Provincial Ordinance I7. Geo. III. c. S. § 1. Sewell, Ch. J, The contract between the original parties to^ bill of exchange, is to be construed by the law of the country in which it is drawn, (a) } — what- ever is there determined to the the prejudice of the drawer he must abide by, and by the same rule he is entitled to all that is thereby allowed to his benefit. The payee and every subsequent indorser knows, from the face of the bill, where it was drawn, and each is bound to know the law of the original contract, since every man, at his peril, must take cognizance of the law of the country with which he corresponds, and has deal- ings, otherwise there would be an end of trade, (^b.) When a bill of exchange is negociated through a fo- reign country out of the direct course, it is an act in which the drawer does not participate if there be no special agreement, (c.) And if it be indorsed in such (a) Chitty on bills, 78.— 1. B. and P. 141. 3 Ves. jr. 447. 2, H. B. 603- Cowp. 174. Burr, 1077. 1, H. B. 126. 7, T. R. 242. 1, T. R. 10. 5, East- 130. Ambler, 672.676. 2. Boraier, 629. Note on art 56. (6) Ambler, 675. (c) Jurisp, Consul. 397. No. 7. Glen on bills of exchange, 239.— 141. Ferguson v. McDonald, K. B. Q. This case was decided iu Februaiy FOR THE DISTRICT OF QUEBEC. 71 foreign country, as every indorser is considered in law a new drawer, it becomes, in fact, a new bill, and by the indorsement a new contract is formed between the indorser and h»s payee, which is also to be construed by the lex loci, by the law of the country in which it is so indorsed, (d). It is certain moreover, that where the law of a foreign country so clashes with the rights of the subjects of our own, that one or the other must necessarily give way, our own is entitled to the pre- ference, " this" says Lord Ellenborough, " has been long settled in principle, and is laid up among our ac- knowledged rules of jurisprudence." (e.) Upon these grounds we are of opinion that ten per cent damages in case of protest, were the terms of the original contract between the drawers and their payees, Proctor & Froste, in consequence of the Ordinance I7. Geo. III. c. 3. as fully as if it had been so agreed by express stipula- tion; that Proctor and Froste by their indorsement could convey to their indorsee, the plaintiff, no more than the rights which they themselves held according to these terms, and that the indorsement at New York, has not varied the original* contract so as to afifect the rights of any of the antecedent parties to the bill, and 1812. AsTOR < % V. ' i' Brnn, - li) Buchanan, 4 AND UUATII. ^': ' .:v 'h! r 1803. Cor am, Euisley Ch. J. and damag^es at tn^enty per cent were al- lowed, because it had been expressly agfreed between the drawer and the payee that the bill should be negotiated through New York. Vide Poth. Change, No. 67. (d) 2. Burr. 674. 1, Str. 441. That which discharges a debt in the countrjr where it was contracted is a discharge of it in every other place, Ballantine v. Oolding, 4. T. K. 185. n. Potter v. Brown, 5, East, 130. Ten per cent damages was a part of the original debt. Ambler 67i}-675. and the undertaking to pay that quantum of images being the original contract, payment of the bill in question in principal and interest with damages at ten per cent, would seem consequently, to be a discbai^e of the whole debt in Canada, and every where else. Vide Warder v. Arrell, Washington's reports, 282. and Powers v. Lynch, 3. Massachusetts Rep. 77. as coses wherein the American courts had admitted this principle. (<) 5. East, 130. I'f; 72 1812. ASTOR, V. Brnn, !3l1CIIANAN AND Heath. CASES IN THE COURT OF KING'S BENCH judgment must accordingly be entered for the annount of the bill with interest at six, and damages at ten per cent, as directed by the Ordinance, (a.) Baldwin v. Gibbon, and McCallum, opposani. ill r 1 s U (Ml June 19th, 1813. A builder's Jn October 1811, Baldwin, a ship builder, instituted on a silip, of the present action by a writ of summons, and obtained struction, is' judgment against Gibbon, the defendant on the 14th iTreheMo*"" -AP"^ 1812, for a balance of £110, due for the construe the owner and tion of a Hcw ship. Pending the action, — the ship which knowingly to before the action was commenced, had been delivered ^ubiitMiuction ^^ Baldwin to Gibbon, — was transferred to him by a re- to a third per- gularbill ofsale, and enregistered in his name. A writ son without n ^ • . • • ■ .■ . •i opposition. 01 jiert joctas was issued upon the above judgment Mwine^Slt *g*'"st ^-^c property of Gibbon, and the ship being even was in scizcd as such in the possession of McCallum, the lat- partof the tcr by an opposition a Jin de distraire laid claim to the Scrada'Zt s^"P' O" **^e o'^er hand Baldwin insisted that she a part of the was Still the property of Gibbon, and if she was not public law, r IT J i and conse* qucntly superseded by the effect of the conquest; and if it was law in the Admiralty jurisdiction alone, whether it was public or common, the iatro- duction of the English Admiralty law abolished it (a) In an action brought on a bill of exchange drawn by J. S. Crawford, at Quebec, upon, and accepted by the defendant in England, it was held by Lord EiXENBORovoH, that the acceptor of a foreign bill of exchange is not liable for re-exchange, nor for more than the principal sum, together with interest, according to the legal rate of interest where the bill is payable. Woolseyv. Crawford, tried at Guildhall the 28th May 1810.— 2. Canap. N. P. C. 445. FOR THE DISTRICT OF QUEBEC. 73 then, that he as builder had a particular lien or privi- lege reel upon the ship, that she had been sold subject to his lien, and by hitn therefore, upon the principle o£ the droit de suite, might be seized and sold for the payment of his privileged debt. Sewell, Cii. J. The sale of the ship by Gibbon to McCallum was before judgment, and afU>r the delivery of the ship by Baldwin to Gibbon, and was publicly made. The transfer in point of form is correct, and the ship has been duly enregistered as the property of McCal- lum. None of these proceedings are impeached on the score of fraud or on any other ground : the whole of them had taken place, with the knowledge of Bald- win, and without any opposition or interference on his part, and there is no allegation that Gibbon is in a state of «/2. I. Burr. 404. I. East. 5.-1. Atk. 23i. Doiiflf. 101. Ill tlie case of Wells v. Osman, 2, Lord Raymond's Rep. 1044. it was said per curiam, when the builder trusts the contractor so far as to let the sea- men go on board, there is no reason to help him. Note.— To justify the retention of moveable property the following points must be established in evidence: 1°. Actual possession, — construc- tive possession is not sufficient; — Bell's Comm. 476. 2. Den. t. " Faoteur" p. 300, 3. T. R. 119. 783. I, East 5.— ^^ That the possession enjoyed is io^itimate, 3. T. R 400. 417. 3, firo. Ch. Cases. 671. Bell's Comm. 476. It is therefore held that the possession of goods obtained by an informal attachment cannot be retained. Bell's Comm. 477. (b) The earliest case relating to the liability of Sheriffs, in civil matters in Lower Canada, whereof any trace is to be met with, is that of McAuley V. SliephenI, argued and decided upon an appeal from this Province before His Majesty in his Privy Council in the year 1787. The case was argued, on thd part of the Sheriff, appellant, by the late Master of the Rolls, Sir WiixiAH Grant, and the following is an abstract of the grounds of the judg- ment in the Privy Council as contained in a letter from him to his client the Sheriff, auuouuciiig the reversal of the judgment of the Court of 1 i if i ''' •' h i |]! 76 McClurb SuBrilURD. CASES IN THE COURT OF KING'S BENCH by the defendant, as ShcrifTofthe district, in virtue of a writ of arret simple issued at the suit of one Mary Barrows. The plain' iff declared that afler the return of the said writ, main levee had been granted of the seizure, and the defendant ordered to deliver the tim- ber to him, which he had refused to do. The defendant pleaded first, the general issue. Se- condly, That on the eighteenth day of July, 1810. the said timber was by the irresistible fore, and vio-^ lenceof the winds and waters carried away ; and, — save and except u certain portion thereof in the said plea speciHed, — was altogether lost and destroyed, without any fault or negligence on the part of the said defen- dant. That the said defendant thenceforward to the time ot fyling the said plea had used great diligence, and incurred great and heavy expences, in recovei'ng and saving as much of the said timber as was possible ; and had recovered and saved for the plaintiff a part thereof, to wit, &c. that the monies by him laid out and i :^ 1 ^1 ", 1 ' 1 \ ' y :' f j Appeals here, and the dismissal of the action against him : — " The Lords at the Doard of Privy Council adopted as the grounds of reversal, very nearly the same reasons as are stated in our case. Lord Cami-.kn said, that it was of great consequence that men should kno\v, with precision, undct what law they are acting. The laws of Canada being, by the Quebec Act, made the rule of decision in all civil cases, no part of the law of £n ihe huissicr, who had charge of the property seized, and the huissier was not respon. sible if he named ibr guardian a person solvent in general repute, (c) The law in this respect is now materially changed, all writs are addressed to the She- 77 M I8i;>. McCM Kb ^^n V. ^^^p SllLl'llEKl). WKm y 5. 1 ¥

8 n. (a) Jones on Bailment*, l^. (h) CoijuiUe. (^uebt. ili. I'otli. Dejwt. 5o. 1 1 1. vol. 2. p. 8.10.— 2. T. R. 118. (c) 2. Podi. lV|M.t. »«■> Nos. !»l-Ji-y3.— I. I'^gcau i\^\. Jouhsc C. C vol, 1. 4U(i. bvrpilltMi *'i*. m 78 1813. McCllke V. 8ll£J'IIERU. 1^ I CASES IN THE COURT OF KING'S BENCH riff, and it is enacted by the Ordinance 27, Geo. III. c. 4. § 1 1. " That if upon an attachment security is " not given, the goods shall remain attached and held " by the Sheriff,** so that the Sheriff is now the de- taining as well as the seizing ofHcer, the guardian as well as the huissier. Now the guardian was answera- ble for ordinary neglect or Jatile legere (a) and conse- quently the Sheriff, if he is now the guardian, must be answerable to the same extent ; for there is at least the same reason for his responsibility, perhaps moic, since the plaintiff has not now the choice of his Az/;V 5/Vr or gu:. dian as he formerly had. (A) it has been argued that the Sheriff cannot be deemed a guardian and that he is a sequeslre, but this does not vary tlie case, both are equally answerable for ordinary uc- glect. (c) Pothier considers the contract in either case rather as a contract " de louage" as it is not a (gratuitous contract, (d) Then, in point of fact, the v!e!.»:!;ect of the Sheriff's officer, and of the Sheriff in this case, amounted at least to ordinary neglect ; (e) and it was the less excusable, because the rights of a guardian be* ing vested in the Sheriflf', he might have employed as many persons as were necessary for the security of the property, (/) and he might have demanded of the plaintiff an advance of the sums required for this purpose, and in case of refusal would have been exo- (a) 2. Poth. D»'pot, Nos. 91 -00. Den. L. C. Gardien, § 4. n. 2. vol. 9. 2.39. Serjiillon 032. Kcp. dc Jiir. 8vo. vol. 24. p. 404. v. fimtc. {0) 24. licp. de Jtir. Hvo. S81. Potli. Dep. I IG. aud 111.8. L. C. Den. p. 41H. (t) rotli.Dt'pot 90-98-171. Sco ulsoErhkiue'»Iu6tit. 405.— 1. McDouull Ills. ;J77. (,l) I'otli. D»'p«.t. No8. 90-91-98. (t) Jouts oil Jjailaifuts 22.-8. L. C. Dili. 442. 24. Rep. dc Jur. 6vo. 401). (/) 9. L. C. Dcu. 2a 1. (nirdicii, No. 1. FOR THE DISTRICT OF QUEBEC. ncratcd from the charge anil custotly of tlic timber, (a) Upon these grounds judgment must be entered for the plaintiff, the defendant ordered on a day certain todeli\cT ♦" the plaintiff the timber remaining in his possession, and the value of the deficiency estimated by " experts" to be hereafter named according to the usual practice of the court, (b) Judgment for the plaintiff, (c) 79 I PI. J. McCl-UUK V. SiiinMii'Utn. i .n 4 '^ ' Mi (n) 2. Jonsse ?97. C. C. Tit. 33. art. 10. not. 2. L. C. Dca, " Gar- ili.!ii," $ 4. No. 4. 1 Piff. GiO. No. 7. (A) See. Poth. 4. 480. L. C. Den. expert. $ 2. art. 5.-2. Jousso C. C. 296. (c) Two appeals were instittitcd from this judgment — first, to the Pro- vincial Court of Appeals, and secondly, to His Majesty iu his Privy Coun- cil, and on each appeal the judgment was atlirmed. Ii should he observed that since the decision of this case a teropornry Statute, 9, Geo. IV. c. 6. § 9. has enacted, " That in the service aud exocii- " tion of writs of summons, of execution and other civil process, the cus. " tody and safe keeping of goods and chattels under seizure, and the receipt, " safe keeping, and payment of all monies by them levied under any writ " or writs of execution, the several Sheriffs and Coroners in this Province, " shall be liable to the same extent and in the same case as any hnissicr, " (jardien or reccveur de consignations would hare been liable under the " laus of Canada previous to the year of our Lord 1759. Provided always " that where any defendant or dcfc^nd»nts shall offer a good and sufficient " guardian or guardians to the Shciiffor Coroner seizing the goods and " chattels of such defendant or defendants under any writ of Fieri Facias, " arret simple or revendication, such Sheriff' or Coroner shall be bound to " accept of such guardian or guardians, and shall not be deemed answei ablo " for the acts of such f uardiau or guardians, provided ho can establish that " such guardian or guardians when accepted of by him were solvent, or " reputed so to be, to the amount of the value of the articles over which he " or they were appointed guardian or guardians as aforesaid." By the 23rd secti9n it is e'lacted, " That whereas the seizure and custody " of rafts and timber, more particularly when afloat, is attended with conside- " rable risk and expense, inasmuch as a number of guai-dians are requisite to " ensure the safe keeping of such rafts and timber, it si all and may be lawful " for the Sheriff before executing such seizure, under any process to him " directed, to demand and receive in advance from the plixintiff or plaintiffs, " his or their attorney or attornies ad litem, such sum as shall b ' any " one of the Justices of His Miijesty's Court of King's Bench for the Dis- '• trict.or Provincial Judge of the Inferior District where such process shall " issue, be deemed sufficient for the safe keepiug of wd\ raft or timber." V If ''■■' r-i 80 CASES IN THE PROVINCIAL Court of Vice Admiralty. , i!:' ': i. :::ij |:ir^: k^ 'Slid AlinfUSt, 181C. Chan(|[e of master not endorsed on re^fistcr, and no bond {^^ivcn liy new master accordiiifif to the 26th Geo. 111. c. GO. § 18. and 27th Geo. i II. c. 19. § 7. ope- rates a ibrfvi- ture. (a) Michael Henry Perceval and Another, giii tam, «>. The Sloop Harrower, Joseph Gignac, Master. 1 HIS vessel was seized at Montreal in this province, with her cargo, and claiired by the owner, at Quebec. On the nart of the Officers of the Customs five breaches of the laws were alleged — 1st. Her departure from Quebec for Montreal, without a certificate of registry according to the form of the 26th, Geo. III. c. CO. § 18. 2nd. That the said sloop, which by the acts 2Gth and 27th, Geo. III. should have been registered, de- parted with her cargo from Quebec not being so re- gistered, and not being entitled to any of the privi- legef. of a British built ship, or of a ship owned by Briti^ih subjects, but to all intents an alien ship. 3n\. The departure as aforesaid, the master having succeeded to James Armstrong, without the owner or master having delivered to the persons authorized to make registry and grant certiiicates at Quebec, being the port at which such change took place, any certifi- cate of registry that a memorandum thereof might be subscribed thereon, &c. (n) The prnvUions contained in the statutes under which this forroitnro was declared, Ibrin part of the proscut Itegistry Act 3rd and 4th, Will. IV, b,'). %^ COURT OF VICE ADMIRALTY. 4th. The master not having given security by bond under the penalties prescribed by the said acts. 5th, Her departure as aforesaid and not being a ship or bottom of the built of England &c., but at the time of seizure being an alien ship, &c. Judge Kerr. This case submits an important question to the con- sideration and decision of the court, and though I regret that proposing to embark for England in the course of a few days, I have not been able to give it all the attention it merits, yet my judgment has been greatly assisted by the very able arguments of the counsel on both sides. The question in the ph adings and evidence is whe- ther the Sloop Harrower of this port, having a fixed deck, and having performed a voyage to Haliflix, is or is not within the provisions of the Registry acts. The great objects which the wisdom of our ances- tors intended to advance, were the building of ships throughout His Majesty's dominions, and the employ- ment of British seamen in the navigation of them ; — and its policy was to act adversely to the endeavours of foreign nations to obtain a participation in the trade of Great Britain and her colonies. Considering these views, as the leading stars to guide our progress, we shall find less difficulty in coming to a right conclu- sion on the question proposed. Tlie Legislature afler passing the 12lh, Chas. 2. c. 18. to exclude all but English ships and vessels, whereof the master and three fourths of the seamen must be English, from the colo- nial trade, found it necessary in order to enforce the policy of the act to establish a criterion by which Eng- lish ships should be distinguished from foreigners : M 81 1816. Peucveai, t». Tm Sloop Harrower. 1 t i! i 88 CASES IN THE PROVINCIAL 1810. Perceval V. Tub Sloop Hakrowlr. This gave rise to the provisions in that act and more particularly to the 17th clause of the 7th and 8th of William III. c. ^^. by which it is declared that all ships after proof made in the manner therein pre- scribed, of their being of the built of England, Ireland, Wales, Berwick, Guernsey, Jersey, or any of his Ma- jesty's Plantations in America, shall be registered, ex« cepting *' fisher-boats, hoys, lighters, barges, or any ** other vessels, though of English or Plantation built, " whose navigation is confined to the rivers or coasts " of the same Plantation or place where they trade «' respectively, but only of such of them as cross the '* seas to or from any of the lands, islands, places or ** territories, in this act before recited, or from one " Plantation to another." (a) If this exception to the general regulation be not enlarged by some subse- quent act of Parliament, this sloop, being neither a fishing boat, a hoy, a lighter, a barge, or open boat, and having traded to Halifax, is not within the excep- tion, and of course is subject to the penalty of forfei- ture inflicted by the 18th section of the act. As the trade of the nation increased it was thought necessary to confine the advantages of British trade to ships wholly built and fitted out in His Majesty's dominions, and this policy is manifested both in the preamble and enacting clauses of the 26th, Geo. III. c. 60. In pursuance of this policy that statute in the 3rd section declares " That all and every ship or vessti, having a " deck, or being of the burthen of 15 tons, or upwards, " belonging to any of His Majesty's subjects in Great '* Britain, or Guernsey, Jersey, and the Isle of Man, *• ' (fl) Sec. XX. li < I 1 ', ! h COURT OF VICE ADMIRALTY. " or any of the aforesaid colonies, plantations, islands, '< or territories, shall, from and after the respective " times hereinafter expressed, be registered." From which provision are excepted in the 6th section, " ves- " sels belonging to the Royal family, or any lighters, *' barges, boats, or vessels of any built or description " whatever, used solely in rivers and inland naviga- •• tion." It is not pretended that the Sloop Harrower belongs to the Royal family, that she is a lighter, a barge, a boat, nor— having performed a voyage to Hali- fax—can she be said to have been solely used in rivers or inland navigation, admitting these words to apply to the navigation of the vast extent of water which composes the Gulf and River St. Lawrence. And though, for tlie reasons therein assigned, this exception was extended by the 27th, of His Majesty, c. 19. to vessels of 30 tons " not having a whole or fixed deck, " and being employed solely in the fishery on the banks " or shores of Newfoundland, and of the parts adjacent, or on the banks or shores of the Provinces of Que. bee. Nova Scotia, New Brunswick, adjacent to the Gulf of St. Lawrence, and to the Noith of Cape " Canso, or of the islands within the same, or in trading coastwise within the same limits, shall be subject or liable to be registered," yet still this sloop is as far as ever from coming within the enlarged exception contained in this act ; for she has a whole or fixed deck, and she is not employed in the fisheries, nor does she trade coastwise within the limits described in the sta- tute. She is not comprehended within any of the ne- gative propositions in the exception, so that she is clearly subject to the operation of the general rule. But it is said this sloop has a certificate of registry 83 ft 11 t( it «i K l( 1816. Perceval V. The Sloop Harkoweh. I i' ;Si III f V' t il 8i ji#i '' f il 1816. Pkbccyal V. Tub Sloop llAHROtV£R' CASES IN THE PROVINCIAL and has conformed to the provisions of the registry acts, and how far this is the case is disclosed in the evidence. It appears that the Harrower was built at Beauport, near Quebec, in the year 1795, on account of John Young & Company, that she soon afler, whilst the property of these owners, made a voyage to Halifax, in Nova Scotia, that she afterwards proceeded on ano- ther voyage to Halifax, with her cargo, and went on shore below Quebec ; but Mr. Stewart (a) adds, he can* not say whether she perforr»ied this second voyage or not. It is distinctly proved that she was not registered be- fore the year 1814, that is to say, 19 years after she was built, and after the present claimant had become owner, but having thus complied with the provisions of the act in this respect, the first and second allega- tions of this libel are not maintainable. However there is one omission in the sequel of this transaction, which forms a constituent head of allega- tion in this libel, on which the respondent is less fortu- nate in convincing me that he is not within the scope of the penalties inflicted in these acts, and that is, thai on the change of master, there was no indorsement on the certificate, and no bond given by the new master in conformity to the 18th clause of ihe 2G Geo. HI. c. 60. and ^7. Geo. HI. c. 19, § 7. It is in vain the claimant urges a part fulfilment of the requirements of these acts, to exempt him from their penalties. He must Gtrictly conform to the directions of these Statutes, otherwise he subjects his iihip to be considered in law, as an alien ship, under the plain sense and meaning of the 13th section of the 27th of the King, c. 19. The Counsel for the (a) An officer of the Customs examined oa a witness on the part of tbc prosecutors. COURT OF VICE ADMIRALTY. S5 respondent lias attempted to shew that Gignac was not the master ; that he was only put in by Armstrong, whose name appears in the certificate of registry, as master for a few months till the return of the claimant from England. But the words of the act, are, ** That «• when and so often as the master, or other person, " having the charge or command of any ship or vessel, " registered in manner herein before directed, shall be ♦* changed." By whatever name Gignac might have been called, he had clearly the charge of this sloop for several voyages to Montreal, and therefore, came within the description contained in the 17th sec. of the act. The more attention which is bestowed in the exam- ination of these acts the more precise they appear in their language, and all their provisions unite in pro- moting the great object of their policy, namely the ad- vancement of the building of British ships, and the em- ployment of British seamen in the navigation of them ; and at the same time to exclude foreign ships, except- ing under special circumstances, from all the advan- tages of British trade. These objects could not be attained unless this sloop were held to be within the description of vessels subject to the registry acts. It is greatly to be lamented that so many great irre- gularities have been committed by the owner of this sloop. 1 am induced to think that he has erred en- tirely through an ignorance of law, and perhaps from the absence of the claimant from the Province. But ignorance of law is in no case admitted as an excuse for breach of the law, and the claimant must incur the res- ponsability for the errors and omissions of those in whom he has reposed a misplaced confidence. If I had any equitable discretion in the administration of 1810. Perceval Wm V. r^ The Si,o«p ^-;J IIauruwer. '4 rM i-a m m m 80 CASES IN THE PROVINCIAL 1816. these laws, I shoiilJ have no difficulty in releasing this Pkrcbval s'^'P '^"^^ cargo, but being tied and bound by the fct- V. ters which are imposed by these Acts, I am obligeil IIarrower. ^o s^y ^'i^t ^li<3 ^''^» ^^li <>"d 5lU allegations in the libel, are proved, and I condemn this sloop, the same being at the time of seizure an alien ship. And I further decree that the claim be dismissed, and further order that the appraised value of the said sloop be forthwith paid into the registry of this court, to be divided after the payment of expenses. Bills of which are hereby ordered to be corrected as the law directs. Tlio Keporter lian been favored with tlie fo1loH-in^ cnRo transmitted to Engfland, to be laid before the CommisKioners of His Mtijesty's Cuittoms, who iiiib8equently ordered restitution of tho sloop and cargo, under the powerit wherewith thoy are invested in that behalf. Tho grounds upon which the sloop IIarrower was stated to be liable to cendenination, are: I. That she had sailed without a clearance, and was therefore liable to be taken and considered as a foreign vessel S. That the master had been changed, and no endorsement of such change made upon the C'ertilicate of Registry. The ground of her being an unregistered ship, as stated in the libel, was of course abandoned, it appearing that she had been, in fact, registered long before the period of the alleged offence. It appears that the custom house here, was under an impression, derived from certain instructions and opinions (as understood,) from homo, that \v»- sels, solely efiiployed in the inland navigation of the river 8t. Lawrence, were liable to the penalties imposed by the British Registry acts, and the true cause of the seizure of this sloop was a supposed liability to forfeiture from her having sailed without a register, and without a clearance. The ground uiion which the sloop was ultimately condemned, was one furnished to the officers of the customs, by the in|renuity of their Counsel, viz : no ecdorsemcnt being made upou the certificate of registry after a change of master. Upon the second point, it was contended on behalf of tho claimant of the ship, 1. That the vessel being solely employed in the inland navigation of the river St. Lawrence, was not liable to any of tho penalties of the Regis- try acts. 2. That no penalty was imposed by those acts for the omis- sion to make the endorsement in question ; that the act was merely direc- tory, and a forfeiture could not be created but by express words, 3. That conceding these two points to the libellants, no change of master had been proved. 4. That, if a change of master were proved, tho penalty could only attach when the vessel should commence a voyage to sea, or to ano- ther British Plantation. Tho leading objects of the policy of the laws of shipping and navigation arc so nearly identical with those of trade, that the considerations applicable to the one point, made by the libellants, will go a long way towards deter- mining the weight due to the other. 'in. COURT OF VICE ADMIRALTY. Tlio Inwa of trn<1o, no Far "i they konr upon tlio colonies, may bo tliMtri- Itiiti'il iiiDier four head*. 1. Laws re(fulatiii)( the trade between the mother country and the colonies. 2. Laws rt*f(ulntini; the trade between the oolonie* and countries uol «ub- ject to the Crown of Oreat Britain. 3. Laws regulating the intercolonial trade. 4. Laws regulating the internal trade of the colonies. The mother country rnHerves to herneif the exrIuHire trade of the colo- nies, in Dritish or Plantation built shipping. Thin right, must of nocpMsity, be enforced by penalties and other legislutiro provisions to prevent fiuuds. We accordingly find 1. That the master of every ship setting sail ft>r the colonies, is obliged to enter into a bond, that the commoiiities ladon by him in the colonies, hIihII bo brought to some port of England, Ireland, Wales, or Berwick upon Tweed, 12. Car. 2. c. 18.^ 19. 2. That no commodity of the produce or manufacture of Europe can be imported in a British Colony, but what shall be liidun in England, ilcc. in British shipping, &c. and the penalty of forfeiture of ships and goods iH im- tnsed for breach thereof, \5. Car. U. c. 7. y ti. (The words of the 1th (}eo. II, c. 15. ^ 30. are more general, requiring that the whole and entire cargo of the ship bo laden in Great Britain, &c.) 3. That all ships coming into or goinsr out of colonics, nnd lading or un- lading goods or commodities, shall be liable to the same rules, visitations, searches, penalties and forfeitures as in Ureat Btitain, &o. 7 & 8. W. 3.c. 2i. sec. «. 4. That bond and security bo given boforo lading any iron or lumber in the British Plantations, that the same will be landed in Knglnnd, kc. 4. Ueo, in. c. 15. $ 28. 5. That a ship arriving from Europe, discovered within two leagues of shore, and having on board goods for whirh n cocket or clearance is not produced, shall be liable to seizure, &c. 4. Geo. III. c. 1.5. § 30. 6. That foreign vessels at anchor, or hovering on the Cwtsts of plantn^ tions, and not departing, unless distressed, within 48 hours, shall be liable to seizure aud forfeiture, with itargoes, 4, Geo. III. c. 15. ^ 33, 7. That goods found concealed after report, shall be liable to seizure and forfeiture, and master to forfeit treble vuluo. § 36. 8. Th:*.t goods landed in absci.ce of custom house officer, or without war- rant to land, or without payment of duties, shall be liable to forfeiture. Tiiese different enactments, made from time to time, as necessity called for them, (see Chalmers* Political Annals,) have been found amply sulHcient to secure to the mother country the exclusive trade of her colonies. Not one of these acts relates either to the internal trade of the colonies, nor to the intercolonial trade. As to the internal trade of the colonies, provi- sions of this nature could only serve to trnmmel it without necessity or benefit. And for the intercolonial trade, other provisions were made, cal- culated to meet the particular exigencies of thiit trade. Of statutes re- lating to the trade of the colonies with other countries than the mother country, or her colonies, notliing need here bo said. They are relaxations of the general rule, nnd admitted for purposes connected tvith the imme- diate interests of the mother country, such as tho encouragement of the fisheries, &c. The only British Statute relating to the internal trade of the colonies, with which I am acquainted, is the Ir^ Cur. II. c. IH. § 2. prohibiting alien merchants from trading in the colonics, and snbjeotin^r them to tiie pen- alty of forfeiture of all their goods and chattels, it thoy do carry on trade in the colonics. There is no British or Provincial Statute which 87 1810. Pkrckval V. TiiP 8ixM)P Harruwkk. ri" < 'III f { 1 ■' i ■ 'i IMAGE EVALUATION TEST TARGET (MT-3) &c {./ A.^ ^ 1.0 I.I ■2.8 lU .... IIIIIO/\ u lU Ki u WUu Iffi 12.0 IL25 UHU 1.6 <^ A ^ z \^- .*^ O^ Fhotografdiic Sciences Corporation \ ^ •s? <^ "^^^T^^ ^.V^ 23 WIST MAIN STRUT WnSTM,N.Y. 145M (716)t72-4S03 '^ 4r 88 CASES IN THE PROVIKCIAL ::iiij>';f'^ ill i.!^, ; : SIIWMITI I! ii ; ■' ,. a; ii 18J6. imposes upon the merchant tradinnf in the colonies, the obli^tion of \~^->r'^ taking; out a clearance to authorize him to remove his coods, from one Pfrceval part of tite colony, to another part of the same colony. Indeed, what is a V. clearance ? It would seem that a clearance is not any single document, but The Sloop the collection of all those papers which are necessary to enable the ship to Harrower. sail, (3.' Taunton, 554.) But none of the Statutes require, in the internal trade of the colonies, any bond, or manifest, or cocket, or any other paper or document, to enable the ship legally to sail. Next, as to the liability of the vessel to forfeiture and condemnation under the registry acts. I . The vessel being solely employed in the inland navigation of this colony, was not liable to any of the penalties of the registry acts. The 7. and 8. W. III. c. 22. require British and Plantation built ships to he registered, with the exception, however, of " fisher boats, hoys, lighters, barges, or any open boats, or other vessels, (though of English or Plantation built,) whose navigation is confined to the rivers or coasts of the same plan- tation, or place wherever they trade, respectively," § 20. but the same statute excluded foreign built ships from the inland navigation, § 2. The 26. Geo. III. c. 60. also requires the registry of ships, but excepts " ships or vessels of war, or any other vessels of whatever built the same be, or under whatever description the same may fall, being the property of His Majesty, or the Royal family, or any of them, or any lighters, barges, boats or vessels of any built or description whatever, used solely in rivers, or inland navigation. That the navigation of the river St. Lawrence between Quebec and Montreal, is an inland navigation, no one who casts his eye upon the map of the country can doubt ; that the Harrower was solely used in the naviga- tion of the river St. Lawrence, will be found, on leference to the evidence the cause, equally certain. It cannot be concluded that because the in legislature used the words " all and every ship," in the 3rd section, it meant therefore, to require even those ships to be registered, which as ap- pears from other parts of the act, were intended to be prevented from being registered, (Long v. Duff, 2. B. & P. 215.) But it is said that the vessel was liable to condemnation, because she had once been employed in a foreign voyage, several years before the seizure. The words of the act are " solely used in rivers or inland navigation." To what time do these words relate? clearly to the time when the forfeiture is supposed to have been incurred. Again — this vessel having been built upon, and altered subsequent to her foreign voyage, was to be, to all the intents and purposes ot the registry acts, a new ship : and accordingly, the owners could not have sent her to sea, after such alteration, before fii st obtaining a new certificate of registry, 26. Geo III'c. 60. § 24. But can it be pretended that the same rule applied to her being sent to Mont- treal, or any other port on the river St. Lawrence? Did she not clearly fall within the exception of the sixth section of that statute ? 2. No penalty is imposed by the registry acts, for omission to make the endorsement upon the change of master. No case has, I believe, occurred in England, of a forfeiture being declared by a court of law, to be incurred without express words in the statute, under which the forfeiture is prayed To shew that forfeitures cannot be raised by implication, innumerable autho- rities might bo cited, but I choose rather to refer to the case of Long v. Duff, above cited, as that was a case upon the interpretation of a clause in this verv statute. "f be case of the schooner Friends Adventure, Daniel Curry, master, re- ported in Stewart's reports of cases argued and determined in the court l|,i! Ji' COURT OF ViCE ADMIRALTY. ' of vice admiralty, at Halifax, was ci ,; ■! ou the other side. This was a case of a vessal sailing from one colony to hoother colony, and a chang^e of nias- tf r, without the required endorsement. With the difference that the sail- ing of the Harrower was inland, the two cases may be consi«»ored as similar. Dr. Croke condemned the schooner Friends Adventure for this omission, and assigned as a reason, that " as no special penalty is inflicted, upon the neglect of the direction, upon a change of master, this part of the act would be neglected unless it were in the power of the court to inflict some penal* ty." With all due respect for the talents and learning of that Judge, ho might well be challenged to produce a case wherein an English court of ji;8< tice,' since the abolition of the court of the Star Chamber, did for the pur- pose of preventing a part of an act of Parliament from being neglected, in- flict the high penalty of forfeiture where confessedly, no special penalty was inflicted by the act itself. The enactment in the 27. Geo. III. c. 19. § 13. cited by Dr. Croke, that all vessels not registered according to the directions and regulations of the 26. Geo. III. although owned by British subjects, shall be held and deemed, to all intents and purposes, as alien ships, and shall in all cases be liable to such penalties and forfeitures as alien ships does not, as it seems to me, embrace this case. The endorsement upon a certificate of registry ex vi termini implies that the ship has been pre- viously registered. Again, the legislature's nut imposing any penalty upon the omission to make the endorsement directed by the act 26. Geo. III. did not proceed, as it seems to me, from want of foresight in the framer of ti)at statute, for " that statute was framed by an able statesman, (a) who is peculiarly conversant in the commercial interest of England ;" (3. T. R. 412.) but from such penalties being quite unnecessary. How is a ship to obtain the proper papers from the custom house, to enable the master le- gally to proceed in the voyage, but by the agency of the master ? What other master can the custom house recognize than the master named in or upon the register ? It would have been worse than useless for the legis- lature to impose a penalty, and the high penalty of forfeiture, upon a vessel sailing to foreign parts under the charge of a master other than that named in the register, since she could not so sail, unless the officers of the customs neglected their duty. And was this to be presumed in an act of Parlia- ment? and if it were presumed, was the innocent merchant, or shipowner to be punished for the neglect of the custom house officer ? 3. No change of master has been proved. It is in evidence that in the spring of the year 1815, James Armstrong was master of the Sloop narrower. He having purchased a vessel which he purposed to navigate on his own account, employed Gignac, as his servant, to navigate the Har- rower. His contract with the claimant was not determined. In truth, the claimant was in Europe, and a contract entered into by their mutual consent could only be dissolved in the same way. Gignac was appointed, not by the claimant of the Harrower, but by the master of that vessel. — Armstrong had no authority from the claimant of the yessel to substitute another roaster in his place, and shall the owner of the vessel be held an- swerable for the acts of the mastor out of the scope of the authority of the roaster appointed by him ? 4. The penalty could only attach when the vessel commenced a voyage to sea or to another British Plantation. The laws of shipping, navigation and trade, generally speaking, npnly only to the shipping, navigation and trade from and to the colonies. They do not touch the internal trade of the colonies further than to enjoin that the trade of the colonies shall be carried 83 1816. Perceval V. The Sloop IIaruower. t ^1 ''.: I .;i i v\\ v,\> (a) Lord Hawhcsbury. 90 CASES IN THE COURT OF KING'S BENCH ExPARTE The Reverend George Spratt. i'». .!: October 6th, 1816. A dissent- injT minister of a protes- fant congrega- tion, not being a public offi' cer, nor a per- son in public holy orders recognized to be such by ]nw, is not en- titled to, and cannot keep a parish regis- ter for bap- tisms, burials and marriages. George spratt had presented a petition praying that in obedience to the Provincial Statute 35t Geo. III. c. 4. the court would order and direct, two registers for the entry of marriages, baptisms, and sepultures, to be paraphed and delivered to him as a dissenting minister from the Church of England, of the sect called Congregationalists, doing the clerical duty of a congregation of the same sect at Quebec- In support of this petition sundry papers and affidavits were fyled, in which it was stated, — 1. That the peti- tioner had at Gosport, in England, by divers lay cha- racters, been ordained ** to the office of a christian '" minister," in the form, used by the Congregation, alists, for the ordination of their ministers. — 2. That, as a minister, so ordained, he was now performing the clerical duty of a congregation of the before mentioned on in British or Plantation built ships, by British subjects. The sailing of a ship from one port in a British Colony to another port in the same Co- lony does not subject the parties to any penalty. Where is the line to bo drawn ? for it must be drawn somewhere — not at the period of the actual change of master, otherwise every merchant vessel in England might be seized and confiscated for one minute after the change of masters ; it would be true to say, that a change had taken place, without any endorsement upon the certificate of registry, and the absence of fraud in the parties would not protect them, not at the period of the vessel's proceeding from one part to another part of the same province, otherwise any change of place would give occasion to forfeiture. The only period that can be fixed IS the vessel's proceeding upon a foreign voyage, — foreign quoad the colony. Vow, no such voyage was commenced by the Harrower, or contemplated by her owners. M II iIl* FOR THE DISTRICT OF QUEBEC. dissenters at Quebec. For the petitioner it was con- tended, that the petition could not fail for want of proof of the facts on which it was founded, that It was the proper weight of those facts, and that only, which was in question. The Act of the 35th, Geo. III. ad- mits of no dispute as to dissenters, which does not involve the establishment of the Church of England itself. When it was passed there were no parishes, no churches, no ministers of the Church of England, es- tablished in the country. The whole of the protestant population of the province were but, in fact, so many congregations of persons, who assembled wherever they could, for public worship : every construction of the act therefore, which excludes other congregations of protestants, must exclude the congregation of the Church of England, for such they were and no more. Even the statute, in the tenth section, enacts a course for making valid the register of the protestant congre- gation of Christ Church, Montreal, which is, unques- tionably a church of the established religion of Eng- land. The act (a) clearly meant to include all congre- gations of protestants, from its general tenor, by the disjunctive " or" A priest is throughout distin- guished from a minister of lay ordination, — a " priest or minister," " church or congregation," are through- out the expressions of the act ; and this shews that it was intended to include protestants of all sects and (a) The act 35th, Geo. III. o. 4. requires that after the Ist day of Janu- ary, 1776, in each of the protestant churches or conorregacions within this province, there shall be kept by the rector, curate, vicar, or other priest or minister, doing the parochial or clerical duty thereof, two registers of the same tenor, each of which shall be reputed authentic, and shall be equally considered as legal evidence in all courts of justice, &c. in each of which, &c. 91 1816. EXPARTR O. Spbatt. 4 .1 M '. m uU X Ik i If mmmmmmmm mm i limit ij II !! P 1816. ExPARTE G. Spbatt. 'I i .;< ■ . '! 11 ' : 'i' - i; '? 11 CASES IN THE COURT OF KING'S BENCH denominations, priests " in holy orders" and minis- ters in " pretended holy orders." . That the case should be considered equitably, and then the state of the District of Gaspe and of the Er -em Townships would weigh in the scale : there, few of the inhabi. tants are members of the churches of England and Scotland, all or nearly all are dissenters. A con- struction of the statute which does not extend its benefits to dissenters, will deprive a vast majority of the protestant subjects of His Majesty, settled in this province, of all the advantages to be derived i'rom parish registers. That the Attorney General might make such use as he saw fit of the case of Clarice Ben- ton, which was hear in this court in the year 1804, but that it was by no means applicable to this case. The Attorney General, in resisting the application, stated that to enable the petitioner to obtain a regis- ter, the place of meeting selected by his congregation should have been certified to the Bishop of the dio. cese and registered as the act 1st. W. c. 18. directs. A certificate of his having qualified himself should also be produced under the hand of the Clerk of the Peace of the county, in England, where he was qua- lified, and he should make it appear further that he has taken the oaths prescribed by the statutes 1st, W. c. 18. 19. and 19th, Geo. III. c. 44. That he could not stand here, in a better condition than he would in England, where he would not be allowed to take the title, even of a dissenting minister, before all the re- quisites of the statutes which have been cited, had been strictly complied with. In reply, it was said that the colonies were not mentioned in the statutes cited by the Attorney Ge« FOR THE DISTRICT OF QUEBEC. ^ neriil, and that therefore the petitioner could not be bound by them. Sewell, Ch. J. The petitioner, George Spratt, alleges himself to be a protestant dissenting minister^ from the Church of England, doing the clerical duty of a congregation of dissenters, who are called " Congregationalists," in Quebec ; and upon these grounds he avers, that he is legally entitled to have and keep a register of bap. tisms, marriages and burials under the Provincial Sta- tute 35th, Geo. III. c. 4. Tiie prayer of his petition accordingly requires us to paraphe, that is, to certify and countersign, a register for him and for the con- gregation which he serves, as the act directs. The predecessor of this petitioner, Clarke Benton^ in the \evy station which the former now fills, viz. ; " Mi- " nister to the Congregationalists of Quebec," ad- vanced in this court, in the year 1801-, his claim to have and keep a similar register, and after a lengthy discuss'on of his pretensions, he received a solemn judgment against his claim. In the case to which I refer, Benton pleaded to an information fyltd by the then Attorney General to this effect, " That in Ja- nuary, 1801, by a congregation of dissenters from the mode of worship used by the established Church " of England, assembling for the worship of God in the parish of Notre Dame, commonly called the parish of Quebec, in the province of Lower Canada* he had been regularly and unanimously chosen and appointed their pastor, to minister unto them in all holy things , and that he had been, and still conti- " nued to be, the appointeu, accepted, and acknow- ledged pastor of the said congregation, and there- 93 i i( <{ (f «( (I u tl l( I81G. ■i Ex i- ARTE ^« G. Sl'KATT. s^^H (' '^B '' ■ •^'« <\ '!■ M , I v^ i H * pi it^^^i P-l^^l ' ^'\ H '"^IM 1 ' ll.« < \ ||^9 1 i^V ■f wk ( i HB^I .. ikJ wm liiiiiiaii »i'' ii W^ i: ^'A-^i ■ 1 ,i: i ! f- !*■'! ^ iiiism m 9* CASES IN THE COURT OF KING'S BENCH 1816. ** Tore, had legal title to keep a register." To this p plea the Attorney General demurred, and issue hav. o. Si'RATT. ing been joined, and the case fully argued, judgment was entered up and stands recorded in the following words:—" That the plea of the said Clarke Benton, " by him pleaded, is not sufficient in law, and it is " thereupon adjudged, that the said Clarke Benton " do not, in any manner, intermeddle with, or con- " cern himself, in the office of a priest or minister, " doing the clerical duty of a protestant church or " congregation within this province, or the rights, ** liberties, privileges and franchises to the said office " belonging and appertaining, nor any of them ; but " that he be from henceforth wholly prejudged from " exercising and using the same, and every of them, " and that the said Clarice Benton be taken to satisfy *• the King for the usurpation aforesaid." This case is strictly in point, upon the present occa- sion, and the judgment upon it is a solemn decision upon the prayer of this petition. We concur in this decision, and shall now state the reasons which induce us to do so. It must be remembered that the Provincial Statute 35th, Geo. III. c. 4. is nothing more than a regulation as to evidence in the courts of law in this province respecting births, marriages, and sepultures ; the ef- fects of which are purely temporal, and do not affect the spiritual concerns or the toleration of any sect or denomination of christians whatever. If the character, and office, of the petitioner, are within the letter and intention of this statute^ he has a right to a register, if they are not, he has no such right. The British statute 14th, Geo. Ill, c. 83, commonly called the Quebec FOR THE DISTRICT OF QUEBEC. act, declared the law of Canada, — as it stood at the conquest, — to be the rule of decision in all matters of controversy and civil rights ; and hence, the law of evidence in this province is materially different from the law of evidence in England. With us, deeds of conveyance, mortgages, &c., ?.re executed before a notary, who is a public officer, appointed for that pur- pose by the Crown, and with him the original deed remains, in each instance, deposited of record; the parties have each a copy certified by him to be an exact transcript from the original, and these copies are evidence in all courts of justice, and prove them- selves, unless they are formally impeached as forge- ries. This provision of the law of Canada is not, however, confined to notaries ; it extends to all public officers who are appointed by the Crown, and have the charge of records of a public nature, such as the prothonotaries of the Court of King's Bench, the Se- cretary of the Province, and others of a similar descrip- tion. Any writings which thus prove themselves are denominated authentic (^actes authenttques.') If we inquire into this sort of evidence as to " actes authen- qiies" — and it is material that we should, — we shall find that it is founded on the principle, " That the Crown, holding the right of nomination to office in trust, will not appoint to public offices, any other *• than persons of whose good character and integrity " it is assured ;" as will appear from the following au- thority : — " La confiance dans une acte authentique est fondee sur ce que le souverain, appreciateur du merite et des talens de ses sujets, n'auroit point donne d'emploi dans Tordre publique, a Pofficier, s'il n*avoit cu un temoignage de ses mceurs et de sa capacite ; *J (C (C 1816. EXPARTK O. Si'KATT. • 'if i L if.> "In ti ^:1 90 181G. UXI'ARTR O. Sphatt. CASES IN THE COURT OF KING'S BENCH. tcmoignage encore, qui se fortific par Tenqucte c/e vie et de mceurs, et par le serment qui precedent sa reception." (a) Now from this principle it follows necessarily, that the power of passing an acte authen- iique, cannot be derived, as to the officer who passes it, from any other source than from the Crown j so that an acie auihetitigue cannot emanate from any other than a public officer of the government. Le Camus in his late edition of Denizart defines an *• acte autheniique" In these words j " l*acte authentique est " ceiui qui, etant consign^ dans un registre publique, •* ou bien ^tant emane d*un qfficier publique dans la " fonction pour laquelle la loi Pautorise, se trouve *' revetu des solemnites que la loi a prescrites." (/>) The Repertoire expresses the same idea in these words ; " Les actes authentiques sont ceux, qu'a re9us un officier publique avec les soIennit6s requises : les ecri- tures privies sont les actes que font les particuliers sans le concours d'un officier public." (c) And the language of the Amcat General Gilbert, in the con- clusions which he took in the celebrated case of Bel- lingant against the Marquis de Hautefort, is to the same effect ; whoever passes an " acte authentique,** says he, " est le ministre public, de la loi, et du gou- vemement temporel, a qui seul il appertient de conferer le pouvoir d'imprimer aux actes rauthenticile." {d) From these general authorities it is evident, that the right of keeping a register of baptisms, marriages and sepultures, with the power of rendering the entries therein made, actes authentiques, or records which, by the 20th title of the edict of I667, was, at the con- (c) 1. Pop. de Jiir. 809. (A) 1. L. C. Den. 159, (c) 12. Rep. dc Jiir.280. (d) 1. L. C. Den. p. 165. FOR THE DISTRICT OF QUEBEC. 97 1816. quest, vested in the then parish priests of Canada, was by law considered to be so vested in them, not by expartk reason of their spiritual or ecclesiastical character, but O- «pkatt. because they were, by law, the acknowledged public officers of the temporal government ; a few extracts will confirm this inference, — ** La loi veut que les actes de celebration de mariagc soient Merits et signes, duns des monumens publiques qui servent de mi- nute." — ** Le ministre de I'egiise est comme officier piihlique en cette partic, et son acte a autant d'auto- rite en justice, que la sentence renduc par un Juge, ou un contrat pass6 devant un notaire." (a) 11, — le regitre, — doit ^tre seulement 8ign6 par le cure qui a donne la forme a la minute, et qui, ew celie maticre, est le ministre publique, nous ne dirons pas de I'egiise, car a cet ^gard sa fonction ne seroit que spirituelle, mais de la loi et dii gouvernement femporel. (b) " Ces registres doivent 6tre ecrits de la propre main du cure, lequel n*a pas besoin d*affirmer, que ce registre est veritable, est enim persona puhlica et sacerdos" (c) Then, as a register of baptisms, burials and marriages, is a record of a public nature, and as all the entries therein made, are official declarations of facts, which by the express words of the statute 35th, Geo. III. c. 4. are declared to be " actes authentiques" (d) he that claims the right of keeping a register and to re- cord baptisms, burials and marriages, contends, that his entry of such facts, is an ** acte authentiqu^* and consequently, must shew that he is a public officer. It is not then sufficient for the petitioner to shew ** that (a) 2. Cochin 505 and 3(1. 780. {!>) l.L. C. Den. 16+. 165. (c) Danty. 77G ((/) See the preamble andisect. 1. 'C lf39. And?. DelaJdunes, %' li PF n ■^^^^^HWWWB mmmmHmmmmnm I ! ^i'S^l^i: I ; i Pj! ! ■ f tr^' ;■ 5ili :»)*!j 'I ii ■ ■ ! i ■::!l ,■ , i \m. i II! Ill „|., 3< II 100 CASES IN THE COURT OF KING'S 13ENCH iai6. precision, that entries of burials shall be signed by ExPA'VR " *'^® clergyman" who performs the burial service, o. Spuatt. which, again implies a clerk in holy orders, (a) rccog. nized by law to be such, in contradistinction to pre* tended holy orders, and to persons pretending to holy orders, as they are termed in the ordination acts. Upon these principles we cannot do otherwise than reject the prayer of this petition. Judgment — that the petitioner tai. ; nothing by his petition. (6.) (a) 4. Black. Com. 217. (6) See the Paiidecte.i Franfaises, vol. 2. p. p. 2W'24!5. FOR THE DISTllICT OF QUEBEC. 10?. McDouALL against Fraser. 19th October, 1810. McDOUALL having a bill of exchange drawn on ^^^^^'3^^ Fraser for e^lOOO, agreed to accept in payment a perfected, is quantity of ^in and sugar lying in a warehouse be- dent,'bJfoS'" longing to Brehaut and hired bv Fraser. The latter delivery, the gave an order to Brehaut to deliver to McDouall the the purchaser, entire quantity of gin and sugar which McDouall had thus purchased ; — a bill of parcels was made out by Fraser, with a receipt for the amount, and McDouall gave up to him the bill of exchange. The sale was thus concluded on the 2nd of August, and on the 12th of September following McDouall took from Brehaut's warehouse, the whole of the gin, being 464 gallons and 4481 pounds, being part only, of the sugar of which the value was £791 14s. 5d. and left the re- mainder of his purchase (which consisted entirely of sugar) in the warehouse where it was consumed, acci- dentally, by fire, a few days afterwards : no cause was assigned for the delay which had taken place in re- moving the gin and sugar from Brehaut's warehouse, and it was in evidence, that Fraser in the month of August had summoned McDouall to remove them. This action was to recover the value of the sugar which had not been received by McDouall. Sewell, Ch. J. As soon as a sale is perfected the thing sold is at the purchaser's risk, and if it perishes without any neglect on the part of the seller, the pur- p rssss iHBanH mm IBl lOS i ■:r 1816. McDoUALL V. Fraser. CASES IN THE COURT OF KING'S BENCH ^ chaser must bear the loss even in cases in which a deli- very has not been made, (a) The sale, in this case, as to the sugar, was of a certain number of hogsheads lying in Brehaut's warehouse, and as it does not appear that any others belonging to Fraser were there it was a specific sale, and the above rule applies. It is, more- over, doubtful, whether a delivery of the whole was not made. But at all events it is in evidence that McDouall was summoned (under protest) by Fraser some days before the 6re, to take away the remainder of his sugar, and was, therefore, en demeure, for he was bound (as it was not otherwise stipulated) to receive the things he had purchased at Brehaut's store, (6) and to remove them from thence in a reasonable time, (c) There is neglect, therefore, on the part of McDouall and none on the part of Fraser, and the loss being thus evidently a consequence of McDoualPs default, because, if he had removed the sugar as he was bound to do, it would not have been burnt in Brehaut's ware- house, he must abide by the loss. Action dismissed. . I (a) 17. Rep. de Jar. 482. v. Vente, sec. 4. $ I. 5. Ferr. Instit. III. Domat Contrat de Vente, Tit. 2. § 1. art. 2. and sec. 7. art. 2. Pothier. Vente. Nos. 56. 307. (i) Poth. Vente, Nos. 52. 290. 291. (c) 2. Comyns on Cootrats 213, 17. Rep. de Jur. 482. v. Vente. I FOR THE DISTRICT OF QUEBEC. lOS Hanna V, Hanna. ;Av 19tb October, 1816. Godfrey hanna made his win, by which he ^"T;! , ... ,. 1M1 ^1 The birth of (listributed his property among his children. At the a posthumous time the will was made his wife was nc', enceinte, but S tmof'\tI she became so afterwards, and after the death of God- ^^\^'^^ P**^'" frey Hanna the child was born. Per curiam. The birth of a posthumous child re- vokes the will of the father, especially in those cases in which, when the will was made, the testator had not reason to expect such an event; (a) but this revoca- ' (a) 2. Cochin, 718. 1. Domat, 446' art 15. 2, Fonblanqne, 356. — 2, Br-'"^en, 387. Sect. 3. art. 12. et see. — La Combe o. Testament, sect. 5. Discaction l.n. 25.-2 Ferr. Instit de Just. 370.371. It is in the 14. Geo. III. o. 83. s. 10. enacted, " that it shall and may " be lawful to and for every person that is owner of any lands, goods, or " credits, in the said province, and that has a right to alienate the said lands, " goods or credits, in bis or her lifetime, by deed of sale, gift or otherwise, " to devise or bequeath the same at his or her death, by his or her last will *' and testament; any law, usage or custom heretofore or now prevailing ••• " the province, to the contrary hereof notwithstanding; such will being ex> " ecuted, either according to the laws of Canada, or according to the forms " prescribed by the laws of England:" and in the Provincial Stat. 41, Geo. III. r. 4, to remove doubts and diificalties which had arisen in this pro- vince, touching the true intent and meaning of the first mentioned act, it is further enacted, '* that it shall and may be lawful, for all and every person " or persons, of sound intellect, and of age, having the legal exercise of " their rights, to devise or bequeath by last will and testament, whether tho " same be made by a husband or wife, in favor of each other, or in favor of " one or more of their children, as they shall seem meet, or in favor of any " other person or persons whatsoever, all and every his or her lands, goocfs " or credits, whatever be the tenure of such lands, and whether they beprt,- " pres, acquets or conquetSf without reserve, res./iction or limitation what- " ever, any law, usage orcosttHn to the contrary hereof in anywise uotwith- The civil law considered the rights of sons in the power of the father al the time of his decease, — in the estate left by him, — as a continuation of a dormant right of property, existing in them in his lifetime, rendered free by his decease; and not as of entirely new acquisition, Dig. 28. 2. 11. Hence tboy were not said to acquire such an inheritance, but to retain it and im- J. s^n i^M Ml . m i 'r ' 1 1 ' !» 104 CASES IN THE COURT OF KING'S BENCH 1816. ■I Hi IIMi tion, — speaking generally, — is not a total but a partial revocation, and can only extend so as to give tPtlie nisce therein. Tbey were not said to steal or rob effects belon^ing^ to the succession, but to amove them. They were not said to become heirs of the deceased, but to be his heirs. They were not said to repudiate the inheri- tance, but to abstain therefrom by tlie permission of the Pnetor. In fine, no aditio or acceptation of the inheritance on their part was necessary. The law of the twelve tables had bestowed upon the fathers of families an unlimited power of disposingr of their property by will ; and indeed of regfulating other matters concerninff the interests of their children. Pater> FAMILIAS UTI LEGASIT, SUPER PECUNI* TUTEUEVB SUJE REI, ITA JUS E8T0. But when the father of a family bestowed his property on a stranf^er, he M-as bound to disinherit his son or sons by name. General words of disinheri- tance were not sufficient. Di^. 28. 2>. 1. ibid. H. 2 & 3. If the son was not disinherited by name, the will was merely void, and even thouo^h the son died before his father the will was not rendered valid. § 1. Itist. de ex- heredatione liberontm. The power of disinheriting the son carries with it an apparent contradiction to the principle above stated of the son's dormant right of property during his father's lifetime, an apparent contradiction which is noticed by Paul, and thus emphatically answered, nee obstat, quod licet eos exheredare,quod et occidere licebnt. Dig. 28. 2. 11. In truth, the in* stitution of a stranger as heir seems to have been considered as a transfer of the son's right to such stranger, — a transfer which the father in virtue of the patria potestas bad unquestionably a right to make. This idea receives some support from the form of a will in the comitia calata given to us by Heinec- cius. Velitis jubeatis, Quirites, UTI L. TiTius L. Valerio tau jure LRQEQUE HERE8 SIBI SIT, QUAM 81 EJUS FILIU8 FAHILIAS, PROXIMUSQUE ADGN- ATUs EssET. HJEC iTA UT Dixi, iTA vos QuiRiTEs ROGO. Heiuecc. Autiquit. "Rom- ad Jnstit. lib. II. tit. x. § 2. Then as to posthumous sons, the well known principle of the Roman law was, posthumus pro Jam nato .accipitut quoties de ejus commodo agitur: and of necessary consequence the birth of a posthumous son who had not been by his father's will disinherited invalidated the will. Posthumi per verilem sexum descendentes, ad similitudinem Jiliorum nominatim exhere- dandi sunt, ne ttstamentum adgnascendo rumpant. Dig. 28. 3. 3 Cum agnatione posthumi, vel postlmmce, aijus non meminit, testamentum ruptum sit : ex rupto autem testamento nihil deberi, neque peti posse explorati juris est. Cod. 6. 29. 1. The birth of a child after the mnking of the will, al- though he died before the testator, in strictness invalidated the will, Dig. 29. 3. 12. These rules were not founded upon any peculiar edi(;t8 or constitu- tions of the Emperors, but were a part of the common law of Rome, Vale- lins Maximus, lib. 7. c. 7. de testamentis recissis. Without minutely entering into the history of the changes which took place, from time to time, in the civil law upon this subject, — principally by the interposition of the equitable powers of the prsetor, — it will be sufficient to observe that, by a constitution of Justinian, the power of disinheriting was greatly limited. This constitution and.the8e laws form the basis of the French jurisprudence. The difficulty in the above case was, whether by the civil and French law, the destruction of the will by the birth of a posthumous ohild proceeded from any legal restriction of the powers of the testator, or from any implied change of intention or revocation by the testator. The English law considers marriage, and the birth of a posthumous child FOR THE DISTRICT OF QUEBEC. posthumous child a share ab intestal in the succession and inheritance of his father, that is to say, all which the law would have given to such posthumous child, if it had been born before the death of the testator, aiid the testator had died without disposing of his property by will. 105 Hanna V. Hanna. Allen against Scaife and Others. ^ j ————— 19th October, 1816. A QUANTITY of timber was shipped in Canada for Theiawofthe Liverpool, at forty shillings per load, the contract being which^ con- entered into and concluded at Quebec, and the freicht tract "™a«'e. _ ° and Its usages, payable in Liverpool. The merchant at Liverpool, on must govern the arrival of the timber, pays freight at the rate of 'Ji,""**" ' * forty shillings for forty square feet, that quantity being a load at Liverpool ; but finding afterwards, that a load at Quebec was fifty square feet, brought this action to recover back the difference. Per Curiam, The general principle, locus regit ac- turn, must govern this case. As to the estimation of a as amounting to an implied rerocation of a will of lands made before ninr- riatre. But the niked fact of the birth of a posthumous child unprovided for, is not sufficient to set aside a will. Doe on the demise, §'c. t. Lanca- shire, 5. Term Rep. 49. The 14. Geo. IN. c. 83, and our own Provincial Stat. 41. Geo. Ill c. 4. having removed the restrictions upon the power of bequeathing, imposed by the civil and French laws, the principle adopted by the court, from the last mentioned system, was that of nn implied partial revocation of the will. ,»V' 1 1 "!'■-' ^' ll i 1 |- k lit 1 -. i- 1 1 > ;■■' ■' i V il j ijji ;,l 1 ■ if '■i ' '\ ■u ;'; • '1 T r - '* : ~: I |i" ' I' > '^ ll , ,. ,, i : :i: 4 iMI ! ,•,,! i ; ' il loa 1816. AlXEIf ScAlfE. CASES IN THE COURT OF KING'S BENCH load, there is, it s^iems, one quantity in a Quebec load, and a smaller quantity in a Liverpool load ; but as the contract was commenced and finished at Quebec, if the parties meant the latter, they ought to have expressed their intention, for otherwise, the law refers the parties to the former. The plaintiffs have overpaid the defend- ants erroneously, having no knowledge of the quan" tity contained in a Quebec load of timber, and the de- fendants must therefore refund, (a) 20th Feby. 1817. An excep- tion to matter pleaded by exception may be fyled even under the Ordinance 25. Geo. III. c. 2. § 13.—* Pacquet t^. Gaspard. J. HIS was an action " Petitio d*Herediiaiis" brought by the plaintiff, as heir at law to Fi'an9oise Pacquet, to recover from the defendant a piece of land and dwel* ling house situate in the city of Quebec, of which the said Fran9oise Pacquet died seized and possessed. * The following case of Forbes t. Atkinson and another, upon the forms of pleadings decided in this Court on the 17th day of February, 1810, is here inserted as having a material connection with the above decision : — The declaration in this cause set forth, " That by a written agreement " made and entered into between the parties on the 30th of June, 1789, the " plaintiffs did sell to the defendant, and the defendant did purchase of the " plaintiffs 20,000 feet, more or less, of white nine timber, and 10,000 pipe ** staves, more or less, &c." That the plaintiffs had performed their agree- ment and had in fact delivered 54,904 feet of pine and 6,700 staves, &c., but that the defendant had not paid, wherefore they prayed judgment for jE3027, with interests and costs. (a) 2. Comyn on Contracts. 24. 2 Burr. 1077. Robinson v Bland. 2. De la Jauues 324. p. 588. FOR THE DISTRICT OF QUEBEC. 107 To the plaintifTs demand the defendant pleaded by perpetual exception, the last will and testament of Fran- 9oise Pacquet, by which she devised to him (the defen- dant,) the piece of land and dwelling house in question. To this declaration the defendant fyled a plen, intituled, a defense au fonda en fait, in which he pleaded — I. That he was not indebted; that he did not owe, and that he did not undertake as in the declaration set forth. — 2. That he had not failed or made default in the performance of the agreement stated in the declaration. — 3. That no greater quantity of pine timber than the quantity expressed in the agreement had been delivered to him, or received by him. — 4. That for the quantity of timber delivered, viz., 20,000 feet of pine timber and 6,700 staves, he had paid in part ; and — 5. That he had made a tender and offre reelle, of the balance, which the plaintiffs bad re- fused, before the institution of the action. The caption and conclusiou of this plea were in the form prescribed for the Defense au fonda en fait by the rules of practice, and no part of it was in the form prescribed for the Exception peremptoire en droit. The parties being at issue, an application was made by the plaintiffs for n commission to examine certain witnesses in Upper Canada, when the Court suspended its order thereon and directed that the cause should be inscribed upon the Rolle de droit, for a prelimi- nary hearing en droit upon the pleadings, and Eoss, for the plaintiffs, and Bowen, for the defendant, having been heard, the judgment ot the Court was delivered by Sewell, Ch. J. The case before us is the first, in which a question upon pleading has occurred, since the establishment of our present rules and or- ders of practice ; and this will lead to a more extended consideration of the subject of pleading in general, than the case, under other circumstances, would call for. LobiCAL, DISTINCT and CONSISTENT PLEADING IS essential to the right admi- nistration of jubtice, and to facilitate the attainment of this important object the several forms of pleadings, contained in the appendix to the rules and orders, have been prescribed. The principle, upon which these forms are founded, should be thoroughly understood, and I shall avail myself of the opportunity now offered, to explain them generally, before 1 deliver the opinion of the court with respect to the particular points upon which we are to decide. ,. Every contested suit at law consists of the demande on one side, and the defense upon the other. Vide the words *• Intendits" et " articulation des fails" in the Repertoire. The term demande implies the representation, and the claim of redress, which the plaintiff, in any instance, or suit at law, makes against the defendant, for or by reason of the facts which constitute his cause of action ; and a demande is therefore said to be " the exercise of a right of action." (a) The term defense, on the other hand, implies all that the defendant offers, by way of opposition or resistance, against the plaintiff's demande. (6) The matters which constitute the demande and the defense, in any case, are respectively set forth in the pleadings of the par- ties, which vary according to the grounds upon which they are made, and the objects they are designed to attain. Pleading, therefore, is the statement of 1817. Pacquet V. Gaspahd. I (a) 7. Pigeau. 33. (b) \ Pothier 4to. 14. Code Civile 5. Tit. Art. 1st and 5th. PI- 'im ' . in i 1 ■ 1 1 k i ' ' ■; i 1 M :' :] ! '' 1 ii|j i'l sir: I'll ' ' '1^' :1; !. ' ' i '■■'1 ■ !| ' : ?' 1 ;' l' ill' 1; il nil 111! 108 1817. Pacquet V. Gaspard. CASES IN THE COURT OF KING'S BENCH. To this exception the plaintiff answered specially, al- leging that the defenilant was incapable of holding real estate, because he was an alien, born in France, and had never been naturalized, and upon these allegations the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence, exhibited in writing in technical form. ~ It is the mode of aUeginpf that, which is afterwards to become in evidence the support of the party by whom it is alleg;ed, (c) or, a simplo nen^atur of that which is alleged by an adversary ; the former bein^ an affirmative, the hitter a netrative plea(U in^. (d) An affirmative pleading consists of two parts, the libel and the conclusion. In the libel, — or narration as it is sometimes called,— the facts which constitute the grounds of the pleadin&r, that is to say, the premises, from which the conclusions in law are to follow, are alleged and set forth distinctly as to time, place, person and circumstance ; (e) without comment or argument of any kind, (f) And to the libel, which should contain all that IS necessary to justify the conclusion and no more, is added the prayer of the pleader, in apt words, for that specific remedy or relief, to which by law, the facts which he has libelled entitle him, and this is tlie conclusion. (g) A negative pleading, in like manner, consists of two parts ; of a direct deaegation of that to which it answers, and of the conclusion, which asks that relief or remedy to which the pleader will be by law entitled, if that which he denies, be not verified. In the law of England it is a general rule in pleading, " That a mere " prayer for judgment without pointing out the appropriate remedy, is sufH- " cient, and that the facts being shewn, the court, ex officio, is bound to " pronounce the proper judgment." (h) But the reverse of this rule is the principle of the law of Canada. With us the conclusions are held to be essential to the proceedings, (t) and must contain, d peine de nullile, all that the judgment of the court must comprehend. (A) For although the con- clusions may by the court be allowed or rejected in toto, or modified and allowed in part, and rejected in part, (/) still what is omitted in the conclu- sions cannot be supplied by the court, not even if it appears in substance in the body, or libel, of the pleading, (m) The declaration is the first pleading in every case. It sets forth the facts which constitute the plaintiff's demande, and is always an affirmative plead- ing. Pleas are the pleadings, which set forth the defense of the defendant, and these are sometimes negative, and sometimes affirmative, A negative plea denies the matters which constitute the grounds or fonds of the. plain- tiff's demande, and does no more ; but an affiroiative plea alleges some new (c) 3. T. Rep. 159.* Doug. 278 (d) Henneciusin Pandeotas, part. 2. 8. 32. Brown's Civil Law, V. I. p. 35 (e) 1. Pigeau 296. 270. 1. Gauret, 4. Code Civile, Tit. 2. Art. ]. & Tit. 20 Art. 1. r/) 7th Pothier, 4to. 55. Art. 4. c. 3. Code Civile, Tit. 20. Art. 1. {g) Repertoire, Verbo, Conclure 8vo. V. 14. p. 77. a) 4th East 502, 509. 5th. lb. 270, 271. 1st. Chitty, 243, 445. (f ) 14 Vol. Repertoire Bvo. p. 77. Verbo. Conclure. (h) 14th Vol. Repertoire 8vo. p. 78. Code Civile, Tit. 2d. Art Ist. (/) 14. Vol. Repertoire p. 78 and 17. VoK p. 479. Verbo Demande. L. C. Denizart, Verbo. Conclusions. Vol. 5. p. 83. No. 2 (m) 14.- Vol. Repertoire, 8vo. p. 76, 78. 1. Pigeau, 399. 400. II FOR THE DISTRICT OF QUEBEC. the defendant took issue by simple denegation of the facts. At tiie hearing the advocate general (Fyke,) for the defendant, complained of the operation of the Ordinance 25, Geo. III. c. ^. § 13. which enacts, « that mailer, which bein^ proved, is of itself sufficient to authorise a judgment for the defeudant, nolioithstanding the matters which constitute the ground or fonds of the plaintiff's demande ; and for the purpose of this distinction, the word defense is used in a second and limited sense ; a nejj^ative plea bein; called a " defense au fonds" because it '-npeaches or denies thi- ground or fonds of the plaintiff's demande set forth in his declaration, in op).' jition to an affirmative plea which is called an exception, (from the Latin exoipere to exclude) because it does not impeach or deny the ground or fonds of the plaintiff's demande, set forth in his declaration, but alleges, and relies en- tirely upon one or more new matters as cause why the plaintiff's suit should be delayed or dismissed, (n) and hence the maxim reus excipiendo fit actor. (« n) The remaining pleadings known in the law of Canada, are answers and replications, the pleading which is put in by a plaintiff, in answer to an af- firmative plea fvled by a defendant being an answer; and the pleading, which is put in bv a plaintiff, in reply to a negative plea, or by a defendant, in reply to a plaintiff'^ answer to an amrmative plea, being a replication, (o) Thus much being generally premised with respect to the pleadings which occur in the course of ordinary suits, the nature of each may now be more parti- cularly considered. The declaration is a specification of the matters that constitute the plain- tiff's cause of action, an accurate and logical statement of his complaint or charge against the defendant, and of the remedy in law for which he demands judgment. In this pleading the plaintiff is required, d peine de nullile, to narrate and libel distinctly, as to time, place, person, and circumstance, the several facts upon which be prosecutes, and which he intends to prove ia evidence; (p) all of which he therefore offers " to verify, prove and main- " tain when and as the court shall direct ;" averring the whole " to be well " founded in fact and in law ;" and praying by his conclusion, that the court, under the authority of its jurisdiction, will "compel the defendant to ap« " pear," and, " to answer unto him the plaintiff, of (t. e. concerning) the " (/e/naiu/e, contained in bis declaration," and will award to him the appro- Itriate remedy in law, which he specifically sets forth and alleges to be the egal result of the premises. (9) By the King's writ or process ad respon- dendum, the defendant is summoned to appear and to answer to the demande of the plaintiff, contained in his " declaration;" (r) and if he appears, (to 109 1817. Pacquet V. Oasparo. im ■i i-> i'i - ; «,-'m (n) Heinecciua Elementa Jur. Civ. p. 395. Tit. 13. Art. 1277. Hei- neccius iu Pandectas part 2. S. 42.' 7, I*othier, 4to. 14>. De la Jan^i^s, Vol. il. p. 406. Tit. 29. Art 629. L. C. Denizart, Vol. 8. p. 166. Verbo. Exceptions, Sec. 1. No. I. 1. Pigeau. 150. Jousso, idee de la Justice Ci- vile. Tit. 3. part 2. Sec. 1. Art. 5, page 63. Erskine's Institutes, p. 663. (n n) Repert. 8vo. Vol. 4. p. 363. Jousse idee de la Justice Civile, p. 63. (0) Prov. Ord. 25. Geo. 3. c. 2. s. 13 (p) Code Civile. Tit. 11. Art. 1. 1. Gauret, 4. Repertoire, 2. Vol. Svo. p. 4. Verbo ajournement (9) Rules and orders, p. 233 (r) lb. p. 191. 110 CASES IN THE COURT OF KING'S BENCH. i \ ! 1817. Pacquet r. Oaspard. every issue in law or fact, shall be made and completed by the declaration, answer and replication ; or by the plea, answer and replication, in cases of abatement and bar, and that no other or further pleadings, or writings A id to answer by way of plea upon such issue or matter in dispute, shall be received ;"->-he said thai by this clause he had been compelled to take issue upon a fact which he couhl not deny, viz : ** that the defendant was born in to the demande of the plaintiff in his declaration contained, by pleading'. 1 . That by reason of some matter, which he (the defendant) alleges and sets forth, " The court by law cannot proceed in the cause, nor compel him to '■ answer in any manner unto the demande, nor in any way take cognizaneo " of the action of the plaintiff, if any he hath, &c.*' {.z) for want of juris* I FOR THE DISTRICT OF QUEBEC. but that he was there born of British parents of the name of Sinclair, who were there accidentally and for a short time only, and were driven thither by stress of weather fiooi the high seas, this he said he was pre- 113 « • 1817. Paoquet Gashaao. . I to it, and to oome prepared with proof, aocordinff to the exigencies of tho caso. (A) Pleas of " diferue aufonda" are divided into two classoo. I . " Defense au fonda en droit" which denies the law averred by the plaintiff to be the reMultofthe matterR stated in the declaration, (i) and 2. *' Defense au fondt en fait" which denies the truth of the matters utated in the declaration. (A) In the defense au fonds en droit, the defendant, for " answer au fonds to " the demande of the plaintiff in his declaration contained," avers, " that " the alleviations of the plaintiff and the matters and things in his declara* '* tion set forth and contained, and each and every of them, is and aro " wholly and altoji^cther unfounded tn law and not sufficient therein for the '* plaintiff to have or maintain, aj^initt him the defendant, the conclusions " in his declaration taken, or any or either of them, or the action of him the " said plaintiff in this behalf," and therefore (by his conclusions) " he prays " tliat by the judgement of the court, the action of the plaintiff in this behalf " may be dismissed." (/) In the defense au fonds en fait the defendant, in like manner, " for answer au fonds to the demande of the plaintiff in his " declaration contained," avers, " that the allegations of the plaintiff, and " the matters and thinjfs in the said declaration contained, and each and "every of them is and are wholly and altogfether unfounded in fact and " untrue, &o. and therefore" (by his conclusion) " he prays that by tho " judgment of the court, tho action of him the said plaintiff in this behalf bo " dismissed." (m) Picas of ** exceptions peremptoires en droit" are, in like manner, divided into two classes, 1. Perpetual (n) exceptions peremptoires en droit, and 2. Temporary exceptions peremptoires en droit ; and these disting^uishing^ titles are derived from the leg^al effect of these pleas respectively. Both are equally peremptory because both equally destroy the action to which they are pleaded, but their ulterior effect is not the same. A judgment, in favor of the defen- dant, upon a perpetual exception peremptaire en droit, is a perpetual bar to the action in which it is pronounced, and hence the name of " exception " perpetuelle" But a judgment, in favor of a defendant, upon a temporary exception peremptoire endroit, does no more than abate the plaintiff's action, until the disability, or other effect of the matter pleaded and allowed, (n n) (h) Code Civile, Tit. 20, Art. 1. Chitty, 217...(i) 7 Pothier, 14...(*) lb. (/) Rules and Orders, p. 244 (m) lb. p. 24'6. (n) See l.Pigean, p. 150. " Ces moyens sont appell^s exceptions da " Latin excipere (exclure) parceqne ils tendent a exclure le demandeur do " poursuivre sn demande soil pour un temps, soit pour toujours." (an) 1. Jousse, C. C, 189. The Epithets " perpetnae," and " temporales," went app'ied to exceptions in the Romnn law. Vide Harris's Justinian's Institutes, Lib. 4, Tit. 13, ^ X, p. 341.— Pothier's Pandects, vol. 3, p. 23 L— Ferrieres Just. Instit. voL 6, p. 374 to 278,— and Brown's practice of the Civil Law, Ist edit. vol. 2nd. p. 32, The same distinction prevails in th^ Liiw of England between abatement and bar, which are sometimes called temporary bar and perpetual bur. — Vide Le Bret v. Papillon, 4. East, 505. I ! 1 BOB 114 1817. Pacquet V. Oasparo. Ilii ' i ■ti ^^'i : ( ■ ' 1 ill 1 CASES IN THE COURT OF KING'S BENCH pared to shew, and that the place of the defendant's nativity was a British ship in the harbour of Dunkirk : that the greatest injustice would be done to the defen- dant, if he could not be pernsitted to plead, and to prove is removed, and therefore, it is a bar to the action for a time only, and hence the title of exception temporaiie. A pica ad instantiam perimendam ; In the perpetual exception pcremptoire en droit, the defendant, " for ** answer, unto the demonde of the piaiutiff in his declaration contained," sets forth and libels the special facts which constitute the ground of his exception, which he offers to prove " when and as the court shall direct," averring that by reason thereof, " the plaintiff 6^ law cannot at any time, " have or maintain any action against him the defendant, for or by reason " of the matters or things in his declaration set forth and alleged, or of any " or either of them ;" and therefore (by his conclusion,) he pra/s " that " for the causes aforesaid, by the judgment of the court, the action of the " plaintiff in this behalf maybe dismissed." (o) In tht temporary exception pcremptoire en droit, the defendant, in like manner, " for answer unto the demande of the plaintiff in his declaration contained," sets forth and libels the special facts, which constitute the ground of the exception, which he offers " to prove when and as the court shall direct," averring that by reason thereof, " The plaintiff by law cannot, at this time, have or maintain his " action, against him the defendant, for or by reason of the matters and '* things in his declaration set forth and alleged, or of any or either of them," and therefore by his conclusions he prays, " that for the causes aforesaid, " by thej jdgment of the court, the action of the plaintiff in this behalf be. " for ilie present, (p) dismissed. Exceptions peremptoires en droit do not impeach or deny the case stated in the declaration, and therefore cannot iu any instance iiwolve, or call for any consideration of the intrinsic merits of that case, as the exceptio of the Roman law and the plea in Chancery, " they insist that the matter of the demande is not to be put in issue." Gilbert's Forum Roman urn, p. 64. They invariably set forth some new matter which shows, (notwithstanding the matter set forth in the declaration) that the plamtiff 's action must by law be dismissed, for the present, or for ever, (y V But as the new matter, which they set forth, is sometimes foreign to the matter set forth in the declaration, and sometimes connected with it, sometimes have reference to the merits of the plaintiff's demand and sometimes have none, they are distinguished (by reference to that which they allege, and on which they are respectively founded) into "Jins de non recevuir" and "fins de non valoir," (r) those exceptions are ,/?«« de non recevoir in which the matter set forth is sufficient in law (^whether the case stated in the declaration be (o) Rules and Orders, 243, 244.; (p) Rules and Orders, 241, 242. 2. Pothier, 4 to. p. 729. 1. Pigeau, 199. Repertoire, 8ro. vol. 17. p. 479. Verbo. Deninnde. {q) The office of a plea in bar at law or in equity is to confess the right to sue avoiding that by matter dchors-^gWing the plaintiff an acknowledgment of his right independent of the matter alleged by the plea — that is, the plea admits the bill but interposes matter, >vhich if true, destroys it. Per Lord Cliancellor — G. Vescy, junr. o97. (r) 1. Bornior, 39. note I. i " V(^ THE DISTRICT OF QUEBEC. these facts, he would lose his property and his character of a British subject, although he was manifestly enti- tled to both. Vallieres de St. Real, contra. true or false) to authorise a judgment in the defendant's favor, dismissing the plaintiff's action for the present, or for ever, as where tiio defendant pleads, that the plaintiff is an alien enemy which is a temporary exception peremptoire en droit or pleads the long prescription of thirty years, which is a perpetual exception peremptoire en droit ; (s) and such exceptions are denominAted Jins de non recevoir, because the matter, which they plead, shews that the plaintiff cannot legally be received, or admitted by the court to prosecute the suit which he has instituted. (O'^^Those exceptions, on the other hand, are Jins de non valoir in which the matter set forth necessarily admits and confesses the case stated in the declaration, but avoids or dis* charges it, for the present, or for ever, and is therefore sufficient in law to authorise a judgment in the defendant's favor dismissing the plaintiff's action ; aa where the defendant pleads " Term for payment unexpired," which is an exception peremptoire en droit temporaire, or pleads " accord and satisfaction," or " chose jugee {res judicata) which are exceptions peiemptoires en droit perpetuelles, and such exceptions are denominated " ^715 de non valoir" because the matter, which they plead, shews that although the plaintiff may have a legal cause of action hereafter, or hereto- fore had a legal cause of action, yet, that he cannot now avail himself of it. (u) Fins de non recevoir, and^/is de non valoir, are thus sometimes, in , their iffect, perpetual, sometimes temporary ; but the c\a&%es o( exceptions pere.nptoires en droit perpetuelles, and exceptions peremptoires en droit temporaires, comprehend the entire list of ^ns de non recevoir and Jins de non valoir, and the two latter are therefore subdivisions, only, of the two former, (v) To pleas o{ defense au fonds en droit, or en /azV, because they are nega- tive pleas and take issue, nothing can be offered on the part of the plaintiff but a general replication, (w) by which the issue being completed, the plead- ings are concluaed. But to pleas of exception, because they are affirmative pleadings, and tender an issue, the plaintiff must put in an answer, which is either general or special. A general answer takes issue upon the matter of the exception, by a general denegation ; (x) and such general answer completes the issue, and voDsequently con ' les the pleadings ; {y) but a special answer tenders a new issue by setting forth fresh matter in answer to the matter of the (4) 1. Pothier,346 (/) 1. Pigeau, 165. 8. L. C. Den. p. 638. (u) Rodier, 75. 1. Bornier, 39. It is a rule in English pleading, that a party justifying, must admit the fact, 3rd T. R. p. 298. Taylor v. Cole. Every plea in justification, says Serjeant Williams in Saunders, states ciicuiastances which either excuse the fact complained of or shew it to be lawful. — From its nature therefore, it must confess the fact, otherwise it is no justification, but a denial, of the fact, and amounts to the general issue. Williams's Saunders, vol. I. p. 28. note 1. and 14. note 3. cites Taylor v. Cole. 3. T. R. 298— Gibbons v. Pepper. 1. L. Raym. 38. 3. Wils. 41 1. 412. (v) Rodier, 75. 76 (w) Rules and Orders, 231 {x) Rules and Orders, 220. 222, 224 {y) Rules and Orders, sec. 7, art. 21, p. 76. 115 1817. ,: ,,lj Pacqcet 1 ,' 1 v. Gaspamx 116 CASES IN THE COURT OF KING'S BENCH 1817. Pacquet r. Gaspard. !!: jl !! Sewell, Ch. J. — There must, necessarily, be a mate- rial distinction between a replication which admits the truth of facts stated in answer to an exception, and a replication which denies that they are true. The Ordi* exception, which is sufficient to destroy it, and in such case, the issue is not completed, by a general replication, on the part of the defendant, to such special answer, (z) although the Legislature has forbid the use of all further pleadings, (a) The principles which I have stated decide the present case. The decla- ration ocmands of the defendant a large sum of money, for the sale and delivery of a quantity of timber, under a special contract in writing. To this, the defendant has fyled a plea which he has intituled a defense au fonds en fait, in which he pleads specially ; 1. That he is not indebted, does not owe, and did not undertake, as in the declaration is alleged. 2. That he has not failed, or made default, in the performance of the agreement de- clared on. 3. That no greater ouantity of pine timber, than that expressed in the agreement, has been delivered to, or received by him. 4. That he has paid in part for the 20,000 feet of pine and 6,700 staves delivered, and that he made a tender of the balance due which the plaintiff had refused before the institution of the action. Of these answers to the declaration, three, viz. ; the 1st. 2nd. and .3rd. amount to the defense au fonds en fait, and to no more. They are merely negative. The^ deny the allegations of the declaration, and- disaffirm the rery matter which the plaintiff, on the general issue would be bound to prove, in the 6rst instance, in support of his action ; and as this is all that they do, they ought to have been pleaded generally, in the form prescribed by the rules and orders for the defense au fonds en fait. A defendant can- not be permitted to plead specially that which amounts to no more than a total denial of the charge. Of the remaining answers, one alleges payment, and the other a tender or offres. Now, a plea of payment is a perpetual exception peremptoire en droit ; (b') it is so, because it does not impeach, or deny, the ground or fonds of tne plaintiff's demande, but on the contrary admits a cause of action, and discharges it by new matter, which is not stated in the declaration, and which consequently it sets out, that new matter being a legal " jfin de non valoir" To plead payment of a debt and at the same time to deny its exis- tence is inconsistent ; payment, therefore, ought not to have been pleaded by way of defense au fonds, but by way of exception ; in the form of the per- petul exception peremptoire en droit prescribed by the rules and orders. And the tender, or offres, for the balance, which is alleged, ought to have been pleaded in the same manner, because an offre vatable, or tender validly made, is in law equivalent to payment, (c) The plea therefore is entirely defective. The defendant by pleading payment, and tender, by way of defense au fonds, deprived the plaictifts of the benefit of putting in " an answer" to the new matter of his plea, to which they were entitled, and drove them to the necessity (if they noticed the plea at all) of fyling a general replica- (z) lb. 229 (a) Ord. '^5, Geo. III. c. 2. s. 13 (b) I.Figean, £03; 1. Bornier, 39; 2. Argou, 473; 2. Domat, 230. (c) I. Potb. Obligations, No. 573. (/ FOR THE DISTRICT OF QUEBEC. nance, in order to prevent all unnecessary prolixity in pleadings, has provided " that every issue shall be made " and completed by the plea, answer and replication, '< in cases of abatement and bar," and in all instances in which from the nature of the case the issue is, or can properly be raised by a plea to the declaration, an an- swer thereto, and a replication, no further pleadings or writings by way of plea upon such issue, can be re- ceived, and none ought to be received, because an issue is already perfected. But in cases in which from the nature of the facts an issue cannot properly be raised by these pleadings, it would be absurd to say that the Ordinance intends to exclude all further plead- ings and there to terminate the cause. Can it be sup. posed that the law-giver meant to deprive the parties in any suit, of the natural right of stating their own case in the way which their interests fairly require, or to compel them to raise issues upon facts which they cannot controvert without injury to their pretensions ? Surely it cannot be. The intention of the Ordinance I is to prevent all unnecessary prolixity and confusion I in pleading. It therefore, forbids the admission of fur- Ither pleadings in all cases in which an issue has already been raised, by enacting ** that no furth# 117 1817. PACaCET V. Oaspard. nT . 3*} ', '^f' f if >%i 't' < . i' 1ll i' 'ijti ,s f.-i hion,that being the only pleading to a defense au fonda en fait permitted by ■the rules, (d) On the other hand, the plaintiffs, instead of i Aing advantage ■of tbe defendant's misconduct, as they might have done, have fyled a repTi- Ication to his plea, and they are thus as much in fault as the defendant ; Iboth parties have equally contributed to the irregularity of the pleadings, land a repleader, from the declaration, must therefore be ordered, that being |tue point of pleading at which their mutual error commenced. A Repleader ordered.* (d) Rules and Orders 231. * This case was reported by the present Mr. Justice Pyke in his Re* ports and is here given with some onginal notes of the Judgment. 118 CASES IN THE COURT OF KING'S BENCH. «f ■ .i; ^i\i' i 1817. Pacquet V. Gaspard. Z'n pleadings or writings, by way of plea" shall be received. But as to further pleadings in cases in which no issue has been raised, it is silent. How can such further pleadings be pleadings upon an issue, where there is no issue ? When facts are set forth affirmatively in a plea of exception, the facts which have been previous- ly stated in the declaration are either admitted to be true, or it becomes indifferent whether they are true or false, and thus they cease to be objects of contest or inquiry in the cause. By the exception, an issue on the matter which it alleges is tendered to the plaintiff, and if that matter is denied to be true by his answer, an issue is raised upon it. But if on the contrary he admits it to be true, and in a special answer states other facts which shew that it cannot prevail, the issue thus tendered by the defendant is refused, the matter stated in the exception ceases also to be an object of contest or inquiry in the cause, and a new issue on the facts which are alleged in the plaintiffs special answer, is tendered to the defendant. These facts may of course be again admitted in their turn to be true, and their effect may be destroyed by new matter aU leged in a special replication ; and where this is the casei if the plaintiff is not permitted to answer this new matter, it is plain that as there is yet no controversy between the parties, there is not, and cannot be an issue for trial, or a decision in the cause. To prevent a denial of justice therefore, a " further pleading," or ** writing by way of a plea," to tlie matter alleged in the special replication, in such cases must necessarily be allowed, and this, if it be not according to the strict letter, is, nevertheless, the spirit of the Ordinance j for facts affirmatively stated in any pleading, subsequent il FOR THE DISTRICT OF QUEBEC. to the declaration, and in answer to any matter which is alleged in a preceding pleading, are pleaded by way of exception " in bar" to such matter. If the facts set forth in a special replication in any case, in which no issue has previously been raised, are denied in the an. swer thereunto given, and a general replication is there- upon fyled, the issue is raised, as the Ordinance re- quires in cases of bar and abatement, viz: by the plea in which such facts are so alleged by way of exception, by the answer thereto and by the replication. In the present case the plaintifl'suesfora piece of land and dwelling house as the heir of Francoise Pacquet " en petition d*heredite" — To this demand the defen- dant pleads title by the last will and testatnent of Pacquet, by a perpetual peremptory exception. The plaintiff's answer to this exception admits the will, but alleges that the defendant was born in France, and be. ing, therefore, an alien, is incapable of inheriting real property by will, or otherwise, and upon this the issue has been joined. Both parties admit that it is irregu- lar, and well they may, for it is directly contrary to the facts of their case. The defendant, by a special replication, should have admitted that he was born in France, and thereupon alleged, as he has verbally stated, that he was there born of British parents, who at the time of his birth were temporarily and acciden- tally in France, and had been driven thither by stress of weather from the high seas : and upon this allega- tion, which constitutes the true and only point of con- troversy between the parties, the plaintiff would have taken issue by an answer denying it to be true, and by a replication (if such pleading be necessary,) the issue would have been joined and completed. 119 f i 1817. ;i .i Pacwet ' V. Gasi>ard. ^ i 1 ' • f^' ' i fc 1 t/li f , f| r r i4 I i I y \.V\" I m^ I. '. '''1 :k] 'if-. ■: "^, ;ii.f 'B i^ "i ■ 'IMS lii! mm I ii * In the case of Pozer v. Meiklejohn, decided in the court of King's Bench at Quebec, on the 14th day of April 1809, it was held " that the transac- tions of tradesmen and artizans, in the way of their trade, are to be consi- dered as commercial matters, and in all actions brought upon Ruch transac- tions, recourse must be had to the English rules of evidence under the Ord. 25. Geo. III. c. 2. $ lO. and generally in all cases which by the law of France were cognizable by the consular jurisdiction." In this case it was objected at the enquite, on the part of the defendant, that the case was not commercial, and that the evidence, offered by the plaintiff, was inadmissible under the law of the country, in force at the time of the conquest, and thereupon the following opinion of the court was de- livered by Seweix, Ch. J. The plaintiff Pozer is a merchant, and alleges in his de- claration that having purchased 77 hogsheads of beer, he stored them in the cellars of the defendant, Meiklejohn, who is a brewer, and he demands the value of the beer and of the casks, on the ground of Meiklef'ohn's refusal to deliver them. Meiklejohn, on his part, admits the receipt of the beer, and of the casks, also his refusal to deliver them, in which he persists, alleging that Pozer after storing them in his cellars, upon his own account, sold the whole to him, and tnat he is ready to pay the price at which he pur- chased. These allegations are denied by Pozer, and the principal enquiry therefore, will be whether the beer and casks were or were not so sold to Meiklejohn. But the immediate question, that which we are now called upon to decide turns upon the evidence offered by the plaintiff; and we are to determine whether, in this cause, recourse shall be had to the com- mon law of Canada, that is, to that law which was in force in the province at the conquest; or to the " rules of evidence laid down by the laws of Eng- " land." A recourse to the common law of ('anada is the ordinary rule, an exception was created by statute for those cases in which " proof is to be made of facts concerning commercial matters." The 10th section of the Ord. 25. Geo. III. c. 2. having enacted that " in proof of all facts concerning FOR THE DISTRICT OF QUEBEC. ^ anil consequently as the proof must be weighed ac< cording to the rules of evidence laid down by the laws of England, it follows that the contract laid in the declaration is not proved, the contract in evidence be- " commercial matters, recourse shall be had. In all the courtaof civil jurisdic " tion in this province, to the rules of evidence laid down by the laws of " England." If therefore, the facts in this case be facts concerninnf com" merciul matters, we must be governed by the law of England, if not, by tho common law of Canada. In France, before the establishment of the sovereign council of Quebec, and particularly in the Vicomte o( Paris, there were peculiar jurisdictions, — Juges Consuls, — who were appointed to decide " lea affaires de commerce." 1. Juris Consul. 1. It is true that in the proviixes or districts of France in which no Juges Consuls were appointed, all '' affaires de com- merce" as well as ordinary matters were heard and determined by the or- dinary courts of law. 2. Pig. 130. — but it is equally true that when they were appointed, they held the exclusive cognizance of all commercial matters in dispute, and ot no other. L. C. Den, v. Consuls des ranrchands, s. 1. 2. Every matter in dispute therefore, to which the jurisdiction of the Juges Consuls extended, was according to the law of France, a com- mercial matter or case, and all the facts relating to such matters were con- sequently "facts concerning commercial matters." Now the system of ju- risprudence which we administer has for its basis the law of France, and particularly that portion of the law of France which was observed as law,: in the Vicomte of Paris, before the establishment of the sovereign council of Quebec; and as the distinction, between commercial and ordinary matters, is thus known in the law of Canada, it is a safe course for the legal inter* pretation of the new rule which, in such general terms is prescribed by the Ordinance, to enquire whether the case be. or be not a matter which would have been cognizable in the jurisdiction of the Juges Consuls as a commercial matter, that being the best criterion by which we may decide whether the facts of the caso be, or be not " facts concerning a commercial "matter." The 16th title of the Code Civile prescribes " /a^>7Re CASES IN THE COURT OF KING'S BENCH 1817. FOZER V. Claphan. ^i-' it :'■' jwi iii! ing according to that rule, another contract because it is not between the same parties, (a) and of this the defendant is permitted to take advantage at the trial Ediotof 1563, which created the Consular Jurisdiction of Paris enacts, " Que " les juge et consuls des marchands eonnoitront de tous proems et diff^rens *' qui seront ci*aprds mus entre marchands, ponr fait de marvhandises seule> " ment, privativement k tous Juges Royaux, 5. L. C. Den. 366." And the 4th article of the 12th Tit. of the Ord. of 1673, which in this respect, was merely declaratory of the law of France as it then stood, and had long been practised, as shall hereafter be shewn, and being declaratory is now cited on that account, and on that account only is in these distinct terms, " Les juee " consuls eonnoitront des diff(6rens pour ventes faites par des marchands, " artisans et gens de metiers, a fin de revendre ou travailler de leur profes- " sion ; comme tailleurs d'habits pour ^toffes, passemens et autres founii' " tures ; boulangers et patissiers, pour bled et farines ; masons, pour pierre, " moelon et pl&tre; charpentiers, menuisiers, charons, tonneliers et tour- " neurs, pour bois ; serruriers, marecbaux, taillandiers, armuriers, pour " fer; plombiers et fontainiers,pour plomb, iet autres semblables." — 5. L. C. " Den. 369." — Le Camus and the author of the Jurisprudence Consulaire are eaually explicit. " Sous le nom de marchands," — says the former, — " on doit comprendre les artisans et les revendeurs, pour ce qui concerne " leur commerce." 5, L. C. Den. 449. And the latter says, " Tous ceux " qui achetent ponr revendre ou pour travailler de leur metier, sont justi- " ciables des consuls. Tous les auteurs s'accordent sur ce point." 5 Juris. Cons. 17. It has been just now observed that the 4th article of the 12th title of the Or- dinance of 1673, was merelv declaratory of the law of France as it then stood, and had been long practised, and this will appear upon reference to the arret of the 12th of Majr 1657, pronounced, " en raudieuce de la grande chambrc," and reported in Ricards' Receuil cTarrits arr^t 2. — 2 Bornier 762. In this case the plaintiff was a tanner, and brought his action agaiiist two shoema- kers, to recover the value of a certain quantity of leather sold to them in the way of trade; and this was held and determined to be a case within the juris- diction of the Jugea Consuls of Chdlons where the sale was made, and not to be within the jurisdiction of the Prevote of Chalons, which, as the ordinary court of law, had claimed cognizance of the suit, and was party to the Arret. But even admitting that what, before the conquest, by tne law of France, was a commercial matter or affaire de commerce, was not to be so consi- dered in Canada, because in the peculiar law of Canada there was no such distinction, still as such a distinction is now introduced, the wisdom and experience of France in the designation of her commercial matters by her Edits, Declarations, and Arrets of the courts of law, are the best and safest guides to the true construction of an Ordinance, by which this distinction has been made by way of exception to the ordinary rules of evidence, which are derived from the law of France. Whether the Ordinance has gone be- yond the law of France, or how far it has gone beyond it, we need not at present enquire, as the case does not call for it. The application of the authorities which have been cited is too dear to (o) 3 Str.820. Leglise v. Champante, 2 T. R. 282.— Graham v. Ro- bertson. ii:'^ FOR THE DISTRICT OF QUEBEC. although he has not pleaded that one of the joint con- tractors is not a party to the suit. (6) The action must be dismissed quant d prisenU Judgment for the defendant. .':f;i 125 1817. PI 1 ''1 1 ; POEBR V. Claphuc. Jones against Laing, and Hebert opposant. 20lh Ootobe , 1818. An individual of the name of James "William James, xfidyusamr contracted with Sir William Robinson to supply the has hu action • 1 1 y f n % r , aifainst a co- garrison of Quebec, with bread for a fixed period, and jidejusseur for for the due execution of this contract Messrs. Laing of'Se'^suin "* and Hebert became his caution, or securities solidaires, ^^i«^ *•**•■• in a penalty of £1500. James having failed and ab- common prin. sconded, Hebert, with the consent of the Commissary Sere be no General, continued to execute the contract at an ex- JJe'rontJary'* pense to himself of £750, and Laing also becoming in- in the deed by I,.. I . 'ii 1-. 1 which be be- solvent his real property was seized by a creditor and camesecnrity, sold by the Sheriff, and upon this sale Hebert fyled an Jjj " ^J^jj. opposition d Jin de conserver for the moiety of the sum °«y V'^^' «"»* "^ consequently, he can bare no mortgagee npon the property of the co-fidejusaeur until he has obtained a judgment, and then, only from the date of that judgment. require any comment; this is, clearly, a commercial matter which would have been cognizable in the jurisdictions of the Juges Conmla, and in the proof of all facts concerning it, we must, therefore, have recourse to the i'"J«8 of evidence laid down by the laws of £ngland, by which the evidence offered is as plainly admissible. * (6) I Philipps on Ev. 130. « See Pyke's R. p. 11. Mi i3¥ J/i 1 1' vi. ri'l 1)1 I ; I ill HI Ill T S ill 'i'inllil Mi n."Tii > iii 120 18IS. JONRf V. Laino and Hehkrt. »/ir>« rti.i tj'l .■;oi I i. f>li 11 »".T < r f((iit"».- CASES IN THE COURT OF KING'S BENCH so advanced by him on account of James, and this op- position bein)^ contested. Skwell, Cii. J. The money to be distributed in this case is no other than the proceeds of I he real pro. perty of Laing, the cqfidejnsseur. If Hebert had been subrogated to the rights of the creditor (Robinson,) lie might perhaps have supported an action against Laing for his proportion of the sum paid by him for James, and his mortgage might have taken effect from the date of the contract between Robinson, James and his sureties, (a) But as there has been no subrogation, although Hebert has against Laing, for his moiety, an action for money p id and advanced, he has no mort. gage security upon the property of Laing for the sum due by him. until a judgment has been obtained, (b) The contestation of Hebert's opposition must there, fore be maintained. '■'* (a) 2 Henrys SflS. Lepretro Cent. 2. cop. 60. Louet, lettra R. cap. 1 1 I Domat, 250. liv. III. tit. 4. ^ 4. n. I. Reniisson. Subrogation, cap. 9. No 17. p. 61. and 2. Arj^on, 425.. (b) Pothier, Obi. No. 445. R^jjles de droit par Pocqnet, d. 1. Lironiorr. Cautions No. 7. p. 379. 2 Henrys, 856. Henusson, Subrogation, cap. 9 No. 19. p. 61. Note. — Qiioiqne lecofidejnsseurne prenne point cession d'actiondu crc- anoier, il ne laisse pas d'avoir la mdme nypqthdque que le cr^ancier avait, sur les biens du principal obli^^, ce qui se fait'par une tacite subro^tion. Basnajre HypothAque, 8°. p. 566. Vide Chapman v. Harrison in appeal, Novr. IC 9. Renusson, Tr. de la Subrogation, p. 59. ch. 9. Nos. 2. 3. and 4. Renusson states, that the cofiOejusseur who has paid the principal debt, and was 'bound with the principal debtor in one and the same obli. Basil, cited, Bell 631. note c. ' . . ; Octr. 20lh. IHI8. An Gn^^lisli coiniiiiKiiinii of bankruptcy operates, in Canada, as a voluntary as- siirnmnnt by the bankrupt* The assi^^nees, thert'fore,raay sue for debts due to the bankrupt, or for his proper- ty, and may take tlie share of the pro- ceeds of the bankrupt's <>8< tate which be- lonirs to the English credi- tors, but such proceedings oi' the assignees cannot de- prive the pro- vincial credi- tors of any ac- quired rights or privileges as to the pro- Eerty of the ankrupt, or the proceeds thereof, to which they by the law of Ca- aifected by the i 4 : " :' " .if , I ;. r. ^^^ ns CASES IN THE COURT OF KING'S BENCH It ; ^^^ land, (a) and the consequence is, that a commission of Bruce bankruptcy in England or in Ireland, and the assign- Anderson *"®"' following upon it, or a Sequestration in Scotland AND Randall, and the conveyance in that country to trustees, have at least the effect of transferring to the trustee or assignee, ^ the whole personal estate of the bankrupt, so far as to defeat all undue preferences attempted to he gained in the country where the estate happens to be found, ^ *' ^ ' , either by action instituted by the creditor or by volun. tary conveyance made by the bankrupt after the period at which the effect of the commission of bankruptcy attaches to the funds of the bankrupt. (^) As to real property and the question how far an En- glish commission of bankruptcy can affect such proper- ty out of England, but within other dominions of the crown, it is broadly said by Cullen ** that real property seems to be equally within the spirit of the law," "but,'' he adds, " as to the manner in which the assignees are to come at property of this kind, not only out of the reach of the jurisdiction of the courts of England, but subject to such positive institutions and heal mages as every where govern both the enjoyment and transfer of real property^ (c) I am not aware of any authority. But upon this point it is held in Scotland, that pro- ceedings in foreign bankruptcy, — i, e, in any bank, ruptcy judicially declared out of Scolland,^will not ipso Jure operate as a conveyance to assignees, or .. di- vestment of the bankrupt, so as to bar the preferences by mortgage or otherwise, to which other creditors may • Km Ji..! -iiy-if 1 I, , 'Ul ! W^j if 1 *\t.; ill I i m 1.30 ' :- i CASES DETERMINED IN ;u4 - ini^ '■'■' \ . ,,.. ■.- ,. :.:,.. . ■■ . ,,,< .::.■ .White and Another aii'ahist the Ship D.ldalus. nth Dec. 1818. .' r-i t\i\ Maritime interest at tlie rate of 25 per cent upon a bottoniryliond piven at Que- liec not consi- dered exorbi- tant. The 6th, Ceo. T. c. 18. commonly called the South Sea Bubble Act does not ex- tend to the American CO' lonies. Sir WILLIAM SCOTT.* This case arose out of a bottomry bond given and dated at Quebec, in Ca- nada, in November, I8I7. Tlie Dajdalus being then in that port, destined for London, with a cargo of hmiber, and the master not having sufficient means for the purchase of provisions, stores and necessaries, borrowed of Messrs. White and Languedoc, mer- chants of Quebec, the sum of £659. for which he gave the bond in question, on the adventure, with maritime interest for the same, by way of security for repay- ment, of the sum so advanced, which with such inte- rest amounted to £824., but, in case of loss, no repay- ment was to take place. The Daedalus reached her port, and the bond becoming due, there remained, after receipts of freight, the sum of £406. 6s. 3d. due to the parties promoting this suit and for which it has been instituted. The interest, £25. per cent, might appear very high ; but it is usual in these cases to grant such apparently exorbitant interest j and it is to be remembered that it has been matter of fair livrc. — Vide 6, L. C. Den. v. Domicile, sec. 5. n. 5. p 666. 5. Cochin 85. Lord Lonirhborough's judgment in Sill o. Worswick, 1. H. B. 699. Bell's Com. 632. text and note (f.) Bruce v. Bruce, 2. Bos. and Pul.230. As to questions arising in the courts of Canada, tipon facts, contracts, dischargees, kc. M'hich tauc place between foreif^ners in their own country, see Bell's Com. 635. Potter v. Brown, 5 East 124. 10. Tonllier Nos. 74. 79. p. 117. 2 Kent's Com. 350.— 8. American Jurist 289.— -9. L. C. Dcui- zart, p. 759. col. 2. hypothuque. (*) Lord Stvw(/l. THE HIGH COURT OF ADMIRALTY ' 131 contract and agreement between the parties ; and '^is. also, that in case of the vessel being lost the whole sum advanced, it was agreed, should be sacrificed. The contract has been made upon principles of equity which it was incumbent upon the court to maintain with as strong a hand as possible. Now pay- ment had been contested under certain acts, particu- larly the 6th, Geo. I. c. 18. which is a statute for restraining certain unwarrantable extravagancies, pro- jects and schemes, or as they were called in the language of the limes, bubbles, and for protecting owners of ships from exorbitant and fraudulent insu. ranees, &c., and by which it is enacted, that after the establishment of the two corporations which were then about to be erected, only they and no other persons whomsoever should underwrite, insure or lend money upon bottomry after the 20th day of June, 1720. This statute, certainly, went to grant peculiar privileges to those corporations j and, no doubt, in England had full and entire operation. — It has been held that when two persons, not united in any exte- rior partnership, united together in bottomry bond, yet in that particular purpose they were partners j so also in the case of two partners acting separately, in the instance of advancing money on bottomry ; it has been held nevertheless, that here also they were part- ners in the view of that law, under that law then this payment has been resisted, the money having been so advanced by private merchants, partners in a British American Colony. But it is perfectly clear that such an act could not apply to America. There were no existing circumstances at that time to render it neces- sary to erect such corporations in that part of the White and Another V. Thb Ship D«DALUS. r Im'^Sj ■SSff^Wi^m^^^ :»■ . iJ ' , fcid mm in'' 'Ei 132 1818. White and Another V. The Ship daedalus. ■^ CASES IN THE COURT OF KING'S BENCH. world as were meant to be recognized by this statute. To prove that the intention was to limit its provisions to this country a later act has been since passed, in the reign of George II. to extend its operation to His Majesty's British Colonies. But this latter act, as is evident from the preamble, regarded only those extra- vagant bubbles and speculations before alluded to. It is not alleged in either of them that the two cor- porations, so created, had any agents in America, and what business could they have there ? They were neither wounded or damnified by the operation of the law in any way : if then, its policy did not extend to America, so neither did its prohibitions. But little necessity could possibly exist for the creation of two such bodies as those to which in England the privilege of lending upon bottomry bond had been secured. Moreover, it was very obvious that no evil could result in this country from this exclusion of indivi- duals : but what remedy, were the same policy ob- served in Quebec, could a master of a vessel find thus distressed for means ? Capital is surely infinitely more scarce in our colonies than in Great Britain ; on the whole, therefore, the court is of opinion that the act (a) does not extend to America, and that the parties having advanced monies on account of the ship with bond Jide intentions and on a fair under- standing are entitled to recover. I therefore pro- nounce Judgment for the claim as stated. (a) As to the various adventures intended to be suppressed by this sta- tute, see Anderson's History of Commerce. Slii aL: FOR THE DISTRICT OF QUEBEC. 13^ :;(,.! i ■.•!, ^r • ') Borne against Wilson and Others, Churchwardens of the Roman Catholic Parish Church of Quebect and against Be'lavqer, , , The churchwardens (ifiaf^mili^rs') of the Roman Catholic Parish Church of Quebec, conceded a pew in the year I77I, to George Borne, the plaintiff's father, who died in 1814, leaving no oth6r issue than the plaintiff. During his life the perff in question wa& occupied by George Borne, «^nd aft«r bis deC^ade by his widow, until th6 year I8I7, in A^hich yedr, sihe having married again, and having quitted the parisli' of Quebec, the pew, by order of the defehdAnitfr^ the churchwardens, wa« put up at au'eti^ti and at^odged to Belanger the Otlier defendafit at aft advanced tetit, upon whidh the plaintiff demanded the pew of thfc chufchwardens upon the ground of his being the only son of George BorUei and willing t6 pay the rent at which it had been adjudged to £l^langer« and the marguilliers having refu^ his apj}ircdtion,- thi^ aH* ■f^'v-'i^ «'ft!'*i<*^f*^nji] 'ii^v^ t^oi; ' o.i IhitfM.fJudjipient for the plaintiff.* iji^^jyuih (a) Vol. 2. p. 303. .x-iw^- f«- ., ' , (b) 1. Edits et Ordon. 434. f 'fol ^rrt^^V?! p'A ' ';< '\^V*^f^ ^V (c) 1 . Edits et Ordon. 434, vol. 2. p. 303. GouTcrnement des paroisscs, 59. * Affirmed in Appeal ou tlie 19tli January, 1B22. i f} ofiw iflfihn' 'y^iJ&ijjsio arli : , iii'j oill iribil olli] : 97iifl lirw odj (>i syfj-jsq obeai ivj^tl ^niv£i( gnalj'fi ^nhh oi bfiB ^i9gniiP->^i Jncquooo insaaiq 0(h ot fU'Vi; mt es paroissos, FOR THE DISTRICT OF QUEBEC. ^ ;«r : "iJ»T^t)'i*» • i»9n , nmA? . 6ftp;',u??ii«KiiJE> ,0{r- . ' UfvV ^^ fipkiy/;; ifOi*;?J« ,'(,i5|yi|; O)4)YI0. Auger against Gincras. '^o ;Soiia'ji^9tKjv A DEMURRER by defense au fonds en droit ^ to an action oi complain te against a parishioner of a Roman Catiiolic parish church by another parishioner for entering upon and disturbing the latter in tlie pos- session and enjoyment of his pew, having been pleaded and the parties heard ;— iu,^p.;ivf.a. ju^tip ir^^c^tui Per curiam. Complainte is founded in possession* and tiierefore will not lie for a disturbance by entering a pew, because the possession of a pew does not vest in a parishioner but in the cure^ and marguilliers, in whom the possession of the whole church re- sides, (a) An action in Jacluntf therefore, is the pro- per remedy by one parishioner against another for a disturbance of this description (/>) and an action d^in- jure, if the cause of complaint amounts to a voie de fait, (c) It must however be observed, that in any action foimded upon a disturbance en droit by intrusion into a pew, the plaintiff must allege title to the pew (from wiiich he claims the right of excluding others) derived from a concession (or faculty as it is termed in the canon law) or from some other source, if there be any other which he may claim. A quasi possession " qui (a) 4. Pothier Possession, No. 37. p. 533. Stocks v. Booth, 1. T. R. 428. 1. Burn's Ecclesiastical Law, 343.344. 1. Dirt. Can. 431. 432. 17. Kep. 605. Droits Honor. Marechal, cap. 3. et 4. 3. Mem. du Cler^e, 1108. 1433. et 1602. 2. Arrets cited in 2d. Kep. de Jur. 121. v. Banc. (b) Stocks V Booth, 1. T. R. 428. (c) 17. Rep. de Jiii'. 229. and 60.). 135 I3th April, 1819. Complainte cannot he maintained for a distnrbancc by entLTing a pew in a vhnrch, by one parishion- er a^raiust ano- ther. I oi •' Mi Oi^ •i>'.5"'W'.'IT'" »; > ■/;! InnnLUiUi : 'J J ir-Jii ovil 'nii nlKt«n mi -till 'i<» •!!> •>){ . 'jH) h{ •»*►>;;■» •,i •,«>'" v.> tit Mil c -t-^v v\ A I fffl ]f « . ' ^i J J i^|. 111 ''i S 1/ 136 CASES IN THE COURT OF KING'S BENCH 1819. Auger V. GlNQRAS. ne consiste que dans des droits," is the utmost that any parishioner can even pretend to have in a pew, and to every action which is founded upon a quasi possession of this character, title is essential and must therefore be alleged and proved, (a) Now the decla. tion is in this respect entirely defective. There is not an allegation of any kind as to title of any descrip. tion in any part of it. It fails, therefore, as well in the libel as in the conclusions which are those of the action en complainte simply. For these reasons the demurrer must be maintained, — and the action dis- missed quant ^ present. / +=tr 4 20t1i April, 1819. Gauvin against Cahon. No action ThIS was an action by the heir of a person who tion, can be had left the province several years before it was insti. Z'?re"ump^ tuted and was supposed to be dead. ^ . tivo heir to p^f, curiam. This action cannot be n[iaintained. the estate and i i z» succession of The prQpertv moveable and immoveable or an absen* an absentee, if * * . : ' be be not cu- rator to the estate of such absentee, or entitled to the possession by virtue of an envoi en pQSfession, or a final delivrance of the «»tate and succ^s-; •ion. ' m if/l^Ci , i^(a) StocHs V. Booth, 1 . T. R. 4.28. 5. L. C. Den. complainte, sec, 11, No. 3. ■<>!»; fuyi'"*' fS. 10. U. and 12. an4 vol. 3. p. 179. ^ancs dans les Eglises, sec. 6.n. 2. Po- thier Possession, Nqs. 90. 91. 92. Reglementof 9th June, 1723. 1: Ed. et ^*^i.^^n^ ja/'c Ordon. 434. '' J SerpiUon C. C. 282. 283. art. V. note 2. Doma^ liv. HI. tit. 7. sec. 1. n. "/ity 'i. a. ^ (} 5- p. 2a).— Poth. Possession, Nos. 90. 91. L. €. Den. complainte, sec. 2. ^ ' Nos. 9. and 10. Vide Wcxler t;. Wilson, 13, R. Q. 1820. No. 810. iLxj-J. J"*^ C vr- % «A^ I tujJi'-<^ MX <,v. .Jl^W '\ (xt/i* hCLJf Uf ^^\>x U">-«>. (Au^^i'^l /ilMa ^ ^si-t u)<' FOR THE DISTRICT OF QUEBEC. f tee who has left the country without appointing any agent or attorney to take charge of it is, from the date of his departure, in the care and custody of the King's courts, and in such case they will in the first instance appoint a curator, (a) At the expiration of ten years, — calculated according to circumstances from the date of his departure or from the date of the last intelligence respecting him,— they will put the pre- sumptive heirs into possession by an envoi en posses, siojis 0^) ^^^ ^^*^'' ^ lapse of thirty years, — or sooner upon due proof of the death of the absentee, intestate, — they will finally invest the heirs at law with the pos- session of the estate and succession of the absentee en pkine propriete. (c) The plaintiff in this action is not entitled to the possession of the property which he demands either as curator to the estate of the absentee or by an envoi en possession, or by a final delivrance of the estate and succession, and he produces no evi- dence, not even a single presumptive proof of the death of the absentee. (p. 68> 3. Pandectes Fraufaises, 16. S«o also 1. Breton- uicr, Quest, de dr. p. 11. 137 1819. -t I i ''■m ■; iH K'!::! M <■■ Gut tf li v! Mil mi 138 CASES IN THE COURT OF KING'S BENCH Camtuell against Shepherd and Chautieu opposanl. || I :?■■ ' ■ lOth June, 1819. Le mort sai- fiit lo vif. A common lega- cy therefore, vests in the heir at law, and he is not divested ofthe same until a dilivrance de leifs has been obtained. vJN an adjiulication by decret of a house and lot of land belonging to the defendant, an opposition djin de conserver was f'yled hy the heirs of one Duborjl, a priest, clain;ing tlie capital of a rente const itueCy secured by mortgage thereon. It appeared at the hearing that one Judith C'hartier was, by the will of Dubord, enti- tied to the i^ente during her life, and for this was an opposant, that the capital of the rente had been be- queathed by the same will to the Roman Catholic Bis- hop of Quebec, for the foundation and support of a school, for the education of the testator's relations, and their descendants for ever. But no opposition was fy led by the Bishop, Per curiam. We cannot, certainly, award the capi- tal of this rente to Judith Chartier, for she has no claim to it, nor to the Roman Catholic Bishop of Quebec, for he is not in the cause. Then, as to the claim set up by the heirs of Uubord, to the capital of the rente ; The death of Dubord has cast his succession upon his heirs (/e mort saisit le rifi) and consequently, to the saisine the heirs are entitled. But on the other hand Judith Chartier is entitled to the rente of this capital during the term of her natural life. Upon the whole 3. Rep. de Jiir. 370. 1 De la Jann^s, 87. 65-67. 2 Lebrdn, p. 6. Duplessia Paris, art. 318. Poth. Orleans, art. 336. Domat, Liv. 1. tit. 3. .3. ^6. L. C. Den. 161. and I64-1G7. Joiirn. des Aud. vol. 6. arret 16 Mats 1677.5. Poth. 337. 9. Pandectes Fran^aises, 123. Nos. 343. 314. 345, b Toullicr, 530. Nos. 572. 573. FOR THE DISTRICT OF QUEBEC. 1.09 % * IB19. therefore, although the heirs must receive the capital of the rente, we cannot awartl it to them witliont re* cammiell niiiriug security for the legal execution of the will, as respects Judith Chartier. ;,,,, .,; .\\*» » i»i\» it I 8lIF.I>IIERD & ClIARTlER. Judgment accordingly. i^i :.f.U Rivers against Duncan. VMt n* ill iUlBiyf' ilU ' VU; ill .iliuM.i. i^6.V' 1 HIS was an action of damages for the non-delivery of goods received by the defendant, a master of a ship, on freight for the plaintiff. Upon the trial it appeared that four bales of woollens had been shipped, addressed to the plaintiff, and were brought in good condition to Quebec, that the defendant repeatedly gave notice to the plaintiff of the goods being on board, and requested him to remove his bales, as they were lying on the upper part of the cargo. That in the first instance, the plaintiff said he had no advice of the bales, but afterwards promised, more than once, to take them * Affirmed in appeal in April term 1820. Upon the lejfacy in this case to the Roman Catholic Bishop to fonnd acd support a school, see the case of the Attorney General v. Hutchinson, Dicken's Kep. 518. in which " a legacy' to build a school house and toi endow it, the parish having land on M-hich a school house formerly stood, was held to be within the staUit<^ of mort- main." The Bishop made no claim to the capital, and (as wf j I'icgfed by the Counsel for the Respondents, the heirs Dubord, in his cat>e in appeal,) thereby adn^itted, that the bequest having been made to him in his corpo- rate capacity, without the previous permission and sanction of the Crown was null as a gift in mortmain, and this was the opinion of the court of Kiitjr's Bench. 19th Octr. 1819. Merchandize imported from abroad is deli- vered to the consignee when placed on the M'harf, and is from thence at his risk, provided notice of the arrival of his goods has been given to him. I:''; ■ "V: it ■*l m I ^! i::| 140 1810. HlYERI. V. Duncan. >riJ vi !.' V most «t 1)1 'CI TO CASES IN THE COURT OF KING'S BENCH. away. He did not however do so, and after some days the defendant put them on the wharfi were they were seized for non-pay men* of the duties. * Per curiam. In the case of ships coming from a fo- reign port to the port of London, delivery at a wharf dis- charges the master, (a) and upon the evidence adduced in this court, in the case of Patlerson v. Davidson, (Jb) this was held to be the rule of the port " Quebec, if the consignee iiad notice of the arrival v.. his goods. In the case before us. Rivers, the consignee, was bound to look after his bales of woollens from the moment he was informed of their arrival, and he was repeatedly required to take them away. The omission to enter them at the Custom house, which it was his duty to do, was gross negligence, — crassa negligentiat — on his part. The goods, after a considerable lapse of time, were de- livered on the wharf as is customary, and if the steps which were necessary to protect them against seizure for the non-payment of the King's duli were not taken by Rivers, the laches are his own, a ' must ne- cessarily abide by the consequences. . For these reasons we fully concur with the jury in the verdict * which they have found for the defendant, and reject the mo- tion which has been made by the plaintiff for a new trial. Judgnient for the rfefenddnt. (a) Abb«t •!) shipptnpf 261. (b) la this ease, which wag decided on the 19th day of April ISlO.it was held thait gfoods brought on freight, to bo paid at Quebec, on delivery, can- not b» renove^ from the wharf before the freight is paid, and if in good order,, ikej are deliTered when placed on tho wharf. * In this ease it was held, that if a party moved for a jury, he cannot afterwards reject the verdict, on thegroand that the jufy ought not to have been attowed, be*«aiHe he, the mover was not ti mef'chant or a trader. It was said Per eurteuat — this motion is an ackhowledgetnent thjkt his quality ii within tliesnwnningof the Ordbttilco 25. Geo. IIT. c. Z. § 9. m FOR THE DISTRICT OF QUEBEC. 141 1 I Labue t;* Crawford and others. SOth Oetr. 1819. Per curiam, — where a commissioner notoriously acts as an agent for government, his office excludes the presumption of credit being given to him personally, and he is not liable for the contract into which he en- ters in his public capacity, although there be no other person against whom >'\ action lies to enforce the con- tract, which he has entered into, (a) But if he has received the money from government, which is to be paid to the person with whom he contracted, an action for money had and received, may be maintained. (&) In this case it appears that the defendants have received the money which Larue, who contracted with them for erecting the gaol at Gaspe, is to receive for the build- ing he has erected, and no sufficient reasons have been offered to induce us to believe that it has not been fairly earned. A contrac- tor for a pub* lie bnildin^ cao maintam an action against the commission- ers with whom he con- tracted for the o?*ectioni of such 'liuilding if they have received from government the money which is due to them. Judgment for the Plaintiff. J (n) McBeath v. Haldimand, 1. T. R. 172. 3. Cochin/ 756. 760. Paley Prin. and agent, 296 I. Comyn on contracts 272. (b) Rice V. Eventt. 1. East R. 583. in notis. 1. East 135 and 579. Paley Pr. and agent 297. see also 1. T. R. 674. See the oases of Vondenvelden v. Sewell, Attorney General, in K. B. Q. about the year 1799. Scott v. Lindsay ante p. 68. — Ooodenougb v. D'Esti- mauville, K. B. Q. 1817. No. 425. Uebert v. Vall^, lb. No. 525. Landry v. Baiilarg4, lb. in 1819. No. 501. 'I'ltllJ ,i: It' i' Si! <:ii.l m H^* Ml u UQ CASES IN THE COURT OF KING'S BENCH GouDiE against Langlois. 20tb October. 1819. An action of trespasSt-efin- Jure, — cannot be maintained a^inst an of- ficer who ex- ecutes a writ issued upon a judgment ren- dered by an inferi'vr court in a matter over which they had ju. risdiction. By the Provincial Statute 45. George III. c. 12. § Q. The Trinity house of Quebec, is authorized and em- powered, inter alia, to make bye- laws " in respect to " the boiling or melting of pitch, tar, turpentine, or " rosin, in the harbours or on the beaches of Quebec " and Montreal, or Cul-de-Sac of Quebec." Goudie, the plaintiff in this action, boiled pitch, within the limits of the harbour of Quebec, contrary to the provisions of a bye-law of the Trinity house, of the 10th of J[ine 1818, enacted under the authority before stated ; and having been summoned to answer for the offence upon an information fyled by Lambly, before the master and wardens of the Trinity house, and, after hearing, being convicted, a judgment for the penalty which the bye- law inflicted was rendered, and an execution against his goods and chattels was issued, addressed as usual to the water bailiff, of the Trinity house, who levied the amount: — The present action was thereupon in. stituted for the recovery of damages against Langlois for an alleged trespass in taking and selling the pro- perty of Goudie, and the defence was a plea of justifi- tion founded upon the facts which have also been before stated. Per curiam. The master and wardens of the Trinity house undoubtedly had jurisdiction over the subject matter of the information which was fyled, and there- fore, as they are not responsible to the plaintiff for FOR THE DISTRICT OF QUEBEC. i' their proceedings, even if their judgment be erroneous (a) their officer who has legally executed a judgment, legal in itself, though errroneous, must necessarily be free from all responsibility on his part. In fact, in all such cases as the present in which damages are sought to be obtaiued from the officer who executes the writ, the want of jurisdiction in the court from which it issued, must be apparent upon the face of the writ itself, and unless it be so the officer cannot be considered as as a trespasser, (i) Judgment for the defendant. •>.-^.»i -^;>.,,. Pacquet against Gaspard. 1 HIS was an action, by the heir at law, against the possessor of a lot of land and dwelling house as })art of his ancestor'^ estate to which was pleaded, a devise thereof by will to the defendant, and a special answer admitting the will, but averring the defendant 143 1819. GOUDIK V. Lat^olois. 20th April, i8eo. An alien domiciled in Canada but not natura- lised is inca- pablcof taking real property by devise. I -in U\ .1 rit rot nil ■I'j (a) 10 Coke 71. Hammond's N. P. 45. , Bulior's N. P. 82. Hawkins P. C. lib. 2. cap. 13. $ 10. 3 Leach's Ed. 175. See a case in Burr. R. 1763. and Boucher's case in Cro. Jac. 81. As to the liabilitjr of the officer where the inferior court has no jurisdic. tion, and of the plaintiff where the court has jurisdiction, See 2 Wilson's Ucp.38-t. Held in the United States, that an imprisonment under a judgment of court is not unlawful, if the court had general jurisdiction of the snbjcct, although the judgment be erroneous. Exparto Tobias Watkius, 3 Peters Hep. 201. cited in the Amciican Jurist vol. 4. p. 3G0. 144 CASES IN THE COURT OF KING'S BENCH 1820. Vt !::,:;: 1 --■I' 111 i,. .1 Pacquet Gaspard. to be an alien born in France and incapable of taking real estate. To this special answer the defendant re. plied by a peremptory exception (a) in which he admitted that he was born in France, but of British parents, in a British ship, driven into thw harbour of Dunkirk and was therefore a British subject -, upon which averments issue was taken by a General Repli- cation, and after a hearing on the merits. Per curiam. There is no proof of the defendant's exception, and he admits that he was born in France. In the will he is stated to be ** natif de France." By the depositions of Tetu and Vallieres it is in evidence that he has uniformly stated himself to be a subject of France ; and of his birth from British parents, — as pleaded,— there is no proof whatever. That he is an alien, therefore, cannot be doubted, and being, — as such, — incapable of taking real estate by devise (i) the Judgment must be for the plaintiff. i;!' H J \t fa) See Ante, p. 107. [bj S. Poth. 576. Domat Lib. 1. tit. 1. sec. 2. n. 9. vol. 1. p. 354. col. 1. and p. 365. col. I. n. 3. p. 430. col. I. n. 12. lb. Dr. pub. tit. 6. § 4. No. 5. p. 47. 48. 2. L. C. Den. 580. Bacquet Dr. d'aubaine. part 3. cap. 18. Nos. 1.2.3. Loyseau Seigneuries, cap. 12, p. 73. 2. Despeisses, p. 448.449. Rep. de Jur. Aubaine, 722. col. 1. Loysel Reg. 50. 51. 52. Lacombe Au- baine, sec. 2. 2. FebTre de la Planclie, 125. mmmmmmmtmimmim ?OR THE DISTRICT OF QUEBEC. 145 |!)S - \> til HoGAN V, "Wilson. 1 HE plaintiff demanded of the defendant a sum lent in London in the year 1795. Per curiam. The debt in this case was contracted in England without any reference, direct or indirect, to the law of any other country. The law of Eng. land therefore (a) is the standard of decision and the statute of limitations must of course apply. ■\" • '^ V ; V . Action dismissed.* 9th October, 1820. The statute of limitations is a good plea to a debt con- tracted in London with- out reference, direct or indi- rect, to the lavr of another country. I. (a) Robinson v. Bland, 2. Burr. 1077. 1. Black, 234. 256. 1. Williams, Dijf. 273. * Praeterea dulitatum est, si ex contractu alibi celebrato, apud nos actio instituatur, at^ue in ista actione danda vet neffunda,aliud juris apud nos, aliud esset rbi contractus erat initus, utrius loci jus servandum foret ? Exemplnm : Frisius in Holiandia debitor factus ex causa mercium particu- latim venditarum, convenitur in Frisia post biennium. Opponit prescrip- tionem apud nos in ejusmodi debitus receptam. Creditor replicat, in Hol- kndia, ubi contractus initus erat, ejusmoai prxscriptioncm non esse recep- tam ; proinde sibi non obstare in hac causa. Sed aSiter judicatum est, semel in causa Justi Blenket\fieldt contra O. Y. iterum inter Johannem Jonoliin, Sartorem Principis Arausionensis, contra N. B. utrague ante mag- net ferias 1680. Eadem ratione, si quia debitorem in Frisia conreniat ex iustrumento coram Scabinis in Holiandia celebrato, quod ibi, non jure com- muni, habet paratam executionem, id heio earn vim non habebit, sed opus erit causn cognitione et sententia. Ratio haec est, quod pnescriptio et exe- cutio uon pertinent advalorem contractus, sed ad tempus & modum actionis iostituendte, quae per se quasi contractum separatumijiue negotium conati- tult, adeoque receptum est optima ratione, ut in ordinaodis judiciis, loci coDsuetudo, ubi agitur, etsi de negotio alibi celebrato, spectetur, ut docet Sandius lib. 1. tit. 12. def. 5. ubi tradit, etiam in executione sententiae alibi lafae, servari jus loci, in quo fit executio, non ubi res judicata est. Huberus. — Oe conflictu legum. Lib. I. tit. 3. § 7. A statute of limitations in a foreign country where the contract is made, has been held to be no bar in a suit brought on the contract in New York. Nash V. Tupper. 1. Cainei, 402. Rugglesv. Keeler, 3. Johns. Rep. 263 The lex loci is held to apply only to the validity or interpretation of the contract, and not to the time, mode or extent of the remedy. 146 CASES IN THE COURT OF KING'S BENCH. The Seminary of Quebec against Patterson. m ; '1 ,-ii 18th October, 1820. On proof of 30 years pos- session, the party is not bound to pro- duce a title or to offer any evidence to shew that ho held animo do- mini or de bonne foi un- til tho contra ry is proved by the plain- tiff. JL HIS was an action of Revendication brought by the Seminary against Patterson to recover a piece of land which had,— as it was supposed, — been granted by the Seigneur of the Fief of Beauport. Th*> Semi- nary averred that it was within their Seigneurie. In answer, however, to the action, the defendant did not set up a title by concession from the Seminary, or from the Seigniory of Beauport, but pleaded thirty years possession, and rested his defence entirely upon this exception. Per curiam. The defendant, Patterson, has dis- tinctly proved a public and uninterrupted possession of the land in question by himself and by his prede- cessors, for a period exceeding thirty years ; and upon such evidence in all cases of this kind, the law, from the length of time elapsed, presumes that the defen- dant has possessed " animo domini" and *' de bonne foi" unless the contrary is proved by the plaifiiiff, and does not require the defendant to offer proof on either of these points, or to produce a title of any descrip- tion. The Seminary have not attempted to prove in this case, that Patterson has held the land under any circumstances which might shew that his possession was not " animo domini," or was " de mauvaise foi," and the action must therefore be dismissed, (a) (a) Grainville's Arrets.— Arivt ofZlst July, 1731, p. 385. was affirmed in appeal on the 20th January, 1823. This decision FOR THE DISTRICT OF QUEBEC. 147 .'i' «:■ .. ■ Scott against The Quebec Fire Assurance Company. 20th October, 1821. On the ^Istdayof August 1820. the plaintiff in- sured the sum of £^600, at the ofiicv> c. the Quebec Fire Assurance Company, upon a house which he i'^habited in Montreal, and upon the goods and mer- chandize, furniture, plate, &c. which it contained, all of which were consumed by the fire on the 15th day of August, 1821. while the policy was in full force. It was proved that the fire began in an adjoining house, and spread from thence to a wooden building on the premises of the plaintiff, from which it was communicated through a doorway of the dwelling house, which was open, although it had an iron door, to the interior of the last mentioned edifice, and that it broke out between eight and nine o'clock in the evening. In the Policy of Insurance it was stated «* that the dwelling house of the assured was built of stone and covered with tin, gables through the roof and plafond, iron doors and shutters," and for the defendants it was contended, that these words ** iron shutters and doors" amounted in law to a warranty, which according to the facts above stated had not been performed. Sewell, Ch. J. The rule as to contracts in gene- ral is, to give language its true effect according to the intention of the speaker or writer, as inferred from the whole expressions and the nature of the occasion to Policies of Insurance are to be con- strued by the same rules as other instru- ments ; there- fore, where there is an ex- press warran> ty there is no room for im- plication of any kind. I I 4 -^ r 148 CASES IN THE PROVINCIAL ' s 1821. Scott r. The Qdbdec Fire Absu* lUNCE Com- PANY. which they are applied, (a) And policies of insu. ranee are to be construed by the same rules as other instruments, unless where by the known asage of trade, certain words have acquired a peculiar sense distinct from their ordinary and popular sense. (&) In this case the description of the premises which was fur. nished by the insured is inserted in the policy, and if in point of fact it be true, as it undoubtedly is, that they were " built of stone and covered with tin, had gables through the roof and plafond, iron doors and shutters," whether we consider these expressions in the policy as a " representation,** or as a " warranty," is immaterial. For, in cither instance, the express contract of the assured has been ** substantially** and " strictly** performed, (c) and being an express con- tract, there is no room for implication, expressum facit cessare taciturn. The doors and windows being open in the middle of August, at half-past eight o'clock, is no proof of negligence. J. viri \ ..ill y-fi \ Judgment for the plaintiff. (a) l.E^ (6) Robei (c) 3. Sc E7. Poth. 59 io notis. Robertson v. French, 4. East Rep. 130. ' Selw. N. P. 881. Note. — A warranty, like every other part of the contract, is to be con- strued according^ to the understandindf of merchants, and does not bind the insured beyond the commercial import of the words. Thus : — There was a warranty that a ship should have 20 ffuns ; and it appeared that she had, in truth, 22 fj^uns, but only 25 men ; which number is far short of the neces- sary complement for 20 guns. It was objected, that this warranty implied a competent number of men to work 20 guns, in case the ship should be attacked.— 'But it was determined that the warranty did not include any thing not necessarily implied in it. Lord Mansfield said, — " If a warranty " be meant to mislead, it is a fraud, as much as a false representatiopi. In " this case there is no ground to impute fraud, and therefore the plaiqtiff is ^ entitled to recover." Hyde v. Brua, B. R. Hil. 23. O. III. M. 8. cited in Marshall on Insurance, p. 347. and in Phillips on Insurance, p. 128. COURT OF APPEALS. UO On Appeal from Quebec. The Reverend George Spratt, Appellant, m and J GO Our Sovereign Lord The King, Respondent, 20th January. 1821. ■yj-'.ii .(11(1. . .»iiifjJ<'i-3''-t<|^T;'.F, JH.-SJI, XHIS was a case depending upon the interpretation to be given to the provincial act 35, Geo. III. cap. 4. which establishes the form of registers of baptisms, marriages and burials. • "■ " -« -v Richardson, Executive Councillor, It neither was or could be the intention of the Legislature, by this Sta- tute, in employing the words " Protestant Churches or congregations," to throw open the door respecting the keeping of such registers indiscriminately to all Protestant Sectaries hereafter without restriction. In such case the evil would have become greater than that meant to be remedied. At the time when this statute was passed, there were no other protestant churches qr congregations in this province, than those in com- munion with the churches of England and Scotland ; and therefore, the interpretation of the act that such only were intended by it, is^corroborated. This oues- tion has no relation to the exercise of religious worship without restraint. This court neither can, nor does it mean to touch or affect full religious toleration. The present case respects a civil office of great importance * Vide this case in B. R. Q. repotted ante p. 90, X The words " Protestant Churches or Cong;rega- tions/'used in the statute 35. Geo. III. c. 4. which re- quires Rectors of parishes, &c. from 1st January, 1796. to keep iwji registers, both of which to be authentic, held to em- brace only such churches and congrega- tions as had their exis- tence in the province when the sta- tute was eed. pas- M 150 CASES IN THE COURT OF KING'S BENCH 1821. Spratt. and The Kino. ini"i -.14 ,-i'j.' to the temporal and civil rights of His Majesty's sub. jects, in regard to the proofs to be adduced of legiti- macy, when the transmission of property may become a matter of legal contest ; such an office, as keeper o^ such a register, cannot be claimable by any person as of right, unless the act conferred that right. This court does not consider it to be so conferred. The de- cision has no reference to the education and moral character of the appellant, which are understood to be most respectable. It is confined to the interpretation of the law, without reference to persons. Neither does the court mean to say that the keeping of such registers is incapable of being extended under proper safeguards against abuse. That must depend upon the wisdom of the Legislature, * and if our interpretation be er* roneous, it is for the supreme court of appeals to cor- rect the decision. The judgment of the court below is affirmed, and this appeal dismissed, but without costs, o ^^nixpovl * Since the decision in this case the folio wiag[ Statutes have been pas- sed, via : — An act to extend privileges therein mentioned, to the religious classes of {ersons denominating^ themselves Wesleyan Methodists, 9 and 10, Geo. V. cap. 76. An act to extend certain privileg^es, therein mentioned, to persons pro- fessing the Jewish Religion, and for the obviating oertain inconveniences tP which others of His lifejesty's subjects might otherwise be exposed, 9 and 10, Geo. IV. cap. 75. An act to afford relief to a oertain religious congregation at Montreal denominated Presbyterians, I Will. IV. cap. 56. An act to enable the rM^ularly ordained ministers of the United Associate Synod of the Secession cnurch of Scotland to keep authenticated register! according to law, 3 Will. IV. cap. 27. An act to afford relief to a certain religious congregatioo at Montreali denominated Baptists, 3 Will. iV. cap. 29. ,.i.\U i'A'J -ij .ii .'U M. ZOtU SJ.i^l JiJi / FOR THE DISTRICT OF QUEBEC. 151 iffyyi'i. ■|>h • J : •m\ ah. , , ■>. ■•( U vt iifjft U2 CASES IN THE PROVINCIAL V. ROIXMAN. J5^ in the prosecution of the work, I have disbursed and Latouche P**^ ^o"" ^*"™' W The present action is simply for money paid and advanced, and we see nothing to pre- vent the plaintifTfrom obtaining judgment, for although an expertisse to establish the necessity of the proposed repairs is the usual course of proceeding in such cases as the present, it is necessary only, in those instances in which the party defendant demands an ea^periisse, or is either ignorant, or adverse to any repair. (6) >nojTi t'lTA (. Ill !■ .1 Judgment for the plaintiff. .'Ml If f. •"■■■ '■'■ I' III \,',,\--'- ] to ^2IJlWi ! msi On Appeal from Montreal. , _ . "1 a .. John Scott and Others, Appellants, } and The Ph(enix Assurance Company, Bespondents, 20th January, 1823. This appeal arose out of an interlocutory order of clause or con- the Court of King's Bench at Montreal in an action Sm "of"in8u: of covenant upon a Policy of Insurance by which that ranee, that in court assumcd the powcr of compelling the parties to dispute be- tween the part'v.8 it shall be referred to arbitration, the courts are not ousted of their jurisdiction, nor can they compel the parties to submit to a refe- rence in the progress of the suit, t .rnioii' (a) 2 Poth. Mandat No. 29. p. 856. No. 180. lb. p. 923. No. 5. also p. 844. 2 Bourjon, p. 13. No. 10. {b) lb. No. 9. 2 Poth. Soci4t^ ler Append. No. 220. p. 615. Peck v. Wood 5. T. R. 130-133. COURT OF APPEALS. l.OS Submit the matters in contest between them to arbi- tration, thereby enforcing the specific execution of a clause or condition in the policy of insurance in the following terms : — " In case any difference or dis- ** pute shall arise between the assured and the com- " pany, touching any loss or damage, such difference " may be submitted to the judgment and determi- " nation of arbitrators indifferently chosen, whose " award in writing shall be conclusive and binding ** to all parties." Buchanan for the appellants. ^■'' '^'^'^ In three distinct points of view it would appear that the court below had acted unwarrantably in re- ferring the matters in issue between the parties to arbitrators. 1. That considering the terms in which the condition was couched, it appeared, evidently, to have been the intention of the parties that the sub- mission to arbitration should be dependent on the free will of the parties, bulpf th«^ parties did sub- mit, that the awara to be made should be obligatory. 2. That even a submission to arbitration is a revo- cable instrument and is assimilated to a power of attorney ; (a) a fortiori, an agreement to submit cannot bind irrevocably. And a party rising stare compromisso could be made liable only to a penalty agreed upon, or to assessed damages. In accordance with which is the principle of the French law declar- ing that the courts cannot decree a specific perform- ance, nemo potest cogi prcecise ad factum, (h) 3, That the King cannot, by an agreement between any two 1823. Scott V. The Ph: trl :n -ii 1 "t '! 'Ir 'iv' if •^ ( •(; I,' if ' !i!' 1 liil \5i 182a Scott V. The Pihemx Assurance COMPANT. CASES IN THE PROVINCIAL or more of his subjects, be divested of his preroga* tive of judicial supremacy the exercise of which he has delegated to his courts of justice. That those courts have accordingly always held that a mere agreement of persons to submit matters in dispute between them to arbitration cannot oust the courts of their jurisdiction, nor deprive the contracting par. ties of their right of resorting to the royal tribunals for the adjustment of their controversies, (a) A doc< trine favored by this court in Pasleur and Mezieres, (b) and by the Court of King's Bench a^ Quebec in jRacey v. McCallum. (c) ■ Fletcher, on the same side, referred to the Roman law as amended by Justinian, liy the common law no ;nan in England is bound to submit to any tribu- nal but the King's courts *, and consequently, a legisla- tive provision was thought necessary to enable the cpurts to enforce a submission to arbitrators under a rule! of reference, stat. 10. and 11. Will. III. and t^is statute has been construed strictly, (rf) S. T. Gugy, for the respondents, contended, 1. That the Laws of Canada must be resorted to in this case. That there is no similitude between the covenant in question and a power of attorney. The maxim nemo potest cog^rcecise ad factum is misapplied, for Po- tliier Ce') restricts it to cases in which the personal act of the covenantor is stipulated. As to the clause be- inff in the potential mood, the court was not to be consi- (a) 2.Mar8hal on Insur. H. 67D. Kill v. Holl'^ter. ^ti V. Cbarnock, 8. T. R. Wira. uy. Thomp- (b) Determined July. 1818. (d) Jenkins v. Law, 8. T. R. 87. (c) med in Febri' (e) iut de Vente, ^ T. 1819. t79. '4' To this libel a declinatory exception has been pleaded, in which it is averred that the iocus in quo of the pre- tended injury is within the body of the county of Que- bec, and solely cognizable by the court of King's Bench for the district of Quebec. The case of the ship Trio in which, some years ago, a prohibition issued to this court under circum- stances similar to the present, has induced Mr. Jones the claimant, to consider that the question of jurisdic- tion over the river St. Lawrence has been put to rest : But no appeal was instituted in that case, nor was even the admiralty heard at all in support of its jurisdiction, and unless a question of such great importance, by which an extent of four hundred and sixty miles of sea is transferred from the admiralty to the courts of com- mon law, by the decision of a tribunal in the last resort, I cannot admit that the question can be settled. It is only before the high court of admiralty, or before His Majesty in council, where the matter can properly and finally be decided. During the time of the French a court of admiralty was established at Quebec, vested with powers more extensive than that of the court of vice admiralty, and in a maritime sense, the river St. Lawrence was then con- sidered as part of the altum mare, for the Ordonnances de la Marine thus define what shall be considered as the sea, *< sera repute bord et rivage de la mer, tout ce qu'elle couvre ct dccouvre pendant les nouvelles 159 1833. Howard. V. Thb Ship Camillus. Mm li I'-ii 'V A f -li ■ ■ •f '.731' i;'.:l^ ' ill i ;.h "il I 1 i:\ J ::iv.' 160 1683. Howard V. The Ship Cauillub. '!,( CASES IN THE PROVINCIAL et pleines lunes, etjtisque oule grand flot de mars se peut ^tendre siir les greves." The maritime parts of Near France, perhaps, extended further than are now claimed by this court, sitting under an English admi. ralty commission, for by it the jurisdiction of the court of vice admiralty extends to a cognizance of *' every •' matter, cause or thing, business, or injury whatso- " ever, done or to be done, as well in, upon or by t'le " sea, or public streams, fresh waters, ports, rivers, " creeks and places overflowed whatsoever, within ** the ebbing and flowing of the sea, or high water *' mark, as upon any of the shores or banks adjoin- ** ing to them." These are the words of the commis. sion granted by the high court of admiralty to' the Judge of the court of vice admiralty in the year 17G3> soon after the establishment of the civil government in the then province of Quebec, and such are the terms of the same commission granted so late as the year 1797> to the present judge ; so that it may be asked by what ordinance or statute, British or Colonial, is the jurisdiction over the river St, Lawrence, as far as the flux and reflux of the title is visible, taken away from the admiralty and given to the colonial court of King's Bench ? It has been said that the royal pro- clamation of the year 1763, has taken away the juris- diction over the river St. Lawrence from I he admiralty, and given it to the common law courts. But it can- not escape observation that this proclamation (if a royal proclamation could in law deprive the admiralty of its ancient jurisdiction,) was not intended to settle and adjust the local boundaries of the common law and admiralty courts, then about to be established. Its COURT OF VICE ADMIRALTY. only intention was to designate the limits of the newly acquired province of Quebec, so as to shew what por- tion of that territory should be placed under the care and inspection of the governor of Quebec. Nor was the proclamation of Sir Alured C/arhe, of the year 17}K2. with reference to the act 31st Geo. III. c. 31. con- ducive to the end for which^t has been cited, consi- dering its avowed purpose was to subdivide the pro- vince of Lower Canada, into counties, so as to guide the inhabitants in the exercise of their right of suffrage formembers to the assembly, under the new constitu- tion given to them by that act. If the jurisdiction of the high court of admiralty over this great arm of the sea could be taken away by inference (which I deny) no such inference can be fairly drawn from these pub. lie acts. The river St. Lawrence has been assimilated to the Thames, and Quebec to London, in order to sustain the position that the river near Quebec is inf"a corpus comitatus. But why assimilate this river more to the Thames than to the Bristol channel, to which it bears a much stronger resemblance, or to the mouths of the Tyne, the Mersey, or the Dee, all of which are iEstuaries of the sea ; or to the Firth of Forth, which is exclusively within the jurif>diction of the high court of admiralty of Scotland? — The bason of Quebec has not, beyond the memory of man, as the Thames, been subject to the courts of common law, and indeed these coiu'ts have not themselves yet existed thirty years ; nor can the bason near the city be strictly holden to be a port, — the definition of which is *' locus conclu.sus " quo importantur merces et exportantur," for the river is not there shut up, but flows ninety miles above it, 161 V. Thf Ship Cauillus. t'i ^■'111 i vBM :.. : ■it' I ! 'a .if.; . llli Li 162 1823. Howard V. The Ship Camillus. CASES IN THE PROVINCIAL and is actually navigable for one hundred and eighty miles. If the court of vice admiralty have no jurisdiction in this suit for an injury done on the waters of the St. Lawrence, the commission granted to this court is nu- gatory vana est potenlia quw non in actum venit, and if so, where is this libella^t to seek for redress ?— It is clear that it cannot be found in the court of King's bench, where the remedy lies only in personam, not in rem, and if the suit cannot there be entertained against the ship itself, no adequate relief can be had in that court. The courts of King's bench exercise their functions under the provincial statute 34i, Geo. III. cap. 6. by the 2nd clause of which, and that is the foundation of all their authority, it is provided, ** that the said courts, in their respective districts aforesaid, shall have original juris, diction to take cognizance of, hear, try and determine in the manner hereinafter enacted, all causes as well civil as criminal, and where the King is party, except those pure- ly of admiralty jurisdiction." The words *' except those purely of admiralty jurisdiction" must mean something, and if they import ony thing, they must mean that these common law courts are prohibited from taking cogni- zance of " any matter, cause, or thing, business or in- jury whatsoever, done or to be done upon the sea or public streams, fresh waters, ports, rivers, creeks and places overflowed whatsoever, within the ebbing and flowing of the sea," provided, as in this case, the pro- ceedings are against the thing in specie. . After giving this case every consideration due to the importance of the question proposed, I have no hesi. tation in pronouncing a decree maintaining the ancient COURT OF VICE ADMIRALTY. jurisilictioii of the admiralty over the river St. Law, fence, and dismissing this exception with costs. Declinatory exception dismissed. * 163 1823. Howard V. The Ship Camillus. ■■it '"* i i! ( >h Wilson against Norris. I Judge KERR. — This information has been prefer- red against William Norris, master of the brigantine William, of Dublin, for penalties to the amount of £2500, for having taken from the port of Dublin and brought to Quebec, fifty passengers more than are permitted by law to be carried in the said brigantine, in contraven- tion of the 57th of his late Majesty, c. 10. I am free to confess, that in granting process against the defendant, I had some doubts as to the jurisdiction of this court over the ofience alleged to have been com- mitted ; and to this point I was desirous of hearing the defendant by counsel j but Mr. Norris, though person- ally served with a citation, has not thought proper to appear in any stage df the proceedings : and the court must in this matter be entirely guided by its own judg- ment, assisted by such lights as have been cast upon it by the advocate of the informant. * The court of Kinn^'g Bench awarded a prohibition to the Tice admiraltj in this suit upon a auffgestion stating; that the injury happened in the rirer St. Lawrence, and in the body of the district of Quebec See the case of HanailtoQ v. Fraser, ante p. 21 . 11th Angfust. 1823. Under the words " court " of session " having ju- " risdiction in " the port or " plnce at " which a " ship shall " arrive," con- tained in the 57 Geo. Ill, c. ID. §6. the court of vice admiralty claims juris- diction in pro- ceedings for penalties and forfeitures un- der that act. 161. CASES IN THE PROVINCIAL ;): l^i . 1 * ii'i-l 1883. Wilson V. NORRW. The Statute declares that the penalties am) forfeitures to be incurred under that act, shall and may be reco' vered " in a summary way, in any court or courts of •* session having jurisdiction in the port or place at *• which such vessel shall arrive." If no former statute had granted to this court a right to entertain prosocu' tions for penalties and forfeitures under the trade and revenue laws, I should have felt much doubt whether the words •* court or courts of session,** in the statute, gave any jurisdiction in these matters to the courts of vice admiralty. But the 4i9th of his late Majesty, c. 107, in most express terms gives to the vice admiralty courts cognizance in such cases ; for it provides by tlie first section, ** that all such penalties and forfeitures,** (speaking of such penalties and forfeitures as relate to the trade and revenue of the colonies,) " which may " have been heretofore, or may be hereafter incurred, •* shall and may be prosecuted, sued for and recovered " in any court of record, or of vice admiralty, having "jurisdiction in the colony or plantation where the •• cause of prosecution arises." In this view of the question, the court is not unsup. ported in its claim to a concurrent jurisdiction with other courts, in all prosecutions for penalties and for- feitures under the trade and revenue laws, by a distinct legislative enactment, providing against past and future violations of them ; and I am necessarily led to this conclusion, that by the words " couri or courts oj ses- sion" this court is included. The trite maxim, " est judtcis ampliare jurisdiclU onenit* which is to be applied with great caution, may in truth and justice be called in aid of this construction of these words; for if this court have no jurisdiction COURT OF VICE ADMIRALTY. 1C5 over the penalties in the 57th of George the III. then the provisions of it will become nugatory, there being no other court which has jurisdiction over the port of Quebec, in session at this time, nor will any other but the court of vice admiralty meet before the ^Ist Sep- tetnber, and before that time the defendant may leave this province, all the witnesses may disperse; and thus the provisions of the act will be eluded. The question then is resolvable in a short enquiry of fact, whether the defendant has incurred all or any of the fifty penalties for which the informant proceeds in demand in his libel ; and after reading over the evi- dence taken in support of it, I must say that it exhibits a case of as lawless behaviour and moral turpitude as is rarely disclosed in a court of justice. It appears from the evidence of Thomas James, the mate, that the brigantine sailed from the port of Dub* lin on the 14th May, and on the same day came to an- chor opposite Dunleary New Harbour ; that Norris, the master, was on board and went on shore in the same evening or next day in the morning ; that he re- turned on board in the night of the 15th, at 1 1 o'clock ; when he returned he said that when he was on shore he had heard that the ship had fouled her anchor, and that he must heave it up. Here he threw aside the veil, and touching the witness on the arm, he added, " d'ont take any notice of my being in a passion or what " I say, but the ship must go to sea immediately ; that " if she did not go to sea that night she would be stop- " ped and not allowed to go." — He further states that there were then two custom house officers on board, and that by the master's orders the anchor was weighed 1823. Wilson V. NORRIS. ;;j ^m i; ' : ■!;« \m t i <• M ; I li ! « ■-:i '4 I :':i l> I 166 1823. WlUON V. NoRRIS. CASES IN THE PROVIis'CIAL and the ship proceeded tosea, when touching at Howth harbour, about daylight on the iGth, the custom house officers were landed, and the brig proceeded on her voyage to Quebec. The witness produces a paper which he says was given to him by Norris, shewing the number of lamilies to whom as mate, he was to serve out water during the voyage j and this list contains in number, as far as 1 can understand from it, 119 souls. His evidence also goes to prove that there was hardly room to work the ship : that part of these famiUes slept in the long boat on deck : and of the number, happily, only eleven children died, a circumstance that he attributes to the coldness of the weather, James Hunt, a passenger, states that he, his wife 27 years of age, with a child and two relatives, embarked on board the brigantine the 14th May : that neither he or his family had a berth excepting his wife, who was nearly starved with cold, and was permitted for three nights to s^eep in the cabin : that during the first ten nights, they were obliged to sleep between the berths ; and at other times in the long boat upon deck. For the last three weeks of the passage, he says that they lay in the hold on some ropes, where the child he had with him died, and where his wife was delivered of an- other! He does not know the exact number of pas- sengers, but he says that there were more than seventy grown persons, and upwards of thirty children, exclu- sive of children who died on the passage. Walter Stiensin swears that there were at least 140 passengers, and that though he was promised a berth by the owner, a Mr. Ellis of Dublin, he was obliged to sleep in the long boat on deck by which he lost his COUIIT OF VICE ADMIRALTY. 167 health and is now extremely ill. Me snys that he paid four guineas to the owner for Iiis own and cousin's passage. Tiiodgh it appears that the passengers far exceeded the number restricted by the statute, which is " one " (idult person^ or three children under 1 4 years of age, "for every one Ion and a half of that part of the ship or " vessel remaining unladen." Yet 1 hey all differ as to the precise number, which is not to be wondered at, con- sidering the crowded state of the ship. However, the testimony of Mr. Fife, the custom house officer, who boarded the brig on her arrival, and who counted the passengers in the presence of Clifford, the other wit- ness, enable the court to say with correctness that there were, exclusive of the crew, ninety seven grown per- sons, and forty four children, that were brought from Dublin in the brigantine William, a vessel of only nine- ty three tons burthen. Mr. Fife states that the ship was so filthy, and the smell between decks so offensive, that he did not venture to go below. These are the facts which this informant discloses, and certainly the case is a deplorable one. It is in vain that the civilized nations unite to abolisb the slave trade, and to mitigate the miseries of mankind, if, from the vile passion of avarice, which is " semper injinita, insaliabiUs" a traffic like this is permitted, with impu- nity, to be carried on between our shores, by which numbers of our fellow-subjects are taken hoodwinked from their homes, and consigned to miseries which can be compared only to those of the black hole of Cal- cutta. Happily in this instance, the mortality was not great, considering the crowded state of the ship; but, had the weather been warm and the winds less favora- 1833 Wilson V. NoRRU. iil.^^l n .i^t_^_ 168 I 1623. Wilson V NORRII. CASES IN THE COURT OF KING'S BENCH ble, I do not think that one of the number wouhl have lived to tell the tale of their sufferings. Following the dictates of my heart and understand- ing, I find the fact and the law with the informant, and the facts being proved, the law points with unerring hand to this conclusion, that the penalties for the re- covery of which the informant proceeds in demand, have been incurred, and I decree that the sum of £^500* sterling, be paid by the defendant, William Norris, one moiety to His Majesty, and the other moiety to the informant. * I ■ •V 18th April and 19tli June, 1824. ■I 1 I I . ExpARTE upon the Petition of Samuel Neilson /or a Writ of Injunction and a Mandamus, The court JLN the year 1764, William Brown and Thomas Gil- "T^lndamt!^^ more established in Quebec, with their own funds, on to the sheriff the assurauce of a list of subscribers previously ob- saie of lands taiucd. a newspaper intituled ** The Quebec Gazette." and tenements &8 QirOCtGQ uV th'd ordinance 25th, Geo. III. c. 33. to be advertized in a newspaper intituled " The Quebec Gazette," wbcre it is not shewn that there is no other specific legal lemedy. _ Nor will the court grant an injunction to the King s printer onjoininj|r him not to advertize the sale of lands and tenements under the same ordi- nance. * An action having been subsequently instituted in the court of King's Bench upon the above decree, judgment ^vas rendered on the 16th day of October ] 823. dismissing the action, upon the ground that the court of vice admiralty had no jurisdiction in such cases. FOR THE DISTRICT OF QUEBEC. 169 Brown subsequently purchased Gilmore's share of the i®*** establishment and afterwards was appointed King's exhartb printer with a salary. After his death the establishment s. Neiuon. was purchased by his nephew Samuel Neilson, viho continued the newspaper without however any com- mission, and left it, by his will, to his brother John Neilson. On the first day of May \S2'2. John Neilson sold his printing establishment and his right to ihe Ga- zette to his son Samuel Neilson and William Cowan. On the third day of July 1822, Samuel Neilson obtained a commission as King's printer and he continued to print the paper for his benefit, and that of William Cowan, his partner, in the printing establishment. Subsequently to the establishment of this newspaper, and during its publication, various ordinances and laws were passed in this province requiring certain public advertisements to be inserted in the Quebec Gazette, but particularly the ordinance 25th, Geo. III. c. 2. § 33. which is as follows :— " When lands " and tenements shall be seized by the sheriff, under " a writ of execution, he shall advertize the sale " thereof, three several times, in the Quebec Gazette, " to be on some certain day after the expiration of " four months from the date of the first advertize- " ment, and proclaim the said sale at the church door *' of the parish in which the premises are situated, " immediately after divine service, on the three Sun- " days next preceding the sale ; and cause a copy of " the said advertizement to be fixed on the door of the " parish church ; and that lands en roture shall be sold " at the door of the church of the parish where seized. " And the sherifi' is hereby further required, to adver- " tize, immediately after the seizure, that all and every M ^t| WIf n ill u "f ' ^ ! ;; '.\ i' '. ; t 't 1 li, '1 il ' 1 ; i; ,j lib 170 1824. EXPARTB S. Neilson; CASES IN THE COURT OF KING'S BENCH cc person having any claim on said lands and tene- " ments, by mortgage, or other right or incumbrance, " do give notice thereof at his office, either before or " after the sale, where the law makes a distinction, «* and to remove all doubts, the sale then by the she. «* riff, without any other formality, shall have the «« same force and effect as the decrel had heretofore." From the time when this newspaper was establislied the notices, required by law to be published in the Quebec Gazette, were in fact published therein at prices agreed upon with the execulive government, except when diminutions of such prices were volunta- rily made by the proprietors. On the 30th day of October 1823. Joi.n Charlton Fisher, of the city of Quebec, Doctor of Laws, there printed and published another public newspaper styled " The Quebec Gazette" and advertised therein the sales of lands and tene- ments as required by the above recitecl ordinance to be inserted in the Quebec Gazette. The above facts were established by the affidavits of John Neilson and Samuel Neilson. Sewell, Ch. J. We have before us a motion on the part of Samuel Neilson for a writ of mandamus, directed to the sheriff of the district, commanding him to cause to be printed in a newspaper which is printed and published by Samuel Neilson under the title of " The Quebec Gazette'* all advertizements required to be published in the execution of his office when Ian Is and tenements are seized to be sold by decret. This motion is founded upon affidavits made by John and Samuel Neilson in which it is stated that in the year I7G4. William 3i;own and Thomas Gilmore esta. L'ished in Quebec with their own funds, a newspaper FOR THE DISTRICT OF QUEBEC. 171 intituled " The Quebec Gazette." That William Brown sub':equently purchased the said Gilmore's share of the estabJishment. That on the death of the said William Brown the said establishment was purchased by his nephew, Samuel Neilson, who continued the newspaper and left it by will to his brother John Neil- son. That on the first day of May 1822. John Neil- son sold his printing establishment and his right to the Gazette to his son Samuel Neilson and William Cowan, and that since that period the said paper has continued to be printed by the said Samuel Neilson and William Cowan for their benefit. It is also stated that during the whole of the time since the establish- ment of the aforementioned newspaper the advertize- ni'^nts required by the ordinance ?5, Geo. III. c. 2. {o.. to be published in the Queoci Gazette when lands and tenements are taken in execution by the sheriff were piiblished in the paper printed under that title by Samuel Neilson and his predecessors. The inference drawn by the applicant Samuel Neilson from the facts thi's stated is this,— that by a just construc- tion of the ordinance in his favor, the sheriff ought lO be restrained from publishing his advertizemenis of [sales by decret in another paper which is also intituled •* The Quebec Gazette" and is published under the au- thorify of the Crown by His Maj-^; ty*s printer, and the \mandamus is asked to restore him to the right of printing all such advertizements upon the ground that title to the Quebec Gazette originally printed by Brown and Gilmore is vested in the a|:^licant and that the ordinance directs the sheriff's advertizements of sales by decret, to be inserted in the Quebec Ga- zette. 1824. Exi'ARTK S. Neilson. i ^ 111 .<*>' lliW'\ ' Ml ill 11 >■ » - f J ' - f •■Ml -l m ■I \ f V iiifii .^1 m f •ii* 't jii ! if II ■: ■ ;; 1 - ■ 1 ^■'! ■^ N M j ' -i jJ, i i '■i.jL Mliii! ^72 CASES IN THE COURT OF KING'S BENCH ^^^ Ine writ of mandamus is a prerogative writ to ExPARTB which the subject is entitled upon a proper case shewn b. Neilson. to the satisfaction of the court. The object of this writ is to prevent disorder from a failure of justice, / and it is used where the law has established no specific remedy and when in justice and good government there ought to be one. (a) There is however a great deal of difference between a mandamus to admit and a mandamus to restore, the former is granted merely to enable the party to try his right, as he would, otherwise, be left without any legal remedy. But the courts have always looked more strictly to the right of the party applying for a matidamus to be restored. In these cases he must not only shew that there is nc other specific legal remedy. He must also s!ic a prima facie title in himself to the right whicii lie , claims, by laying before the court such facts as will warrant them in presuming that the rr-^it is ini hmi, (^) Lord Mansfield has expressed tr.? i ile in this respect in very few words in the case of The KinA V. The Bank of England, ** Where an action" says his Lordship, " will lie for complete satisfaction equi. " valent to a specific relief, and the right of the| " party applying is not clear, the court will not inter- ** pose the extraordinary remedy of a mandamus" {c)\ How can the right of the party applying in this| case be said, from the facts laid before us, to be clear, when he has, himself, impeached that right hy accept- ing and acting in the exercise of it under a commis- sion from the Crown appointing him to be printer to| (a) Rex V. Barker, 3. Burr. 1265. {h) The Kin-r v. Jotham, .'}. T. R. 575. The King v. the Archbishop cf| Canterbury, 8. East. 219. (f) Douffius, 526. FOR THE DISTRICT OF QUEBEC. 173 \ i Al the King ; when it is not sworn in any of tlie affida- vits that the original printers of the paper were not in the service and pay of the Crown, as printers to the King, when t'le ordinance was passed upon which he founds his right, and it is sworn that the prices paid for printing the sheriff's advertizements have at all times been settled by agreement,— not with that officer, — but with the executive government ; when it is not sworn that any righfc or title to Brown and Gilmore's Quebec Gazette, was ever vested, by any transfer of any description, in Samuel, the brother of John Neil- sou, from whom he derives his own right and title by the will of Samuel and the assignment of John, it being sworn that Samuel purchased the establishment and no more. ' • ■ - Or, can we presume the right to be vested in him when from the deposition of John Neilsou, it is appa- rent that the right, — if any there be, —is vested in him and one William Cowan jointly. Upon the ground, therefore, that the party apply. ing for the mandamus has not laid before the court such facts as will warrant us in presuming that the right claimed is in him ; and upon the further ground that he can try his righi,— if he has been legally dispos- sessed of it without colour of title, — by an action for money had and received fo.* the profits, (a) or by an in- formation in the nature of a quo warranto, — Li'what he claims is to be considered as a right to eyecute an office, and any other person is in possession of it with an apparent title,— (^) which of itself is a decisive an- swer to the present application for a mandamus. (a) Rex V. Jotham, 3. T. R, 575. (b) Rex V. the Mayor of Colchester, •^. T. R. 259. 2 A 1A2'1>. EXPARTR S. Meilson. 1 JL >*j !t#iifr 174 1824. ErPARTB 8. Neilson. CASES IN THE COURT OF KING'S BENCH A motion has also been made in this cause for an injunction commanding and enjoining John Charlton Fisher, his servants, workman and agents to desist from printing aid publishing in the Quebec Gazette (a paper purporting to be printed by him as printer to the King) the advertizements by law required to be published in the Quebec Gazette, when lands and tenements are seized by the sheriff under writs of execution ; and the same affidavits are offered in sup. port of this motion for an injunction as are offered in support of the motion for a writ of mandamus. But admitting that by law the advertizements of sheriff's sales must necessarily be inserted in the Quebec Ga* zette, prim ed by Samuel Neilson, will it follow that John Charlton Fisher has not a right to insert the same advertizements in the King's Gazette if he see fit to do so ? — It is plain that there is no ground whatever for the injunction which has been asked. It is ordered therefore, that Samuel Neilson take nothing by his petition for a mandamus, or by his motion for an injunction. Peddie against the Quebec Fire Assurance Company. SOth June, 1 824. T •„.....«„- * "^^ ^^''*^ * ^*^® "PO" * policy of insu'-ance against •ffainst fire tire. Ihc plaintiff insured the sum ot i'aiO upon his pnythe whole of any Iota which does not exceed the amoant innared although the good* ioiured bo of greater ralue. FOR THE DISTRICT OF QUEBEC. 175 furniture, which was admitted to be of the value of £722. By fire so much of his property was consumed as amounted to £190, and this action was brought to recover the entire sum of £350, wliich the plaintifl had insured. The defendants paid into court £238 19s. Jd. as a sum which bore the same proportion to the amount of the loss, that the sum insured bore to the whole va- lue of the furniture insured, and contended that they were not answerable for the same. This cause was argued in the last term, and on this day the unanimous opinion of the court was delivered by the Chief Justice, as follows : The lule as to the construction of contracts in gene- ral is to give to language its true effect, according to the intention of the speaker or writer, as inferred from the whole expressions, and the nature of the occasion to which they are applied : and policies of insurance are to be construed by the same rule, unless by the known usage of trade, or the like, particular words or particular expressions have acquired a peculiar meaning and import distinct from their ordinary and popular sense. The policy of the Quebec Fire Insurance Com. pany commences in the following words, viz : ** This policy witnesseth that A. B. (the person insured,) has paid into the office a sum certain, in considera. tion that he, the person insured, in the event of any " loss or damage by fire upon the property in the poli- " cy particularized, named and described, in the place " or places herein set forth, and not elsewhere, shall " have a claim not exceeding the sum or sums insifred," and this is followed by a specific engagement and co- venant on the part of the company, in consideration of the premium so paid, which is in the following words, i< II II 1823. Pedoir 1;. TiiR Quebec FiKE Assu- rance Com- pany. ■' t^i «t, I Mr'4 '')> ■It ;• i ' +'. J ! '4' 176 CASES IN THE COURT OF KING'S BENCH win 1824. . \ 1.1 Peddik V. Thr Quebec Fire Ahsc- ■jINCr Com> PAJiY. viz: " The Qtiebec Fire Assurance Company do here- *• by promise to pay, make good, reinstate, and satisfy '* unto the said insured, his heirs, &c. all such damages ** or loss as sfiall happen by fire to the property des- " cribed, not exceeding the sum insured." From these extracts it appears, giving to the language used its true eflTect,— that the premium of insurance is paid by the insured, in consideration that he shall have a claim in the event of any loss or damages occasioned by fire, to the property described in the policy, and that the insurers undertake to pay and make good all such dam* age or loss as shall happen by fire to the property in. sured, within the value of the sum insured ; yet it is contended in this case, that the insurers are liable to make good a part only of the sum insured, notwith* standing the amount of the loss and damage actually sustained upon the property insured, is more than the amount of the sum insured; that a certain proportion only of the value of that property was insured, and con. sequently that the claim of the plaintiff for the loss and damage he has sustained must be calculated with reference to the whole value of the property upon wrhich he insured, and must bear the same proportion to the amount of the whole loss, that the whole loss bears to the whole value of the property insured. It is a strong conclusion againct this pretension that the there is no instance of a similar demand to be found in the books in any case of insurance against fire. The construction contended for might perhaps obtain, if an insurance against fiie was held in law to be merely an insurance of things in se, to which the policy refers ; for, in such case if i/iOO was insured generally against fire upon a library of 1000 volumes, each being of tli^ 1*1 FOR THE DISTRICT OF QUE13EC. value of 20s. the insurance would necessarily apply equally to every volume, and consequently every vo- lume being insured for one half only of its value, the loss of 500 volumes by fire would render the insurers liable for the sum of £^250 only. But in point of fact, an insurance against fire is held in law to be a contract of personal indemnity, by which the insurer undertakes to guarantee tJie person insured against all loss and damage which he may sustain by fire upon the property insured, to the amonnt of the sum insured. There is certainly a great dearth of au- thorities and cases upon the contract of insurance against fire, but there are enough to establish this point. 13y the contract of insurance against fire says the late Mr. Serjeant Marshall, in his Treatise on Insurance, (a) the insurer, in consideration of a certain premium re- ceived by him either in a gross sum or by annual pay. inents undertakes to indemnUy the insured against any loss or damage which he may sustain in his houses, goods or merchandize by fire, during a limited period of time. A policy of insurance says the Lord Chancel- lor King, in the case of Lynch v. Dalzeli, (0) is merely a special agreement with the person insuring, that the insurer indemnify him against such loss or damage as he' may sustain by fire, fiut the language of Lord Hardwicke, in the case of the Saddlers* Company v. Badcoclc, (c) is ihe most in point. The Society of the Hand in Hand office, (says his Lordship,) are to make satisfaction in case of any loss by fire. But to whom, and for what loss are they to make satisfaction ? Why to the person insured, and for the loss he may have 177 1824. Peddib v. The Qufrro FlKB Assv- RANCr. CuM- PAXY. :■■'•'> ;'Ur ili^ \ I 1' ;i .:t'J' l« ;'■*;! Ki' (a) Vol. 2. 78i. (/>) i. I'lown P. C. 43J. Tomliii's edit, (r) 2d Atkyns, itoi. ri- 't f I '-i i J i, ! 178 1824. Feddib V. The Quebec Fire Assu- rance CoM« PANY. CASES IN THE COURT OF KING'S BENCH sustained. It cannot properly be called insuring the thing, for there is no possibility of doing it, and there, fore it musi mean insuring the person from damages. The writers upon our own laN^ have scarcely touched upon the contract of insurance against fire, but as far as they have gone, they perfectly coincide with the opinions expressed in the authorities which have been cited. This will be seen upon reference to Lecamtis' Denisart, v. Assurance, (a) and Pothier's Conirat (^ Assu- rance, (b) Upon the whole we are of opinion that the plaintiff is entitled to recover from the defendants in this ac* tion, the whole amount of the loss and damages which he has sustained by fire, according to the declaration. And the judgment of the court, therefore, is for the plaintiff. ^\ •» ;. / .^ (fl) Sec. 1. No. 1. (b) No8. 2. 3. 4. In insurance agfainst fire the insurers usually stipulate in the policy, to pay the whole of the loss which does not exceed the amount insured; that is, if one thousand dollars be insured on furniture, goods, or a house, worth two thousand dollars, and damage happen by fire to the amount of one thousand dollars, the insurer pays for the whole dama<|fe ; whereas ac- cording to the principles of adjustin<; a partial loss under a marine policy, he would pay for but half of it. — Phillips on Insurance p. S75. in notis. r. ' JIM,,,, i ''^' „••«> »■■*■ \ t' J (^ S ' */. } -■'>■•■ .;» ■ ' If- : 'v^i.^' ^ - ■|i| ;v ■,> FOR THE DISTRICT OF QUEBEC. ; ■ ' h 179 William Price against Michael Henry Perceval. ■ ■ ;i n it 6th Sept. 1824. This case was called for the adduction of evidence in an ac before the Chief Justice and Kerr Justice, when coUecforof * Black, of counsel for the plaintiff, called upon the the customs, to '■^ » r » I recover back defendant to produce various documents pursuant to moneyexacted by him as tees notice : of offico, he is The Advocate General and Primrose, for the defen- "«» entitled to one months dant, objected that, as it appeared by the bill of parti- notice of ao- culars, the action was brought to recover back sums Vorcanhe of money demanded and received by the defendant *''•'?''* ^Ij."' •f •' such action from the plaintiff, as fees of office due and payable to should have the defendant as collector of His Majesty's customs n*encedwithio at this port; and that the sums of money, so sought fJomtheTime to be recovered back, were stated to have been re- when such ceived by the defendant between the fifth of May and ®®'^*''*P" • the eighteenth of November 1823, both days inclu. sive : — 1. No evidence could be received until the plaintiff had proved one month's notice of action under the statutes 23rd, Geo. III. c. 70 ; 24th, Geo. IIL sec. 2, c. 47 ; and 28th, Geo. III. c. 37.— 2. That under the provisions of these statutes the action should have been commenced within three months next after the matter or thing done. The action was brought to recover back money, either wilfully or inadvertently taken by the defendant as fees of office, and being brought against him as a custom house officer, for an act done by him colore qfficit, or by reason of his office, he was clearly within 1 ' i: '.I i - ; : : — 14 ::l 1 " , , 1 ;; ' it ' L Bki •\ ill 180 1824. Prick V. Percetal. CASES IN THE COURT OF KING'S BENCH the provisions of ilie statutes in question. The act was not merely intended to protect persons actin«; within the strict line of their duty, but to protect them from the consequences of any excess, inad\er* tently committed in the exercise of their oflice. TIjc fees of the officers of the customs were established by various acts of the Imperial Parliament, and having such legal foundation formed a part of the office to which they belonged. This action was not merely for a non feasance, but for a misfeasance, in taking more than the defendant was entitled to, for it was admitted that he was entitled to some fees ; upon the whole it was contended, that although these formal objections might be considered as evincing a disposi. tion, on the part of their client, to evade the main question, they felt themselves bound by professional duty to take them ; and moreover they were sup' ported by the case of Greenway v. Hurdj (a) where in an action brought against an excise officer, to reco- ver back duties paid after the act of parliament im* posing them had expired, such notice was held neces. sary. They also cited Saunders v. Saunders (b) and concluded by stating that as they considered these preliminary objections decisive in their favor, they desired that they might be disposed of before pro- ceeding to the examination of the witnesses ; for, the act of parliament peremptorily enacted, that no evi- dence whatever could be received, until such notice should have been proved. The court therefore were bound to give their opinion, in iinine, whether or not \ (a) 4. T. R. 333. (&) 2. East 253. * , ■■« FOR THE DISTRICT OF QUEBEC. i the ilefenilant was within the protection of these acts of parliament. Blad't for the plaintifT, said that the acts in ques- tion did not afford the defendant the protection which he claimed. The public interest required that offi- cers of customs and excise should be protected in the discharge of their duties for all acts by them done bond Jide for the enforcement of the laws of customs and excise ; even when according to the strictness of the common law they would be liable to damages. Without such protection it was obvious that frauds on the public revenue might be committed in various forms with impunity. But this protection was con- ferred upon them, not for their individual benefit, but for the purpose of securing the full and just execution of the laws of trade, shipping and revenue. No such consideration of public policy can apply to the fees to be received by these officers for their own services in the discharge of the duties imposed upon them. There was no reason why, in respect of such fees, these offi- cers should not be under the same liabilities, both civil and criminal, as are all other officers under the King's government. It was not of an improper exer- cise of authority in the enforcement of the revenue laws of which the plaintiff complained ; nor, as in the case of Greenway v. Hurd, for an abuse of tiie discretion in the defendant j but it was for exacting and receiving money as due to him for fees, to which by law he had no title. The act complained of was not done by reason of his office, virtute officii^ but by color of his office, colore qfficii, which was the true distinction on such occasions. On general reasoning therefore, the objection taken could not be supported. 2 B 181 1824. Pricb V. Perceval. J ■f '(■' 'M. ^-«» ;''*,'( :if m ^ ^ IMAGE EVALUATION TEST TARGET (MT-S) h /. II I.I 11.25 « m^ warn £ li& 12.0 u IIPss 1-4 ILd 6" VQ ^^*' ^ ^> HiotDgraphic .Sciences Corporation ^v ^\ < •ss <^ • V recover the amount of an excessive charge made by the defendant as a collector on a distress for arrears of taxes, and it was held that the defendant was not entitled to a month's notice before action brought. I am, for these reasons, of opinion that the objection which has been taken by the defendant must be overruled. Kerr, Justice. The question appears to me, upon the short time I have had to consider it, one of great importance, as connected with the duties of a high public officer, and, in the absence of direct authorities, I cannot without further consideration represent myself as master of the subject. No order was made, but the question was reargued in the term following and the objection overruled by the whole court. Ill m 18th & 19th January. 1825. On Appeal from Montreal. Fleming.... Appellant. and The Seminary of Montreal, Respondent, of twTmem- ■■•N this case the corporate existence of the Seminary '""t**^in*th ^^ Montreal was involved, and its competency to exer. degree of reia- cise seignioral rights over the island of Montreal de* tionship of brothers in- law, cannot be reckoned as one under an edict of 1681, and a declaration of the King of Franco of 1708. COURT OF APPEALS. 185 ■^0 nied. It was argued in the term of January 1824, but ^^25. no decision was rendered, and the court ordered a re- hearing, the court being then equally divided in opinion. A rule upon the appellant was obtained to shew J" Montreal. cause why the opinions of two members of the court, viz: the Chief Justice of the province, and the Ho- norable William Smith, brothers in-law, should not be reckoned as one, and why judgment should not ac- cordingly be entered up in affirmance of the judgment of the court below. Bedard and Vallieres de St, Real, in support of the rule, contended that by an edict of January 1681, and a declaration of August 1708, (a) the King of France had directed that the opinion of all judges, bearing to each other the affinity of father in-law, son in-law and brother in-law should, when uniform, be reckoned but one opi* nion. These laws having been enregistered in the Cofi- sell Superieur of Quebec, were in force in this country. That they were only declaratory of the common law of ."\ France. That the two honorable judges before men- tioned came within the operation of those taws, and a majority of votes being thus established in favor of the Seminary, that judgment should be rendered confirm. ing the decision of the court of King's Bench at Mont- treal. (&) That the functions of judges in England materially difiered from those of judges in Canada. In England their labors were applied to the interpretation of laws, the facts being ascertained by a jury, Dejure respondent judices, de facto respondent jurat ores. On the contrary the judges in this country enquired con- cerning the facts as well as the law of a case. That < i ti t t*l jikmi! («) Edits and Ordon. 397. (A) Ravaut 128. Poth. Proc. Civ. 90. 186 CASES IN THE PROVINCIAL 1825. Ui \\ they are recusable in the like manner as in England jurors are subject to be challenged. Buchanan, contra, argued j 1. That these edicts of the Fleming V OF MoxNTBEAL. FrcHch King had been rendered wholly inoperative by the judicature act, 34 Geo. III. c. 6. § 53. which, in erecting a court of appeals, qualified all the members of the Executive council to be judges of that court, with the single exception of the judges who sat in the same cause in the court below. This sole exception shewed the generality of the rule, according to the maxim, exceptio Jirmat regulam. 2. That these laws of the French King could not be enforced without an- nihilating or at least abridging one of the King's high- est prerogatives, which consisted in naming without controul, all officers to adipinister justice in his do- minions. ^ w. As to the royal prerogatives, it was a well settled distinction, that the King exercises over a conquered country, the major or transcendant prerogatives an. nexed to the Crown of England, and that the local jurisprudence of the subjected dominion regulated the minor prerogatives of the Sovereign, (a) One of the noblest attributes of the King of England was that of being considered the fountain of justice, a prerogative which he could not exercise without the unlimited power of appointing his officers, of whose fitness and capacity he was, according to the law of England, the only proper judge, (b) The recusation of judges, although not now permit- ted in England, was formerly practised according to (a) 1 Black. Com. 239. Cliitty ou Trcrogr. S?5-6. (b) Cliitty, 0-76. Bac. Abr. v. Picrogative D. 3. p. 531. F. 1. 378 lb. v. coiiits. B. 07. COURT OF APPEALS. 187 the jurisprudence of that country, the earlier writers stating distinctly that judges could be recused or chal- lenged for good cause. It does not appear that they departed from this practice because the judges had not the power of enquiring into facts, a reason which would have applied at a period long anterior ; but be- cause such a proceeding was deemed derogatory to the dignity of the judges, and subversive of that vene^ ration for them which the law of England has for its policy to inculcate upon the people. («) Allowing our judges to be assimilated to jurors, it does not appear that affinity in any degree between two jurors would be a reason of challenge to one of them. In Scotland, where a similar system of administration had prevailed, recusation ratione suspecti judicis had never been ex- tended to consanguinity or affinity between members of the court, such a relative situation of a judge to one of the parties being there the utmost extent of this species of challeu're. (b) In truth the necessity of such a regulation in France might be easily imagined, a coun- try where judicial offices were venal, (c) and might be purchased to any extent by persons of the same family ; but in the British empire the same reasons could not be alleged in favor of such a principle, as the King ap- pointed his officers from a consideration of their indi- vidual integrity and ability. Fallieresde SL Real, in reply: — There could be no implied repeal of the edicts by the judicature act, as those laws could well subsist to- gether, the latter merely erecting a court of appeals (fl) 3. Black. Com. 361. 2 Bac. Abr. Courts 97." ' ,. , (I}) Erskincs Instit. 32. (c) 2 Domat. 154. 1825 Fleming TIIF SriWINATlY OF MONTUEAL. ! I mm ''f 188 CASES IN THE COURT OF KING'S BENCH 1885. the former only directing the mode in which all courts should administer justice. I admit the King's attri- bute, as fountain of justice, it is a prerogative which Fleming V. THE Seminary e • • • vu ^u tt- ,• OF Montreal. 0"^ oovereign enjoys in common with the Kmg ot France, and other princes. But I contend that there was nothing in that prerogative which exempted His Majesty from administering the laws according to the jurisprudence of this country, that jurisprudence which the late King by the i4th of his reign had bound himself \ to observe in the Province. If there is no analogy be- tween the office of judge in this country and that of jurors in England, there is at least, similitude between a sheriff considered as a judicial officer in England and our judges; and it could not be denied that suspicion of partiality in a sheriff was a cause of challenge to the array. The present application differs from recusa- tion, as it does not tend to exclude the judge from his seat, but went only to regulate the weight which his opinion should be entitled to under peculiar circum. * stances. The court, having taken time to consider of its judg- ment, made an order that the respondent should take nothing by the rule. / m FOR THE DISTRICT OF QUEBEC. ' I ^' / • 4 / ^.-'i^ .'i-;>"5 189 Price against Perceval. 18th April, ito' 1825. No fee of 1 HIS was an action for money had and received, _ brought by the plaintifr, against the defendant, to exacted b^ a recover back the amount of certain sums of money JUiegg Jsta-*"^ M-hich had been claimed and received by the defen- H'**'"'.*^ ^Y '"- n , gislative dant in his capacity of collector of the customs, at enactment, or the port of Quebec, as lawful fees of office, under the ii8age*wbW;h authority of the 27th section of the British statute, Fesupposes •' ' . the sanction of 5th, Geo. III. cap. 45, which, " in order to prevent legislative au- any disputes concerning what fees the officers of His Thraction Majesty's Customs in the British colonies or planta- for"ioaeyhad. _ •' •' _ * . and received tions in America, may be entitled to, for making will lie forcx- entries, or other business done by them in the exe- paid To cu" cution of their employments," (until such time as the t»'n'»o"seoffi- tr J ' \ cer8,andin the same shall be otherwise settled by the authority of name of the parliament, and provided also that the fees taken are vessel a?- '^ not contrary to the expres? direction of any act of by'S^master. parliament made in Great Britain,) enacts, *» that in . Th« impe- all and every port or place on the continent of Ame- 5th, Geo. in. rica within His Majesty's dominions, where no fees thatVhe*e*io have been received by any officer of the customs, fees have been such officer shall be entitled to the same fees as have a colony of '" been received by the like officers in the nearest port the^cus^oin'"' in the said colony or plantation, on or before the 29th ''<»"*« officers there shall bu entitled to re- ceive such fees as were received by the like officers in the nearest port in any British colony before the 29th bepteraber 1764, and the court will take notice of the relative geographical positions of countries to ascertain that port. Q C m ]n (* : ;; 'J ■ l; 190 1825. Price i». Perceval. CASES IN THE COURT OF KING'S BENCH (lay of September 1704, and if no fees have been received by any officer in any port in sucii colony or plantation, such officers shall be entitled to such fci^s as have been received by the like officers in the nearest port within any British colony or plantation, on or before the said 29th day of September J 764." The plaintiff averred that the fees taken by the de- fendant were exorbitant, and that they had been rc> ceived without any lawful or sufficient authority. Black, for the plaintiff,-- T/ze Advocate General, Vallieres de St, Beat and Primrose for the defendant. Sewell, Ch. J. This case has been extremely well argued on both sides, and is now to receive^he final de- cision of this court upon the merits. Objections have been made to the form of this action, but the case of Stevenson v. Mortimer which was cited at the bar (a) shews that the action for money had and received lies, <* for exorbitant fees paid to custom house officers," and *' that it is well brought by the owner of the ves. sel upon which they have been paid by the master." The same case, coupled with what is said by Lord Kenton in the case of Irving v. Wilson, (Jb) shows also, that money taken by officers of the revenue, which they are not authorized to demand, ** cannot be called a voluntary payment." Objections have likewise been urged against the evi- dence which is before us. It has been said that the fees to be taken at the port of Quebec are those which on the 29th September 1764. were taken at the nearest port, and that Halifax ought therefore to be proved to (o) Cowper 805. {b) 4. T. R. 463. FOR THE DISTRICT OF QUEBEC. 191 I ,:,i ( 1 be the nearest port $ and it has also been said, that nothing but the original table of the fees taken at Hali- fux can be received in evidence. To the first it would probably be a sufficient answer to say, that there are many facts of public notoriety which courts of law are bound to notice without strict proof, and that of these the relative geographical positions and general limits of Provinces, inter se, must be one : as Halifax therefore was the only port of Nova Scotia in I764i, and as Nova Scotia at that period included the present Province of New Brunswick and consequently was bounded by Canada, if we measure by land, the port of Halifax,— being co-extensive in its limits with the Province of Nova Scotia, — was in this view of the subject, in the year 1764f the nearest port ; and if we measure by water, which seems to be the proper construction, Halifax, if even locally considered, was still the near- est port, as it was the first at which a ship would arrive in a voyage from Canada along the sea coast of the then British provinces in America. It is not, however, necessary to have recourse to any legal pre- sumption of this description. For although it be true, as was argued, that the best evidence is to be given that the nature of the case admits, it is equally true that the strongest possible assurance of a fact is not required j and that when a defendant, against whom it would otherwise be requisite to pioduce particular proof of any fact, has by his own conduct precluded himself from disputing that fact, strict proof is not required, (a) Now in this case, the defendant founds his right to retain the money which is demanded, as 1S5J5. PnicB V. Perceval. . li (a) 2. rhilHps on evidence, 209. 215. 192 CASES IN THE COURT OF KING'S BENCH 1825. 'I ' much upon the Halifax docket or table of the fees taken at the custom house of that port on the 29tii of September 1764. as upon the statute 5th, Geo. III. cap. 45, and no other than the Halifax docket is in evidence on either side. The copy of this docket or table of fees (on which the plaintiff relies, "m well as the defendant) has been piaduced and fyled by the latter upon notice from the plaintiff to produce it ; and it is in evidence that this copy has been for many years suspended publicly in the custom house at Quebec, as the tariff' of the port, and was upon many occasions referred to by the defendant personalij/t as his authority for the fees which he claimed and re. ceived ; and this conduct is an admission on the part of the defendant that Halifax on the 29th September 1764. was the nearest port ; for if this was not the case, he can have no right to fees upon the authority of the Halifax docket. This conduct of the defendant is also an admission that no fees were taken at the port of Quebec, or in any other port of Canada, before the 25th September 1764 ; and consequently an answer to another objection which he has made to the evidence before us, by which it is urged, that as he is charged with a breach of duty, it was incumbent on the plain, tiff to prove this charge, though it might involve a negative, and that the plaintiff under the statute 5th, Geo. III. cap. 45, was bound to prove, that 720 fees were taken at the port of Quebec, antece- dent to the. 29th September 1764; for, if any fees were taken at the port of Quebec, or in any other port of Canada before that day, the defendant can have no right to fees upon the authority of the docket of a port in another province. It is an answer also von THE DISTRICT OF QUEBEC. 199 to the argument which has been raised upon 10th, Geo. III. cap. 37, and the 45lh, Geo. III. cap. C8, by which the former statute is made perpetual. For although these statutes declare, " that the officers of the customs in the colonies may lawfully demand and receive such fees as they and their predecessors res- pectively were and had been generally and usually accustomed to demand, takt and receive before the QOlh of September I7G*." yet if no fees were taken by the custom house officers of the port of Quebec before that day, these statutes can have no bearing upon the question now before us. • t ^ • ^ ■ To the objections which have been made against the admissibility of the proceedings had in the Legis- lative Council and Assembly, in evidenrt, we do not deem it necessary to advert. We are of opinion that the question before us is an abstract i'.estion of ?jgal right, as to the several fees whicli appear from the parol testimony adduced In the cause to have been received from the plaintiff by the defendant; and there- fore a question which, without reference to these pro- ceedings, must necessarily be decided by the statutes which relate to the subject, and by the Halifax docket, which for the reasons before stated, we hold to be legally in evidence before us. The establishment of fees to be taken by the officers of any government, is an act of legislation and in its effect an act of taxation. It is a declaration that such officers shall not be obliged to discharge the duties re- quired by law, in their several stations, without a fixed reward; and as this reward is to be paid by the subjects of the government, it is to them a prescribed rule of action, which they cannot but obey when the execution 18»5. I'rice V. Perceval. 1 w 194 CASES IN THE COURT OF KING'S BENCH 1825. r\ : li 1 ^ ■ m^ '!: Price V. Perceval. cf the duties so required is asked on tiieir behalf; and a tax because their obedience to this rule of action un. avoidably takes money from their pockets. With us it h not in the power of the Crown to create any new offices with new fees annexed to them, or to annex new fees to old offices, (a) So that fees, to speak general- ly, must either be estabiislied and ascertained by legis- lative enactment, or by ancient usage which presupposes the sanction of legislative authority. (A) And with respect to custom house fees, this is particularly true, not only in the parent state, but in the colonies. By the 12th Car. II. cap. 4. sec. 7» it is enacted, " That officers of the customs in the several ports where tiie goods exported or imported amount to the value of five pounds or more, shall take and receive such fees,— and no other, — as were taken in the 4th year of the late King James, until the said fees shall be otherwise scttkd by the authority of parliameni. By the 24th article of ** the rules, orders, directions and allowances." annexed to the same statute, (c) *' for avoiding all oppressions by any of the officers of the customs in any poit of this king- dom, in exacting unreasonable fees from the merchaiit, by reason of any entries, or otherwise touching the ship- ping or unshipping of any goods, wares or merchandize ; it iis ordered, *• that no officer, clerk or other, belonging to any custom house whatsoever, shall exact, require or receive any other or greater fee of any merchant, or 1 1 1; i (a) 2 Inst 553. 1. Black. Com. 272. (*) Chitty on Prerogative 81. (c) Ofthese rules, &c. the 13tb, 1 8tb, 19th, 22nd, 24th and 25th, are rc- euactcd by the consolidation act 27. Oeo. III. cap. 18. sec. 1st. 32d. 33d. aLd 34'th. — See the statute aud Nodins* British duties. Under the authority of this section of the rules and orders, a book of fi*es for the Custom house, M'as established, A. D. 1G()2. by the House ut' Coiuuions, and si;;ncd by the S|ioal5, which has already been stated at large, it is enacted, that the fees which custom house officers in the British American colonies are authorized by that act to receive, and " may be entitled to for making entries, and other business done by them in the execu- tion of their employments, shall be by them received until such time as the same shall be otherwise settled 1825. Phice V. PuRCRVAIi. "V %{ 196 CASES IN THE COURT OF KING'S BENCH 1825. T l| ! Price V. Perceval. by the authority of Parliament." From these statutes it appears evidently not only that the claims of custom house officers to fees in the ports of British America are limited to fees which are establshed by law, but that they are due only for services required by law to be done in the execution of their respective offices, and actually performed by the officer ; and this being the criterion by which the legality of the fees now in dispute between the parties in this cause, must be de- cided, it remains for us to enquire and to determine how many and which of them fall within this des- cription. . ^t ' ^r ;;;;... ..;, Upon the first establishment of the North American colonies, Parliament thought it necessary to take some measures for the regulation of the plantation trade: the act of 12th Car. II. c. 18, accordingly declared the qualifications, which should be required for vessels trading to the colonies, and enjoined the governor, or person by him appointed, to inspect and take care that the act in this respect was duly executed, and to take bonds for all vessels lading any of the commodities which it enumerated. By the act of the 15th of Car. II. c. 7» further regulations were made, and every per- son importing goods into the colonies was required to deliver to the governor of such colony, or to such per. son or officer as should by him be authorized and ap- pointed, " a true inventory of all such goods." No duties were laid at this time nor until ten years after, upon any commodities in the plantations, but certain duties having been imposed by the act of the Q5th of Car. II. cap. 7i on sugars and certain other articles, to be* paid in the plantations, it was by the 2nd and drd sections of the same statute, enacted, " that the several FOR THE DISTRICT OF QUEBEC. duties so imposed should be levied and paid to sucii collector or other officer in the plantation, as should thereafter be appointed, and should be levied under the superincendance of the Commissioners of the Customs in England." Such is the origin of the Cus- tom house in the colonies. It was afterwards enacted by the 11th and 6th sections, of the 7th and 8th of William III. cap. 2^, that the officers of the Customs in the plantations, " should be appointed by the Lords of the Treasury, and the Commissioners of the Cus- toms in England," and that all ships coming into or going out of any of the said plantations, and lading or unlading any goods or commodities, and the masters thereof, and their ladings, should be subject and liable to the same rules, visitations, searches, penalties and forfeitures, as to the entering, lading, or discharging their respective ships and ladings, as ships and their ladings, and the masters thereof are subject and liable to in this kingdom," Cthat is to say in England,) " by virtue of the 13th and 14th Car. II. cap. 11." It will therefore be proper here to state the general course of the proceedings at the custom house in England, un- der the statute referred to in the 7th and 8th William III. cap. 2Qt as it tends to explain the fees enumerated in the Halifax docket, ^nd the observations which we shall have to make hereafter upon the several items now in dispute. There are but few books of authority to which we can refer for this purpose, but there are some. " The master of every merchant ship," says Baron Gilbert, in his treatise on the court of Exchequer, " within three days after passing by Gravesend, in the port of London, and, immediately upon his arrival in 197 1825. Price. V PsRCGrAU 2 D I{l i '1 "' '!:' 1 1 ! \H:\ Perceval. ' ill ' 1 1 I ^^ ir ' '' ■' ' 1 ^ '^ i -' : m" . ■ ^ ;lli Biii : CASES IN THE COURT OF KING'S BENCH any of the out ports, (^a)is to make a true report at the clerk of the ship*s entries office^ of the marks, numbers, quantity, quality and consignment of his cargo ; also of the name, tonnage and property of his ship ; whether it is British or foreign built, and the port to v^hich it belongs, the name of the place or places where he took the goods on board, the number of mariners, and how many foreigners there are among them,(&) — he is to make oath to his report, and to answer on oath, if required, to all such questions concerning his cargo, as shall be asked by the Customer or other officer, under the penalty of £100. " The merchant in 20 days from the ship's report is to make entity of his goods and pay the duties, and he may enter part of his goods in one port, and the re- mainder in another." " A copy of a bill of entry of goods inwards, in which the quantity of goods must be expressed in words at length, and not in figures, after it has been signed by one of the Commissioners, and the proper officers, is called a warrant and is delivered by the warrant keeper to the King's waiters and land waiters, being an authority to them to deliver the goods entered to the merchant. The masters of ships cannot, upon entering outwards at the collector's office, give an immediate account of their cargo as in reporting inwards, for at first they only enter the ship, but the numbers, marks and quantities of the goods are taken afterwards at the searcher's office from the cocquets, and inserted in the reports which are from thence transmitted to the collector, to which the master then makes oath. There is no time limited Jbr the merchant to enter his goods outwards, or for the ship to clear after the entry of it at the collector's office." (c) (a) Gilbert's Treatise on the Exchequer, p. 231. et Seq. (6) Ibid. 332 and 243. (c) lb. 247. FOR THE DISTRICT OF QUEBEC. / y 190 " A copy or bill of entry of goods outwards when signed by u commissioner and the proper officers is called a cocquet, which goes to the searcher as an authority for him to suffer the goods entered to be put on board" (a) " The pre-entry," says Lord Chief Justice Hale in his treatise concerning the Customs, " is that entry which is made before the goods are laden on board, if to be transported, or before the goods imported be unladen, and is of two sorts, viz. ; The entry i by the merchant or the owner t qf tlie goods ; and the entry by the master or purser, qf the ship or vessel The entry qf goods is nothing else but a note in writing delivered in by the merchant, or those em- ployed by him, unto the King's officer of the Customs, containing the quantity, either in weight or measure, and the marks and kinds of goods by him imported or exported, to the end the King may be enabled to ascertain what duty to expect, and the merchant may be enabled, either to pay or secure or compound that duty, .so that he may lade or unlade his goods safely without forfeiture." — " Touching tJie entry qf the mas- ter, he hath the bills of lading, and by that means he hath a kind of controul upon the merchant, and there- fore to the end the King may have all the means possible to prevent the defrauding qf Ms duties, tlie master qf the ship is to give an account qf the goods under his charge,'* (3) From these extracts, not only the gene- ral course of fM-oceedings in the custom houses in England under the 13th and 14th of Car. II. but the distinction between the entry of the ship, and the 1625. Price V. Pebceval. mi <.!S mi 1%' (n) Gilbert's Treatise on the Exchequer, 243. 247. (h) Hale's Treatise, conceroiu*;^ tlie Cutitoms, Ilargrave's Tracts, vol. 1, p. p. 219, '^17 and 220. 200 CASES IN THE COURT OF KING'S BENCH , 1625. Price V. PERCEVilL. entry of the goods inwards and outwards, and the object of each entry respectively cannot but be clearly se* n. In strict conformity to this course of proceed* ing in England, to the distinction between the two entries, and to the object of each, the 9th section of the statute 7th, Geo. III. cap. 46. prescribes the par. ticular steps to be taken bj/ the master in the planta. tions upon the entry and clearance of his ship, and enacts, " That the master or other person having or taking the charge or command of every ship or vessel arriving in any British colony or plantation in Ame- rica, shall, before he proceeds with his vessel to the place of unlading, come directly to the custom house for the port or district where he arrives, and malce a just and true entry, upon oath, before the collector and comptroller, or other principal officer of the customs there, of the burthen, contents, and lading, of such ship or vessel, with the particular narks, numbers, qualities and contents, of every parcei of goods therein laden, to the best of his knowledge ; also, where and in what port she took in her lading, of what country built, how manned, who was master during the voyage, and who are owners thereof, and whether any and what goods, during the course of such voyage, had or had not been discharged out of such ship or vessel, and where. And the master or other person having or taking the chai'ge or command of Q\ery ship or vessel, going out from any British colony or plantation in America, before he shall take in or suffer to be taken into or laden on board any such ship or vessel, any goods, wares or merchandize to be ea^ported, shall in like manner enter and report outwards such ship or vessel, FOR THE DISTRICT OF QUEBEC. 201 with her name and burtiien, of what country built, and how manned, with tlie names of the master and owners thereof, and to what port or place he intends to pass or sail, and before he shall depart with such ship or vessel out of any such colony or plantation, he shall also bring and deliver unto the collector and comptroller or other principal officer of the customs at the port or place where he shall lade, a content in wriling under his hand, of the name of every merchant or other person who shall have laden or put on board any such ship or vessel, any goods or merchandize ; and such master or person having or taking the charge or command of every such ship or vessel, either coming into or going out of, any British colony or plantation (whether such ship shall be laden or in ballast) shall likewise answer upon oath to such questions as shall be demanded of him by the collector and comptroller or other principal officer of the customs, concerning such ship or vessel, and the destination of her voyage, or concerning any goods or merchandize that shall or may be laden on board her." It must be plain that this section is merely declaratory in detail of the several duties which were before required in effect by the statute 7lh and 8th Will. HI. cap. 22. of the mas- ter, and that it does not affect the entry inwards or outwards of the cargo. That the duties of the master, consequently relate exclusively to the ship, while the duties of the merchant as to the " lading" or cargo, and the entries of goods both inwards and outwards remain as before ; so that the duties of the merchant and of the master respectively in the colonies are simi- lar to the duties required of them respectively in Eng- land. 1825. Pricb V. Perceval. m. !:^.'r 'if 1 i|ii| I ji |. r ■ ' Phice '''■•% 1 \' 1 ':|; ■ i\' > ' Perceval. Iil|||l| ' 'H ill 'ir ■■ / j|i||: i ' li llli -^'''^^ ■ IBUhBUI CASES IN THE COURT OF KING'S BENCH After these general observations we proceed to the consideration of the several fees, which have been demanded and received by the defendant, upon the several entrances and clearances of the plaintiff's ves- sels, specified in the bill of particulars and in the evj. dence. These consist of fifteen items, all *of which are charged against the ship, seven upon the voyage inwards, and eight upon the voyage outwards. The charges inwards are, for the ship's general entry, for the ship's report inwards, for a certificate of the ship's report inwards, for a warrant io the master to unload, for the ship's anchorage, for recording the ship's regis- ter, and for an additional fee upon the entrance of the ship, upon the ground of her being a foreign top sail vessel. The charges outwards are, for the ship's re- port outwards, for a certificate of the ship's report outwards, for a warrant to the master to load, for a bill of the ship's stores, for a cocquet on the ship's stores, for a list of the ship's men, for the ship's gene- ral clearance, and for an additional fee upon the clear- ance of the ship, u])on the ground of her being a fo- reign vessel. We are of opinion that the charge of nine shillings sterling as a fee for the general entry inwards of each vessel is a lawful fee, and is properly a charge against the ship. The statute 7tb, Geo. III. cap. 46, sec. 9. directs the master to make the ship's entry inwards, and the services required from the collector by reason of the entry of each vessel have been performed by the defendant and, by the Halifax table of fees, it is proved that the same fee was received at the port of Halifax for the general entry of a vessel, on the 29di September V{Qt%, FOR THE DISTRICT OF QUEBEC. \\i We are of opinion that the charge of one shilling and six-pence, sterling, as a fee due to the defendant upon the ship's report inwards, in addition to the fee charged and received for ** The general entry" is not a lawful fee, and cannot be retained, because the ship's report inwards is a component part of " the " general entry," and is included in it. This appears from the form of the entry, contained in the printed instructions of the Commissioners of His Majesty's Customs, to the officers of the Customs in America, which according to the provisions contained in the 9th sec. of the statute 7th, Geo. III. cap. 46, describes the name, burthen, built, and property of the ship, the number of men, their country, the master, the voyage, and the marks, numbers, quantity, quality and con- signment of the cargo, and subjoins the form of the oath which the same statute directs to be taken by the master in the following words, viz. : " I do swear that the entry above written now tendered and sub- scribed by me is a just report of the name of my ship, its burthen, built, property, number, and country, of mariners, the present master and voyage, and that it i\Qi\\ further contain a true account of my lading." &c. It is in evidence that the entry of the vessels in ques- tion was made in this form, and it does not appear that any other report whatever of the ship or cargo inwards was made by the master of either. T^ere certainly are cases in which a ship, coming into port, may report without entering, as where she is driven in by distress of weather, or comes in to receive orders, and in such cases, the fee now under discussion may be due, but it cannot be due if she enters, for she can- not enter without reporting, and as the general entry 203 1835. Prick V. Percbvau 204 CASES IN THE COURT OF KING'S BENCH 1825. Price V. Perceval. includes the ship's report, so the fee for the general entry inciucJes the fee for the report. We are of opinion that the charge of two shillings, sterling, as a fee due to the defendant for a certificate of the ship's report inwards, is not a lawful fee, and cannot be retained. It has not been shewn that a cer. tificate of the ship's report inwards is required by any statute, or that it is necessary for any purpose what* ever, and it is in evidence that no such certificate was given in any instance of the several entries of the ves* sels in question. We are of opinion that the charge of one shilling and six pence sterling, as a fee due to the defendant for a warrant to the master to unload, is not a lawful fee, and cannot be retained. It has been already shewn that the importing merchant is to make entry of his goods, and that a copy of his bill of entry, when signed by the proper oflicer of the custom house, is called a war. rant, and is an authority to the land waiter, or rather to the landing waiter to unload them from the ship, and here we may add that this is confirmed by the 7tii, 8th, 9th and 10th articles of the printed instructions given by the Commissioners of the Customs to the col- lectors of the Customs in the colonies, to which we have before referred ; as therefore no goods, which require to be entered, can be landed without a war- rant to the landing waiter, permitting them to be unloaded, indorsed upon the importer's bill of entry ^ a warrant to the master to unload is as to such goods, of no effect whatever, and as to all other goods, (if there be any,) perfectly unnecessary. The warrant to unload is in fact " the Permit" of modern times, FOR THE DISTRICT OF QUEBEC. '• which is invariably taken out by the importer. If it is not, there is no feet according to the Halifax table of fees, for a permit, which can scarcely be supposed: but on the contrary, if it be the permit, the warrant to the master to unload, and the permit or warrant to the merchant to unload, are duplicate authorities for one and the same purpose, and it must therefore be shewn that the master is required by some statute, to take, out a permit or warrant to unload the goods of the im- porter as well as the importer himself, and this has not been attempted. It is lastly, in evidence, that no war- rant to unload was given to the ;naster in any one in* stance of the entries of the vessels in question. We are of opinion that the charge of two shillings sterling, as a fee due to the defendant, for the anchorage of the vessels in question, is not a lawful fee and cannot be retained. We have endeavoured to trace the origin of this charge, but without success, it will, however, be sufficient to observe that the vessels in question, Ui)on each and every voyage inwards, landed tJie whole of their cargoes, and that the fee for anchorage, accord- ing to the Halifax table of fees, is due only " on vessels that do not land the wJiole qf their cargoes,** We are of opinion, that the charge' of thirteen shil- lings sterling, as a fee due to the defendant for record- ing the register of the vessels in question upon each voyage inwards, is not a lawful fee, and cannot be retained. Vessels,— with certain exceptions, — are by law to be registered, and all new registers are in like manner required by law to be recorded, and accord- ing to the Halifax table of fees, a fee of thirteen shil- lings sterling, is to be paid to the collector for " new registers and recording the same." It is not in evidence, 2e 205 Price. V. PiROKVAL. 11 IH II I^B Ilil 1 1 .*»i >lt 206 1825. Pricb V. Pehcrval. CASES IN THE COURT OF KING'S BENCH however, nor has it been asserted that a new register was taken out or given to either of the vessels in ques. tion, in any one of the instances in which this fee wan paid, and it is in evidence that the registers in point of fact were not recorded. We are of opinion, that the charge of four shillings and six pence sterling, as a foreign topsail fee, due to the defendant upon each of the vessels in question, and upon each voyage inwards, is not a lawful fee, and can* not be retained. Both of the vessels in question, were built, registered and owned in the port of Quebec, and vessels so circumstanced, cannot be called " foreign" in any sense of the word. It is moreover admitted, that the charge in the several instances in which this fee was paid, was made by mistake and error. We are of opinion that the charge of one shilling and six pence sterling, as a fee for the master's report of each of the vessels outwards, is a lawful fee, and is pro> perly a charge against the ship. The statute 7th Geo. III. cap. 46. sec. 9. has enacted, " that the master or " other person having charge or command of the ship " going out from any British colony in America, bC' ** fore he shall take in, or suffer to be taken into or ** laden on board any such ship or vessel, any goods (( wares or merchandize to be exported, shall enter *« and report outwards such ship or vessel, with her "name and burthen, of what country built, and how •« manned, with the names of the master and owners I " " thereof, and to what port or place he intends to pass *• or sail." The services required from the collector by reason of this entry and report outwards, have been performed by the defendant, and from the Halifax table FOR THE DISTRICT OF QUEBEC. of fees, it appears the same fee was received at that port on the S9th of September, 1764, for a report. We are of opinion that the charge of two shilh'ngs sterling, as a fee due to the defendant, for a certificate of the ship's report outwards, is not a lawful fee and cannot be retained. It has not been shewn that a cer. tificateof the ship's report outwards is required by any statute, or that it is necessary for any purpose. The master by the 4th. Geo. III. cap. 15. sec. 36, is sub- jected to a penalty if any goods are found concealed in his ship after his report outwards has been made, and it has been shewn that no goods which require to be entered can be shipped for exportation before they have been entered outwards by the exporter, and a sufferance in his name has been obtained. It is also in evidence that no certificate of the report outwards of either of the vessels in question was ever given. We are of opinion that the charge of one shilling and six pence sterling, as a fee due to the defendant, for a warrant to the master to unload, is not a lawful fee, and cannot be retained. It haf) been shewn, as just stated, that no goods, which require to be entered, can be shipped for exportation before they have been en- tered outwards by the exporter, and a sufferance in his name has been obtained. The 16th article of the printed instructions of the Commissioners of the Cifs- toms to the collectors of the Customs in the colonies, accordingly directs the latter not to grant any suffe- rance, unless a proper entry shall have been made for the goods at the custom house ; and the numbers XIX and XX, of the papers annexed to these instructions, are forms of sufferance for the exporters to load, and of a cocquet thereon, which we have already seen was 207 1825. Price u, Pebcevau I: A'- 1^08 CASES IN THE COURT OF KING'S BENCH 18S5. lilll \l '■' ^a. . -J: Price v. Perceval. formerly the duplicate of the exporters bill, of post entry, signed by the proper officer of the Customs, (a) as therefore no goods which require to be entered, can be shipped without a sufferance addressed to the ship- ping officer of the Customs, allowing them to be load, ed, a warrant to the master to load is as to such goods of no effect whatever, and as to all other goods per- fectly unnecessary. The warrant to load is in fact the sufferance which is always granted to the exporter, and if it is not, there is no fee, in the Halifax table jf fees, for a sufferance, which can hardly be suppose*! ; but on the contrary if it be the sufferance, die warrant to the master to load, and the sufferance to the mer- chant to load, are duplicate authorities for one and the same purpose, and it must therefore be shewn that the master is required by some statute, to take ont a warrant to load the goods of the exporter, as well as the exporter himself, and this has not been attempted. It is moreover in evidence upon this item of charge, that no warrant to load was ever given to the master of either of the vessels in question. We are of opinion that the charge of one shilling and six pence. sterling, as a fee due to the defendant for a bill of stores, is a lawful fee, and properly a charge against the ship. A bill of stores is a licence to a ship, granted in England at the custom house, to carry such stores and provisions^ as are necessary for the voyage, Custom free. The " ladings" of ships are by the 7th and 8th Wm. III. cap. 22. subject in the colonies to the same rules, &c. in the entering, lading, &c. asl in England. And by the Halifax table of fees, itap. (a) Gilbert's Treatise on the Exchequer, p. 247. ^•■» J''';'0'>.:'"; f> • . fm FOR THE DISTRICT OF QUEBEC. 209 pears that the same fee was received in that port for a bill of stores on the SQlh of September 1764. In point of fact it certainly may be doubted whether a bill of stores was given to either of the vessels in question, but as it may be inferred from the general tenor of the evidence, that an equivalent to a bill of stores was in Bume shape obtained, since the stores were loaded, and as the charge in ail other respects is, in our opinion, a lawful fee, we do not reject it. We are of opinion that the charge of two shillings, sterling, a^ a fee due to the defendant for a cocquet on stores, is not a lawful fee and cannot be retained. A cocquet being, as before stated, a document which is delivered by the officers of the customs to merchants, as a warrant that their merchandize are customed, (a) has prima facie no application to stores which are shipped custom iree. The bill of stores being also a " licence" to carry the stores and provisions which are " necessary for their voyage," is equivalent to a cocket J {b) for originally (^according to Baron Gilbert) vchen goods were to be shipped outwards, instead of sufferance which permits goods to be shipped but directs them not to be exported without further orders, the exporter received, in the first instance, from the office of the cus^'-tis a licence to export such goods, which was called a cocket. (c) It has not been shewn that a cocket on stores is required by any statute, there is no specific fee for a cocket on stores in the Halifax table of fees, and it is in evidence, that no cocket on stores was ever given to the master of either of the vessels in question. 1825. Pricb V. Percetal, (a) Law Diet v. Cocket. (b) Ibid. Bill of Stores, (c) Gilbert's Treatise, ^28 aud 229. "■• 'f '■}:'■ 210 1825. Price Percetal. CASES IN THE COURT OF KING'S BENCH We are of opinion that the charge of one shilling and six-pence, sterling, as a fee due to the defendant, for the list of men, is not a lawful fee and cannot be retained. If the defendant's claim to this fee is founded upon the 10th of Geo. III. cap. 37. it will be seen upon reference to this statute, that its operation is confined " to the ports of the British sugar colonies " in the West Indies." If it be founded upon the ^nd and 3rd of Anne, cap. 6. sec. 14-. that statute has enacted, ** That no fee or reward shall be taken" for the list of men which the custom house officers are thereby directed to insert at the bottom of their cockets ; and 5th, Geo. III. cap. 45. sec. 27. has pro- vided, That no fee shall be taken by the officers of the customs in the plantations of America, and in the British islands in the West Indies *• contrary to the " express directions of any act of parliament made in " Great Britain." We may add, that in a late statute (37th, Geo. III. cap. 73. sec. 5.) which again directs a list of men to be furnished in the ports of the West Indies, an express authority empowering the collectors to receive fees upon such lists of men, is inserted. We are not aware of any other statutes than those which have been mentioned, which require a list of men. The Halifax docket does in fact contain a fee for such a document, but for the reasons which have been given at large, though we admit that the Halifax docket fixes the quantum of each lawful fee, it does not, in the opinion of the court, establish the legality of any. We are of opinion that the charge of four shillings and six-pence, sterling, as a foreign topsail fee, due to the defendant upon each of the vessels in question, FOR THE DISTRICT OF QUEBEC. 2U and upon each voyage outwards, for the reasons which we have already stated upon the similar charge in- wards, is not a lawful fee, and cannot be retained. Finally, we are of opinion that the charge of nine sliillings, sterling, as a fee for the general clearance outwards of each vessel, is a lawful fee, and is pro. perly a charge against the ship. The statute 7th, Geo. III. cap. 46. sec. 9. directs the master " to enter " and report outwards before he shall lade any goods " to be exported,*' and then enacts that " before the <( vessel sails, he shall deliver to the collector and " comptroller or other principal officers of the cus- " toms at the place of lading, a content in writing " under his hand, of the name of every merchant or " other person who shall have laden any goods in " such vessel, with the marks and numbers of such " goods, and shall answer upon oath to such questions " as shall be demanded of him by the collector, &c. /' concerning such vessel, and the destination of her " voyage, or concerning any goods that shall or may " be laden on board." The services required from the collector by reason of the general clearance of each vessel, have been performed by the defendant ; and it is proved by the Halifax table of fees, that the same fee v;as received at the port of Halifax for the general clearance of a vessel on the ^9th of Septem- ber 1764. It is the duty of every court to maintain and en- force the claims of public officers for their lawful fees on one hand, and on the other, to protect the King's subjects against all demands for fees which are not warranted by law. We have endeavoured to discharge these duties equally, and if we have erred on either, 1825. Price V, PBRCEVALr ^ J 5 >i lf\ 212 CASES IN THE COURT OF KING'S BENCH 1825. Priub V. Percbtal. li'; we have the satisfaction to know that there are courts, to which Our judgments are amenable, as superior in talents as they are in rank, and that, in those jurisdic' tions, our errors will be corrected. Keru, Justice :— J I think it proper to explain briefly the reasons which induce me to concur in the judgment of the court, though I diifer in some of the grounds on which the judgment ought to be rendered. As to the fees on these vessels inwards, I perfectly agree with the court, and for the reasons stated by the Chief Justice. But in respect to the outward fees, I think that one of the items, namely, that for a bill oj stores^ should be rejec- ted, and that the item for a ** list of men" should be admitted. The Halifax docket, of which so much has been said, seems to assign a fair quantum meruit for each particular service actually performed. But as the bill of stores appears in the evidence of Mr. Secretan, nei- ther to have been asked for or delivered, on what ground can the defendant have been entitled to take a fee for this service ? In regard to the " list of men," lam for the same reason, of opinion, that it ought to be allowed as the duty has been proved to have been actually performed. It has indeed been thought by the court, that inasmuch as the Sd and dd, Anne, cap. 6. sec. 14. prohibits the taking of a fee for this service, that thFs fee is not of right demandable. But in my judgment, the statute 10th Geo. III. cap. Sy. gives the officers of the Customs a right to take such fees as were usually taken at the different ports in North Ame- rica, previous to the year 17^4, whether these fees had or had not been prolubited by any British act of Parlia- ment. An &ct, indeed, did pass five years previously, FOR THE DISTRICT OF QUEBEC. 213 (5tli Geo. III. c. 4f5i s. 27,) by which it is declared, '« that it shall and may be lawful for ail and e\ery col- •« lector and other otlicer of His Majesty's Customs in " any British colony or Plantation in America, ap- " pointed by any deputation or commission from His «• Majesty's Customs in England, to demand and re- " ceive such fees as they and their predecessors were " entitled to demand and receive, on and before the " 2i. dered of approved and undoubted authority. Nor can it be conceived from its publicity that it was not a tariff of fees which had been taken before the year 1754, by all officers of the Customs in North America, and had received the sanction of the Lords of the Trea- sury. The fee which I think ought 10 be allowed, be- ing in amount exactly the same as that which I think ought not to be allowed, the judgment of the court wonid, in either case be the same : of course I concur in the judgment. -^t ,*» • Perrault and Bowen, Justices, concurring in the opinion of the Chief Justice, Judgment was entered in favor of the plaintiff, for £14 4s. 8d. with interest and costs. . ^:. ■'•'■' ■; .ribiv \-.'/n- .■ '"^ ■:.*'''*' ■/.'/',:'■"■-.'.".;■. ■«N^'■' >\ ':,•■*■ ■'/f^v^;;'' . •• v:tf . • ykv-, - ;■'.• ■'■■•"'■. ■»■. \ ■■;>.■••■•,;•■ -;''i(3^■'-^ •■. ^ ^ ,, J* M •r.;^-i;:;-f.Mi '-if. i 'r;d FOR THE DISTRICT OF QUEBEC. A > 215 ' ■ Tff f^ Patersons a«(/ Weir against Perceval. ''•lii .t- SeWELL, Ch. J. This is an action on the case against the Collector of the Customs as a ministerial officer, (a) for refusing to perform a duty which he was bound to perform, in the execution of his office, by which the plain* tiffs were injured. There are very few instances in which a public officer is answerable for an act fairly done in the performance of his duty to the best of his judgment.(^) Yet an action on the case has been maintained against the Commissioners of the Customs for an omission of duty simply, (c) and in all cases where the act of a pub- lic officer is mlfully done, that is to say, is done coji- trary to his own conviction^ and sl.ews partiality in the execution of the trust reposed in him, his conduct amounts to misbehaviour in his duty, for which he is I clearly answerable, (ji) The plaintiffs in this cause have proved a case, which makes it impossible to sup- pose that mere error in judgment or mistake in law, was the cause of the conduct of which they complain. It appears that there are certain goods, such as hardw^are, Holland tapes and ounce threads, which in every in- voice are charged at the same gross prices, and deduc* tions or discounts, — which vary according to the state of the market at the time of the purchase,— are made upon '.ff J iToqif -Ti-VTiHIiM 20th April. 1826. By the words " 6r8t or ster- lingr cost," in the Pro V.Stat. 53. Geo. III. c. II. impo- sing^ duties OD. the importa* tion of certain goods, is to be understood, the price paid for them at the place from whe-ice tliey were export- ed, less the discount. And an ac. tion on the case may be maintained against a col- lector of the Customs who refuses to ad- mit the goods to an entry, until duties, as calculated upon the price of the goods, without a de- duction of the discount, have been paid. % fa) Schinotti v. Bumstead, 6. T. R. 646. (ft) Drewe p. Coulton, 1 East, p. 663. note b. per Wilson J. ' *■ ''''^' (c) Lacon v. Hooper, 6. T. R. 224. {d) Buller, N. P. p. 64. Harman o. Tappenden, 1 East, p. 555. Drew* Y' Coulton, Supra. G 2 r.; ! > 216 1826. Patersons AND Weir V. Pekcbval. CASES IN THE COURT OF KING'S BENCH the face of each invoice, so tliat the vahie of such good?,— usually called the short prices,— is ascertained by the amount of the deductions, and as the balance so established is the price actually paid by the purchaser, it is consequently " the first or sterling cq&V* of all goods so situated. By the provincial statute 53, Geo. III. cap. 11, seC' tion 1 and % it is enacted — " that all and every per- son or persons whatsoever, who shall import or brin^ ** shall be so imported as aforesaid, and the importer or importers of such goods shall make and subscribe • ^' vl " .JTt^-.JOl'l v. .I'li .v>>ij u «« within this province, any goods, wares or merchan. r.v. '.ijub i^nU " dize of any kind whatsoever, shall immediately pro- miS"!TomS " ):^q Mi) " invoice of the goods, wares or merchandize which oil) tr-.! >-* " an affidavit, upon which the collector is empowered to •oa nTut ^* *^^6 **^^ administer the oath, and shall pay a duty orii uo (vob«« of two pounds ten shillings per centum, to be cal- 6ij VSOT yvti' 111/. 7. r 1 t Wui*^]niuiT!<* culated on the first or sterling cost oi each one hun* i^jtJS " rffed pounds worth of such goods, and so in proper- piiw «'«"^«''' tion for a greater or less quantity thereof." On the • fatto) fcserib' ° -1 i.s 9f(ii' calculation of the duty upon the balance which re- «dru/"<>b'.ui mained after deducting, according to the invoice, the ***'^£iTirn' ciiscounts from the gross prices, and expressly refused to admit the goods to entry unless the duty was paid upon the gross prices without any deduction whatever. The plaintiiFs then called upon the defendant by pro- test to admit the tapes to an entry, and tendered the affidavit required by the statute, together with the - .IJHrtj ifn ■ FOR THE DISTRICT OF QUEBEC. amount of the duty calculated upon the short prices ; yet notwithstanding this formal demand of his duty, the defendant again refused in these words, " I make no answer/' The plaintiffs then, finding that the tapes could not otherwise be entered, paid the amount of the duty calculated upon the gross prices. Now it is distinctly in evidence that the defendant had before been in the constant habit of admitting to entry all similar goods upon payment of the duty cal- culated upon the short prices; and that during the very period of his altercation with the plaintiffs, and after it, he admitted similar goods, belonging to others, to entry upon payment of the duty calculated upon the short pi ices. The inferences from these facts are irresista. ble, they show that the defendant's conduct towards the plaintiffs was contrary to his own conviction, wilful and wrongfully partial, and judgment must be entered against him for the damages demanded with costs. A. Stuart and Black, for the plaintiffs. The Attorney General for the defendant. 217 l^i -'o'J to^oi The remedy apinat a public officer, for negflect or misbehavionr, may be the case allej^ing his misdemeanour, or by an action of debt, umps~ 4. Massachusetts by an action on the case auesi according to the nature of the mi&feasance, but never by assumpsit as an im- plied promise to do bis duty. McMillan t. Eastman. Rep. 378. the words " true value," in an act imposing duties, mean the actual coet of the goods to the importer at the place from which they were imported, and not the current market value of the geods at such place. The United Slates V. TappanAl Wht&t 4!\9. » 1826 Patfrsons AND Weir V. Percevau I I. f.i i;)M''.'! iiHil (;i -J Hi '■> II til .Titli-i i 'SI.'! .■^'1^ tir- S'i .:> •fits .■glji-'VI-RWil ll> T" ItirHifi'io'J li iJ M'^m iou •[::-■.. '■"V trt! t'riin-'>::,i,, .( il-iil It'.', ■*/Vltf'J i^-n:* .sm^ fei bunoq j*tij omUU Mvi? [»«»<$ (jTwIioavijw «18 CASES IN THE PROVINCIAL )4 . j.«*i n ;uji,i:ia ri':'n 'Hi i;' t (Hit \'\f^h. aiff nocjn b9;tciti')f ft. rviuh 9iii,,to iyw. ■ >ii^«)7«^'i «9<|ft^ 9fii On Appeal from Montreal, .a^^f FRAN901S Desrivieres Appellant. The Hon. John Richardson and others, Respondents. vi'j'/ arlj.t>rnTnili',ti:( >rlw <*f-[i. fi I » i; I I COURT OF APPEALS. 223 ffii The testator died on the 19th of December 1813. On i826. the 8th of October 1818, His Majesty, by his Letters Desrivieres Patent under the great seal of the province, constituted hich^Iioson. and established the corporation referred to in the pro- vincial statute 4lst Geo. IIL cap. IJ, by the name of " The Royal Institution Jbr the advancement of Leant' ing," dnd on the 13th December 1819, other Letters Patent passed the great seal, by which a President was appointed to the Royal Institution who was made an integral part of the same. The Royal Institution being thus created. His Majesty was graciously pleased, by writ of Privy Seal, dated at Westminster the 31st of March, in tha second year of his reign, to ordain and grant that upon the land and in the buildings described in the testator's will, " there shall be established, from " this time one college, at the least, for the education " of youth and students in the arts and faculties, to " continue for ever, and that the first college to be " erected thereon, shall be called McGill College" and His Majesty was also pleased therein to appoint certain high colonial officers, to be, with the Principal elected by the same, governors of the said " McGill College ;** •• and to declare that the same, and four professors, to " be also elected, shall be a body politic and corporate " in deed and in name, by the name and style of the " Governors, Principal and Fe\\owso{ McGill College." In this action the plaintiffs, in the court below,- the respondents in this court, — trustees under McGill's will, sought to recover from th« executors and residuary legatee the sum of £10,000 and interest. The appel- lant, — one of the defendants and who had this money in his hands,i~ intervened as residuary legatee, and prayed H 2 \K Ll .Ah mmt ilV •i||P)».m " 1 •' ly ,'il ijipl i h. n i i.1 1 111' 224 1826. Desrivirres AND HlCHAKDSON. CASES IN THE PllOVlNCIAL that tills money might be declared to belong to liiiii, the legacy having become lapsed.* Plamondon for the appellant. — Valliercs dc St. Real and Ogden for the respondents. . • Kerii, Justice. This case comes before the court in such a shape that we .are enabled to give a complete jiulgment on all the points, and as regards all the par. tiesj and though it is not likely that the respondents * Under the deviso above mentioned, and a subsequent conveyance of tlie estate of Burnside, — by the devisees in trust, to tlie lioyal Institution,— tlit latter, after having' obtained His Majesty's Uoyal Letters Patent erectin" and establishinj; a Colleg;© thereupon by the appellation of McGim, College brought a petitory action, in the Court of Kinsf's Bench at Montreal, tii obtain from the appellant the estate of Burnside, of which the foilowiiiMs a report : — THE ROVAL INSTITUTION FOR THE ADVANCESIENT OF LEARNING r. OESHIVIERES. 1. If the declaration, in a petitory action, contain a designation of the land by its hnitoe, that of the borough, villnj^e, or hamlet, and of the parish where It is siiuaied, these will ba sufficient even if the boundaries be incorrectly stated. But if the desig- nation be so far imperfect, thnt the defendant cannot identify the land, he may plead this fact by on exception as to form . 2. Proof of a letter of attorney, executed sous seing privi. is not required when i deed executed by the attorney in virtue thereof is proved, if the principal, by any sub- sequent ui«e he has made of the deed hat ratitied it. 3. The head of a corporation may bind the body corporate by any contract froin which it may derive a benefit. 4. \ devise of real estate to a corporation upon condition that it should, within tbi period of ten years, erect aid establisk, or cause to be erected and established, upon thi aaid estate, an university or college : Held, that the words erect and establish, ^-c. extend only to the erection and establishment of the corporation or body politic, forming ihi university or college, and not to the erection of a building in which the university or collejte is lo l>e established. 5. To maintain a petitory action aftainst a residuary legatee, a delivrance de legs, froiv the heir at law, U not required, the Quebec Act and the Provincial Statute 4lsi, Geo. 111. c. 4. § 1. having,— as respects testamentary donations, in cases where the heir at law has been entirely excluded from the succession by will,— abrng^ited the rule of the French law, Le morl saisit le vif. Semble that the heir at law only can avail him. ■elf of the exceptian (if pleaded) that the plaintiff bad never obtained delivrance it ton lees. 6. A licence in mortmain Utidvr the declaration of the King of France of 1743 h not required to enable the Royal Inslituliou for the advancement of learning to accepi of ■ devise of real estate. 7. If a corporation, to be composed of certain trustees to be subsequently named by the Crown, be established by staiutie, the existence of the corporation will commeDM at the time when the statute was passed and not when the trustees are named. 8^ The condition of adcvtioto the Royal Institution for the idvanoement of leirn. in':, that it should, within ten years, cause to be erected and established an universitt or Cdllege, bearing the testator's name, is accomplished, if an university of Royal ind not of private foundation, be erected and establithcd witliin thtt period. In this ftction the plaintiis olaitued, all that tract or parcel of land con- raodly called Burnside, situated near the said city of Montreal, contaiiiin; I about forty-six acres, including one acre of land purchased by the testatur I I COURT OF APPEALS. 2^3 and appellant will both be disposed to acquiesce in our judgment, in whatever scale our opinion may be cast, from one Snnscrainte, which said tract or parcel of land is contiguous to the St. Antoine Suburbs of the said >':ity of Montreal, and is bounded as follows, to wit, in the front thereof, by a street leading thereto called St. MoDiqiic-street, and in part by two lots of ,(rround, the one belongfing^ to Angus .Slia»', Esquire, and the other to Raymond Bellaire, on one side to the south west by land belonging to the representatives of the late Simon McTavish, K»qnire, and on the other to the north east by land belonging to James Mutiill Desrivieres, Esquire, and in the rear to the north west, by land also lit>lou;;:ing to the said estate and succession of the said late Simon McTavish, Hsquire, deceased, together with the dwelling house and other buildings tlicreou erected, with their appurtenances. The defendant demurred to the declaration and assigned special canscs of exception or demurrer, which having been overruled the defendant answered upon the merits. 1. That he did not detain the land in question from the Uoyal Institution in manner and form as declared. 2. That the allegations contained iu the declaration were false, untrue and unfounded iu law and in fart. Un the issues thus raised the parties proceeded to evidence. The will of McOill, dated the 8th day of January 1811,- was produced. It appeared that the testator died on the 10th De«ember, lb 1 3, from which period his widow possessed and enjoyed the estate of Burnside until her decease on the 16th day of April, 1818, and from that time the defendant possessed and enjoyed the same. On the 8th day of October, 1818, nearly five years after tlie death of the testator, the tiien Governor-in-Chief, in conformity lo the provincial statute, 4 1 St, (ieo. III. c. 17. by an instrument under the Great f^eal of the Province appointed certain persons therein named, " Trustees " of the Schools of Koj'al Foundation in this Province, and of all other " Institutions of Royal Foundation, to be thereafter established for the " advancement of learning therein," and declared the said trustees and their successors a body corporate and politic by the name of " The Royal Institu- tion for the advancement of Learning." On the 13th day of December, lB19,by two other instruments, under the Great Seal, an additional nunjber of trustees were appointed, the Lord Bishop of Quebec was named Principal of the Institution, and times and places fixed for the meetings of the taem^ hers. On the 3rd day of August, 1820, by a notarial deed m!)de and exe- cuted at Montreal, the then surviving devi-i*es, in pursuance of the trust reposed in them, conveyed to the Royal Institution the estate of Burnside, sniiject to the conditions prescribed in the will. The Royal Institution acted by and through Stephen Sewell, specially nulborized as their attorney. % a clause iu this deed it wns stipulated that tli« Royal Institution should accept and ratify the same within two months from the date thereof. On the 22nd day of August, 1820, at Montreal, the deed of conveyance was accepted and ratified by an act passed before notaries, on which occasion the Itoyal Institution was represented by the Lord Bishop of Quebec, Princi- pal of the Institution. On the 3l8t day of March, 1821, Letters Patent were issued and granted, upon tiie petition of the Royal Institution, wherein the devise in question is recited, and thereby His Majesty did will and grant, that upon the land of Burnside and in the buildings thereon erected or to lie erected, there should be established from that time one college at the least for the education of youth to continue f<»r ever, and that the first college should be called McGUl Culleyc, &c. Previous to t\\i granting of 1626. Desrivieres .VNO RlCHABBSON ^r: >--i'^' % 226 CASES IN THE PROVINCIAL 1886. yet it becomes us to consider, and that maturely, whe- Desriviebes ther the judgment of the court below, can or cannot AND RlCHARDSOK* A , ■;! these Letters Patent a demand by notarial protest had been made by the Royal Institution, upon the defendant, to surrender and deliver up the posses- sion of Burnside which he then refused to do. These documents were proved by authentic and certified copies. The procuration by the Royal Institutioo to Stephen Sewell was fyled, but of the Real of the corporation affixed to it and of the signature of the piincipal of the Institution subscribed thereto, no evidence was offered. There was annexed to the procuration, however, a written admission thereof as being thnt referred to in the deed of convey- auce and signed by all the parties to the deed, including the notaries. The decease of the testator was duly proved, as also that of Dunlop, one of the devisees in trust, previous to the execution of the deed of conveyance. The possession of Burnside was also proved to be in the defendant, Yhe defendant proved, that the description of the property as set forth in the declaration was inaccurate as respected the front, north east, and the rear boundaries. The parties having been finally heard, the judgment of the court was deli- liveredby Pyke, Justice. This case is certainly one of importance whether we con- sider the value of the property in contest, the benevolent and public object to which that property was destined by the will of McOili, or the legal ques- tions to which it has given rise. The court has judged it necessary to be as explicit as possible in declaring its opinion upon the several points sub- mitted for consideration, anxious that the principles upon which its decision may be fonnded, should be clearly and distinctly understood, not only by those immediately interested, but by the profession at large ; as several of the questions raised are of a general nature, the decision upon which may affect not only the present case, but many others which maj hereafter be brought under the consideration of the court. The four first clauses of the statute 41st, Geo. III. c. 17. appear to the court to be the basis upon which this action must stand or &II, and they should be fully brought into view, (a) This law, worthy of the 'Legislature of Lower Canada, will, perhaps, be attended with more solid and beneficial effects than any other to be found in our statute book ; and it is the more highly to be considered as it serves to record one of the numerous instances of the bounty of our late Sovereign to His subjects in Canada. The lute Mr. McGill with this statute in view and a full knowledge of its provisions (in the framing of which he, as a Member of the Legislature, had participated) on the 8th January, 1811, made the devise in question; (b) in virtue of which and of a subsequent conveyance of the estate of Burnside by the devisees in trust to the Royal Institution, it is that the latter having ob- tained His Majesty's Letters Patent erecting and establishing a college upon the said estate bjr the name of McGill College has now brought the pre- j sent petitory action. 1. The first objection taken by the defendant's counsel is, that the desig- nation of thfe land in real actions must be certain and full ; and it having been I proved, on the part of the defendant, that the designation in the declaration IS not correct, as to the front, rear and north east boundaries, — the land ckii- med not being sufficiently identified, — the action ought to be dismissed. (a) See Aflle, p. 219 in notii. (6) See Ante, p. 218. el leq- * I /I «' laturely, whe- ;:an or cannot been made by the liver up the posses- iments were proved e Royal Institution >ration affixed to it subscribed thereto, •curation, however, the deed of convey- f the notaries. The Dunlop, one of the [eed oF conveyance, he defendant. Tiie as set forth in the h east, and the rear Pthe court was deli- ice whether we con- nt and public object ill, or the legal ques- 1 it necessary to be e several points sub- in which its decisioD erstood, not only bv urge ; as several of tn upon which may ich may hereafter be c. 17. appear to the ind or foil, and they y of the'Lejjislature solid and beneficial and it is the more numerous instances inada. The late Mr, of its provisions (in re, had participated) I ; (6) in virtue of of Burnside by the le latter having ob- ishing a college upon aw brought the pre- set is, that the ietHf ;and it having been I on in the declaration | aries, — the land chii- to be dismissed. p. 218. el wq* COURT OF APPEALS. qq: 182C. be supported in law. The demand on tlie part of the trustees has been contested with great pertinaciousness, _ ' ^~^ ^ • Desrivikres In support of this objection the ordinance of 1667. art. 3. tit. 9. has been cited, which requires, in real actions, that the property claimed should be fully described as to situation and extent, as also by its tenans et aboutis- sans, d peine de nullile. Now, the intention of this article was to put defen- dants in a situation to defend themselves, to the <>nd, " que le defendeur tie puisse ignorer pour gvel fierilage il est assigne, and the nullity pronounced was but the nullile relative (a) which the courts were not bound to notice nnless specially pleaded. If, therefore, the designation is so obscure and imperfect as to produce uncertainty a defendant is not bound to answer, but can avail himself of this article by a preliminary plea or a peremptory excep- tion as to form : as, however, the class of pleas founded on uullitps relatives was not much favored in the French courts, the article in question, when pleaded, was seldom rigidly enforced, and the result was not always the dis- missal of the action, but the plaintiff was ordered to amend under no other penalty than the payment of costs, (b) But if the defendant pleaded to the merits he was considered ii> this, as in all other matters of form, to have waived the exception and to have tacitly admitted the sufficiency of the declaration. All the requisites of this article may not have been literally complied with, yet, if the designation of the land is so far explicit that the object could not be mistaken by the defendant, the spirit and intention of tbe rule having been complied with, the French courts never allowed the mere letter of any article of the ordinance to be used for the sole purpose of vexation or delay, or in support of bad faith, (c) It is, therefore, obvious, that the objection is not supported by tho article relied on by the defendant. He has waived the benefit of it by not pleading it in the first instance as required by the practice of the court, it will be seen further upon refe- rence to the declaration that it is so far conformable to the article as to afford no ground even for a preliminary plea. Theproperty demanded is, in tbe first instance, correctly designated both by name, situation and superficial contents, and it is only in the subsequent part of the description, when the boundaries are given, that error is to be found. The plaintiff claims no more by his declaration than what was bequeathed, and the boundaries, in part erroneously stated, were not necessary for the support of the action and may be rejected as surplusage, for upon recourse to the article succeeding the one cited from the ordinance of 1667, it will be found to be as follows : — " S'il est question du corps d'une terre ou metairie il suffira d'en designer le nom ou la situation." This is an exception to the general rule and is thus explained by Jousse, " c'est h dire le nom de la terre, ou metairie, et celui du bourg, village, ou fanmeau, et de la paroisse oil elle est situee." (d) The court having all the facts of the case before it may reject the erroneous boundaries and may award to the plaintiff what may be substantially de- scribed and claimed, viz. ; the estate of Burnside as bequeathed, containing about 46 acres of land. This objection we overrule, and it will remain for the court, should the plaintiff be entitled to succeed in this action, to give such judgment as the law and the facts of the case will warrant. The court cannot award more than has been claimed in the conclusions of the plaintiff. AND Richardson. (o) 1. Pigeiiu 161. (A) I. Jousse, III. 9. art. 3.— Vide Ren. de Jur. v. Aboutissani 57. and 1. Bornier (r) 1 Pigrau 161. (rf) 1 Jousse, note l.p. 108. Si 1 w: n.iii,imiiiii«w»"Ti''*''^'''" ■"•'"■''"""•"V'" I. ■i! 'i! 228 1820. Desrivikres AND RlCIlAUDSON. CASES IN THE PROVINCIAL ami several points have been made in the argument, both of the principal and cross demand. — 1. That the but it has tho right not only to award or reject but also to modify the ron- elusions, " Lejuse peut rejeter, acoorder, ou modifier Ics coucluKions prisea par lea parties." (a) 2. It has been objected by the defendant, that the evidence on the part of the plaintiff is incomplete in this, that the Letter of Attorney under whicli Stephen Sewell accepted and sit^ned the deed of conveyance from tlie de- vi^eesin trnstto the Royal Institution, to which Letter a seal is aiilxed, and the foliovvir.g' signature: " Th»» Royal lustitution for the advancement of Iarty that coi/ld have a right to object to it is the Royal Iiustitu- tion who nave admitted it to be their act, an admission that the defendant cannot, nor can this court gainsay. The point, however, does not merely rest here, for long before the institution of this action, on the 2.3rd day of August 1820, the defendant was notified at the request of the Royal histi- stitution, — by notarial protest, — that the Institution was ready to receive possession of tbb property under the devise and subsequent conveyanee made in it's favor, and he was thereby required to deliver up the possession. This again, was a solemn and formal recognition of the deed, and conse- quently of the power givflu by the Institution to its Attorney to accept and sign the same. The principle of law is, that where there has been no special ))rocuration " ratihabitio mandato comparatu?' " (c), — and a tacit ratilica- tion is sufficient. The Royal Institution has. as far as in its power, actually performed all that by the deed it was boupd to do, the highest pos- sible ratification that could proceed from it. One of the conditions in tbe will was, that the Institution should erect and establish within ten years from the death of the testator, an university or college, upon the estate of Burnsidc. Now in Royal Letters Patent dated the 31st March 1821, erect- ing a college upon that estate to be called McGill College, we find the will recited in the following words: " And whereas we have been humbly petitioned by tho said Royal Institution for the advancement of Learning, that we would be pleased to grant our Royal Charter, &c. The Institution ( session from the Royal Institution ; but if the latter construction be admit- ted, no impediment ofturs to the full and entire accomplishment of the will of the testator. The court is therefore called upon to discharj^e a very sacred duty, and, — placing itself in thesituation of the testator when he made his will, — is bound to explain what has not been fully or clearly exprpiised therein, supply what may be necessary to complete the sense thereof, and de- clare and give full effect to that intention which may be otherwise manifest from the general tenor of the will. Pothier establishes the following ns a fundamental rule, " Les dernieres volontes sont susceptibles d'une interpret " tation large, et on doit piincipalement s'attacher k deconvrir quelle a ete " la volonte du testateur;" and Bourjon(b) says, " Le juge du testament " est cense etre un second testateur qui devclope ce que le testateur " n'avait pas suffisamment develope. De ce principe general il s'ensuit " que si Vexpression rCest pas parfaite, c'est au juge a suppleer ce que lui " manque, pour lui donner un sens parfait, lorsque ce supplement paraitetre " Tintention du testateur ; pour cela il doit se placer dans la situatioa oii " etait le testateur lors de son testament," &c. A testator can annex to a devise or bequest, any conditions he may think proper, and that are not contrary to good morals or any express prohibition of Law ; and these conditions must be accomplished : his will is the Law to be observed and enforced. At the same time, if a condition be imposed, the accomplishment of which is impossible, the condition fails, and must be put out of consideration, that the main and obvious intention of the testator may not be defeated. liourjon (c) establishes the principle, and adds, " En effet, il paroit suffisamment par la disposition, que le testateur a voulu " gratiiier le legataire ; ce qui aoit avoir son effet, ind^pendamment de " raccomplissement de la condition, lorsqn'elle est impossible ; autrement il " faudroit supposer que la disposition est une derision ; ce qu'on ne pent " faire." It is for the Court, then, to give that construction to the will which, in its opinion, will effectually meet the benevolent views and real intention of the testator ; and we cannot but think that the constructioa contended for by the plaintiff* is the most correct and reasonable, and tbiit from the moment the Royal Letters Patent erecting and establishing a Col- lege, upon the estate of Burnside, by the name of McGill College, were made and issuod, the Royal Institution had a right to enter upon the estate, and that of the defendant to possess the same under the will ceased. In- deed, if this be not the true construction, one part of the will would be in contradiction to, and destroy the other, which however cannot be allowed when the intention of the testator can be collected from the will, taken altogether, and that intention effectuated. Pothier {d) lays down this rule to (a) Trnil£<1es UonationnTetlanienlairesval. 7. ch. 7, sec. I. p. 412. ib) 2 Bourjon, 355.— Des Testamens, ch. 8, sec. I , n 1, 2. c) Vol. 2, p. 363.— Des Teatam«ns, part 5, tec. 3. (d) Vol. 6, 410 ed. p. 414, j.j .,«.,7 COURT OF APPEALS. 231 g the will ■ ^^ receive the legacy, it became lapsed. 3. That the 10 capacity | erection of a material college, to be called *• McGill lie observed in the interpretation of wills ; — " Une disposition doit "s'entendre plut6t dans le sens selon lequel elle pent avoir effet que dans " le sens selon lequel elle ne poiirrait en avoir aucun." And Cochin con6rms it ; ho sayd, " Car quand une clause est susceptible de deux "sens diflfercns, il est de principe qu'il faut rojcter celui des deux sens " qui est absurde, ou qui reudrait la disposition nulle, et caducqne pour se " livrer u celui qui est juste et raisonnable en luimeme, et qui 4tablit une dia> " position conforme aux loix. C'est ce que tons les docteurs nous cnseignent ; " lis veulentque Ton entcnde les actes dans le sens qui en procure I'execution, " el non dans celui qui les aneantit." (a) Besides, if the condition attached' to the devise, either in the whole or in part, bo in itself impossible, it must be rejected, so that the will of the testator may not be defeated. It would hiire been otherwise if what was evidently an express and clear condition had not been accomplished, and that the ten years had elapsed, within which tlie University or College was to be erected and established, without any such erection or establishment. The limitation would, in that case, have opernted fatally. But tiiis period has not yet elapsed, nor can it be fairly or with any effect urged on the part of the Defendant that negligence and improper delay have occurred ; since the testator, anticipating that difficuU ties and delay might arise, has thought proper to allow the period of ten years for the accomplishment of that part of his will ; and the delay has operated much to the advantage of the defendant, by leaving him in the enjoyment of a valuable estate, of the beneBt of which it is to be regretted that any circumstance should have intervened hitherto to deprive the public. In considering the will before us, and which evidently has been drawn by a professional character of ability, we are upon every fair principle led to adopt the legal import of the words therein used. Now, the word "erect^" is equally applicable to a Corporation as to a building : the erection of a Corporation is the language of the law, and a Corporation may exist with" out that which may be necessary for its accommodation. " The King, it is " said, may grant to the subject the power of erecting Corporations, though " the contrary was forncerly held But it is really the King that erects, and I " the subject is the instrument." (b) " But with us in England the King's '' consent is absolutely necessary to the erection of any Corporation, and " this consent is given either by Act of Parliament or Charter." (c)— ! Now, Universities and Colleges are one of the several species of Corpora^ I tions noticed in the books, and consequently must be erected, as all other Corporations, cither by Act of Parliament or Royal Charter ; when, there- tore the condition of the devise requires the erection and establishment of an Univer^ty or College, it does not mean a building, as contended for by the defendant, but a Corporation or body politic, which, however, must have a building for the purposes of that Corporation, though the Corporation can I esist without it. If, indeed, the testator bad declared that the possession of the defendant should continue until an University or College should b6 built upon the land of Burnside by the Royal Institution, the intention then vould clearly have been what the defendant contends for; but it is not so expressed ; and it may fairly be presumed, if such had been the intention, «o intelligent character, as the testator was, assisted by a professional gen- («) Vol. 4, pp. 406,407. (h) 1 Black. Com. 473. I 2 (c) lb. 471, 472. I 1826. Desrivierbs AND RlCHARMON iiU. m la it I -j I;l M m i 232 CASES IN THE TROVINCIAL J ! 1: 3ri I"' 1826. College" on the land of Biirnside, within ten years after Desritieres the testator's death, being a condition precedent to the A>'D Richardson. tleman, would have so worded the devise as to have convoyed that intention, Now the Royal Letters Patent erectin<; and establishinpf the Uni- ernity or College, in conformity to the will, orduin, "that upon the said tract of land " called Burnside, and in the buildings thereon erected or to be crerted, " there shall be established from that time one .College at toast, to be called " McGill College." What then remiiins, but that possession of the estite of Burnside should bo given to the Royal Institution, to enable them to carry into effect, not only these Letters Patent, but the intention of the tes- tator, as expressed in his will ? It must be obvious that without this pos- session, the necessary buildings and accommodations cannot be made and provided, nor the Corporation of MoGill College proceed to put into opera- tion any of its powers, or organize itself in any manner whatever. It ij sufficient that the forms and conditions of the will, as far as it has been pos- sible, and indeed required, have been complied with : a College or Corpora- tion has been erected and established iipon the estate of Burnside; ana this being done, the defendant, and now possessor of the estate, can no longer claim any enjoyment thereof under tlio will, but must surrender it to the Royal Institution, the condition of the devise being thus worded: "And " upon condition, also, that until such University or College be erected and " established, the said Royal Institution for the advancement of learnin$siu>r of the Act of the 14th (ireo. III. c. 83. commonly called the Quebec Act, (e) whereby the policy of the ancient law of France, in force in Canada, tor the preservation of estates in families, became ch.^n^ifed, aud the articles of the custom of Paris, which restricted the disposal of property by last will, was abrogated, and an entire freedom (fiven to tho owners of property to dispose by will of the whole thereof, without reserve, even to the prejudice of the heir at law, should such owner see fit. As in the con- struction however of this Act, and as to the effect of the clause before recited, some difference of opinion arose, a declaratory Act was passed in the Provincial Parliament, (/) to explain and amend the former. II any doubt could be entertained under the first act, no difference of opi> nion can, under this last prevail, inasmuch as a full, clear and decided power is jriven to dispose by will of an entire estate, aud to such person and persons iis the owner may see fit, to the exclusion of the heir at law; and when this is done the heir cannot claim any saisine of the property of the succession, inasmuch as the right of the heir upon which that saisine was established, bag, by force of the statutes before noticed, and by the will of the testator, been destroyed. It is evident from all the authorities that the considera- tion, which in customary France was had to the claims of blood and of nature rather than to the disposal of property by last will, and the recogni- tion of no other heir than the heritier du sang, gave rise to the maxim of le mortsaisitle vi^and to the necessity of resorting to the heir for the delivery of the legacy ; therefore where this maxim does not apply, we must conclude that the demande en ddiverance du legs is not necessary ; the reason of '.hu law failing it can no longer operate and it becomes an useless and unneces- sary formality having neither law nor reason to support it. Indeed it would 333 ' ■■'. i {a) Die do droit, 2d Vol. page 51.— Institution d'hcrili (6) 292 Art. Custom of Pans. (c) 318 Art. tier. yf -«« ...... v^u-Muiii ui 1 uns. ^c:^ oio /iii. CUStOm 01 Pftriff. (d) See Pigeau, 1 vol. 63, 2 vol. 393, 394, and 398. (ej See ante. p. 103, in notii. (/) 41 Geo. Ill, c. 4, sec. 1. lb. 1826. Desrivibres AND RlCHARMON. ft ^% 934 CASES IN THE PROVINCIAL ! k I:-' M 1886. Dbsrivirrrs AND lUciIARDSON. Utterly defeated and determined, 4. That the object of the bequest, namel^i the erection of the college within bn n^siird to stippoRo that he could be called on for the delivery of that io wliicli ho never had any existing but onlv an expectant right and where ho has been deprived of every claim he might, without the will, have had in the Huccessiun of the testator ; to what end tluu call upon the heir to deli. ver that over which he has no control and which would bo rather a mockery than otherwise, and an insult to him whose ancestors had deemed unworthy to participate in his succession, (a) " L' Institution d'heritier n'ayaiit pat lieu par testament, tout legs, soit universel soit partioulier, r 'Metiidvh- vrance," and from this authority wo may conclude that the / ty would not have been required in customary France had the right ot iiuininatiiin;an heir been thero allowed. Now it is evident that if by virtue of the Ntittiites before noticed the blood heir may, by last will, be excluded from thesiic> cession, the Institution dWieritier must in effect exist, in this country, as it did in the Roman Law, and as admitted in some few of the customary pro- vinces, and in those provinces which were croverned by the llomaii Law (poi/s du droit ecrit) now in those customs and provinces the " delivrance du legs" was not re(juired, inasmuch as the testamentary heir and not the heir at law, became seized, upon the death of the testator; and in those liistnroi which preserved the usage in regard to testamentary heirs, (Institution d'he- riticr) the maxim of Le mart saisit le vif was equally applied to the testa- mentary as to the heir at law, and consequently the " delivrance du leifs" uas not necessary to vest the succession in the testamentary heir. In the ful- lowing authority (b) those customs and the principle now stated will be found. " II y a au contraire d'autres coutumes qui ont conserve I'usage et I'et'- fet des Institutions Testamentaires celle de Bourdeaux, art 74, porte Le nwrt saisit le vif en quelque manicre quUl succede, par testament ou r^ns testaminU Cclle de Berry, tit. 19. art 28. s'exprime a peu pres de r ' : Le mori saisit le vif son phis prochain Mritier habile d. lui succed ntestat, et aussi son heritic.r testamentaire. La coutume du Duche de - ^yne, c. 7. art. 4. dit, que : si le testatettr dispose de deux parts de ses biens ensonl saisis, ceux qWil auta institues heritiers par son testament valablement lait et selon raison. Cello du Comte de Bourgoyne, chap. 3. art. 1, nVstpas moins precise : Le mort saisit le vif, son Jieritier teitamenlaire instiltii tn testament solemnel ou nuncupatif." Also in the Dictionaire de droit, 2 vol.ol tit. Institution d'heritier — " c'est aussi una <|ue8tion si Theritier testamentaire est saisi ; dans quelques coutumes oil I'institution do I'hcrilier a lieu, il est saisi commo celle tiu Duchc, et du Comt^ de Bourgoyne, de Burg et de Bourdeaux." It is, therefore, clear, that in these customs the testamentary heir was seized, without the necessity of a " demande en delivrance de ie's" upon the heir at law, inasmuch as t'le maxim of Le mort saisit le vif equally operated as to both and which maxim alone could render necessary such a formality. " La n^cessite de la demande en delivrance de legs soit univeneb soit particuliers, estfondee en pays coutumiers sui ce qii'en vertu de lamas- ime, le mort saisit le vif, les heritiers du sang sont saisis de plein droit de tons les biens de la succession & I'instant de la mort du defunt." (c) If then the existing law of Canada gives a power to the owner to dispose by will, of the whole of his estate, it necessarily follows that he has a power to do> (a) 2- Bourjon, p. 329. (b) Rep. de Jur. 2. Intlilution d'heritier. 309. col. 9. (c) L. C. Den. v. Delivrance da Legs, 161. ttc. 1. § a. I I COURT OF APPEALS. 235 the perloJ prescribed in the will, having become ino- Im- perative, the appellant was entitled to retain the £10,000, des as the special and substituted legatee under the will. RIVIEKF.S AM) UlCUAUUaO.\. minnte an heir to the exclusion of the nntnrnl heir or heritier dn sanfr, it is ill effect |;ivin{f the power to a testator to do that which, as well in the Ho- mnn Law as in certain Provinces of France was allowed and called InslitU' lion d'heiitiet; and this without observance of the forms which by those laws were required in the exorcise of that power. Now, in the case before ii!i,the whole of the testator's property has, bv his will, been devised to dif- ferent persons and for various purposes, and it any heirs exist they are com- pletely excluded, having no portion of the genoial mass reserved to them. To be seized of any property there mjst be an existinsf rij|[ht to some extent or other, in or over that property- Here the heir has none, and it would be a subverniun of common sense and conro'Mently of law to recognize in him any saisine in the property composi ^ the succession ot the testator. In the custom of Paris the power (f nominating; an heir, or the Institution d'hentier, by last will, was not recoj^nizeil, the heritier du sang alone was considered the heir, and those claiminfr under a will were called leifatees, but with that title the former had something to support it, he was substan- tially and legally the heir, as the " legitime" reserved to him by the custom could not be diminished by the will of his ancestor. " Une heredite se de- fdre de deux manidres, par la volonte de I'homme et par la disposition de la loi." (a). Now, by the statutes before cited, an entiie freedom of disposinaf by last will of the whole of the property of the testator is given without restriction or limitation, it therefore necessarily folio vs, that the po«ver so f,nven must be complete and free in its execution and the will must ulone be considered the law to be observed in the disposal and distribution of the testator's property. It precludes the necessity of resorting to any other, or to that disposal which the law has provided in respect to intestate estates. The legal succession must give way to the testamentary, and the property must receive its destination " par la volonte de I'homme," and not " par la disposition de la loi." By the statutes then, a power is given to testators to an extent which was not known in the Koman Law, or in that of France, (except in the early period of the former) or in those Provinces of France where the Institution d'heritier M'as allowed, and if so the restrictions im- posed by the ancient law of Canada, in regard to the disposal of property by last will, must be considered as entirely removed, and there must be also an exemption from those formalities which were observed and required where an Institution d'heritier was allowed. Now, where this last existed, it has been shewn that the " delivrance du legs" by the heir at law was not required inasmuch as the testamentary heir and not the heir at law became seized upon the death of the testator, and if a more extensive power and freedom in the above respects exist in this province, a greater freedom and less re- striction must exist in the execution ; particularly in regard to this succes- sion where the heirs at law, if any there be, have been by will excluded from any share thereof, and which exclusion is authorized by law. It is not ne- cessary to give any opinion as to the change which has thus been made of the ancient law of Canada, or whether the same was wise or otherwise, it is suflScient to say that the consideration for and favour shewn to the heritier du sang, by the ancient law, has ceased to prevail, and the consideration to the ,W ((?} 9 Repertoire V. Institution, p. 307 236 CASES IN THE PROVINCIAL : fl irMf 1826. Desrivieres AND RiCHARDSOX. As to the first ground of objection, whatevr" '^igbt have been the effect of the Ordinance of the xiencli claims of blood and nature must be left to the discretion of the testator nione, whose will di!;raiit- invan entire and uncontrolled liberty to dispose by will, and it is not neces- sary that the intention to exclude should be particularly expressed, or any cause assiprned for it, as all is left to the sole discretion and will of the testa- tor ; it is suflicient if by the will, it appear, that he has disposed of all his property in favor of persons not his heirs at law. L'exheredation fait cesser la ren^le contenue en cet article (Le mort saisit le vif, §'c.) de meme que la rcnouciation aux successions des pcre et mere, qui se font par les iiiles par leiir contrat de maria^e. (a) It must not be concluded from any thins; that has fallen from the court that it considers the maxim or article of the custom Le iTiort saisik le vif, &c> as notv entirely without effect in Canada, but only to except from its operation those cases where a dispo.sut by last will and testament has been made to the entire exclusion of the legal or blood heir. We are called upon to decide only the case before us and not upon cases which may be differently circumstanced and to which the reasons given to support of the present judgement may not altogether apply. The court was not disposed to withhold its opinion upon this important point raised in argument, and so much insisted and relied upon by the defendant's Counsel, though it was not perhn)>s essential to have gone into the question so far as we nave done, for it does not appear to us that the objection, under all the circumstances of this case, could correctly be urged on the part of the defendant, or that he could under the ancient law l>av,j availed himself thereof, and it is to be observed, that he has not ro tde it a spetiiil ground of exception, and not directly put the question in issue; but there is a more substantial ground, the defendant is not the heir at law * (a) 4 Gr. Gout. 765. Som. § 8. n 1. * Di'CLos V. DuroNT —This w«h an action by an universal legate* a;{ain*t a debtor of tlic testator, to recover the arrears of a rente constitute. Plea, That the plaintiflT never ot>tained dilivrunce de son legs. — Per Ccriam,— The defendant jk a debtor of the testator, and the plaintiff, the legatee of all his estaie. The plaintiff also was the executor of his will by which he the teMator forinRlly di- vested himself of the whole of his prr)porty, and vested the whole in the piainiiir— As executor, therefore, the plaintiff became seized of all the moveiihle property of the testator, and entitled to put himself into possession, which he has done, and the executorship is finished. There is no necessity, therefore, to prove a dclivrance de legs. He is not in possession by his own authority but with the consent a'ld by the act of the testator. 10. Rep, de Jur, 66. col. 2. 1 Arrks Mod. v. Legs So. 28. p. 582. But independent of thi-se facts the want of a detivrance de legs is an excep- tion in the mot>th of the heir, and not of a third person such as the defendant, " puree- que" says the /{f;)er. 63. Cot. 1. vide 5 TouUier S.'X). Nos. 5V2-3. of Donations et TestrmehS, lib, z, lit. 2. c. 5. upon these grounds the exception must be dismissed. Judgmeol for the pliiQtiff, U. tt. Q. lK2a No. 495. _, .. , ill iinst a debtor 1 COURT OF APPEALS. ' King of the year 1743, the Provincial statute of the 41st of His late Majesty, granted full power to the Go- of the tpstator, and consequent!}' has no rinrlit but what he has acquired un- der the will ; he also is a le^'atce, and if the Ian' he invokes is now that of Cnnada, it must operate against him, as well as alt the other lfn;utees, and Ills possession of the estate of Burnside must be declared an illegal one, but he cannot be allowed thus to destroy the title of the plaintiff by the destruc- tion of his own, nor do we suppose he^ is very desirous of doing so, and as the possession which he now has of the estate of Buinsidc, is most clearly derived from the will, — for without it he has not a shadow of title, — it must be presumed that he has legally obtained the delivery of it from the heir ora curator, or from the devisees in trust under the will; if from the for- mer, it is undoubtedly under the will he has received it, and the right given, or formality required by the ancient law, has been exercised and complied with.andnot necessary to be repeated; and if from the latter, in conformi- ty with the will, the defendant's possession is that of the devisees, who be- ing once in possession the " demande en delivrance" would not be necessary quoad third pursons subsequently coming into possession thereof, and the hiir would be left to exercise his right, but as the case stands before us, we miH presume that the possession of the defendant has been obtained ' - the devisees in trust, as such was the direction of the will, under which alone he could hold the possession, and which he cannot now con- tinue to hold contrary to the terms of the will, which is his only title; he is not then the tiers detempteur inasmuch as ho has no possession but by the siiflPerauce and permission of the trustees in conformity to the will. If indeed the defendant had set up a counter title to the property, the fair and legal presumption which must now exist, would have ceased, but no attempt of this kind has been made, and of course he has none to produce, his pos- session was in the origin that of the devisees iu trust, subsequently that of the Royal Institution, and he cannot avail himself of his now possession to contest the title of the plaintiff upon the ground that they, who we must presume put him in possession had not legally obtained n surrender of it from the heir at law, of the testator. Illud u veteribus prmceptum est, nemU nemsibi ipsum causam possessionis tnutare posse ; " celui qui a la possession, on meme la nue detention d'une chose, non plus que ses heritiers, par une simple destination, ni par quelqnelaps de temps que ce soit, ne pent changer la cause ni les qualites de sa possession ou detention, taut quHlparaii aucun litre cT acquisition." (a) 6. It has been urged that by the declaration of the King of France in 1743, (b) enregistered in this country, the bequest of McOill was a nullity, being contrary to the provisions of the declaration, and perhaps it migl'it have been so considered if the Provincial statute of the 4lst (leo. III. can. 17, had not preceded the bequest, and the bequest had not been made id ronformity, and with a view, to that statute. It is not necessary now, par- ticularly, to notice the prohibitions which that declaration contains, the spiritand intention of which was not to benefit heirs, but upon sound prin- ciples of public policy to prevent the establishment of corporations M'it bout the express and particular permission of the Sovereign, and also to prevent corporations legally established, from obtaining too much favor and influ- ence by extensive acquisitions beyond the object of their creation. It will (a) Poth. PosscMion, Nos. o\.Z3. (6) 1 Ediu cl OrdonnaBe .«- COURT OF APPEALS. of learning, and declared that the trustees and their suc- cessors, to be named as therein directed, shall be a body tcnce, it will be Toid, ns there is no sucli corporate body- to receive, and it would be equally void even if the Corporation were afterwards created, without some special and express law to take the case out of the general principle ; but in the present case there can be no doubt that the Corpora- tion of the Royal Institution was created by the Statute of the 41st Geo. III. (the words of the 4th clause are, " The sjiid Corporation hereby erected,"} and nothing remained but that the Crown should nominate the trustees and members thereof, the consent of the Crown to the erection of the Corpora- tion was evinced by ihe Royal sanction given to the Statute; and it was, therefore, erected before the testator made his will, though not complete or in operation until the subsequent nomination of the trustees or members thereof. It must be allowed that the powers of Parliament are unlimited, ,is to the making of new laws and abrogating or modifying old ones. Now, M-the second section of the Statute, it is enacted, that the Koj'al Institution shall take, have and enjoy, ivithout licence in mortmain, all lands, money and jroods wiiich thereafter should be devised or bequeathed, in any manner or Hay whatsoever to and in favor of the said schools and institutions of royal foundation, to and for the purposes of education and the advancement of harniiifj. And by the third section of the Statute, it is further enacted, thjt all property which should thereafter be devised or bequeatiied, in any manner or way whatsoever, for and in favor of the said schools and institu- tions for the purposes of education, &c. should be, and the same was thereby. vested in the trustees of the lioyal Institution. Subsequently to this Statute, I by the will of McCiill, a bequest is made of the estate of Burnside to certain devisees therein named, in trust, to convey the same nominally to the Royal Institution, but in cfi'cct to and in favor of one of the objects contemplated by the Statute ; and it was not necessary that the trustees or members of the Royal Institution should have been nominated at the time of the death of the testator to give effect to this bequest, inasmuch as it was not ueces- I sary, under the Statut;, that the Royal Institution should have been named ■ ill the will, as the bequest, coming within the description of those mentioned J in the Statute, would become vested in that Institution by the efl'ect and I operation of the Statute alOne, inasmuch as the word hereafter, used in both jthe clauses before alluded to, necessarily implies all devises and bequests jmade from and after the passing of the Statute ; it would, however, have jbecn otherwise if, in lieu of the word hereafter, the following words had jboen used : " From and after the nomination of the said trustees or members lol the said Royal Institution." The bequest, therefore, is not a nullity on Ithe irround now contended on the part of the defendant, inasmuch as it is Isuppcrted and authorized by the Statute, and the will of the testator can be jforaplied with. Having, then, the support of the Statute and the sanction lof the Crown, the case becomes a stronget one in favor of the Plaintitf, |«hen for a legitimate, beneficial and general public object a bequest is made, lasiQ this case, to devisees in trust, persons in being and capable of recover- l»i;;; and it does not lapse, as iu the case of a devise to a Corporation not jhavinjj any legal existence. I S- It has been also contended on the part of the defendant, that the Letters jPatent filed, having established a College oi Royal foundation, the conditions lof the devise and bequest and the intention of the ttstator have not thereby jbeen complied with, and the intention of the testator conformed to, inas- jniuch as the testator's will, — it is said, — provides for a college of private 239 T826. Desrivieres AND RlCUARDSON. n- ' r « m' 'f « ti 240 1826. Desrivieres AND RiCIIAKOSOX. CASES IN THE PROVINCIAL corporate and politic, by the name of " The Royal In- stituiion for the advancement of Learning." Tiiis pro. foundation. In deciding upon this point the Court must be, as it has been in repfard to others, governed by the intentions of the testator, as expressed in his will. Tiiere can bo no doubt that the testator, in his life time, might, if he had thought fit, have applied for, and the Kinj in virtue of his prerogative might have granted to him a licence to erect a corporation or college, and to endow it with possessions or revenues, in which case the donor would have baen considered in law, the founder; but thisdocs not appear by the will to have been the object of the testator, as from the whole tenor of the bequest, he evidently contemplated a colioijeof Jioi/al foundation, whatever merit he might,— and to which he was so justly entitled, — from his very liberal bequest, witli the additional honor of h.ivin,' one of the colleges distinguished by his name. By the Provincial statute of the 4Ist Geo. HI. before noticed, a corporation was established under the niime of The Roycil Institution for the advancement of Learning, to be com- posed of certain persons to be named by the Governor, &c., to be trustees of the schools of lloyal foundation in this province, and of all other Insti- tutions of Royal foundation to bo thereafter established for the advancement of learning. The corporation of the Royal Institution was, therefore, of Royal foundation, and its powers and duties extended only to Schools and Institutions of Royal foundation for the superintendance and management of which it was alone created, and to which it must necessarily be con- fined, having no power beyond these under the statute of incorporation. The testator with a perfect knowledge of the statute, by his will gives and devises his estate of Burnside to certain devisees in trust to convey the same to the Royal Institution, constituted and established under and by virtue of an act of Parliament, upon condition that the said Institution bhould erect and establish, or cause to be erected and established an univer- sity or college upon the said estate. Now such university or college could only be, under the statute, one of Royal foundation, and this must have been contemplated by the testator, who has referred to that statute, const! tiitino; and establishing the Royal Institution, and fixing its powers and authority, and it is, therefore, obvious that he intended that a Royal College should be established under the authority of the statute, and his bequest in eifect amounts to no more than this, — if the Royal Institution, sanctioned by my Sovereii;n, will estiiblish or cause to be established an university or college on my estate of Burnside, to forward the views of the Provincial Parliament, as expressed in the statute of the 41st Geo. III. I will give that estate and iE 1 0,000 towards that object. The testator then is in truth, the bcncfador but not the founder, a suggestor of a particular object of the general system of education provided by the statute, to the execution of which he wasll^ sirous to contribute, and has given a very liberal proportion of his fortune, It cannot take any thing from the merit of the testator if he should not be considered the first donor or benefactor to the Institutions for the advance- nient of learning, or that in this respect he should have been preceded by his Sovereign, who, as it is expressed in the preamble of the statute, bad been graciously pleased to signify his Royal intentions that a suitable pro- portion of the lands of the Crown should be set apart, and the revenue thereof appropriated to such purposes. In private foundations the funds ap. propriated are sufiiciently ample for the support thereof; but this is not tbe case ia the present instance, for it is obvious, liberal as the donation is, that ' COURT OF APPEALS. vision of the statute by giving such licence to the Governor, completely does away with the ancient law in this respect, and renders this ground of objection unavailable. The second ground of objection is also untenable, for thougli it is admitted that a legacy is lapsed (/. e, caduqiiCi) when left to an individual, or to a body politic or corporate, not in esse, yet the principle does .iot ap- ply to this case, inasmuch as the trustees were all alive when tl^e testator made his will, and they received the bequest for the benefit of the Royal Institution so soon as it should please the Provincial government to give to " airy nothing a local habitation and a name." This niouj of settlement, by appointing trustees to preserve contingent remainders was devised by Sir Orlando Bridgman, and other eminent lawyers, during the time of the civil wars in England, after the death of Charles it is, and was so considered by the testator, insuQicient to provide for the piection of the university or college, and the support of such an establishment. This being the case, independent of the considerations before stated, the prin- ciple oflatv is, that if the King and a common person give possessions to a corporation at the same time on its original creation, the King («) by his preroffative shall be the founder. Many reasons might be olf'ered to shew that the view now taken, was that of the testator, and it cannot but produce a hi;rhcr tribute to his memory from the consideration that he should have I adopted such wise and ettcctual measures to secure to the inhabitants of this province, the benefit he intended them by placing it under the secure and fostering protection of a liberal and enlightened government, which can have hut one ruling principle, the real welfare and prosperity of its subjects, I and not leaving it in that precarious state, where from private interest, the object intended might be defeated. It has been said that the college in question Mas an individual object unconnected with the general system, but iipoD every consideration, and bound as we are to give a faithful intcrpreta- tiou to the will of McGill, wo feel ourselves justified in saying that it was only to effectuate part of a general plan which had been preconceived and provided for by the Legislature, and cannot be separated thcrefiom without di'stroying the very foundation and root of the bequest — rendering it a nullity I and defeating the manifest intentions of the testator. Judgment for the plaintiff.* ( the Governor in Chief of the province, addressed to the Sheriff of the district of Montreal, which is as follows: *' Whereas Joseph Fisher, late of the town of Mid- (llebury, in the county of Addison, in the state of Ver. raont, one of the United States of America, gentleman, is now committed and detained in our common goal in our said district of Montreal, under your custody, upon and by reason of a certain charge on oath of fe- lony, to wit, upon the charge on oath of having on the twenty-third day of April, 1827, ai the said town of Middlebury, in the county of Addison, in the state of Vermont, one of the United States of America, feloni« ously stolen and cariivJ away divers, to wit, 240 bank notes for the payment of divers sums of money, in the whole amounting to 638 dollars, of the value of £143 lis. sterling money of Great Britain, and then and there being the property of one John Wood. And whereas the said Joseph Fisher, not being one of our subjects, but being an alien, to wit, a Prussian, has since the commission of the said offence, come into this province from the said United States of America, and the said offence whereof he is charged as aforesaid, having been committed within the jurisdiction of the said state of Vermont, it is fit and expedient that the said Joseph Fisher be made amenable to the laws of the said state of Vermont, for the offence aforesaid. l2 ISsJ7. Case or J, ri»iiEK. 'f if n 248 CASES IN THE COURT OF KING'S DENCII 1887. ^:i )', !;;;i: iij m Cahk ok J. FlHIIKR. We, therefore, commaml yon, that the body of the said Joseph Fisher, uiulcr your ciistotly as aforcsaiil, you do immediately convey and deliver to such per- son or persons, as according to the laws of the said state of Vermont may be lawfully authorized to re- ceive the same, at some convenient place on the con- fines of this province and of the said state of Vermont, to the end that the said Joseph Fisher may be tlicnce safely conveyed by such person or persons as aforesaid, to the town of Middlebury aforesaid, and there be made to answer for the offence aforesaid, according to the laws of the state of Vermont. Provided always, that the said Joseph Fisher be detained under your custody aforesaid for no cause, matter or thing, other than the ottence aforesaid j and this you are not to omit at your peril.'* ■ ■'■' • ; Under these circumstances an application was made for a writ of Habeas Corpus which was allowed, and upon the return it appeared that the applicant, Joseph Fisher, was in the custody of a sherifTs officer, uho was about executing the warrant directed to the Sheriff. Viger and Grani for the applicant,— T//e Solicitor General (Ogdetiy) contra. Reid, Ck. J. Several questions have been raised, and objections taken on the part of the prisoner, as to the sufficiency and legality of the proceeding against him. These we shall now consider. It is objected, — 1. that there is no clear and positive charge of any felony or crime having been committed by the prist npi j the charge against him amounting met U .o a* suspicion, the grounds or causes of which a *, set out, ^ as to enable the court to judge how far i v are easonable or sufficient. It cannot be supposed that n ich stress was VOll THE DISTRICT OF MONTREAL. meant to be laid upon this objection, as in the affidavit of John Wood there is a positive charge a^'ainst the prisoner, that he commitied the felony in question at Mid. dlcbiirij in the state q/Termont, and so expressed in the warrant of commitment. It was no doubt necessary that tiie charge against tiie prisoner should be suflici- ciitly clear and positive to render him amenable to the laws of that country he is stated to have violated, for this constitutes the ground-work of* the whole proceed • in;;. The court, however, thinks the accusation against the prisoner to be sufficiently clear and positive in all material points. It is true that the day when the felony was committed is not mentioned in the affidavit of Mr. Wood, although it is in the warrant addressed to the Sheriff J but from the circumstances stated of the pri- soner's coming into this province immediately after the felony was committed, and his subsequent arrest here in May last, this would be sufficient to hold him amena- ble to the law ; the omission of a positive day or date being in many respects not so material. 2. That if a sufficient charge of a crime be made out against the prisoner, yet the Sovereign cannot lawfully deliver him up to the state where the crime is said to have been committed and even allowing, this right to the Sovereign, yet that it has never been prac- tised or allowed, except in offences of the most ag- gravated nature, such as murder and robbery, but ne- ver in the minor offences of larceny and such like. This objection embraces the main points in the case, and the determination upon it, will, in a great measure, obviate all the other objections. In considering this part of the case much of the argument used must be laid out of the question, such as that founded on offences of a 249 1827. Cask op J. I'lSllF.R. » I 4 •Jt I! If fil I "1 4 I "WM ^iK) CASES m THE COURT OF KING'S BENCH :■ i!:^ 1^ i 1827. Case of J. FlSlIEH. political nature, arising out of revolutionary principles excited in any government, as in these cases, tiie refu- sal of a state to surrender the accused cannot be drawn into precedent, for the authority of the state to whicli the accused has (lea may well be extended to protect rather than deliver him up to his accusers, and this upon a wise and humane policy, because the voice ofjustic; cannot always be heard nmidst the rage of revolution, or when the Sovereign and the subject are at open vari. ance respecting their pohtical rights ; and, therefore, no state will ever be induced to deliver men up to des- truction , nor even to malicious prosecution. We will, also, lay out of the question all the cases depending upon treaties and conventions entered into between different nations, as in such cases the surrender of the accused by one nation to another is not so much the effect of the exercii of a prerogative right or power ot the executive government, as the execution of a national convention binding on both parties. We must meet the case ?.s it presents itself, which cal's upon us to de- termine, whether for any crime, great or small, commit- ted in a foreign state, there exists in the executive go- vernment of this country any authority to deliver up the accused to be dealt with according to the offended laws of such i -feign state. The crime charged against the prisoner is recognized as an offence against the laws of all christian and civilized nations, and this crime may be more or less aggravated according to the circiini. stances of every particular case. In looking al the au- thoritics cited from GrotiuSt Pt^ffendorfi Vattelt Heinec- cius, BurLmaqui and MartenSt and to what has been written by them on this subject, we feel it unnecessary to make particular quotations from them in support of I ill 1 1 FOR THE DISTRICT OF MONTREAL. 251 the doctrine in hand, because it is impossible that any unprejudiced man can read these authors without be- ing satisHed that the principle here objected to, stands admitted as a thing understooii, practised, and recog- nized by the comity of nations, that the offender against the laws of one nation, taking refuge with another, may be surrendered to the offended nation for the ends of justice. The diflference of opinion, among these wri- ters as to the enormity of the ofJence, cannot affect the principle although it may vary the practice among different nations according to circumstances. This right of surrender, is founded on ihe prinr'ile, that he who has caused an injury, is bound to repair it, and he who has infringed tiie laws of any country is liable to the punishment inflicted by those laws ; if we screen him from that punishment, we become parties to his crime, — we excite retaUation, — we en- courage criminals^ to take refuge among us. We do that as a nation, which as individuals it would be dis- honoiablci nay, criminal to do. If, on the contrary, we deliver up the accused to the offended nation, we only fulfil our part of the social compact which directs that the rights of nations as well as of individuals should be respected, and a good understanding main, tained between them . and this is the more requisite among neighbouring states, on account of the daily conimukiications which must necessarily subsist be- tween them. A modern writer (at) on the laws of na- tions, says, " La communication journaliere entre •• deux pais limitrophes est inevitable, et elle doit " etre d'autant plus favorisce par leurs gouvernemens (^t) Tt.Ntit. (1u Droit dcs Ociis, &c. par C. Gctard dc Rayuoval ; liv. 3. cb. 3. J 4. p. 134-. 1827. Case of J. TlMllEK. .M At w 252 CASES IN THE COURT OF KING'S BENCH 1827 ■ m mw i!!li I !!■ !■ Case of J. FibllER. " respectifs, qu'elle est naturellement fondees sur des " besoins reciproques, et qu'elle donne par la, lieu a " des changes, d'ailleurs elle etablit entre les liabitans " respectifs des liaisons, et un sorte de con fiance qui " assurentloLir tranquillite, et contribuent a leur jouis. ** sances.'* Indeed were we to take into account the opinions of modern writers on international law, we would be still more strongly fortified in the principle we here hoid, and we see no reason why those opi. nions should be rejected. By lapse of time, by new combinations and events, and by revolution, the prin- ciples of government may be altered and improved, and we have in the present age, had many lessons to teach us wisdom. At all events, we may safely say that at the present day, the world has become en- lightened in the science of government, as well as in all the other departments of human knowledge, far beyond what was known to those writers who have lived cen- turies ag9, and, therefore, that the maxims of govern- ment of the present day may be considered at least as well understood, and better adapted to the rights and feelings of mankind, than they could have been in the days of Grotius and PufiendorfF, But let us look more immediately to the laws of our own country, as the principles there adopted, must serve to guide our decision on the question. The law of England recognizes the law of nations as part of the common law of the land, and although upon this question, from the insulated situation of that coun- try, we do not meet with numerous decisions on the point, yet we find enough to satisfy us that we are holding to those principles which have been there adopted. Here we must refer to the cases cited at FOR THE DISTRICT OF MONTREAL. the bar,, as furnishing the only light on the suhject which we have at this moment been able to pro- cure. In the case of Rex v. Hutclnnson, (a) the court refused to bail a man committed for a murder in Por- tugal. In CgL hundifs case (/>) who was arrested in Scotland for a capital offence committed by him in Ireland, — it was held, that he might be sent there to be tried. Justices of the Peace in England may com- mit a person offending against the Irish law, in order to be sent to be tried in Ireland, (c) So in Kast India Company v. Campbell it was held, that one may be sent from England to Calcutta, to be tried for an offence committed there. ( Judge of the supreme court in vacation, has jurisdiction to examine a pri- soner brought before him on Habeas Corpus, and who had been taken in /custody, on a charge of the(t or felony committed in Canada, or a foreipi state, Irom which he had fled, and if sufficient evidence appears against hiiti be may bo remanded ; otherwise ho must be discharged. {a) Commonwealth t'. Deacon, 10. Scrg. aud Kaw. 125. FOR THE DISTRICT OF MONTREAL. of the executive government it is directed that he shall be delivered up to the legal authority of that state where ♦lie crime was committed ; and from what we Cttii collect of Judge Tilghman^s decision, there is some reason to believe, that had the prisoner Short, when brought before him, stood in the same situation as the prisoner now does, he would have determined diiFerently. We will make a short extract from this decision to show the reasonableness of this beliefi from the general principles there stated, which we con- ceive to be consistent with the opinion we now hold ; he says, ** I grant, that when the executive has been " in the habit of delivering up fugitives,— or is obliged " by treaty, — the magistrates may issue warrants of •• arrest of their own accord, (on proper evidence,) in " order the more efflictually to accomplish the intent " of the government, by preventing the escape of •' the criminal. On this prmciple we arrest offenders "who have fled from one of the United States to " another, even before a demand has been made by the •' executive of the state from which thev fled. But " what right is there to arrest in cases where the go- " vernment has declared that it will not deliver up ? " For what purpose is such an arrest ? Can any judg- " ment be given, by which the executive can be " compelled to surrender a fugitive ? most certainly " not. If the President of the United States should '< cause a person to be imprisoned, for the purpose of " delivering him to a foreign power, the judges might issue a Habeas Corpus, and enquire into the legality of the proceeding, but they have no authority what- ever to make such delivery themselves, or to con> mand the executive to make it. If these principles (( (I 257 1827. m Case OF J. Fhher* if m i ,1 € ^ I N'l ors CASES IN THE COURT OF KING'S BENCH 1887. I ' ? ^ :•!!■ Case of J. Fisher. tc u " be just, it follows, that, under existing circiim. ** stances, no magistrate in Penns^^lvania has a right to ** cause a person to be arrested in order to afford an ** opportunity to the President of the United States " to deliver him to a foreign government. But what " if the executive should hereafter be of opinion, in " the case of some enormous offender, that it had a " right and was bound in duly to surrender him, and *' should make application to a magistrate for a war* " rant of arrest ? That would be a case quite difle- rent from the one before me, and 1 should think it imprudent at the present moment to give an opi- " nion on it, Everij nation has an undoubted right to •* surrender fugitives from other Stales. No man Im ** a right to say^ " / mil force myself into your terri- tory and you shall protect me** In the case sup- posed, the question would be, whether under ti)e existing constitution and laws, the president has a right to act for the nation, or whether he must wait ** until Congress think proper to legislate on the sub- " ject. The opinion of the executive hitherto has " been, that it has no power (o act, and should it ever ** depart from that opinion, it will be for the judges ** to decide on the case as it shall then stand. Nei. " ther do I give any opinion whether the executive of the State of Pennsylvania has power to cause a fugitive criminal to be arrested for the purpose of " delivering him up. But confining myself to the case before me, in which the arrest was made at the request of a private person, I am of opinion that there is no law to support it, and therefore the prisoner is entitled to his discharge." Taking then the_ opinion of Judge Tilghman on the principle here *t u (( (« (( « «« ^H4 U>'>' ..W^. , . .. - , 1 •^■>t\i val On Appeal from Quebec. Charles Jourdain Appellant, and Joseph Miville Respondent, SOth July, 18i7. A DWELLING HOUSE and two adjoining build- The mason • 11 . .. -jy ^' rn . 1.1 • has an especial ings, belonging to lelix letu, were taken in execu. privilege, in tion and sold by the sheriff at the suit of the respon- *''" ""^"'■« »' •f » a mortga/ S\ COURT OF APPEALS. 265 AND MlVILLE. the prejudice of a third person, without something *^*^' specific to ascertain the nature and extent of the joukdaw work done, or the amount of the debt due thereon, and ail this within the year and day ; so as not to deceive third persons, or lead them to trust their property in the hands of men, against whom, — either by connivance or otherwise, — such privileged claims may be brought forward. We are disposed to think this objection valid, and that the judgment here ap- pealed from must be confirmed. In looking at the jurisprudence on this subject it would appear, that previous to the arrei de reglement of the 18th August, 1766. the decisions of the courts were ot uniform, as to what would or would not entitle the mason to claim his privilege, even within the year and day, that is, whether a devis et marche previously made, and a proces verbal of the reception and value of the work subsequently done, were, or were not necessary. By some of the decisions, it would seem tnat these formalities were required, by others they were dispensed with. But the inconve- niences arising from these contradictory decisions, — respecting a privilege which often extended, in its amount, to the value of a great par; of the property in question, — were strongly felt ; ahd by the above arret de reglement, a certain mode of proceeding was established, in order to secure the rights of all par- ties. We must, however, be satisfied how the ques- tion would have stood previous to the making of this arrei de reglement, as to the diligence to be exer- cised by the mason in prosecuting his claim : we find according to the best established jurisprudence, that the workman,— claiming a privilege on the work :iiB rm •1 VJ: ■ ' ;"-«i m I tflMl m 266 CASES IN THE PROVINCIAL \,n :■' li ■ ' ■?'! ';',■!'"' Ji 1887. JOURDAIN AND MiriLLB. done by him, but not founded on any authentic do- cument of a nature to ascertain when the work was done, the naiurct the value, and the extent thereof,— was obliged to prosecute his claim within the year and day, so as to make the privilege available, when it came in contact with the rights of third persons. The end and object of the 127th art. of the custom of Paris, was to limit the extension of credit and to prevent lawsuits among persons of the description therein mentioned, often injurious to themselves and to those des-ling with them. The words of le arti- cle are very strong, ne peuvent faire action apres un an passe, which would seem to imply, a limitation of action ; and although by an equitable interpretai u which has been put on this article, the mason, cr other artisan therein mentioned may have his action against his debtor even after the year and day, yel i? this case a certain discredit attaches to it, and ii uie debtor will avail himself of the Jin de non recevoir, such legal presumption is raised against the action, that the whole is made to rest on the oath of the debtor. This is the case as between the workman and his debtor, but when his claim, with its attendant privilege comes in contact with the rights of a third person, the legal presumption, — against an unliquidated demand beyond the year,~becomes much stronger, and this privilege must yield to the authenticated claim of a more diligent creditor. This seems to be the prin- ciple of law to be observed, as far as we can collect it, from the opinions and decisions had on ihe question. Denizart (a) gives an instance where the privilege was (a) Deniiart wl Piivilcgc, No. 38. m COURT OF APPEALS. 267 r-il adjudged to the mason who had not taken the precau- tion to obtain a dcvis et marches this was previous to the Arret de Re^leme>it o^ I766 ; but the author observes upon this judgment, " qu*il doit etre moins regard^ " comme un temoin de la jurisprudence du tribunal <' (chatelet) que comme les derniers soupirs d'une opi- " nion mourante." And in a note upon the case we are told upon what principle this privilege was gran- ted. He says, ** j'ai S9U depuis de M. Lois, que la ques- " tion avait et6 deux fois partag6e dans cette affaire, " et qu*on sN'tait enfin determine a accorder )e pri- " vilege, parceque dans le fait, il s'agissait d'une con- *^ stniction totaleeta neuf d'une maison sur une piece " de terre ; et que d'ailleurs les ouvriers s*dtaient pour- vus presque aussHot les ouvrages Jinis, sans attendre respiration de l*annee^ pendant laquelle la coutume leur accorde action." In the authority cited by the appellant from Lacombet (a) after stating the prin- ciple, that a devis et marche was not necessary to se- cure the privilege of the workman, and citing several decisions to that effect, he at last comes down to an arret de la " Cour des Aydes, 8 juillet 1728, au rap. " port de M. Amiot, sur l^ordre du prix d'une maison " sise a Fontenay, pres Paris, vendue sur le Sieur " Taxis, receveur des tailles, par lequel les ouvriers " qui avaient travuilles a la reconstruction, et Tourni " des materiaux, ont ete colloques par privilege, mt^me " au lioi, quoique pareillement ils n'eussent point de " devis et marches^ ni meme de memoires arr^t6s, mais " seulement des sentences par defaut, depuis I'evasior " de Taxis, mais dans Van des derniers ouvrages,** 1827. t( i( !• JOURDAIN AND MiruxB. ,r » %» \ a m IB!, M (a) Lacombe v°. Subrogation^ No. 16. i. i'i It -''.i. I' Ui >ISi jii i.| jlf , I 2(38 1827. JOURDAIN AND MlVILLE. CASES IN THE PROVINCIAL This may be considered a strong case in favor of the privilege contended for by the appellant, but he falls short in that material point on which the judgment here was founded, the diligence done by the workman dam Van des derniers otivrages. We have also the opinion of other writers on this subject, Bourjony says, " ce privi. lege a lieu en faveur " des ouvriers, selon moi, encore " qu'il n*y ait aucun devis ni marche par Icrit, pourvu ** que les ouvi ages soient constans, ou que s'ils sont d£. ** ni^s, ils puissent ^tre v6rifi6s, ei que Vouvrier ait agi «* dans un terns competent, c'esl a dire, dans le terns que k " coutume afxe pour la duree de son action,'* (a) Pq. Ihier'M somewhat more explicit in the reasons he gives, *« observez k regard de ces cr^anciers qui ont conserve " ou meliore I'hcritage, que, pour qu'ils piiissent ex. «* ercer leur privilege, il faut, ou qu'ils ayent donne «* leur demande dans Tann^e de la perfection de leurs ^* ouvrages, parce qu*autrement il y aurait une fin ne «* non recevoir acquise contre leur cr^ance ; ou qu'ils ** soient fondes dnns un marchd fait par acte devant <* notaire, ou du moins dans une obligation pardevant «• notaiie, pass^e dans la dite ann^e. Un litre de ere- " ance s^us signature privee, est bien valable vis-d-vk ** du debiteur, et pareillemenl une obligation passee de' " puis Vannee \ mais ces actes ne doivent point donner ** de preference au creancier contre des tiers, parce ** qu* autrement des debileurs pourraient en fraude de «• leurs legitimes crennciers ressusciter des creancer «* dejd acquittees." (b) Here we see the distinction evidently marked between the remedy which is still (a) 2 Bourj. Des Executions, tit. 8. 8cc. 10. § 105. p. 597. (b) Poth. TrAit4 de I'Hypotbeque, p. 453. - . COURT OF APPEALS. / . preserved to the workman against his debtor for the value of his labor, — even after the lapse of the year and day,— and the privilege claimed thereon. The remedy of the debtor affecto him only, he owes and justice requires that he should pay what he owes, nor can he avail himself of the tardiness of his creditor to proceed against him, while the debt remains unpaid ; but in regard of the privilege, it is not extended on the same equitable principle with the action, because it tends to the prejudice of third persons, and to ren- der ineffectual the security of bond fide creditors on the property of such debtor. Laches must always operate asfainst him who looks for an advantage, and will in other cases besides the present, destroy the claim of privilege quoad third persons, >vho are often ignorant of the many dealings and transactions between their debtor and particular creditors, and cannot always be prepared to meet the contrivances that may be formed to frustrate their claims. The law, therefore, seems lo protect the diligent creditor in a case of this kind, against a privilege which may be set up by collusion with the debtor, or upon the mere assertion of the workman, who shows no contract, nor any sutiicient diligence to secure such privilege. It is somewhat remarkable in this case, that when the appellant was taking the means to secure a debt due to him from the defendant Tetu, by obtaining the notarial obligation of the 28th May 1820, he should allow an open account of many years standing, and upon which he here founds, his privilege, to remain unliquidated. It is a strong presumption that the ap- pellant never looked to any other than the personal security of his debtor, Tetu, for this account. The 269 1887. JOUROAIN AND MlVIIXB. '. I iXI >i'i \4 fe £70 CASES IN THE PROVINCIAL m • 1897. JointDAIN AND MlVILLB. appellant seemed satisfied that his claim should remain on that footing, and there we think it ought still to rest* Judgment affirmed. ; ,, />•! ' 1- liiivr^'il li ! t* On Appeal from Quebec. "II j; r>ii:. 18th January. 1888. The Hon. M. H, Perceval Appellant, and '^■' PATEhoiNS AND Weir Respondents. An action of trespass on the fr^ case, for amis- £ HIS was an appeal from a judgment (a) rendered be maintaiued in an action against the appellant awtirding damages lector of the* ag^'"** '""" ^o** ^ hreach of his duty as collector of the customs for customs, in having exacted a larger sum than by law exacting alar- , . *^ . » mi ffcr sum for was allowed on the importation of certain goods. The the'laVautho- appelant pleaded, 1. a demurrer. 2. the general issue. rises, unless fhe foimer was over ruled, and after a hearing on the some reasona- . ' " biegroundof merits, the appellant was condemned to pay the da. mages demanded, viz : the sum of £19, with costs. Reio, Ch. J. The appellant denies to the respon- dent a right to recover damages under the present form of action, because, 1. This action can on!y be J3ice"or"wi*i- Considered as an action condictio indebiti, or an ac- fui intent. tion to rccover back the excess of duty paid, as to If the ilecia- rrj* ration, in this action, contain a statement of all the material fiiots, it will be sufficient. Where special damaires is the pist of the artion, and it be not alleffi^d. or, if alleged, be not proved, the action muBi be dismissed. But whore the law- gives n light of action for an injury, it presumes that damages are the con- , ,; >, Mquenoe, and a cottdusion for general demages will be sufficient. (a) Reported ante p. 815. excuse for his conduct is 8hewn,or such facts be laid before the court as will exclude every ■7f! l/i to 7 J !:r ■ . 1-' COURT OF APPEALS. 271 the appellant, as there is no ground upon which it can be maintained against him as a public officer, for any breach of his duty as such. Q, Enough is not stated in the declaration to maintain the action, and more particularly^ because the sterling cost in the invoice of the goods imported is not set out so as to shew the amount due on that importation. That the duty of the public officer was not stated, nor were the circum- stances of the injury or special damage so set out, that the appellant could answer thereto, or the respondent be entitled to damages. V/ith reference to these two grounds we must first determine what the nature of this action is, and we will thereby limit the objects of discussion to a few points. It cannot be considered as an action condictio indebiti or merely to recover back monies wrongfully p^icl. It is an action on the case for a misfeasance against a ministerial officer, in the discharge of his duty, not merely for refusing to perform what this duty required, but for exceeding his authority in the discharge of that duty ; for compelling the respondents to pay more than by law they were bound to pay, not from any misapprehension of the law, but Xiilfully and maliciously with a view to injure the respondents, and to prevent them from importing these goods as by lawt they were entitled. This language of the decla- ration cannot be misunderstood, and upon nn examin. ation of the authorities cited, it will be found that this action can be maintained. In the case of Drexce v. Coultoti, («) which was an action against a returning officer for refusing the vote 1828. Perceval AND Patersons AND WeUI. ivi ral damage does not flow from the nature of the action, as the necessary consequence of the appellant's neglect of duty as a public officer. But the principle here assumed is taken too largely, a distinction must be made between cases of general and special damage, according to the circumstances of the case. If an action cannot be maintained, but by reason of the special damage oc- casioned by the act complained of, the special damage becomes the gist of the action, and if no special damage be laid, or if laid be not proved, the action must be dismissed. But when the law gives a right of action for an injury complained of, it presumes that damages arise from such injury, and a conclusion for general damages is sufficient. It is cleaily settled that the law gives an action against a public officer for a wrong done by him in his office, when alleged to be done wil* fully and maliciously, and damages, being a natural con* sequence, may be demanded generally. Upon the general issue several objections have been urged, as there being no proof of notice of action ;— of the tender of entry to be made at the custom house; — of the protest, or of the signature of the notary to it i — of the entry in the books of the custom house under which the extra duty was paid, — the original not being produced ;— -nor of any act done by the appellant personally. We consider the evidence adduced to be sufficient on all these points. The only question which re- mains, — and the most material in the case — is whether COURT OF APPEALS. ^T-^ sufficient evidence has been adduced to support the allegation of a mulicious intention on the pint of the ;ij)j)ellaiit, by his refusal to receive the duly on the siiort prices of the goods imported and by exacting the duty on tlie larger or nominal prices. The evi- dence hears strongly against the appellant, it ascer- tains the fact that diderent individuals, at diH'erent times, and for a long time past, have made entries at the custom house on the invoices of goods imported by them and paid the duties upon the short prices* as a matter of course and without objection or difficulty. Independant of this being the interpreta- tion to he put on the law, it would seem to have been the constant piactice at the custom house to receive the duties upon the short prices. It does not appear to have been a matter of contest or of doubt, not a single instance to the contrary is shewn but the one before us, and it is difficult to account for its being raised on this occasion. It was the interest, and, we must say, ihe duty of the appellant to have laid be- fore the court such facts as would have shewn some leasonahle ground of excuse for his conduct, and thrown all imputation of malice or wilful intent out of the question. If he was in possession of such evi- dence, but did not see fit to adduce it, we regret that, as a public officer, he did not avail himself of so effectual a means of defence against an action of this nature. But taking the facts as they stand before us, — iincontroverted or explained by any evidence on the part of the appellant,— we find nothing to justify, or excuse his conduct ; he has made no case for the court to hesitate or deliberate upon, and we must draw 1828. I'KHlKVAL AM> Patku.-'O.ns ANU WeIU. f!- :ii I I IMAGE EVALUATION TEST TARGET (MT-S) // ^/ AV :/. 1.25 HI US u 14.0 1.4 2.0 1.6 ^•f- HiotogFaphic ^Sciences Qaporation '^ 23 WBT MAIN STRUT «imSTm,N.Y. USM (7l«)t72-4S03 ^ ■s C 276 CASES IN THE COURT OF KING'S BENCH 1828. that conclusion from the evidence which the court Perceval AND Patkrsons AND Weir, below has done. i v : / -■ ." ' > > i, >,)"'<;' i. Judgment affirmed. VI t- i'.J, ':J. . i, „.-i'};;uj i»;;«S'*v^^ »' '■ -^-rt'^'i •■jf:uv v- '/..■; - ' . 1 • ' I loth and 29th Janunry, 1&'J8. • . -"-'-vy in VM :ic*ion of trcf (. ..is for assaohand im- prison ler.tj ajfai" 5 the Pro'ilioial Jud : li 18^8. DiCKERSON V. Fletcher. racter, and my conduct in the office whicli I bear, are sacred and can only be called in question by that power from which the authority of us all emanates. Here, therefore, your jurisdiction fails, and I beg leave to suggest this for your own decision, subject of course to a right of appeal on my own part, if I shall conceive the judgment in this case to have been erro- neous. f» >■/•■! ?)• .■i| It will be argued by the plaintifTs counsel, that the whole business of contempts, and particularly such as were supposed to have been committed out ofcourl, was altogether coram non Jj^dice, and that the present action, therefore, must lie. The universality of this proposition must be denied, and the case now before the court affords a proof that if the proposition were in any case true, it is not generally so. The plea it- self suggests that this case is now coram non judice, and that this court had no right to take cognizance of it. If such a doctrine were admitted it would of course follow that if the court should reject the plea and proceed to judgment and execution and that that judgment should afterwards be reversed by the court of appeals an action would lie at the suit of the pre- sent defendant against the judges now on the bench for having so done. Now, it is contended, that no such action would lie, and applying this case to the one before the court, if it should be conceived that the judge of St. Francis has erroneously imagined that a matter was within his jurisdiction which this court may think was not so, it by no means follows that he would be liable to an action for such an error in his judicial decision. ''"■' r-^i- ' -'•"i^** j«" The next question which would be agitated on the I , FOR THE DISTRICT OF THREE RIVERS. 283 oiher side was, whether the ten juclii:ial public func- tionaries directed by the provincial statute Sith, Geo. III. c, 6. to preside in the several courts ^ King's Bench and provinci-ii courts thereby estabiishc ^re really judges, and entitled to the privileges and lui- iniinities which belong to the order, at all times and upon all occasions when acting in the execution of any of the multifarious duties with which they are charged by that act ; or whether only eight of them are so, and that only when acting in the execution of a comparatively small part of those duties, that is to say, when sitting in the superior terms of the courts of King's Bench. It is contended that they are, all of them, judges, and upon every decision where they are executing any part of their judicial functions, for the following reasons: — 1. The judges of England are considered as being so, whether in bank, at nisi prius, or on any other occasion where they are called upon to execute any part of their public duties though they sit under a great v,',riety of commissions, some of a general and others of a circumscribed nature, some of them temporary and others permanent, and many of them of a very subordinate description to the original patent by which they were first constituted judges. 2. Because the judges of the courts of King's Bench in Lower Canada, when sitting in the inferior terms, or on the tournees, cannot be entitled to any privileges or immunities which do not equally belong to the judges of the provincial courts. If the pecu- niary extent of the jurisdiction of the court be consi- dered as the criterion between the responsibility and irresponsibility of the judge ; this criterion would as well apply, to render a judge of the court of King's 1828. DiCKEriSON V. Fletcher. I ' m \ ^84 1828. DiCKF.RSON V. Fletcher. CASES IN THE COURT OF KING'S BENCH Bench, when sitting on either of the two last men. tioned occasions, responsible in an action in his own court or in any other in the province, as it would to render a provincial judge so liable. Every clause of the statute 34th, Geo. III. c, 6, in which the several courts are spoken of, either expressly gives them the same general powers and immunities wliich belong to all courts of record, or clearly evince the understanding of the legislature, that they should possess them equally from the time of their establish- ment, by the common law of the land. The 1 Ith sec* tion of this statute expressly gives the same powers in vacation to the judge of the provincial court at Three Rivers as are given to the judges of the courts of King's Bench for Quebec and Montreal, and classes them together in the same sentence. The 22d sec- tion in declaring that the refusal to surrender and de- liver certain records by the officers of the courts of common pleas to the clerks of the courts of King's Bench and provincial courts established by that act, shall be deemed3. FOR THE DISTRICT OF THREE RIVERS. 289 RSON tion by man over man, was carried to its highest degree. '828. Chancellor Kent, after stating the details of a long and j),ckk hard fought controversy between the courts in that ^ "• J^lktchbr country on this subject, by writs of habeas corpus and actions against judges, (which had taken place several times there, though there was no instance of the kind in England,) proceeds as follows : " The result of that controversy leaves the following principles undisturbed, and tends to settle and confirm them. 1. That Qvevy court has a right to commit for contempt, and that no other court has a right, upon habeas corpus, to control that commitment J 2. that no judge is responsible, in a private suit, to pains and penalties for his judicial acts. If any doubt had remained as to the ultimate effect of the decisions in the case of Yates, that doubt was entirely removed by the act of 1818, already referred to, which declared, that a party in prison for a contempt could not be discharged on a habeas corpus, so long as the power of the court which determines the contempt continued. The act may be considered as o?iI?/ decla. valor 1/ of the established principle of law, that every court of justice has a right to commit for contempts, and that it belongs exclusively to the court offended, to judge of contempts, and what amounts to them; and no other court or judge can, or ought to undertake in a collateral way, to question or review an adjudica- tion of a contempt made by another competent juris- diction. This may be considered as the established doc- trine equally in England as in this country."(«) There have been several cases in the United States where these principles have been adopted, as upon the trial of IVhipple and Strang, for the murder of the husband M . I i («) 2 Kent's Commcutarics on the Laws of the United States, p. 2G.ct scq. rt/n MJni ii.<^.^v i: 294 1828. GuGYr.KERR' : N CASES IN THE COURT OF KING'S BENCH dant pleaded a general demurrer, upon which the Altojnei/ General and Primrose were heard for the defendant and A. Stuart and Black for the plaintiff. Sewell, Ch. J. Tiiis case has certainly been ably argued on both sides, but a wide field has been chosen for the argument and the jurisdiction of the court of vice admiralty, instead of being partially investi- gated, has been generally discussed. This is an action for damages sustained by the plaintiff under circum- stances which, as it is said, render the defendant res. ponsible for a judicial procedure; but the question which we have to decide has been raised by a general demurrer to the plaintiff's declaration and the single enquiry is, does the plaintiff's declaration set forth a legal cause of action? If it does not the demurrer must be maintained and the actior dismissed. Where the members who constitute a court of jus- tice of limited authority err in their judgment, when they are acting within the extent of their jurisdiction, they are not amenable to individuals for their conduct in any shape whatever ; but if they assume to then)' selves a jurisdiction or authority which they have not by law, they become liable to the parties aggrieved, and responsible to them for the consequences of their misconduct. The reason of this distinction is ob* vious ; — while they act in the exercise of a legal jurisdiction they act as judges and they cannot be independant in the administration of justice if they are not protected. The errors, therefore, which they comr it, are to be remedied by appeal and there is no other mode of redress ; but when they take upon themselves a jurisdiction to which they are not enti- tled, they cease quoad hoc to be judges ; and their " ^ - I' li* FOR THE DISTRICT OF QUEBEC. 295 proceedings being, in such case, coram non Jiidice, '^'^s. they are no longer entitled to that exemption from gugyw.Kerr. responsibility towards individuals by which judges for the public benefit are by law defended, while they are in the due discharge of their lawful duties ; and they become liable to the parties aggrieved in da- mages which may be sought and obtained by action in other courts of superior jurisdiction. There is a wide i^'fference, therefore, between an assumption of jurisdiction and an improper exercise of jurisdiction ; and if the declaration does not allege facts which amount to an assumption of jurisdiction this court cannot interfere. Now, it is stated, that the plaintiff is a proctor of the court of vice admi- ralty, — that the registrar, the marshall, and the crier of that court presented a petition to the defendant, being then the judge, in which they complained of the plaintiff for the non-payment of certain "fees which were due and of right payable to them by and from the said Conrad A. Gugy,'* in certain cases which had been pending in the court of vice admiralty in which the plaintiff had acted as proctor, and prayed that the plaintift' should be " admonished to make payment of such arrears of fees as of right belonged to them, in virtue of their respective offices." That a copy of this petition was ordered, by the defendant, to be served on the plaintiff, and he was required to answer it. That an order was afterwards made by the defendant by which he the plaintiff was suspended from the exercise of his functions, as a proctor in the court of vice admiralty, in consequence of the proceed- ings had upon this petition. — This is the gravamen of which he complains, and for which he demands da- 2 R '%"-'- A-?^ """^'r.''' S96 CASES IN THE COURT OF KING'S BENCH 182d. I ! m til' lilt mages. — Admitting this to be true it cannot amount Gdgyv.Kerr. *° anything more than an improper exercise of juris. diction. The claim set up was by three officers of the court of vice admiralty against a fourth officer of the same court, the whole matter was thus enlirel)' inter se, and there can be no doubt that every court must, necessarily, possess a jurisdiction over its own officers ; if it has been improperly exercised in this case the remedy is by appeal and not by action in this court. In the case of Leigh who was a proctor in Doctor's Commons and by that court removed from his office, for refusing to pay a fine of ten shillings imposed upon him by order of that court, the judges of the king's bench in delivering their judgment said ** officers are incident to all courts, and must partake of the nature of those several and respective courts in which they attend ; and the judges, or those who have the supreme authority in such courts are the proper persons to censure the behaviour of their own officers ; and if they should be mistaken, the king's bench cannot relieve." (a) If any wrong be done in this case the party must appeal, (b) This court is unanimously of opinion that the demurrer must be maintained. ' ' I • Action dismissed. (a) 3. Mod. H. 335. (b) See the case of Oxenden, Holts R. 435. It is laid down in 2 Bacon's Abridfrement, p. 388, that " althoii<>:Ii the judges are to judge according^ to the settled and established rules and aucient castoms of the realm, approved for naany successions of ages, yet they are freed from all prosecutions for any thing done by them in court, which appears to have been an rrror of their judgment ;" and more recently it has b«en laid down as a legal principle not to be controverted, that " nhoercr is clothed with a judicial character, whether he be judge of a superior or of an inferior court : whether sitting at the commission of oyer and ter- miner, or at the quarter sessions : whether the forum in which he presides be of pecaliar jurisdiction, shcriifs court or manor court, or whether actin;; under charter as the censors of the College of Physicians, all and every FOR THE DISTRICT. OF QUEBEC. 297 when called upon in their judicial capacity to decide in their rcHpective I'Drums, upon cases brou nit .'x) ' .»>:«.:.->).;"' y-.'A ,\'-i-i A RULE was obtained in this case ordering Wil- liam Smith Sewell, and Thomas Ainslie Young, Es- quires, late sheriff of the district, to shew cause why attachments should not be granted against them for not paying over the sum of s€63, awarded to the opposant by a judgment of distribution of this court. On the I6th of October, 1826, Sewell and Young were by Letters Patent under the Great Seal of this Province, appointed " to be jointly and severally she- riff of and for the district of Quebec during pleasure and the residence of the said William Smith Sewell and Thomas Ainslie Young, within the district of Quebec, with all and singular the powers, authority, profits, privileges, emoluments and advantages belong- ins to the said office and bailiwick." The rule was resisted on the part of Sewell only, who it appeared did not take the oaths of office under his commission. The sum in question was not levied by him but by FOR THE DISTRICT OF QUEBEC. «99 Yotinj?, under the order of the court to him made indivithially. At the time it was levied SeweJl was absent from the province, with the consent of the Go. se vernor-in-Chief, and an affidavit was made by Young in which he deposed that he never associated with his own name that of Mr. Sewell, for the execution of any act under their commission, but in all things acted as .sheriff separately and :jlone. Kerr, Justice, The word "heriff, in the singular number, not only in grammatical but in legal con- struction, shews the entirety of the office, and in the language of Lord Coke in Curles's case, it is but one office for which two are named, to supply it. The grant is of an incorporeal hereditament, in joint te- nancy, wherein there must necessarily be unity of interest, of title, of time and of possession. There can be no severance of the office by one of the two, either by nonfeasance or misfeasance ; for it is vested in both and may be executed by either of the co-she- riffs or by both of them. In respect of Sewell*s ne- glect to take the oaths which has been insisted on, this may subject him to be proceeded against by informa- tion, but can in no degree operate as a severance of office ; for as is laid down by the court in Modern report (a) and referred to by Bacon, " if an officer be created by letters patent, he is a complete officer be- fore he is sworn and before any investiture." And it has been holden even when assigned by deed, the deed executed is the instrument which the law hath appointed instead of livery. If a different rule pre- vailed it would lie in the power of either of the co-she- 1828. Black I). WTON AND BUDUEN. ■J' 4!ia (a) Vol. I. p. 123. ii 300 CASES IN THE COURT OF KING'S BENCH ]»'iH. • la Bl.ACK V. Nkwton and BUDUEN. rifls, by refusal to assume the ofiice, to dcteat the in. tention of the crown whicli was, by appointing two, to insure the better performance of its duties, and to encreasc the security of the suitors. It equally mat. ters not whether, as is alleged, Sewell absented him. self from the province immediately after the insiiu- nient had passed the great seal and that the cuiirt proceeding upon the sole returns of Young had ad- judged him by name to pay these sums ; for the ofiice having vested both in him and Sewell the moment the letters patent had passed the great seal, it was not in the power of the latter to get rid of that responsi- bility which had equally attached to him as to liis colleague. av, t . . It has been strongly urged against this application that we are bound to take notice of our own oificers and that the court did not, during Sewell's absence in England, recognize him as a co-sheriff"; however, it must not be forgotten that though the office is one it might be executed by either, jointly/ and sever alljj, nor is it universally true that a writ should be directed to and returned by both of the co-sheriffs where there is " an unity, particularity and identity in the office ;" for in the case of Rich v. Player (a) where one of the sheriffs of London brought an action against the Chamberlain, the process of venire facias was directed to and returned by the co-sheriff". The case of Bethel V. Harvey and other cases have been referred teas establishing the same doctrine. The other grounds on which this rule has been opposed are better cal- culated to induce the court not to decline indulging (fl) 2. Shower, 286. FOR THE DISTRICT OF QUKHKC. 301 this summary course of proceeding by way of attach- ment than to exonerate Sewcll from responsibility. It has been said that he might have been appointed to the office against his will, as that he might have been ignorant of his appointment, though it appears from his affidavit that the uniting of Mr. Young with him in a new commission, was a matter of accommodation to himself to enable him to pay a visit to England. If in point of fact the commission had been forced upon him iigainst his will, or without his knowledge, and that he had in no degree participated in the ftcs and emolu- ments of the office during his absence, and these facts had been made out to the satisfaction of the court, we might have left the parties aggrieved to their remedy by special action on the case. But in the absence of any such proof, were we to refuse these applications for relief, we should renounce that unquestionable right which we have over all persons who are entrusted with asthare of the justice of the court, and abdicate the trust reposed in us for the security of the suitors, liowEN, Justice* If there be one thing more impor- tant than another in the administration of justice, it is that courts should at all times hold a strict and vi- gilant guard over the conduct of their own officers j and that suitors, after they have obtained judgment in the courts of law, to which they are compelled to resort for justice, should meet with no impediment in the attainment of their rights, and more particularly from those persons who, under the authority and sanction of the laws, have been interposed for the execution of the King's writs and the protection and benefit of the subject. The courts here, as well as in England, are bound to notice judicially, the manner of appointing 18j»8. 13l ACK V. Nkwton anu m I i'. . 'J, so^ CASES IN THE COURT OF KING'S BENCH I ' im Ul-.;!.'- 1828. Black V. Newton' and BUDDEN. the several officers of justice, and though no statute regulations are to be found in our books, directing the mode or manner in which sheriffs are to be chosen and appointed, yet we have one point established bej'ond the possibility of contradiction, and which goes far to decide the present question, namely, that by our own ordinance of 1785, («) process in causes exceeding £10 sterling, issuing from the court of King's Bench in Canada, is required " to be directed to and ex'.'Ciited by the sherijfoi the district, where such cour.' shall have jurisdiction, and in which the derendaut may be or doth reside, &c.** It is clear, therefore, from the words of the ordinance, that there cannot be two or more sheriffs, and whethper the number of persons in the commission be two or more, they, nevertheless, in conten plation of that law, can constitute but one office, the office of sheriff, and accordingly the Letters Patent do " constitute and appoint William Smith Sewell, and Thomas Ainslie Young, to be jointly and severally sheriff," and not sheriffs of the district of Quebec. In England the office of sherifi'is rarely found to be a lucrative one, indeed it is so far from being so con- sidered, that persons duly nominated or pricked off, as it is termed, are subject to be amerced £500 for re- fusing to qualify and take the oaths of office. With us. however, the office is not an annual one cast upon the individual by law, but is held from the Crown, as all others during pleasure, and is an office of emolument. In the nature of things, therefore, to say that Sewell was appointed without his consent, is to say that which the facts do lot warrant : on the contrary his own affi- davit shews the reason whv he did not take the oaths of (fl) 25, Geo. III. c.2,$ 1. FOR THE DISTRICT OF QUEBEC. ao3 office, namely, that he had obtained leave of absence, from the King's Representative, and that the Letters Pa- tent or commission, now under consideration, issued at Ills own request, he having been sheriff of this district from 1822, until the 28th May 1824, when Young was associated with him, " and constituted with the said Wil- liam Smith Sewell, to be jointly and severally sheriff of the district ofQuebec, to hold the said office during plea- sure, and the absence of the said William Smith Seweli from the said province of Lower Canada." Now mark what follows: — These two commissions are revoked Ly the commission in question, of the l6th October 1826, which appoints Sewell and Young, to be jointly and severally sheriff, not as in the foregoing commis- sion of May 1824, during the absence of Sewell, but " during pleasure and the residence of them the said William Smith Sewell and Thomas Ainslie Young within the district of Quebec," thus necessarily imply- ing the request and consent of Sewell to this arrange- ment, and from the essential difference in wording of the last commission, necessarily implying also, on the part of the government, that the commission was so framed for the better security of the public, by ren- dering them joinii;r and severally responsible, and that the leave of absence to be granted as sworn to, was only granted upon such condition ; otherwise no ne- cessity for the revocation of the former commission existed. No severance, therefore, in the office has been or could legally have been established, and al- though the returns may have been made by Young alone, and judgment may have been rendered against him nominaiim to pay the money, yet in the one case 1828. Black V. Newton and BUDDEN. ]tm s2 804 CASES IN THE COURT OF KING'S BENCH 1826. ,' (■ Black V. ■ Hewton and BUDDEN. and in the other, as well as in the direction of the several writs issuing from the court, it is the office aiul not the person that is addressed j and I cannot but hold that the return of a writ addressed to the shciifi' of Quebec, during the existence of the commission to Sewell and Young, jointly and severally, signed by either of them as sheriff, would have been equally va- lid and binding, as far as the rights and interests of the public were to be affected, however such returns might operate inler se in the arrangement of their private accounts. The authorities which have been cited at the bar establish, incontrovertibly, their joint and se- veral liability, but it ought not in a question of this kind to escape observation that the affidavits do not negative either of the facts that Sewell, previous to his appointmeuT, had not given good and sufficient se- curity for the faithful discharge of his office, or that he was not entitled to one half the fees and emoluments of the office, notwithstanding his temporary absence. The present is not, strictly speaking, a criminal pro- ceeding, but one well known in the law of this coun- try by which all depositaires des biens de justice are liable to be coerced by the imprisonment of their per. sons, (a) From these considerations, as well as those which have been urged in support of the rule, I am of opinion that the rule for an attachment in this case must be made absolute, as well against Sewell as against Young, reserving to the former all such legal recourse as he may be advised to take against the lat' ter, and all others in respect of the premises. (a) La contrainte par corps pent aussi etre prononcee pour depot necfs- saire, consignations faites par ordonnance de justice, ou entre les mains de personnes publiques, tels que les greffiers, procureurs et huissiers. Ord. dc I6G7, tit. 34. Art. 4. L. C Deniz. v. contrainte pat corps. FOR THE DISTRICT OF QUEBEC. Taschereau, Justice. After what has fallen from the learned judges and the authorities they have cited, it IS almost useless for me to add any thing upon this question. In the commission granted to hold the of> fice of sheriff, the administration understood that the public should have its security, that the honor of go- vernment should be respected, and that the public ser- vice should be punctually performed. The commission of the sheriff is granted to two gentlemen, to enable them to act jointly and severally. The commission gave them the power to act thus, so that the ministe- rial act of both became the act of each of them, and the ministerial act of each of them became the act of both and of each of them. They might act severally so that the public service should not suffer from the absence or sickness of one of them, but the responsi- bility of both remained the same. It was not in the power of either of them to screen himself from that responsibility by any misfeasance, or non feasance, on his part, such misfeasance or non feasance might sub- ject him to a penalty, but could not shelter him ; for he could derive no advantage from his own fault. Al- though they might raiike, as between themselves, any arrangement tliey thought proper respecting the dis- charge of the duties of the office, or the partition of its emoluments ; they had no power to make any pre- judicial to the public service, or in any way diminish- ing their joJnt and several responsibility towards the public. , I do, therefore, consider it but just that they be held jointly and severally responsible towards the public. The respectable person who is the subject of this discussion, although none can impute to him 305 1888. Black V. NsirrON AND BUDDEN. f - 806 1828. Black V, Newton and BUDDEN. 1^ CASES DETERMINED any intention of depriving the public of tlieir rights, cannot, for all that, equitably lay any claim to set aside his responsibility. It appears by the documents before iis, that it was merely for his own convenience that the commission of an indivisible office was given to him, and to another, in this manner. It has not been proved that he was not to have any share in the fees; nor has it been proved that it was against his consent that he was joined with the other in the com' mission, on the contrary every thing in the proceed- ings bears evidence that his own interest alone was contemplated, and that the commission woiiid not have been issued in this way had it not been for his own personal security. He committed an error in not taking proper security from his co-sherifF, and allowing the latter to act solely; but the right of the public, founded as it is in justice and equity, cannot be there* by impaired. However hard the circumstances of the particular case may be, he is responsible for the money which his partner has had in his hands, even as much as if it had been in his own, and there remains to him his recourse against that partner only. • I had douhts whether the parties ought not to have proceeded by way of action rather than by an attachment, seeing that this last mode of proceeding has in it some fea- tures of a criminal one; but it must be taken for granted that this court depended on him as well as on the other for the execution of its process, and he hav. ing disobeyed the court, the remedy is by the sum* mary process of attachment. Possessing that power, and its exercise becoming necessary for rendering jus. tice to an individual, from whom the use of his money BEFORE THE PRIVY COUNCIL. 307 is unjustly withheld, we cannot do otherwise than grant 1^28. an attachment against both parties. Black •>._ \ Rule absolute. • Newton and BUUDEN. 'i ta I ' ,, ' ,-■ a; Alexis Durocher and Others Appellants, and Benjamin Beaubien and Louis Gvy,,, Respondents. 13tli May, 1828. 1 HE question in this case was whether by the law , a minor, of of Canada, as it now stands, a mnior ot the age ol twenty, lan twenty could bequeath personal property to a tutor. goUafpJJpJrty The appellants had originally obtained a judgment in to a tutor, their flivor, in the Court of King's Bench at Mon- treal, which was reversed by the Provincial Court of Appeals. Master of the Rolls,— By the article 293 of the Coutume de Paris, it is clear that persons of the age of twen.iy could bequeath their real or personal pro- perty ; it is also manifest and clear, by the common law, that they could not bequeath to guardians or persons being in that relation by which their confi- dence might be abused by undue influence ; and if it was necessary to decide this question by the law of France, notwithstanding the arret of 1624, which has * See Com. Dip Officer. (A. 1.) (B. 1.) (B. 7.) (B. 11.) lb. tit. Prero- gative,(D. 37.) I Salk, 168. m v't I: ■' :ii 308 1828.' ,' l^i DCROCHER AND ' I' Beaubien. CASES DETERMINED been cited, il would possibly be the duty of the council to send a question to a French lawyer, with respect to the exception stated in that arret, btit it appears to their lordships, that the law of France is not to govern this case but that it must depend upon the law of Canada as altered by certain statutes that have been referred to. Upon a former occasion the lords of the council were of opinion that the statute of 14th, Geo. III. was meant merely to extend the subject over which the devisor had rights and did not affect in any man- ner the devisee : from what has passed to-day they are confirmed in the opinion they then formed upon the subject. The question then is what was the view of the provincial statute of 41st, Geo. III., which states, that doubt's and difficulties had arisen with respect to the construction of the statute Hth, Geo. III. Those doubts and difficulties could only have been whether that statute did or did not mean to enlarge the capacity of the devisee, and not only to enable the person by his will to give property he was not before capable of devising, but whether it did not niean that he could give to persons to whom by the law of France he could not devise ; and the ob- ject of that statute when we come to read its enact- ments is undoubtedly meant to remove in practice that doubt and difficulty, and to make a new direct law upon the subject, and for the very purpose of enlarging the power of the devisee, the words are, " that it shall and may be lawful for all and every person or persons of sound intellect, and of age, having the legal exercise of their rights, to devise or bequeath by last will and testament, whether the BEFORE THE PRIVY COUNCIL. 300 same be made by a husband or wife in favor of each other." Now the husband and wife could not before this law according*to the Coulume de Parht devise to each other in favor of one or more of their children as ihey then might ; and before this law they could not make an unequal distribution of their property between their children, except to a certain limited extent, and that proportionate inequality was limited. It proceeds to say they shall devise as they see meet " to any person whatever ;** therefore by this statute they enlarge the capacity of the devisee in favor of the husband and wife and of children in favor of qui ijuecesoit. Those words are certainly extensive and we find in the statute no subsequent words that ena- ble us to give those words a limited meaning. Tak- ing them, therefore, according to their common sense, this act would sanction a devise to any person, although previous to the passing of the act such per- son was prohibited by the law of France from re- ceiving the benefit of such devise, and we are to come to the conclusion upon this statute, that the incapacity of the guardian and the incapacity of other persons who stood in the same situation with the guardian, was by the statute removed, not being able otherwise to give any effect lo those words I have already referred to. The remaining question is, what is the sense of the terms, " Toutes personnes saines d'entendement agees et usant de leurs droits." Now, " usant de leurs droits" is of age to exercise their legal rights, and must necessarily, therefore, have relation to the property in respect of which they are about to exer- icise their legal rights. Now the property here in 1828. DUROCIIER AND Bhaluikn. 'V w t ti 310 CASES IN THE COURT OF KING'S BENCH I.' Mm 1828. DUROCIIER AM) Beal'bien. respect of which the devisor was about to exercise her legal rights, was moveable property : she was of age to exercise the legal rights with respect to move- able property, when she attained her age of twenty years, the conclusion necessarily follows that the inca- paciiy of the guardian being removed by this statute, this lady has exercised her legal rights in favor of the guardian. The decree, therefore, of the Court of Appeals must be affirmed. The judgment of the Court of Appeals was ac. cordingly affirmed with £50. sterling costs. Counsel for the appellants, the Solicitor General and Campbell, for the respondents j Brougham ami Coitman, ., Chasseur against Hamel. ? * SOtli June, 1828. An act de- clared by the Lpjjislature, g;enerally,tobe tcraporary,has no more than a temporary effect. Yet a temporary act may repeal a permanent statute if the intention of the Leffisla- ture to effect 8iich a repeal be niaitifest. 1 HIS was an action for a trespass or vote defait. The declaration stated, that the defendant entered into the plaintiff's house, and seized and sold certain articles of moveable property belonging to the plaintiff, with- out any lawful authority j and, therefore, he prayed compensation in damages. The defendant by a pe- remptory exception justified the entry, seizure and sale of the property in question, under the authority of a judgment, awarded by a militia court martial, against the plaintiff, for a fine of ten shillings, incurred un- ■■•■■■H FOR THE DISTRICT OF QUEBEC. 811 (ler and by virtue of the provisions of the ordinances of the ^7th Geo. III. cap. 2, and 29th Geo. III. cap. 4, for a breach of duty. To this justification the plain- tiff demurred. In the year 1787» a permanent militia law was pas- sed, (27. Geo. III. cap. 2.) intituled, " an ordinance " for better regulating the militia of this province, " and rendering it of more general utility towards the " preservation and security thereof." In 1789» ano- ther ordinance, (29, Geo. III. cap. 4,) likewise a per- manent law passed, amending the former. The sta- tute 34th, Geo. III. c. 4, intituled, " An act to pro. " vide for the greater security of this province, by " the better regulation of the militia thereof, and for *• repealing certain acts or ordinances relating to the " same" repealed the above mentioned ordinances, but enacted, " that this act should be and continue " in force from the passing thereof, until the first " day of July in the year of our Lord 1796, and no "longer.** By the statute S6th, Geo. III. c. 11, the last mentioned temporary act was amended and continued to the first day of July, 1802. The next statute upon this subject was the 43rd, Geo. III. c. 1, containing various provisions in relation to the militia and repeals the above mentioned two temporary sta- tutes : its duration was limited to the first dav of July, I8O7. The 53rd section repeals the ordinances above mentioned, enacting, •* that from and after the passing of this act an ordinance passed in the 27th year of His Majesty*s reign, intituled, &c. ; also, another ordinance passed in the 29th year of His Majesty's reign, intituled, &c. ; and also an act of the Legislature of the province passed in the 34tli 2 T 1828. C11A8SKUR V. Hamisl. #il'l 'l&l- m m It 'i 812 CASES IN THE COURT OF KING'S BENCH it-t M 1838. Chasseur I?. Hasiel. ; \ year of His Majesty's reign, intituled, &c. j (viz., the 34th, Geo. III. c. 4. j) and also another act passed in the 3Gth year of His Majesty's reign, intituled, &c. ; (viz., the 36th, Geo. III. c. 4 ) should be and were thereby repealed." In the last clause of this statute it is enacted, " that this act shall be and con. " tinue in force from the passing thereof, until the *' first day of July, whi^a will be in the year of our " Lord 1807, and no longer." This last mentioned statute having expired was revived by the 48th, Geo. III. c. 3, from the passing of the act on the 11th of April, 1808, and continued until the 1st of July, 1810, and from thence to the then next session of parliament. On the 21st March, 1811, by the act of the 51st, Geo. III. c. 9, it was further continued till the 1st of March, 1813, thence by the statute 52nd, Geo. III. c. 1, until the 1st of July, 1814. Having again expired it was revived by the statute .^5th, Geo. III. c. 1, from the passing of the act on the 8th March, 1815, and continued until the 1st of May, 1816, and having again expired it was revived by the statute 57th, Geo. III. c. 32, from the passing of that act on the 22nd March, 1817} and continued until the 1st of May, 1819* when it was further con- tinued by the 59th, Geo. III. c. 2, until the 1st of May, 1821, thence by the statute 1st, Geo. IV. c. 4, until the 1st of May, 1823, thence by the statute 3rd, Geo. IV. c. 28, until the 1st of May, 1825, thence by the statute 5th, Geo. IV. c. 21, until 1st May, I8S7, and no longer. .; • i The Attorney General having been heard for the defendant, — Bedard of Counsel for the plaintiff, not appearing in support of the demurrer, — the Judges | delivered their opinions seriatim. FOR THE DISTRICT OF QUEBEC. 313 Sewell, Cii. J. This cause has been heard upon the pleadipgs, and the question submitted to us is whether the justification be a sufiicient bar to the ac- tion if the matters of fact stated in the plea be true? anil this turns entirely upon the enquiry whether the mlHtia ordinances passed in tlie 27th and iS^^th Geo. III. he or be not in force. These ordinances were passed by the governor and Legislative Council, under the Quebec act, before the establishment of the present constitution, and were permanent acts. But by the provincial statute 34th, Geo. III. cap. 4, they were repealed in these words : " And be it further enacted, tlmt from and after the " passing of this act, an ordinance of the late province "of Quebec, passed in the 27th year of His Majesty's "reign, intituled, &c. and also an ordinance passed "in the 29th year of His Majesty's reign, intituled, " &c. shall be, and they are hereby repealed." The provincial statute 34, Geo. III. cap. 4, was not, how- ever, a permanent act: it was a temporary act in con- sequence of the 35th section, which is in these words : " And be it further enacted, by the authority afore- "said, that this act shall be and continue in force from " the passing thereof, until the 1st day of July, which " will be in the year of our Lord 1796, and no longer." And from hence has arisen the doubt whether the ordinances repealed by this statute were repealed permanently, or temporarily. I admit the principle I that a temporary act may repeal a permanent statute^ but to effect such a repeal, the intention of the legis- lature to do so, should, in my opinion, be manifest, pbr prima facie, an act which is declared by the legis- 1828. Chasseur V. 1 1 AM EL. f-kl* 314 CASES IN THE COURT OF KING'S BENCH ri' F I ,4Hetu V. IIamix. sli i'^' m •'m^i' 31G 1828. V. CASES IN THE COURT OF KING'S BENCH to provide for the protection and security of the pro. vince J and that it considered a well organized militia as the best means towards these objects. Tiie words in the preamble arc, *' Whereas a respectable mililid, established under proper regulations, is essential to Ik protection and defence of this province^* Tiie same words are to be found in the next, and I believe in every succeeding temporary act relating to the militia; and are w^e, in the absence of any express enactment, to presume that the legislature intended, by the clause of repeal in these temporary statutes, to withdraw from the province that protection and security which a mi. litia is calculated to afford? There is not onlv an absence of a plain and clear declaration of the intention of the legislature that these ordinances should be for ever repealed ; but a presumption of the strongest kind, derived from the words of the temporary acts to the contrary. There is another circumstance which has very great weight on my mind, derived from the civil law of the country. Here the militia are, in some respects, ministers of justice, adding strength to the civil arm, as well as a military force for its defence; and can we presume that the legislature should be so wanting to the interest of their fellow-citizens, as to meditate the depriving the civil magistrates of their support. The authority of the King v. Rogers, is lo my mind conclusive, and I am of opinion that judg- ment should be entered for the defendant. BowEN, Justice. I also heartily concur in the result of the opinion just delivered by the learned judges who have preceded me, although when the revival or non-revival of the militia ordinances first came under consideration in another place where I have the honor FOR THE DISTRICT OF QUEBEC. 317 to hold a seat the opinion which I then entertained was different.— This however proceeded from my hav- ing overlooke i the second repeal of these ordinances contained in the 53d section of the statute 43 Geo. III. c. 1, and having considered tht question solely upon the words of repeal as contained in the first sta- tute 43 Geo. III. c. 4. The latter is intituled " An " Act to provide for the greater security of this Pro- " vince by the better regulation of the Militia thereof, '* and for repealing certain acts or ordinances relating «' to the same." The pieamble recites that *' a res- " pcctable Militia under proper regulations is essential " to the protection and defence of this Province, and " the laws now in force are inadequate to the pur- '* poses intended." The 31st section then enacts " that from and after the passing of this act (March " 1793J an ordinance of the late Province of Quebec, " passed in the 27th year of His Majesty's reign, in- " titulcd ** An ordinance, &c., and also an ordinance " passed in the 29th year of His Majesty's reign, inti- " luled " An act or ordinance, &c. shall be and they " ate hereby repealed." And by the 35th section it is enacted ** that this act shall be and continue " in force from the passing thereof, until the 1st of "July, 1796, and no longer; provided always that if " at the time above fixed for the expiration of this Act, " the Province shall be in a state of war, invasion or " insurrection, the said act shall continue and be in " force until the end of such war, invasion or insur- ** lection." What may have been the intention of the Legislature in any case can only be collected from the language used by it in its enactments, and in every such case it becomes a question of construction as to 1828. Chasseur V. IlABIEIi. M m *« \ J 'n I-.; ^,:;:!i ' I ^rr 318 1828. Chasseur V. IIaueu CASES IN THE COURT OF KING'S BENCH what the Legislature feally intended. It is a clear rule that by the repeal of a repealing statute, the original statute is revived, for by so doing the Legislature de- clares that the repeal shall no longer exist ; and it is the same thing if the repealed law itself provide that the repeal shall be only temporary. But it is not true as has been asserted, that a perpetual law cannot in any instance be repealed by a temporary one ; for it is an undoubted principle in law, that a statute, though temporary in some of its provisions, may have a per- manent operation in other respects. This point came under discussion in the Court of King's Bench in Eng- land, in 1803, (aj when the question was whether the statute 26th Geo. IIL c. 108. sec, 27, which repealed the 19th Geo. IL c. 35, having itself expired at the end of the Session of Parliament after June, 1795, the 19th Geo. IL did not revive ;— and Lord Ellenhorow^h in delivering the opinion of the Court, said " that ** would not necessarily follow, for a law though tern- " porary in some of its provisions, may have a perma- " nent operation in other respects. The statute 26th *• Geo. III. c. 108, professes to repeal the 19th Geo. '* 11. absolutely though its own provisions which it " substituted in the place of it were to Le only tern- " porary.*' With a view to the construction for which I former- ly contended, it may not be altogether unprofitable to compare the words of repeal as contained in the 26th Geo. III. cap. 108, with the words of repeal in our provincial statute to which I have already referred,— " And be it further enacted by the authority afore* (a) 3 East's R. 20G. Warren v, Windle, .l(rl r 5' FOR THE DISTRICT OF QUEBEC. " said, that this act shall commence and take place on "Monday the 24th of June 1795, and from thence to " the end of the then next session of parliament, — and "that from and after the said 24th of July 1786, the "suid recited acts of the 19th, 23d, 24th, 31st and " SQd, Geo. II. and of the 6th and 21st years of the " reign of his present Majesty, shall bCf and is, and " are hereby repealed,** Words of repeal, which ac- cording to my construction of them, are in no wise more absolute than those contained in the provincial statute 34th Geo. III. cap. 4. The use of the words •' this act," in the foregoing clause affords an answer to much of tiie argument founded upon the case of the King v. Rogers, which has been relied on as de- cisive of tiie question under consideration. That case so fiir, in my opinion, from overturning the principle for which I contended, goes directly to strengthen and confirm it. Lord Ellenborough there said " it is a question of construction on every act professing to re- peal or interfere with the provisions of a former law, wliether it operates as a total or a partial and temporary repf^al. Here the question is whether the provisions of the statute 42, Geo. III. which was originalli/ iper. petual, be entirely repealed by the 46th of the King, or only repealed for a limited time. The last act re- cites, indeed, that certain provisions of the former act siiould be repealed; but this word is not to be taken in an absolute, if it appear upon the whole act to be used in a limited sense only." 1 trust enough has been shewn were it any longer an open question of construction, or were it necessary to justify the opi- nion formerly entertained by me of the subject, that u 2 319 1828. Chasseur V. IIameu 5~ vT (11. '^Jl M' 320 CASES IN THE COURT OF KING'S BENCH i>t !:.,! 1828. Chasseur V. Ha MEL. the repeal in the statute of 1793, (34th Geo. III.) was then contemplated as an absolute repeal. But the same legislature having subsequently in 1803, (and it is upon this ground alone that I yield my former opinion to which I must still have adhered, whatever might have been the consequences,) taken from me the right to enquire at present, what might have been its true intention in 1793, by again repealing the or- dinances in question ; this legislative interpretation of the clause of repeal in the statute of 1793, must, therefore, have the effect to preclude me from putting any other or different interpretation upon the like words of repeal contained in the statute of 1803, which af. ter being continued by various statutes, was suffered to expire on the 1st day of May 1827. The supposed trespass for which the plaintiff seeks to recover dam- ages from the defendant in the present instance being acts done in pursuance of the revived ordinances, I am of opinion, with the other judges, that if proved, they do in law amount to a justification of the defen- dant. Taschereau, Justice. This case falls within the principle of the cases cited by the defendant. It is evident that there was no intention in the legislature to repeal permanently the militia ordinances, and that the words and good sense of the several statutes re- ferred to require that construction. Therefore, judg- ment must be for the defendant. H FOR THE DISTRICT OF QUEBEC. 321 Isaac Rousse, Exparte. rx A WRIT of Habeas Corpus was issued directed to the keeper of the common gaol of this district to produce the body of Isaac Rousse, and by the return it appeared that this individual was imprisoned under a commitment upon a conviction before two justices for selling tickets in and belonging to a foreign lot- tery. The prisoner having been heard by his counsel the following opinion was given by Sewell, Ch. J. The point submitted is distinct and single. If the statutes 9th, Geo. I. c. 19> and 6th Geo. II. c. S5t form a part of the criminal law of this province, there has been no assumption of juris- diction on the part of the magistrates by whom the prisoner has been convicted of selling tickets " in and belonging to a foreign lottery," and consequently the prisoner most be remanded j for the question whe- ther the conviction was regular, as to the course of proceedings had in obtaining it, must be settled by certiorari. By the 14th, Geo. III. c. 83, ihe criminal law of England is declared to be the law of this province, " as well in the description and quality of the offence, as in the mode of prosecution and trial." A great portion of that law is of universal application and that portion is in force in this province ; but other portions are merely municipal and of local importance 29th July, 1828. The statute 14th, Geo. III. c. 83. has in- troduced into this province that portion of the criminal law of Eng- land only, which was of universal ap- plication there, and not such parts as were merely municipal and of local impor- tance. By that sta- tute, the 9th, Geo. I. c. 19. and 6th Geo. II. c. 35. which impose certain penal- ties, on per- sons sellincr tickets in a foreia[n lotte- ry, have been made to form a part of the criminal law of Lower Ca- nada. a 322 1828.' KoussE, Exi'ART.K. P i. CASES IN THE COURT OF KING'S BENCH only, and these are not in force. The line between them, in the absence of positive enactments, must be drawn by the legal discret'on of the judges as cases arise and call for decision, and *' the inquiry," says Sir William Grant in the case of the Attorney General V. Stewart at the rolls, " will depend upon this consi- deration, whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation equally applicable, in any country in which the law of England obtains, (a) Now, gaming from its tendency to corrupt the morals of the people is considered by the law of England to be an offence. " Taken in any light," says Sir William BlacJcstone, " it is an offence of the most alarming nature," (b) and all lotteries, as a species of gaming, are declared by the 10th and 11th Will. III. c.l7, to oe p;jblic nuisances. The statutes, therefore, which have been passed, prohibiting the establishment of offices for the sale of tickets and chances in foreign lotteries, and the sale of such tickets and chances, I cannot but consider as general regulations in further- ance of the laws against gaming, and as applicable iD this province to the state and condition of the inha- bitants as in England. The statute 6th, Geo. II. c. 35, afler stating that the statute 9th, Geo. I. c. 19, has been found inadequate, enacts, ** That if any person shall sell any ticket in any foreign lottery, and shall be convicted of the said offence before two or more justices of the peace, the person so convicted shall, for every such offence^ forfeit the sum of £200, and be committed to the county gaol, there to remain (a) 2 Mcrivalo's K. 154. (6) 4 Coram. 171. m ! !•' FOR THE DISTRICT OF QUEBEC. without bail or miiinprize for the space of one whole year, and iVom thence until the said sum of £200. so forfeited as aforesaid, shall be fully paid and satis. fied." And the return to this habeas corpus is a commitment of the prisoner upon conviction, before two justices, of the offence above stated. It has been argued that the conviction is not a criminal matter, but I cannot agree in this. By the mutiny act it is enacted, '* that a soldier shall not be liable to be taken out of His Majesty's service by any process or execution whatsoever other than for some criminal mailer" In the case oPThe King v. Bowen, the defendant, on a charge of bastardy, was commit- ted for refusing to enter into a recognizance to in- demnify the parish, and the question before the court of King's Bench was whether this was a commitment for a criminal matter and the court held that it was, because incontinence is a crime though cognizable only in the ecclesiastical courts, (a) The present ap- pears to me to be a stronger case than Bo'wen*s, for here, to sell tickets in a foreign lottery is, by statute, declared to be an offence punishable by fine and impri- sonment and cognizable before a criminal jurisdiction of two justices of the peace from whose judgment an appeal lies to the court of Quarter session. If I err in the opinion I entertain on this case I have the satis- faction of knowing that it may be brought before the Court of King's Bench where my error may be cor- rected* Let the prisoner be remanded. - - ' I * ■ . ■• ■ - (a) 5 Term. R. 156. lb. vol. 2, p. 270. The Kin» v. Archer. 323 1828. llOlJSSK, EXI'AKTU-. w ■■'^. '■ SS4 30tli July, 1828. The crown can recover interest where a private indi- vidual would bo entitled to it, as in an ac- tion for money paid under a written con- tract on ac- count of a third person, in which it may be reco- vered from the date of service of process of the Court. Where the greater rights and preroga- tives of the crown are in question re- conrsemustbe had to the pub- lic law of the Empire by which alone they can be determined : but where its minor prero- gatives and in- terests are in question they must be regu- lated by the established law of the place where the demand is made. CASES IN THE PROVINCIAL On Appeal from Quebec. The Attorney General pro Rege, Appellant. and Jane Black, Respondent. J. HE question in this case was whether the crown could recover interest, and from what period, on a debt which it had guaranteed to Messrs. McTavish & Co. and which it afterwaids paid, on the default of the late Mr. Goudie, who had become bound to pav the same under a deed of lease of the king's posts, made to him by the crown. Reid, Ch. J. Some discussion has arisen, as to the law that ought to govern the case, as it brings in question a right claimed by the crown,— and it has been contended on the part of the respondent, that the public law of England, is the only rule we can adopt by which the rights of the crown can be maintained, and that according to this law, the crown is not entitled to the interest here claimed, inasmuch as the right of the crown to demand interests or costs, is limited to such cases as are specially provided for, and not allowed in all cases as between subject and subject- that the debt here demanded is sui generis, and does not fall within any of those cases where interest is allowed, it not being a debt due by a public accoun* tant, not stipulated by any obligation or specialty, nor even certain or liquidated. We take the principle to be, that in all cases where the greater rights and prerogatives of the Crown come m COURT OF APPEALS. 3Q3 AM) Black, in question recourse must be had to the public law of isss. tiie Empire, as that alone by which such rights and ^ '^^''^ prerogatives can be determined. — But the debt here nky Geseral demanded is a mi?ior right, founded on a particular contract made between the crown and the late John Goudie, by which he undertakes, for the considera- tions therein mentioned, to pay this debt on the behalf of the crown to Messrs. McTavish & Co. This has more the appearance of a private contract, than of a debt growing due to the crown out of its public reve- nues.— Were the crown even entitled to exercise a stronger recourse than that given to the subject for the recovery of its right in this case, still it is competent to the crown to waive this right, and to adopt the re* course given to the subject ; in which case it appears consistent with reason, that it ought to obtain the siune justice as the subject. This principle the law of England seems to recognize, for by the stat. of 33. II. 8. ch, 39. s. 54>. it is enacted, " That the king in •• all suits thereafter to be taken, in or upon any obit- "gallons ov specialties made, or hereafter to be made " to the king, or any to his use, shall have and receive "hisjust k r'?n h'li Ir 1: S^iQ CASES IN THE PROVINCIAL 1828. AND Black. " rogativesaiul interests of the crown must be regiilatcil The attor- " ^"'^ govcmetl by the particular, and establisiied law NBY General «« of the placc where the demand is made," and ac. cordingly,— '* where peculiar laws and process exist, " as in Guernsey and Jersey, the king himself in " seeking to recover his own debts therein, must re- " sort to such laws for redress" — which alludes not merely to the form of process to be used, but also to the extent of recovery to be had, and is conformable to what Gail, and other civil law writers lay down on the subject.— Now according to the principle of law in this country, the rights of the crown are admitted bv all writers to stand on at least as good a footing as those of the subject, and in regard of the interest to be allowed on debts accruing to it, the maxim is—" U ** fisc s*en doit tenirau droit commun pour les interets"" applying this maxim to the case before us, the crown is entitled to claim interest from the day of the de- mande en justice, (a) that is from the fourth of July, 1825, but we cannot extend it further, as there is no specific demand, or count in the declaration, on which a judgment for any greater interest can be supported. (a) By the 60th art. of tbe ordinance of Orleans it is enacted (hat " contre les condamn^s a payer certaines somraes de deniers due par cedule ou obligation seront adjures les domma^cs et int^rSts requis pour le re- tardemcntda payement, a compter du jourderassiguation qui leurauraete faite." S COURT OF APPEALS. ^ On Appeal from Quebec. ♦ rf!l He^^ry John Caldwell... Appellant, and The Attorney General on the behalf of our Sovereign Lord the King Respondent. 3Q7 ."'.*! T I HIS was an appeal from a judgment of the Court of King's Bench at Quebec, upon an opposition made by the appellant, to the sale of the Fief and Seigniory of Lauzon, seized and taken in execution on the 17th day of March 1826, as belonging to the Honora- ble John Caldwell, at the suit of the Attorney Gene- ral on behalf ''f His Majesty. The grounds of the op- position were, that the late Henry Caldwell in his life time was proprietor of the said Seigniory, and that he departed this life, on the 28th day of May 1801, leav- ing the same in his succession and estate. That by his last will and testament olographe^ wholly-written and signed by himself, and which had been duly proved before the Honorable Jenkin Williams on the 2d day of June of the same year, he did give and bequeath all his estates real and personal to his son John Caldwell, (being his only son,) subject to such limitations as were provided in the said will, and did declare it to be his will that his grandson Henry, (the opposant) or such other of his grand sons, to be born in wedlock, whom the said John Caldwell might consider as must deserving, should inherit the said Seigniory of Lauzon entire and without any diminution. The appellant I therefore prayed that the said Seigniory might be de- x2 30th July, It is essential to the validity of a devise of real estate that the holo- graphe wiW ,\n which it is contained, should be en- tirely written by the testa- tor, and closed by his signa- ture. 3^8 CASES IN THE PROVINCIAL 1B28. Caldwell AND The Kino. 'in'i.H' h ':!•:! . W" ! VI I M rn,,, !^i iM !■! dared not to belong to the said John Caldwell, but that in virtue of the bequv Jt above mentioned the same might be declared to be the rightful property of the opposant, or of such other son of John Caldwell, thereafter to be born in wedlock, whom he might con' sider the most deserving: that the seizure might be declared void, and mainkvee granted \ of. To this opposition were pleaded, on behalf ot riis Majes- ty, 1st the general issue; 2d, a general demurrer, and Sd, peremptory exceptions. In the latter it was alleged that the pretended substitution or entail, in the said opposition mentioned, was not within six months after the decease of the late Henry Caldwell, or at any other time, published or enregistcred iu the royal court nearest to the domicile of the said Henry Caldwell, at the lime of his decease, being the court of King's Bench for the district of Quebec, or in any other court, as required by law. The opposition was ' sequently amended but the pleadings remained the j. Issue having been joined upon these pleadings, it was agreed between the parties that the parol evidence which had been legally adduced in the same cause, upon an op* position of William Meiklejohn in his capacity of tutor to the substitution or entail alleged to have been created by the will above mentioned, should be taken to be evidence upon the opposition of the appellant. The will referred to in the opposition when produced, commenced as follows: ** In the name of God, Amen. I, Henry Caldwell, of Belmont near Quebec, &c." It was proved to have been wholly written by the late Henry Caldwell, but hi3 signature was not subscribed I to it, and the will had no date. The parties having been heard, the Court of King's Bench pronounced its J COURT OF APPEALS. judgment, on the IStli day of June 1827, in the follow- ing terms: "considering that the will of the lute " Henry Caldwell, Esquire, in his lifetime Receiver " General of this province, was not executed accord- '« ing to the laws of Canada, or to the form prescribed •• by the laws of England, so as to pass the estate or " Seigniory of Lauzon, it is adjudged and declared "tliatlhe opposition of Henry John Caldwell, in this " cause fyled, be, and the same is hereby dismissed." From which judgment tf present appeal was insti- tuted. :»ti.>.r ./».<{ iftirtt -t'>Jjit!^ The parties having been heard by their Counsel, as well upon the opposition of Meiklejohn, on which a similar judgment had been pronounced, as upon that of tlie appellant, the following opinion of the court was delivered by liVjailrm. rt* wviitrtt ni twun Keid, Ch. J. To the oppositions in this case, dif. ferent pleas have been made, and it has been objected on the part of the respondent, 1. That the will in ques- tion was without legal effect or validity, the same not having been written and signed by the late Henry Cald- well. ^. That the devise therein and thereby made, containing a substitution in favor of the opposants, but not having been published in the King's courts, nor en- registered in the public registers thereof, as by law re- quired, the devise in question was, therefore, wholly null and void. On these points the Court of King's Bench, after hearing the parties and the evidence by them ad- duced, adjudged that the will in question not having been made and executed, either according to the laws of Canada, or according to the forms prescribed by the laws of England, was not sufficient to pass the estate or seigniory of Lauzon to the opposants, and therefore 18-28. ANO Tim Kino. I 330 CASES IN THE PROVINCIAL 182d. Caldwell AND The King. dismissed the oppositions with costs.— Th': ""se has been fully and ably argued, and after giving all due consideration to iis importance, we come now to de- termine, whether the judgment appealed from is war- ranted by laM', or whether it ought to be reversed. The first point to be considered is. whether the writ- ing produced and proved, as the last will and testa- ment of the late Henry Caldwell, — the same having been written by him, but neither dated or signed, that is, subscribed by him, — can nevertheless be considered under the laws of the country as a good and valid ho> lograph will sufficient to vest in the opposants the right they claim. Among the arguments adduced in support of the will it has been strongly urged, that as the subject in this country is at liberty to adopt any form in making his will, known either by the laws of Canada or by the law of England ; and as the fcrm here followed, is one known by the law of England, in as far as regards the disposition by will of chattel inte- rests, and no distinction being made or known by the laws of Canada as in England, between the form of a will of real, and a will of personal property, (any form when legal, being sufficient to pass all kinds of jiroperty by the laws of Canada,) the form used by the late Henry Caldwell, being recognized here as a legal form, must necessarily have the effect to pass the real as well as the personal estate, inasmuch as the cfiect of such will must be determined by the laws of Canada, where the property lies. — That although the will in question has not been subscribed or closed by the signature of the testator, yet his name being writ- ten by him at the commencement of it in these words, «• /, Henrif Caldwell^ Esquire^ of Belmont^ S^" it is a •t COURT OF APPEALS. ' i sufficient signing, and so held by the decisions of the courts in England, on the stat. 29th C. II. — Conse- quently the will so signed must be held sufficient to operate the devise contended for, by the laws of Ca- nada. This argument however cannot be admitted as correct in principle, for if we consider tlie British sta- tute of the 14th of the late King, (commonly called the Quebec Act,) it is evident that the forms of wills thereby introduced, were the forms which in England were admitted and known as having the effect and operation of a sufficient conveyance and disposition of the estate of the testator. — These were extended to this colony, no doubt, for the benefit of such of *}^. King's subjects settled in it, as might be unac- qua'nted with the forms then followed under the French laws, in order to facilitate them in the dispo- sition of their property, and to enable them to transfer it by will in Canada as easily and eflTectually as they could have done in England. It certainly cannot be inferred from this statute, that the form of a will ope> rating only as a bequest of a chattel interest in Eng- land, should have a greater effect in Canada than it had in England, or that it should operate a devise of the realty in Canada, where by the laws of the country it was insufficient for that purpose ; the words of the statute are very clear and plain : — *• That every person having lands or goods in the province, or m ho has a right to alienate the same in his life-time by deed of sale, gifl or otherwise, may devise or bequeath the same at his or her death by his or her last will or testa- ment, such will being executed, either according to the laws of Canada, or according to the forms pre- scribed by the laws of England." — The plain meaning 331 1838. Caldwell AND TuE King. ! VII m i !: i II S32 1838. Caldwell AND TiiE King. CASES IN THE PROVINCIAL ot which is, that every person desirous of devising liis lands in Canada by a will in the English i'orm, roust follow that form in such manner as would operate a devise of land in England, and the same tiling io re- gard of chattels.— It never was meant or intended by this stattite that the forms known by the laws of the two countries could be so amalgamated, that a person might adopt in part the form of a will recogniztd by the law of the one country, to give effect to an insuffi. cient form under the laws of the other, for this would be adopting a form unknown to the laws of either. The distinction is sufficiently marked, that the forms of the one country or of the other must be followed through. out, and the form adopted must be efficient according to the law of that country from which it is taken,— the forms of the one country are introduced, the forms of the other are confirmed, as two distinct modes for the conveyance of real property by will.— The will in ques. tion therefore must in its form be such, as by the laws of England or by the laws of Canada will operate a devise of the real estate. Now, according to the laws of England, it must be admitted on all hands, that this will can have no efiect in devising the realty, we must therefore consider it, in point of form and efiect, under the laws of Canada. ■" It is called an holograph will, and by the testimony adduced, appears to have been wholly written by the late Henry Caldwell, but is neither dated or signed by him, and on this account the objection appears to have been taken that it cannot in point of form be consi. dered as a will, nor hrya any effect whatever under the laws of Canada. The rule of law, as established by the 289th article of the cusiOQi is—" pour reputer m COURT OF APPEALS. 333 tninff 10 re- " testament solemnel, est requis qu*il soit ecrit et signe **du testdteur, S^c** :-p-This is the holograph will, and the two requisites in point of foim are, that it shall be xwitlen and signed by the testator. Now, if we can find that by the decisions of the courts of justice, or by any interpretation had upon this article, the sign^ ing thereby required, has or can be construed in the same manner as it has been construed by the courts in England, under the stat. 29 C. 11. we will certainly allow the full effect of such construction, and declare that the testator, by writing his name at the commence. ment of this holograph will, has thereby sufficiently complied with the law which requires " qu*il soil ecrit "e/ signe du testateur,*' Among the commentators upon this article, little is to be found applicable to the question, — they, in general, assume the words of the law by saying, that the will must be written and signed by the testator, but as to the place where such signature should be affixed, it would not seem to have been considered by them as a matter of doubt or diffi- culty, so as to excite observation or comment ; the few who have intimated any opinion on the subject, we shall have occasion just now to notice. The autho- nties cited by the appellants we have carefully exa- mined, but they are far from establishing the principle contended for. The case cited from Denizart ( COURT OF APPEALS. * some fatufe period. But such of the hw Writers wTio have touched apon the point, of what constitutes the execution of a will by the signature of the testator, and where that signature ought to be placed, put the question beyond all doubt. Ferriesre lays down the general meaning of that word, he says, " Signature " est la souscription, ou apposition de son nom an " bas d'un acte, mise de son propre main." \ji) Po- thier in speaking of the testament olograph, says, " La " signature doit 6tre k la fin de Pacte, parcequ'elle « en est le complement et la perfection." (h) Ricard, speakiitg of wills in general, says, " Quant au lieu oi\ « les signatures doivent fitre plac6es, il n*y a pas de " doute f[\\*\\ y a obligation de les apposer d la fin « de Pacte, et apr^s qu*il est achev6, attendu que " faisant foi par eH«s ihfimes et servant de sceau k " I'acte, elles ne peuvent point valablemtent etre faitesfc " que iors que Pacte est accompli.'* § 76> in< default of which it could not be mttiui tallied. In answer to this objection, it is said that tiic magistrates, by ondoring this road to be opened, had: exceeded their jurisdiction, and in this respect the ofR- cer had acted not virtute officii but colore officii, and is not protected by this clause ; and that this distinction! in terms was taken by Lord Kenyon, as referred- to in, Tidd's practice. Now I take the distinction; there made between virlute officii and colore officii to be no more than that when a magiatrate|<-<-in the exercise off authority,—- the subject matter of which is within his jurisdiction, decides in a pure and upright mind^but is mistaken in his opinionj and) orders an act tp bq done which exceeds his authority, he is excused, and all persons acting under his warrant. In the humane view of the law he then acts virtute officii. But when with a judgment knowing that the act was not within the scope of his jurisdiction, and a heart impure, he shrill wilfully pervert the law to gratify private pur-> pores, then the law considers him as having acted colore officii, and withholds from him its protection. If, indeed, it were otherwise the clause in the act would become of no use or avail ; for, acting within the ii. mits of his authority, and in strict observance of the powers granted, he would be as well shielded from the 1828. Canxon Vi Larub. 340 CASES IN THE COURT OF KING'S BENCH >g i mi i-i y a . '; 1828. Cannon V. Lakce. undue exercise of his jurisdiction as if no such clause had been inserted. So far as respects Larue it is im. necessary for us to enquire, whether, having obeyed the authority given to him by the Quarter Sessions, or if that court had abused its authority in ordering the street to be opened, whether the action should not have been brought against the magistrates, and not against him, (on both of which points 1 could have no difficulty in making up my mind.) I am of opinion that after the expiration of the three months this action cannot be maintained against the officer acting under the statute, and that, as regards him, the action must be dismissed. As to the two other defendants they stand in a different situation, for they have severed in their defence and have not pleaded a justification, as that they came in aid of the officer, but have rested their defence entirely on a general plea, whereby they have put in issue the commission of the trespass only, and this has been completely proved against them both. One of them, Mailhot, appears to have been an active instrument in demolishing the buildings ; and although the other, Phillips, acted with more caution, yet we find him present countenancing the act of trespass : that his foreman assisted in it, and he himself sent for rum to be given to the men wbo actually pulled down the outhouses, and that the whole was done in an out- rageous manner. It only, therefore, remains for the court to assess the damages, which ah circumstances ''onsidered the court assesses at £50, and for this sum judgment (a) will be entered up against both of them with costs. Vallieres and Scott, for the plaintiff. — Gugy^ Romain and Smith, for the defendants. '>ii. (a) Affirmed in appeal the 30th April 1830. FOR THE DISTRCT OF QUEBEC. ) j 34,1 / 'Jo' ("oil Wilson against Kerr. 9lh Deer. 1828. Certain fees were paid by the plaintiff to the de- The court fendant, as judge of the court of vice admiralty for the diction mTn province, in a suit lately pending before him for sub- J"^idy°f'"hJ traction of mariner's wages, and this was an action to court of vice recover back the fees so paid, amounting to the sum recover Lck of £15, for the express purpose of trying the defen- j;i^"YJe1Jia dant's right to exact them. a suit deter- Willan, for the plaintiff, admitted that a court having court, but the jurisdiction over the subject matter or cause of action, appeal^ to "tL has jurisdiction equally so over that which is necessa- h'?** «®»"t <>*' •1 . • 1 I • I «_ 1 1 1 ■, . admiralty lo rily incidental to it, but that the sum demanded ought Engiand.orto not to be considered as costs of suit, but as a sum of h^^Pri'vy *"* monev paid under th-^ colour of fees to the judge him- tiouncii. 1/. / . .1 1 in « Semble,Thtit self, having no right to take such fees — 1. Because, if the right of the right exists at all, it must be founded either upon jhe ilcrad- express enactment or immemorial usage, neither of n»»raity.toex- which had been shewn. Q, Because by the provincial an immemo. ordinance of the governor in council of the year 1780, IrJduceriilto a sum of £200 per annum was allowed to the then iudse *!i'* country *^ . „ „ JO after the con- of the vice admiralty, in lieu of fees; and 3. Because quest, it is in evidence that the defendant receives the annual salary of £S00, as judge of the vice admiralty court, i Primrose, for the defendant, said that this court could^ not entertain the question inasmuch as it relates, ex- clusively, to another court, the vice admiralty having competent and original jurisdiction over the subject matter before it, viz, a suit for mariners's wages, to ^ 34^^ 1828. WiLEON V. KSRR. I'i . 'rrfT J- cii >"<•>{ K/i jitil: ni I" off) 11 J Ifli Hi;.. .Ihiuii'; lo ^l^iiHl, Ofi' 'Jo t^f ."P'cj'l JO*' -Ill M ■ _ .J«ft4r; ■ i; ^j^i, ■( CASES IN THE COURT OF KING'S BENCH which the question of costs and the amount thereof was purely incidental, and could only be corrected by an appeal from the judgment to the high court of ad- miralty in England, of by a petition to the judge of the vice admiralty to revise the taxation. By the consent of parties the court pronounced its j'udgment in vacation. >Bow£«, Justice. The defendaDt has put upon the record his commission under the great seal of the hif^h court of admiralty in England, which delegates the tie- icessary power to him as such judge, with the right of taking fees as exercised, not only by the high court of admiralty, but until very lately by the judges in cve!y other c^nirt in England. It is i^ (Evidence that upon the conquest of Canada, the iirst governor Gen* eral Murray^ in 1764, by letters patent, app«>in ted Mr. Potts, judge of the vice admiralty for the province of Quebec, and gratited the office to him with the right to take and recefive all such fe6s iind emoluments as any other court in tlie colomes took, or of right ought to have taken in any of them« Here t-heti in Hmhe, we find, that on the drst introduction of tht oflfce into Canaida fees were granted to the j^idge. Again, in September 1769, in the comnrission issued by the go- vernor to Mr. Johmont we find these words, " with power of taking and recieiving such salary as siioukl hereafter be appointed, and in the meantitne to take all such profits, advantages and emoluments f'^ tbe said office belonging, with such fees as ^' oc j be approved by His Excellency. The ordin jf 1780, * r re. gulating the fees of various ofi. s in the province, which the plaintifi^ has much relied o , was merely temporary, and expired long before the appointment FOR THE DISTRICT OF QUEBEC. of the defendant to be the judge of the vice admiralty, it contained, however, a legislative recognition of the right to fees by granting to the then judge, a salary of £200 per annum in lieu of fees. The ancient re- gisters of the court also prove that the former judges did receive fees, in one of them we find a bi!l porrec- tedin a suit for seamen's wages, in which the follow- ing item was inserted by the proctor: "Paid to the judge, £4 198." Now as this court, the King's Bench, has no appellate jurisdiction over the decisions of the vice admiralty court, we cannot try that which the judge has done in the exercise of his office, in any mat- ter within the scope of his jurisdiction, (a) although he should have proceeded erroneously. The case of ylc- krly v. Parkinson, (Ji) wherein it was held " that an action on the case is not maintainable if the court has a general jurisdiction over the subject matter," is directly in point. Again, it is distinctly stated in Blacksione's Commentaries (c) that when the admiral's court has jurisdiction over the original cause of action* it has jurisdiction also, over all consequential questions, although properly they may be determinable at com- mon law. We know not under what circumstances the salary o£ £200 per annum is paid by His Majesty to the present judge, but this we know, that the Warrant does not express it to be in lieu of fees. This action must, therefore, be dismissed, and the plaintiff left to his remedy by an appeal from the court of vice admi- rally to the high court of admiralty in England, if he see fit, or he may appeal from this judgment to the King in council. (a) Wood's Institutes, 498.— 1 Chittjr's Pleadings, p. 66. (b) 3 Manle and Selnryn. 424. (c) Vol. 3. p. 188. z2 843 1898. WllJON V. Kkrr. 'i 11 I SH. i'-a h 1888. Wilson V. Kekr. CASES IN THE COURT OF KING'S BENCH Tasch^reau, Justice, Wo are not called upon to determine whether it is, or is not expedient that the judge of the vice admiralty should receive fees, this be- longs to the legislature, but to decide according to the law as we lind it, whether it be good or bad. Tiie cs< tablishment of th^ court of vice admiralty was a con- sequence of the conquest. There has been no parti- cular statute, either of the imperial parliament or of the provincial parliament, specially providing for the establishment of this court in Canada. The office of judge of this court canno\ be considered a new office; but the court and its officers are established in this country upon the same footing as in England, with the same powers, the same privileges and the same right!. Amongst these rights is the right of receiving fees, es- tablished by an imniemorial usage, equivalent to a positive law, which usage has been recognized and act- ed upon in this country. This usage in England is more ancient than the statute of Edward the III. which prohibits the taking of fees without the authority of parliament, af^er the making of the statute, but does not revoke the laws and usages previously established. This usage must then be considered as one established by competent authority; it has been followed in the colonies, and has been introduced into this province with the cc 4. t of vice admiralty. It is a law from which we have no right to derogate, unless authori'/ed by an act of parliament. Now, there is no law in force which derogates from this usage. It is true that there wai an ordinance which derogated from it for a time, but | the legislature has not thought proper to continue thisj temporary act, it is not for us to supply this. The ordin- ance, then, so far from bein£; repugnant to the receiv- FOR THE DISTRICT OF QUEBEC, h") 345 ing of the fees, formally recognizes the usage under which they are received. The Sovereign, in his com- mission conferring the office of judge, grants it with all the fees lawfully appertaining to it. We cannot of ourselves take them from him. The question of fees is accessary to the principal litigation, and is, therefore, of the jurisdiction of the court of vice ad- miralty and not of this. If the judge has erred, it is only by an appeal that his error can be rectified. If this court could at all interfere in this matter, at ut- most it could only be when the judge received fees not sanctioned by the table of fees of the vire admi- ralty, but there is nothing of the kind in this case al- leged or proved. The only question being whether the immemorial usage of receiving fees in the admi- ralty by the judge, — which has also obtained in the other British colonies where courts of admiralty have been established, — is in force in this country, and thinking as I do, that it is, I concur in the opinion of the court, that the question is one of costs which be- longs to the vice admiralty, and that this court has no jurisdiction over it. The action must, therefore, be dismissed. 1828. WlUON 17. Kbrk. Sarony against Bell. 20th April. 1828. An alien can UPON the decease of the late P. A. De Bonne, near peR"nai*eL Quebec, in the year 1816, he left divers collateral re- {uhwbjwt!" 84,6 m « ' II 1828. Sarony V. Bell, ^- — .i •.^K ..^. <^- I CASES IN THE COURT Of KING'S BENCH latives, whereof some were natural born subjects of His Majesty, and others aliens resident in the king. dom of France ; the latter being in a nearer degree of relationship to the deceased than the former. The Canadian heirs having taken possession as well of the real as of the personal estate of the deceased, this ac. tion was brought by the assignee of three out of five of the French relatives, — claiming as heirs of the de. ceased, a sum of money due to him in his lifetime,— for the purpose of obtaining an adjudication of the court upon the question which had arisen whether ihe collateral relatives of British birth or those of French birth were entitled to recover this debt, forming part of the personal estate left by the deceased. To this action the defendant pleaded tiie general issue, and also a special plea in bar, setting forth '* that the as- signors of the obligation were not the heirs of the late P. A. De Bonne, deceased, that they were aliens born in foreign parts, out of the allegiance of our Lord the King, and within the allegiance of a foreign state, to wit, of His Majesty the King of France and Navarre, and not subjects of our said Lord the King, by natu. ralization, denization or otherwise, that they were and still are resident out of the allegiance of our lord the King, and within the allegiance of the said King of France, and that if even they were the nearest relatives of the late P. A. De Bonne, they could not take the goods, monies, &c. in his estate, because he was a sub- ject of our lord the King, and in his allegiance at the time of his decease, and therefore, the sum demanded by the plaintiff could not have been assigned to him, ;is in the declaration set forth." Issue having been FOR THE DISTRICT OF QUEBEC. ^ > joined on these pleadings the parties were heard upon ihem as upon a demurrer, to the plea of exception. In support of the plea it was said that ihis was not a claim founded on the droit d*aubame, which, it was admitted, was an odious law, and such as ought to re. ceive the most strict construction, but simply a ques- tion of civil right between two classes of persons, as to the class upon which the law had cast the inheri- tance of the personal estate of a deceased British sub- ject. That the late P. A. De Bonne having been domiciliated in Lower Canada at the time of his de- cease, the distribution of the personal estate left by him, must be regulated by the law of this country, unless some treaty, binding upon ail the King's sub- jects, could be shewn whereby the right of inherit- ing the personal estate of deceased subjects of the kingdom, domiciliated in Canada, had been conferred upon the subjects of the King of France. That the treaties bearing upon the present question,, were, 1. The 13th article of the treaty of Ulrccht (A. D. 1713) the words of which are that " it shall be law- " ful and free for merchants and others being Fub- " jects to the Queen of Great Britain or to the Most " Christian King, by will and by any other disposi- " tion made either during the time of sickness or at " any other time be(ore or at the point of death to " devise or give away their merchandize, effects, mo. " nies, debts belonging to them and all moveable " goods which they leave or ought to have at the " time of their death within the dominions and any " other places belonging to the Queen of Great Bri- " tain and to the Most Christian King. Moreover, 347 1828. W 'i'X, lOH T ] ( 9kH^h i^^^^B M^I [ 1 |uH 348 ^1 B^^H 1828. \\« ijl il^H 0*-VXrf H^^^H 8 A RON Y j^^^^^M i v. « ^^H 1 Bkm,. H '.W 'W^mt flU it hI 'Iffill ^1 i il ^ffinli ^1 tt It ffil l^nHi'^H '''^ !■ 'HI 1^1 tt B inliifll i '1 w ihm n f CI i ' ' ^B n^^Bil Bvl R' 'H 1 E^ 11 <( 1' ^ W ' V ii i 1 »m '■ I ffiiH'tv'i '' (C ' '^ ill 'IMUi , '^ ■ rSijj ' i! flli^M-; • " '' ' i ' m ^i' 1 '^'' th ■ ] |iH |i iij t ' n9 '-' tt ■'' ''S Iu9 '' ' 's • it 1 i ^ ' t* 'u ^bs^hIh^I j By ^bKJBB M^B 1 Hi il ' tt lljlfl 1 ^ h '' ' tt ^ 'mil 9 ■ A •• il lln 1 5i' IImI i i! •; « 1 il n 1 f 1 ' n B^B 11 •\. ^B ilBM BH I ' 1 ' 1 lUi^n ■ ^ ' < * 1 • . $ tt t • tt IH| SS' 9 tt iMi; ^B H f* ^ I' H H 1 1 '1 j tt l^n l^K 1 i.li ' . --> •* a IB ^K' B i 1' IhH^r ■ 1 1 K 1 IHM i ' 1 ^bH ^^ ; . In MWiBHIl [1 , ,[ M h^^bHI ' s tllJM^^BiWpi ; 1 . i |HH i i\ CASES IN THE COURT OF KING'S BENCH whether they die having made their will, or intes. tate, their lawful heirs, executors, or administra* tors residing in either of the kingdoms or coming from any other part, although they be not natura. lized, shall freely and quietly receive and take pos* session of all the said goods and effects whatsoever according to the laws of Great Britain and France respectively ; in such manner, however, that the wills and right of entering upon the inheritance of persons intestate must be proved according to law, as well by the subjects of the Queen of Great Britain as by the subjects of the Most Christian King in those places where each person died, whe- ther that may happen in Great Britain or in France, any law, statute, edict, custom or droit (faubaine whatever to the contrary notwithstanding." Q. The 3rd article of the treaty of Aix-la-Chapelk, e words of which are " The treaties of Westphalia of 1648, those of Madrid between the Crowns of England and Spain of I667 and I67O. The trea- ties of peace of Nimeguen of I678 and 1679, of Ryswich of 1697, of Utrecht of I7IS, of Baden of 1714. The treaty of the triple alliance of the Hague of I717, that of the quadruple alliance of London of I7I8, and the treaty of peace of Vienna of 1738, serve as a basis and foundation to the ge* neral peace and to the present treaty ; and for this purpose they are renewed and confirmed in the best form, and as if they were herein inserted, word for word, so that they shall be punctually observed for the future in all their tenor and religiously exe- cutcd on the one side and the other, such points. FOR THE DISTRICT OF QUEBEC. J j <• however, as have been derogated from in the pre- " sent treaty excepted." 3, The 2nd article of the treaty of Paris, (10th February, I76S,) the words of which are " The treaties of Westphalia of 1648. " Those of Madrid between the Crowns of Great " Britain and Spain of I667 and I67O, the treaties of " peace of Nimeguen of I678 and I67P, of Ryswich " of l697i those of peace and commerce of Utrecht of «• 171s, that of Baden of I714, the treaty of triple «« alliance of Hague of 1717» that of the quadruple " alliance of London of I7I8, the treaty of peace of » Vienna of 17^8, the definitive treaty of Aix-la-Cha- « pelle of 1748, and of Madrid between the Crowns '< of Great Britain and Spain of 17.50, as well as the « treaties between the Crowns of Spain and Portugal « of the 13th February, I668, of the 6th February. « 1715, and of the 12th February, 176I, and that of "the 11th April, 1713, between France and Portu- " gal with the guarantees of Great Britain serve as a " basis and a foundation to the peace and to the pre- " sent treaty, and for this purpose they are all re- " newed and confirmed in the best form, as well as all " the treaties in general which subsisted between the " high contracting parties before the war, as if they " were inserted here, word for word, so that they are " to be exactly observed for the future, in their whole " tenor and religiously executed on all sides, in all " their points, which shall not be derogated from by " the present treaty, notwithstanding all that may " have been stipulated to the contrary by any of the " high contracting parties ; and all the said parties " declare that they will not suffer any privilege, fa- 349 1828. 'J ?!. is A/ 350 CASES IN THE COURT OF KING'S BENCH 1828. \^ «« ""It / i( (( n t€ vor or indulgence to subsist contrary to the Uez. ties above confirmed, except which shall have been agreed and stipulated by the present treaty." 4. The 2nd article of the treaty of Versailles (A. D. 1783,) the words of which are ** The treaties ot Westphalia or 1648, the treaties of peace of Nime. guen of 1678 and I679, of Ryswich of 1697, tiiose " of peace and commerce of Utrecht of I7IS. that of " Baden of 1714, that of the triple alliance of the ** Hague of 1717i that of the quadruple alliance ot London of I7I8. The treaty of peace of Vienna of 1738, the definitive treaty of Aix4a-Chapelle of " 1748, and that of Paris of I763 serve as a basis and foundation to the present treaty and to the peace; and to this purpose they are all renewed and con- firmed^ in the best form, as well as ail the treaties in " general which subsisted between the high contract* " ing parties before the war, &c." And lastly, by the treaty of Paris of the 30th May, 1814, article 28, " the abolition of the droit (Vaubaine and others of " the same nature in the countries which reciprocalljr ** stipulated it with France, or which had been ante- " cedently annexed to it is expressly confirmed." That the general rule of the law of France, similar herein to the law of Rome was, Peregrinus capere non potest hereditatem except he were specially qualified to that effect by a treaty between the sovereign states to which the two parties belonged, and the foreigner claiming, as he does, under an exception to the rule was bound to bring himself within the strict letter ot the treaty. Now, the treaty of Utrecht and the sub- sequent treaties which are confirmatory of its provi- «( (( (( (« (( \m\ FOR THE DISTRICT OF QUEBEC. A J sions relate to the successions either testamentary or abintestat of Engh'sh subjects dying in France, and of French suV^^'ts dying in England. The French sub- jects clalining the personal estate of the late P. A. De Bonne do not then bring themselves within the letter of this clause of the treaty, nor indeed within the spirit of the clause. It relates to the legal right of aubaine and cannot reasonably be extended to the case of a private succession of one of the king's subjects dying within his dominions which is a matter of mere municipal regulation. That this question had come before the French courts and the construction given hj them to the treaty of Utrecht had been as above, (a) On the part of the plaintiff it was urged, that the subject in controversy was to be regulated by the public law of England touching as it docs the rights of aliens in respect of whom the law was and must be uniform throughout the British empire. That an alien has no heritdble blood and therefore cannot in- herit land ; and moveable property he does not inherit, he takes it under the statute of distributions. (6) By the law of England an alien might take out letters of administration, and it was a settled point, that the next of kin referred to in the statute of distributions ari to be investigated by the same rules of consangui- nity M those wh'^ are entitled to letters of adminis- I tration. That in France the droit d'aubaine did not I operate against the subjects of the states who did not (o) L. C. Den. v. Anglois, 4. 1. Diet, de Dom. An^flois. . {)>) Petersdorff's Abi*. v. Descent, 38. Admioistration, 238. Distribu- I OOD. 44S, Str. 1088, 16 R«p.de Jar. 553 v. Succeuion. 8 A 951 { 1828. Saront V. Ik n li ■mi 352 1828.' Sarony V. Bbix. CASES IN THE COURT OF KING'S BENCH exercise it with respect to the subjects of the King of France, (a) It was urged in reply that the matter of succession was, generally speaking, a matter of purely arbitrary municipal regulation owing its existence absolutely to the civil code of each particular country, and could only be considered as appertaining to the domaine of public law when it was made the subject of specific convention in the public acts and treaties of independ- ent states, and so far forth as such conventions extend- ed and no farther. That the rule of the English law, in this particular, was founded upon motives of public policy peculiar to herself and for the encou- ragement of foreigners coming to trade in Great Bri- tain and in no wise any supposed right in foreign states, {b) That these motives do not extend to the colonies, (c) it not having been the policy of the em* pire to encourage the establishment of foreign mer- chants in the colonies, but quite the contrary as will be seen by the navigation act of Charles II. That the subject had been treated as if the succession in question were that of an alien dying in one of the British colonies and having heirs or other personal representatives resident abroad : but that this succes- cession was that of a British subject dying in a Bri- tish colony and leaving therein heirs also British sub- jects qualified to take the succession and who are nov to be excluded therefrom by foreigners setting forth nearer propinquity of blood. That although the mo- dern French code adopted the principle that the suc- (a) 2 Pandeotes 135, whieb refen to iin arrSt. I Black. Com. 378. L- C. Den. V. Aubaine. (c) 4 L. C. Den e. (b) Chitty en Prerog. 238. Bac Abr. Ali«ni, C. . V. Colonies Franc. § S, No. 8. FOR THE DISTRICT OF QUEBEC. 353 cessions of foreigners and the claims of foreigners to a share in the successions of French subjects should be regulated upon the principle of reciprocity this was an arbitrary rule of that code (a) and was not to be found either in the law of England or of France, transferred to and subsisting in this country. I3y the judgment of the court the plea of alienage was overrided, * and proof ordered upon the issues of fact. I82S. ^ ■ ?"! (a) TouUier II v. in. tif. l.ch. 2. $ 102. * This action was dismissed on the 20th April 1830, upon the defendant'ii motion, for want of proceeding's during; one whole term, but as he had omitted to move during several terms it was dismissed without costs. Vide the case of the Viscomto Delkry nj^ainst Delerv, decided in B. R. Q.on the 11th day of April IS34. This action was brought bjr the plaintiff as the only son and solo heir at law of the late Viscomte Delkry, who died in France, to recover the balance of the price stipulated in a deed of sale from the latter to his brother, the defendant, of one half of certain estates and seigniories which they inherited in common from their father the late Joseph tiaspard Chaussegros Delery, in his lifetime one of the members of the legislative council ofthis pro\'ince. The defendant, with other grounds of defence, pleaded that the plaintiff was an alien and could not take by in> hrritance any immoveable property or droit immobilier, allei^in^ that the object of the plaintifTs demand was in its nature immoveable property. The court overruled this plea, statincr it entertained no doubt of the ngnt of the plaintiff to inherit personal property, and that the sum demanded being such, judgment must be fur the plaintiff. This jud)jfment was affirmed in the court of appeals on the 15th day of November iSSl. For exceptions to the law of alienag^e by treaties as recoj^nized in France, Tide Puthier, Tr. des Successions, c. 1, art. 2, ^ 1, p. 10.// Rep. de Jur. T. Succession p. 551. 2. L. C. Den. 5^0. v. Aubaine, ) Rep. de Jur. t. An;;lois, 439. lb. v. Aubaine, 722. lb. v. Succession, 551, et seq. Le droit d'aubaine est aboli entre la France et la Grande Breta^ne, pour les biens meubles seulement. Les sujets de Tun des deux royaumes, peuvent reciproquement dans Tautre royaurae, disposer romme bon leur semble de en biens, ou les transmettre intestat; ils sont habiles aussi, en justifiant de la quality d'h^ritier, h recueillir les successions mobiliaires de leurs cum- patriotes, mais ils n'ont aucun droit sur celles des nationnux. Ces prin- cipes resultentde plusieurs conventions. — Gaschon, Code Diplomatique dea Mbaim, p. 1. Je coraprend sous la denomination de la Grande Bietaf^ne, I'Angleterre, I'Ecossc, Tlrlande et plusieurs autres ilea. Les colonies soumises ■ onstamment aux lots g^n^rales de leur metropole, ne se ressentent pas du droit d'exception. lb. As to En;(lish law upon the subject of aliena)i[e as between France and Kngland, and acted upon in France, vide the opinions ofDe Grey, Attorney lieneral, and Dunning, Solicitor General, cited in a case of Casiation be- forethe Council in France. 16 Rep. deJut. v. Succession p. 553. For^n opinion of Sir James Mansfield, Solicitor General, as to the rule of the i-i: (- ' . 1 ' •I" 1" i 1 if It laE 35i! 1888. Sarony V. Sell. CASES DETERMINED Enelish law, not bciii); affected by hostilities between the two countrin. 1 L. C.Denizarf, v. Aubaine, p. 610. As respects the right of forrigners to inherit personal property in Knj. gland, viae the case of Sir Upwell Caroon, Crokes' Car. p. 8. 1 Com. Di;;. 361. y. Administration. lb. 347-8 as to rij^ht of administration id ntxt of kin. For modern cases vide the case of Cambiato v. Negrotto, 2 Ad- dams* Ecclesiastical Rep. 430 1 Haggard's Ecclesiastical, Uep. 93. In the goods of the Elector of Ilessc. John Scott and Another Appellanti. and ) The Phcenix Assurance Company,,,, Respojidents. 13lh May, 1829. judgment rendered in the court of King'.s Bench at Montreal, in favor of the appellants, had been re- versed and their action dismissed with costs. The ViqE Chancellor. Their lordships will not jurance^ troublc the GouHsel for the respondents in this cause. There appears only to be, in fact, two questions; or^*'eai"ma * ^^^ ^** * ^^^^ °^ appeal from the judgment of hearanobjec- the court of appeals of Lowcr Canada by which a tio2 not ar- fifued in the court of origi- nal jutisdic- tion. If a condi' tion, referred to in of insurance against fire, event of loss,'' and the first question that has been made is, whether me^n'r'theKof '* ^** Competent to the court of appeals of Lower a certificate to Canada to hear an objection which was not argued in be procured underthehand of a magistrate or sworn notary of the city or district, importing that they are acquainted with the character and circumstances of the persons insured, and do know or verily believe that they have really and by misfortune without fraud, sustained by fire loas and damaffe to the amoaot therein mentioned, fluch certificate is » condition precedent to a recovery of any loss, af^aiust the insurers, on the policy. And if a certificate be procured, in which a knowledge and belief as to the amouiU of loss i« omitted, it will be insuffi- cient. BEFORE THE PRIVY COUNCIL. 355 tiro countnei. the court of original jurisdiction. Now, taking it for granted, tlie objection was not argued in the court below, there is no rule ot'law which prevents a person appealing from arguing a question which was never argued in the court below. It is the constant prac- tice of the court above, though they often do refuse to hear arguments that were not argued in the court below ; and it is observable that the very case which has been broughc into discussion, furnishes an in- stance of the right of the parties to use before the court of appeals arguments which were not used in the court below ; for in the case of ffood v. JVorS' kiji {a) Lord Kenyan commences his judgment, hav- ing referred to the point of a venire de novo in these words : — " The second point respecting the venire de novo is now for the first time started, no notice hav- ing been taken of it on the first argument here, or on the motion to arrest the judgment in the Court of Common Pleas ; if there appeared to be any ground for it, we would desire to have the case further inves- tigated," and so on. Then with respect to the principal question, it ap- pears to their Lordships, this case is governed by the case of Oldham v. Bewicke^ and Wood v. Worsley, (at) The only difference between the two cases is this, that by the certificate in the present case, the parties cer- tifying were to certify to their knowledge or belief, that a loss had been sustained to the amount therein men- tioned, manifestly implying that their certificate itself was a certificate of the amount of the loss according to the knowledge and belief of the certifier. Now here no amount whatever is stated, and it is of as much im- 1820. 8a>TT r. The Piuksijc asrukancb Company. M. (a) 2 H. Black. R. 574 and 577, in note. S56 ^ CASES IN THE PROVINCIAL 18S0. M !■ Scott Cum HA NY. portance to the company to have the knowledge and belief, and getting persons pledged to the amount of Ji' the loss, as it is of importance to them to have per- The Pikenix . ' A88i)RANtR sons giving that pledge as to the character of the par. ties; and the principle, therefore, of these two case.*, appears to their Lordships so completely to govern the present case, that they think the judgment below must be affirir.ed. It is observable, from the judgment, in Oldham v, Bewicke^ that it was a case where the ob- jection to the certificate appeared upon the face of the declaration, and the defendants below not having taken advantage of the condition precedent, the plaintiff had recovered a verdict, an application was made to the court to set aside the verdict; and Lord Loughborough said: " Though X am satisfied the verdict was right, that the fire was accidental, and that the certificate could not have been procured, because the bankrupt had not sustained all the loss he claimed ; yet the rule of intendment after verdict cannot be applied where there is an absolute defect of tiile, as there is in this case." In this case their Lordships think there was an absolute defect of title, of which advantage maybe taken ir the way it has been, by arguing the objection in the provincial court of appeals for the first time, and therefore the judgment of the court below mus*^^ be affirmed. Mr. Brougham — your Lordships afBrm the judgment with costs? The Vice Chancellor— yei ; I intend to give costs. I!.' ,. ■ •- l!i ' J COURT OF APPEALS. 857 : ? »l On Appeal FROM Quebec. Van Kouohnet. Appellant, and Maitland and others Respondents* 24th July, 1829. On the twenty-ninth day of May 1827, one Alexan- Advances in (ier McDonald being indebted to the respondents, they mUten'afrree^ obtained an attachment against his moveable effects "aJeify a a and estate personal. Under this process a raft of oak merchant in , . . , , I . ^ A -n Upper Cana< and pme timber then lymg at Lape Kouge, was at- da, to enable tached by the sheriff as belonging to the defendant, SVfoTumbe'r, McDonald. In the progress of the respondent's suit *<> cut, and - , , 11 i • 1 1 convey to the to recover laetr debt, the appellant mtervened and Quebec mar. claimed the timber as his property, the same having f/^^f tJXr* been in his possession, until the seizure of it by the "P?" »»>« con- . . #11' 1 V i_ ditions, that as respondent, m virtue of a delivery thereof on the 1st soon as dres- day of May 1827, and of another delivery on the 20th Te'^cinsW^Jd day of the same month, in pursuance of a contract J' J*!i3,^"Jd made at Cornwall in Upper Canada, on the 6th day toA, outcon- of January 1827, between the appellant and the de- kTattheTk fendant, in the following terms: " The said Philip S'^'TJatT*^ «• Van Koughnet doth hereby agree to furnish the "houW have* " said Alexander McDonald with auch articles of mer- timber*a*nd ' " chandize, provisions, grain, forage and other necessa- fo*"^"* Jj.®" lance remain- iog:, after a deduction of bis disbursements and advanoes, including^ 10 per cent upon the latter, with a commission of 2^ per cent upon the sale : Held, that after a delivery to A, before it reaches the market, without fraud or collusion with B. the timber could not be attached at the suit of B's cre- ditors in payment of his debts, but the balance if any, after a sale by A. ,g. can alone be arrested in his hands, under the process of the court. li 11 II tl) vl ^\ ' iK'nl '1. W'll !i II 1 ill Mf SZiS CASES IN THE PROVINCIAL !\ Si I 1829. Van Koi'OIINET AND Maitland. ••'"X. i t «( (C ** ries as he tj^e said Philip Van Koiighnet shall ihm ** advisable and expedient, — and for such term of time " as he the said Philip Van Koughnet shall think pro- " per, in order ^o enable the said Alexander McDonald *' to get out lumber, and to carry the same to market. ** And the said Alexander McDonald on his part, doth " hereby agree to deliver over every stick of lumber '* or timber, that he shall prepare or cause to be pre. *' pared for market, so soon as the same shall ?.e dressed ** for that purpose, as well as all that has already been ** made or caused to have been made by him the said " Alexander McDonald, or has been or shall be pur< chased by him, to the said Philip Van Koughnet as agent, who shall have full power and authority to <* mark the same in his the said Philip Van Koughnet's ** name, or cause the same to be so marked, which <* lumber or timl>er shall be considered, lond Jide^ the " property of the said Philip Van Koughnet, and the " said Alexander McDonald shall not have any power *^ or authority to dispose of the said lumber so got out « or purchased by him the said Alexander McDonald, ** or any part thereof, without the consent or permission *' of the said Philip Van Koughnet, or his agent \ and " the lumber so got out or purchased by the said ** Alexander McDonald, is to be taken to market by " him the said Alexander McDonald at his own risk *• and expense, and to be disposed of by the said Phi *' lip Van Koughnet, or his agent, at the sole risk of *' the said Alexander McDonald ; and after such dis- « poral the said Philip Van Koughnet shall retain to ** himself a sufficijnt sum to cover all the advances *^ made by him the said Philip Van Koughnet to the " said Alexander McDonald, together with all neces- IE I T • COURT OF APPEALS. « sary expenses that the said Philip Van Koughnet, or " his agent, shall be at in getting the said lumber to "market, and paying off and discharging all such " hands as shall have any just claims or charges against " the said Alexander McDonald for getting out and "taking the said lumber to market; including ten " pounds upon every hundred pounds that shall be ad- " vanced by the said Philip Van Koughnet, in cash, " provisions, grain, and forage, with a commission of " ^ per cent upon the sale of the whole of the lum- " ber ; but should it be necessary for the said Philip " Van Koughnet to give over the said lumber to any " other person to dispose of, then in that case the usual " commission shall be allowed such person for dispo- " siii^ of the timber, the surplus, if ai:y, to be paid " over to the said Alexander McDonald, to and for his " own use and benefit." The demand in intervention further stated, that in furtherance of the above con- tract the appellant advanced the sum of £^.57. 1 Is. 4jd. by means of which alone, McDonald was enabled to get out the timber in question. It also contained four other counts, alleging, 1. A delivery in trust upon the advances, &c. ; ^. an account stated, and a delivery I of the timber in payment; 3. a right to obtain the i'iiraberwi revendication, and 4>.&ii<:'^^ for the balance due upon the advances. The respondent pleaded the general issue only, and by the evidence it appeared that the timber was cut, and the appellant's mark put lupon it at Jessop's falls on the Ottawa. The raft was Igiven in charge by the defendant, to one John Mc- IDonald as his foreman and agent, and in the river be- Ihind the Island of Montreal, the raft having been di« B S S59 I8S9. Van kouoiinet AND Maitlano. ! ;!I ,iif,;! t- - w .1 it • :ii' iMfJ lii' lli 1 ■«• f j -1 1 ' 1 \ i |i:|| ij Ik 11 360 CASES IN "l^HE PROVJ^NCIAL 1829. m llll ?'" ■:q ill Van kougrnbt AND Maitland. yided into ^wo for facility in descending the rapid% tlie appellant went upon it and the foreman delivered the timber to him, at wl^ich time some of the pieces were marked witl^ the appellant's name. The appel- lant then left the raft which arrived safe at Quebec, where he again went upon it, paid the foreman his wages and some of the other hands. By the judgment of the Court of King's Bench the demand in interven* tion was dismissed. For the appeliantj it ^;as contended th^t there was 1^0 ground for tl>e imputation of fraud, an' t could not be supposed to exist in relation to Jio contract. That the possession of moveables wa^ prima facie evi. dence of property, and it is not necessary to prove n absolute right of property, but a special or qualided right would be sufficient. That the appe|llant was a qualified owner, having provided the funds whir!; cre- ated the property, and could not be divested cf ( ^ntil his debt was satisfied. Whatever balance remained after the sale, the respondents were entitled to, and that was all tl^e appellant could be made answerable for. He was also a pawnee, and although the princi- ple must be admitted that the right of the pawnee ex- isted only during possession, and w^s lost with the possession, the appellant had a continued possession through John McDonald and the men of the raft, who had become his servants. The delivery was an ac- tual delivery, though from the nature of the case, only a constructive one; it was a ftctio longcB manus, or a delivery by pointing out. There was no other reme- dy than an intervention, as an action against the sh^ j riff would not lie. I On behalf of the respondents it was contended, COURT OF APPEALS. 361 That there should have been a contract between the parties of a nature to create the right in question. 2. That this contract should have been executed by an actual delivery or the subject matter of the lien in pursuance of the contract, and 3, That the goodi should have continued in the actual possession of the party claiming the right of lien. That all these re- quisites were wanting and no right of lien therefore existed. By the terms of the agreement the timber in question was to remain in possession of the defen- dant until its arrival at the Quebec market and then be delivered to the appellant, and it was not pre- tended that any delivery had been then made in pur- suance of it^ The agreement being in writing could not be modified or altered by any mere parol agree- ment between the parties, (a) That this agreement had not in law ve^lted any right of lien in the goods in question in favor of the appellant, because it was unaccompanied by ati actual delivery, and it was in its very terms executory, — the timber remaining in the intermediate time in the possession and under the control of the debtor. (^) That the pretended delivery of the timber behind Montreal, if made at all, was illegal itd imvalid (c) the same having been made to defraud the creditors of the defendant in a clandestine manner whilst the defendaifit wa^ an absconding deb* tor, and this to the knowledge of the appellant, a fact established by almost all the witnesses exa- mined. The defendaht could noi come within the 1829. Van kouqiinet AND Maitlano. h «,;! (a) PhilUps on Ev. 530, ch. 10. § 2, 6th ed. (b) Poth. Contrat d* Kantiweraent, Nos. 8. 13. Ferr. Gr. Cout. art. 181, $ 2. Poth. Tr. du Drpit (!• Prop. No. 245.7. (c) 2 Phillip* OQ Ev. p. 92. and the cam of Astey v. Emery, there cited. T/' 362 1889. VaK kovohnet AND Maitland* CASES IN THE PROVINCIAL limits of Lower Canadu, it was, therefore, necessary that the timber should be sent there in the name of a third person. Besides, the delivery, at the most, was only of certain sticks or pieces of timber whereupon the foreman put certain marks or signs, and could only have effect as respected them, (a) and these too remained in the possession of the defendant through his servants and workmen, and no right of lien could have accrued even as respected them. As respects the possession it could amount to no more than a constructive possession, and the appellant as pledgee could derive no right from it, a real and actual pos< session be'.ng by law required to maintain a right of lien similar to that set up by the appellant, (b) If one half of the raft had been delivered to the appel* lant in person he lost his possession, such as it was, when he left it and thereupon it remained in the pos. session of John McDonald who was the servant and agent of the defendant whosesoever servant he chose to consider himself. Reid, Ch. J. The contract between the appellant and the defendant having been proved, as also that it was by means of the advances made by the appellant that the timber was procured, the whole merits of the case rest on the facts of delivery and possession. If the delivery was a sufficient delivery the appellant has clearly established his right, if not the respondents were entitled to possession of the raft. Contracts of this nature ought to be favorably considered as being the means of facilitating trade and bringing a staple (a) 8 DeniMrt 300 r. Faeteur. (6) Arret of SOth June, 1770, in i DcDiurt 300 v. Faotaur. Paley P. aod A. 117. Kinlock r. Craig, 3 T, It. 1 1 9 and 783. fiell'a Comm. 470. u COURT OF APPEALS. article to market. The advances made by the appel- lant gave him an equitable claim though not a perfect lien, and to constitute a lien an actual, and not a constructive possession, was rcc]iuisite, although a con- structive possession was sufficient in cases of sale. The first delivery in Upper Canada it seems had been abandoned, and rightly, for it was not an actual one : the other, at the back of the island of Montreal was better established, and in the judgment of the court sufficiently proved by the foreman. The appel- lant was personally present, and by putting his foot on the raft took actual possession. From that time forward the foreman not only considered himself in the employment of Van Koughnet but actually re- ceived his wages from him at Quebec, as did some of the other hands. It has been objected that the raft was only to be delivered at Quebec and that the fore- man had no right to alter the agreement in that res- pect ; but the contract cannot be so construed, fcr it is even expressly said the timber was to be delivered as soon as cut and dressed ; this plainly shews that an anterior delivery was provided for in the contract, and the delivery proved was, therefore, consistent with the terms of the contract and the intention of the parties. As to only a few pieces of timber being marked that was no valid objection, the raft itself was marked with the appellant's name, (a) and Jt might as well be contended that every piece contained in a bale of dry goods should be separately marked, as that every stick of timber in a raft required it. It has also been objected that possession had been 863 16K9. KoVGIINET AND Maitlaxo. It M (a) ElIU V. Hunt, S T. R. 468. a64 CASES IN THE COURT OF KING'S BENCH '.fi- ■ ;1!| III! 1829. Van KoUUilNET AND Maitlamd. abandoned, but when the delivery was effected the raft came under a fresh control ; and this we were not hd to presume but had the direct tes- timony of the foreman that it was so. The ap. pellant acted as owner, — the foreman as his agent,— the men became his servants, and he it was who paid them their wages. Again, it has been said the raft was separated, and only part delivered, but this sepa* ration was merely for temporary purposes, it was re* united and came whole to Quebec, with the nppel* Iant*s mark upon it. The intention of the parties must be looktd to, they were fulfilled by the whole raft coming under the appellant's orders, as the delivery of a part of a ship's cargo, when a bargain has been made for the whole, is, in law, a delivery of the whole, (a) The court views all these objections as unfounded. The appellant appears to have acted throughou't, with good faith; he was doing no injury to the other cre- ditors of the defendant, but was rather promoting their interest by assisting him, ahd they ought not to injure him by depriving him of his lien, (i) They pos- sess all the advantage they are entitled to in virtue of the attachment or saisie arret under which th6 balance of the proceeds of the rafl will come into their hands. Contracts of this kind might indeed be invalidated, if made for the purposes of fraud and collusion, but there was none such apparent in this case. The judgment of the court is, that the raft be delivered to the appel. lant, with a reservation, to the respondents, of such rights as they may possess in virtue of the saisie arret- Qugy for the appel lant.^-i4. Stuart and Black for the respondents. Judgment reversed. (a) 2 H. BUck. R. 504. (6) Huswy v. Chri«tie, 9. East, 426. McCom- bie v.Davica, 7 East, 8. ■'I I \i )^ FOR THE DISTRICT OF QUEBEC. 365 ■>^ s p .'• ' ; -, s ♦)'^- '-■'■' ; ... .. %i Gillespie and others against Perceval. T'WI 5th October, 1829. Duties imposed by the British statute of the 14th Geo. III. cap. 88, being due by the plaintiffs, they ten- dered to the defendant, the collector of the customs at tlie port of Quebec, as i^^ny Spanisii dollars as a^ the ral^ of 4s. 6d. sterling each, were equal to the amount of such duties. This tender was refused upon the ground that the defendant was not by law autho- rized to receive Spanish dollars iQ payment of duties imposed by the above statute, at any rate exceeding 4s. 4d. sterling per dollar. The duties were subse- quently paid by the plaintiffs in the same coin at the rate of 4s. 4d. and this was an action for money had and received, being the difference between the two valuations of t,he dollar abovQ stated, viz, two pence on each dollar. The detention of the sum demanded by the plaintiffs, which, it was alleged by the defen- dant, had been e^^acted; under a late order of the Lords of the Treasury, was justified under the provisions of the statute 14th Qeo* III. cap. 88, passed in 1774, intituled, ** An act to establish a fund towards fur- " ther defraying the charges of the administration of "justice and the support of the civil government with- "in the province of Quebec in America." After im- posing certain duties, it proceeds to enact that these duties *< shall be deeiped and are declared to be sterU "ing money of Great Britain, and shalt be collected, " recovered and paid to the amount of the value 'which " such nominal sums have in Qreat Britain, and tfmt such By the sta- tuttt I4tli Geo. III.C. 88, du- ties, upon the iroportniiou of coods into Lower Cana- da, are sterl- in(f money of Great Britain, and the uni- form staudard of value at which foreif^a coins are to be received in payment, is their contents in pure silver at 58. 6d. sterl- ing per ounce. A tender of the Spanish dollar at 4b. 6d. 8terlin^^^ IMAGE EVALUATION TEST TARGET (MT-3) A /./ k y.i< A* >* /it ^ /.. ^ 1.0 1.1 U Hull 140 IL25 W 1.4 U& I 1.6 FhotDgraphic .Sciences Corporation \ k^' •O' ^ o 23 WIST MAIN STMIT WIBSTIt.N.Y. I45M (71«)t72-4S03 C^ '.aWiSE- Eii?S4fct.,> 570 1829. Gillespie V. Perceval. !iiU i! I CASES IN THE COURT OF KING'S BENCH equally immaterial. The construction of acts of par. liament is the peculiar duty of His Majesty's judicial officers and they exercise it to the exclusion of ail his officers whose duties are purely ministerial. We re- turn to the consideration of the statute 14th, Geo. III. and more particularly to the clause above cited. It should be here remarked that at the time and when this statute was passed ( 1774) there existed in Great Britain a nominal money of account under the deno- mination of sterling which still exists. There existed also a metallic currency the standard of which was then established in silver. That in the then newly created province of Quebec there was no paper cur- rency of any description, or any circulating medium except metallic monies, of which the coins of Great Britain were a small portion, and the residue a variety of gold and silver coins of other governments, all dif- fering the one from the other in the quantity of alloy which they contained. That the " Halifax currency" by which the Spanish dollar is valued at 4s. dd. ster- ling had b.een introduced into the province by an ordinance of General Murray, but that all his ordi- nances had been abolished by a British statute of the same session, the 14th, Geo. III. c. 83, and lastly, that the currency of France, as a money of account, was still in use among the said subjects. With all these facts in view the Imperial Legislature by the first clause of the statute in question imposed a duty of Sd. on each gallon of brandy of the manufacture of Great Britain imported into the province ; 6d. on rum, if imported from any of the West India colo- nies ; 9d. if imported from any of the king's colonies in America, and Is. on foreigri brandy. Upon mo- FOR THE DISTIIICT OF QUEBEC. lasses imported in ships belonging to His Majesty's subjects in Great Britain, Ireland, or the province of Quebec, 3d. ; and upon molasses imported in any other ships, Gd. Having imposed these duties the sta- lute, to obviate the difficulties which might arise from the dift'erent currencies which had been in use, or might thereafter be in use in the province, declares that the nomct FOR THE DISTRICT OF QUEBEC. 37.'3, proportion and measure of value which should subsist between foreign coin and pure silver estimated in va- lue at 5s. 6d. sterling per ounce. The legislature well knew that there was a wide difference in the purity of foreign coins, and it could not be its intention that all Joreign monies should be received indiscriminately in weight at the standard of .^s. 6d. per ounce, but that such monies when assayed should bear in value the exact measure and proportion as their weight to pure silver, at the rate of 5s. 6d. of the nominal money of Great Britain. The Spanish dollar having been as- sayed both in London and Paris, as' is stated in the evidence of commissary general Routh, and found to contain intrinsically pure silver to the value of less than 49. 4d. taking its price at the standard of silver affixed by the British statutes, can wc upon any prin- ciple of law or justice, oblige the defendant to receive the Spanish dollar at a higher value ? But it has been urged that the British statute 14th Geo. III. was, in so far as relates to this matter, repealed by a provincial ordinance of the 17th Geo. III. by which the value of the Spanish dollar is said to be ascertained and is de- clared to pass current for 5s. currency, which is the equivalent of 4s. 6d. nominal money of Great Britain. It may be justly questioned how far the provincial le- gislature intended more than that it should pass at this vaiuawhen received in tale and private transactions: and even admitting that it extended to Spanish dollars taken and received generally both in bulk and in tale, yet I cannot admit the principle that a provincial act can repeal a British statute, and set at nought an im- perial act, for such would be the establishment of hoth these propositions. It is admitted that the prac- 1829. Gillespie V, FlKCBVAL. ''. ij K ^ ! 37* CASES IN THE COURT OF KING'S BENCH 1329. Gillespie V. Perceval. tice for the defendant and his predecessors in ofiioe to receive the Spanish dollar in payment of duties at the vahie of 48. 6d. British money, prevailed from the year 1774<, till within these last two years, and it has been contended for the plaintiffs that this usage and Ciistom has become a rule of law of which the plaintift' is entitled to the benefit, fiut to establish such a rule the custom must be both immemorial and reasonable, it certainly is not immemorial, and it may be asked whether it would be just or reasonable to oblige an in- dividual to accept a less sum than that a tually due to him. It is an established principle " that a man can. not regular' / prescribe or allege a custom against a statute, because that is matter of record, and is the highest proof, and matter of record in law. Cokeys Inst, If the Lords of the Treasury had, in point of fact, given orders to the defendant not to receive the Span. ish dollar but at a lower rate than the intrinsic value of the silver contained in it, they would have attempt- ed to exercise a non obstante power, such as I believe, has not been exercised by the Crown in any of His Majesty's dominions since the revolution, and the col- lector would have been more justified in the *' breach than in the observance" of such orders. Their Lord- ships have conformed strictly to the words and spirit of the acts, and judgment must be for the defendant. Taschereau, Justice, The act 14th Geo. III. cap. 88, § ^, in enacting that the duties charged by that act shall be sterling money of Great Britain, thereby declares, 1. that sterling money shall be the standard by which the quantum of those duties shall be estimated. ^. It provides, that those duties shoidd be paid and received in a true equivalent, that is, in money or FOR THE DISTRICT OF QUEBEC. ^ coins corresponding to the value which such money or coins respectively have ip relation to sterling money. 3. It establishes the siandard of the value at which these monies shall be received, that is, their contents in pure silver at the rate of 5s. 6d. sterling the ounce. The act permitting the payment to be made in any silver, provided that the pure silver, which it contains, is taken at the rate of ds. 6d. the ounce, the only ques- tion then is to ascertain how much the Spanish dollar (supposing that it is to be taken in payment,) contains of pure silver. Now it is established in evidence that of 416 grains weight it contains only 370 grains 9 dwts. of pure silver, which gives 4s. 3d. decimal 79 ; and that in the public offices it is taken to avoid the frac lion at 4s. 4d. sterling. Such then is the value at which, — by the act of 1774't — the Spanish dollar may be received in payment of duties imposed by that sta- tute. This act has not been repealed by the imperial parliament, or by the provincial parliament, under its authority. The provincial parliament, — if it had the right under the statute of Anne, to regulate the cur- rency,— has not by any means altered the quantum of the duties imposed by the act of 177^} it has only made of that coin a legal tender, and could not have in its contemplation any reduction of the duties im- posed by the act of 1774, an effect which must have been produced, if the Spanish dollar were taken at a higher rate than 4s. 4d. sterling. Nor indeed could the provincial legislature in virtue of the act of 1791, diminish those duties, or in any way alter the provi- sions of the statute imposr ig them. Judgment for the defendants. D 3 375 1829. CiUJilSPIE V. Perceval, .'.itl'■■^ In i I I:' I ii 376 GASES IN THE PROVINCIAL .*"*,'', •' t i . On Appeal from Montreal. The Hon. John Richardson Appellant. and John Molson and Others Respondents. 20th Nov. 1829. Awritofat- AN application was made by motion on behalf of dertheordi- the appellant to the court of King's Bench at Men- ma"y be seV^^ tfcal to sct aside 3 wi'it and process of saisie arret and aside, 1. If it attachment, which having been rejected by that court Ungmgo of the present appeal was instituted from its decision, i^ainsuhees- The writ in question was founded upon an affidavit in t^e.debtsand ^hich it was Stated, " that Simon McGillivray, of defendant to Montreal, merchant, then absent from the province, in his own name as well as in his capacity of executor and residuary legatee of the late William McGilli- vray, deceased, and Thomas Thain then also absent from the province, the said Simon and William McGillivray and Thomas Thain having theretofore traded at Montreal as co-partners under the firm of McGillivray, Thain & Co. were personally, and jointly and severally, indebted to the deponent and his late co-partners in the sum of e€4,000. the amount of a promissory note bearing date at Montreal the 10th bo attached in the hands of some person in particular, and does not contain a snm- mons to him as well as to the defendant to appean 2. Ifit be accom- panied by aa iitjunction from the jud^e to the sheriff to retain the effects seized to abide the judgment of the court. 3. If it appears in the declaration that the debt sworn to has been cancelled. It is essential to the validity of a scelle, under the French law, that it be executed by a judge in person and not a ministerial officer of the court, and that the property an'd papers whi::h are the object of the scelle remaia under the seal of the court with a guardian to protect them. COURT OF APPEALS. day of January, 1825, that the said firm had since become insolvent and was indebted in more than the sum of £^200,000, the above sum included. That the said Simon McGiilivray and Thomas Thain do secrete their estate debts and effects, and the estate debts and effects of the said firm with an intent to defraud their creditors, and more particularly the deponent and his bte co-partners. That there are in a certain three story stone house and premises situate and being in the city of Montreal forming the corner of St. Gabriel and St. Therese streets, bounded &c. heretofore and still occupied as a counting room for the business of the said firm, divers books of account, writingsi voiicJu ers, documenUx securities for money, and correspond* ence of the said firm and of the said Simon McGiili. vray and Thomas Thain containing evidence of debts, assets, sums of money, property and effects in value above <&150,000. belonging to the said firm and to the said Simon McGiilivray and Thomas Thain, and that there are also in the hands and possession of the Hon. John Richardson of Montreal, Esquire, as well in his own name and behalf as in his capacity of cu- rator to the said Thomas Thain, an absentee, Samuel Gerrard, George Gregory, and Peter McGill in his capacity of curator to Simon McGiilivray also an absentee, as the deponent is informed, and verily believes, divers other books of account, writings, vouch' ers, documents, securities Jbr money and correspond- ence of the said firm and of the said Simon McGilli. vray and Thomas Thain conr.prising evidence of debts, &c. by the exhibition of which the deponent and his said co-partners might be enabled to secure payment of their debt. That divers of the said books of ac- 877 1829. KlCUARDSOy AND MOUON. i }\ M« II i] 378 CASES IN THE PROVINCIAL 1820. AND MOLSOK. count, &c. since the declared insolvency of the said Richardson ^''™ continue to be changed, altered, and cancelled with the privity and connivance of the said Simon McGillivray and Thomas Thain with a view to dis. guise the posture of the affairs of the said firm to the prejudice of its creditors. Whereby and without the benefit of process of attachment for seizinff and attach- ing all and every the books of account^ writings^ vouch- ers, documents, securities for money and correspond- ence of the said firm and of the said McGillivray and Thomas Thain, as well those in the three story stone house and premises hereinbefore described and else- where, as those in the hands of the said John Ilicliard- son, &c, to await the order and judgment of the court touching the same, which the deponent prayed might forthwith issue, he the deponent and his co-partners might lose his debt and sustain damage." In accord* ance with the prayer contained in this affidavit an order was given by one of the judges of the court of King's Bench at Montreal, for the issuing of the pro- cess of attachment as prayed, containing an injunction to the sheriff to take into his custody the books of account, vouchers, writings, documents, securities' for money and correspondence in question, and to detain and hold the same in his hands and custody to abide the judgment of the court. Process of attachment was consequently issued, as prayed, and the sheriff returned that he had executed it and taken into his own charge and custody the books of account, &€• To the writ was annexed a declaration setting forth the plaintiff's cause of action. For the appellant it was contended, 1, That by the law of this province no writ of attachment simi- ' COURT OF APPEALS. lar to the present could issue under any circum- stances. 2. Tiiat sufficient grounds did not exist for issuing a writ under the legal forms. There are but two kinds of attachment which could have been is- sued in this case prior to judgment, the first is the writ of arret simple for the seizure of personal goods, (meubles,) susceptible of being sold under an execu- tion, in the hands of the debtors, to prevent their being disposed of, and to secure them for their credi- tors. The second is the writ of saisie arret by which such things as are not liable to be sold, termed in the English law, choses in action, might be attached in the hands of third persons. These two kinds of process were essentially different and distinct. In the writ before the court both were combined, and it speci- tied nothing but things unsusceptible of attachment they not being corporeal goods. By the provincial ordinance of 1787* (,o) the only attachment that can be had against a debtor before trial and judgment must be against the estate, debts, and effects. No other de- scription of things can be specified in the writ ; it being matter of legal construction to determine what things are or are not comprehended in these words. The writ omits altogether the mention of '* estate, (q) 27th, Geo. III. c. 4, by which it is enacted, " that no process of attachment, except in the case of the dernier equippeur, acvoraing to the osafife of the country, shall hereafter be issued for attaching the estate, debts, and effects of what nature soever, of any person or persons whomso- ever, whether in the hands of the owner, the debtor or of a third person, prior to trial and judgment, except there be due proof on oath (to be in- dorsed on the writ of attachment) to the satisfaction of one of the judges of tbe court issuinr the same, that the defendant or proprietor of the said debts and effects is indebted to the plaintiff in a sum exceeding ten pounds, sod is about to secrete the same, or doth abscond, or doth suddenly intend to depart from the province with an intent to defraud his creditor or credi- tors, and that the defendant is then indebted to the plaintiff and he doth Tcrily believe that be shall lose hia debt or sustain damage without the lieaefit of such attachment. 379 isao. KicnAROsoir AND MOLSON. 1 I i. ij i-i f I ¥ I> ' 880 CASES IN THE PROVINCIAL 1829. AND MOUON. H' debts, and effects" as being the things to be attached, KiciiARDsoN ®"^ substitutes a different description of things, viz. : — •' Books of account, correspondence, &c." The writ, therefore, in its very frame, is illegal ; ami , on this ground alone ought to have been quashed by the court below. This ordinance again, as well as the pre«existing law, authorizes an attachment to be made of such estate, debts, and effects only, as are in the possession of the defendant, or in the hands ofa third person belonging to him. The estate and ef- fects of a defendant, in his possession, are attached by the actual seizure of them, and placing them in the custodv of the officer by whom the attachment is made. When in the hands of third persons they are attached by a mere injunction on them, not to dis^ possess themselves of them. In this writ there iia^ .been a most dangerous and alarming violuiion of the law, as now stated. It does not, as required by law, command the sheriff to attach the things to beat- tached, in the possession of the defendants ; but com* mands him to attach them " in a certain designated building" and " elsewhere." This bi'ilding is not alleged to have been in the possession of the defend, ants, and we are therefore justified in supposing it was not in their possession. In commanding the she* riff, therefore, to attach the things in question, in that building, the writ has violated the law, by command- ing that to be done, which the law does not permit.- But the insertion of the word •* elsewhere", has given a much wider extent to this extraordinary power ;- under this word, the sheriff has been commanded to attach the things which were to be attached, not only in this building, but in any and every dwelling-house, ^ COURT OF APPEALS. 3Sl HARDSOy AND MOLSON. counting-house, shop, and place within thejurisdic- ^^^^• tion of the court, thus subjecting every merchant, «,<, shop keeper,' and householder in the district of Mon- treal, to the capricious or malicious scrutinizing search of a sheriff's officer, and laying open to him the inmost recesses of his house, with the disclosure of the most secret transactions of his trade, business, and family, and of his whole life j with all the humiliation and discredit incident to such a proceeding. The seizure of papefs in England is illegal in all cases, and H'Wces* case excited there the strongest sensa- tion. In that country the pow* r of searching for and seizing papers in cases similar to his, was exercised under the warrant of a h'vh and respcnsible officer, one of His Majesty's Secretaries of State, on a crinni- nal charge of infrequent occurrence. Here, an in- discriminate search for papers, under civil process, has been sanctioned by the court below, a proceeding which, if sanctioned by this court, would continue in practice from day to day and be subversive of, and inconsistent with the security of the persons, reputa- tions, and property of individuals in society. These objections apply to the writ intrinsically, there are others which are extrinsic to it. The grounds of in- sufficiency in tiie affidavit, under the ordinance, are several : the persons who, it is sworn in the affidavit, were secreting their debts and effects, were, Simon McGillivray and Thain. But it is also sworn therein, that these two individuals were absent, that McGill was curator to the former, and Richardson, to the latter. Now, as curators, Richardson and McGill were legally vested with, and had exclusively the possession of all the debts, estates, and effects be- m.' j-ii 38$ CASES IN THE PROVINCIAL 1829. i ■l,;'i Richardson AND MOLSON. longing to the absentees in this province, at the time of making the affidavit. The absentees could not, therefore, secrete things of which they had rot the possession, and over which they could exer- cise no power ; nor could an alleged secreting ot effects by them in the district of Montreal, — in the na. ture of things impossible, — warrant the attachment of debts and effects in the hands of the curators, who, it is not pretended, were secreting them, and must be supposed to have held them in a course of legal ad- ministration. The absentees McGillivray and Thain, also, are not defendants, and their misconduct, — if such there were, — could not warrant an attachment against their innocent curators. The attachment of debts and effects, in the hands of their curators, could only be obtained on the ground of fraudulent conduct in the curators personally, such as is required by the ordin- ance. The alleged fraudulent secreting by the absen- tees, therefore, of estate, debts and effects, which were legally vested in their curators, and of which the lat- ter had exclusively the possession and management, was manifestly inconsistent with reason, and could af- ford no ground for an attachment against the curators, the defendants in the action. No proof such as re- quired by the ordinance, or any other proof, was in- dorsed on the writ of attachment: the affidavit not being indorsed thereon. It is not stated in the affidavit that, without the benefit of an attachment for attaching the estate, debts and effects, &c. the plaintiffs would lose their debt or sustain damage. The persons stated in the affidavit to be secreting their effects are not the defendants in the action ; so that according to the principle upon which this attachment has been issued, ^' COURT OF APPEALS. I sss the alleged fraudulent conduct of one man is made a ground for issuing an attachment against another. It is evident from the affidavit, taken in conjunction with the declaration, that no debt, at the time the affidavit was made, was due, either by the absentees McGilii- vray and Thain, or by their curators, to the plaintiffs. The debt sworn to in the affidavit is stated to be the amount of a promissory note granted by McGillivrays, Thain, & co. to the plaintiffs tor £4000, but in the dela- ration, it is e2:pressly stated, the plaintiffs, by the deed of assignment therein and above mentioned, had accept- ed the estates, debts and property assigned to them in com,' mon with the other creditors, in full payment and satis/ac- *mof that debt. "While the deed of assignment, there- fore, an instrument in itself merely voidable, but not void until declared to be so by a judgment of the court* continued in force, there was no debt whatever due either from the absentees or from their curators, to the plaintiffs ; and the affidavit in swearing to a promissory note, which by the plaintifr.s own declaration had been satisfied and discharged, could not be due proof, or any proof at all, " to the satisfaction of a judge," that the absentees and iheir curators were indebted to the plain- tiffs in a sum exceeding ** ten pounds," or in any sum whatever. The order of the judge authorizing the issuing of the attachment was also illegal in many par. ticulars, as in authorizing an attachment to issue without " due proof," as required by law j in directing the at- tachment to issue against certain things of persons not defendants in the action ; in directing the attachment to issue not for attaching the estate, debts and effects* but for attaching ** books of account, vouchers, wri- 1829. RiCHARDSOX AND MOLSON. m eS 8S4> CASES IN THE PROVINCIAL 1829. im: t is AND MOUON. tingSi documents, and securities for money and corres. BicHARDsoN pondence, and in controling the execution of the King's writ, by laying an injunction,-^extrinsic to the writ itself j—H)n the sheriff to execute it in a particular xnanner. If the attachment was illegal on these grounds, in what respects the defendants, ic was not less illegal in what respects the garnishees, Richardson, Gerrard and Gregory. The estate debts and effects, in the hands of the latter, had belonged to McGilltvray and Thain, the insolvent debtors, but by the deed of as- signment mentioned in the declaration, they had ceased to belong to them, having been assigned to the gen. tlemen last named, as trustees, with the concurrence of the plaintiffs for their benefit, and that of the other creditors. As long as this deed continues in force, the trustees hold the assigned property in question for the benefit of the plaintiffs and the other creditors, to whom they are accountable for the due execution of the trust confided to them. Yet the estate, debts and effects so held by the trustees, as appears by the plaintiffs' own declaration, the plaintiffs by their strange proceeding by attachment, choose to consider as the estate, debts and effects of McGillivray and Thain. In the pro* ceeding against the defendants, the plaintiffs would appear to have overlooked the important fact that there was no debt due to them by McGillivray and Thain; and in the proceeding against their own trustees as garnishees, they would appear not to have been aware that they were attaching, as belonging to other per- sons, their own property in the hands of their own agents specially selected and appointed. For the respondents it was said, that upon reference COURT OF APPEALS. S85 to the allegations contained in the declaration it would be seen that this attachment has not been made for the purpose of converting the things seized into money, but, as the respondents deny that any right existed in the pretended trustees^ it is for the purpose of ob* taining the books of account of the bankrupts, to prove a fraud which had been practised in relation to them, and to prevent a continuation of that fraud by falsifi' cation. The respondents were entitled to the posses- sion of the books as containing the proofs, the nomina debitorum by which alone the choses in action of the in- solvent estate could be discovered. The object of the ordinance was to repress fraud and every thing tend- ing to that effect is within its purview. It, therefore, includes such process of the old French law as inter- fered in cases of mercantile fraud. The attachment in this case was a process well known in that law, the conservatory process of the icelle, the only general remedy in commercial matters, for specially including books and papers, it secures to the creditors the en- tire property of the debtor. The ordinance not re- pealing the old law, but regulating it, had in contem- tion^Mr species of attachment: the saisie et exicution, tlie Mi'sie arrSt, the sai&ie en revendicatron and the scelli. The arret simple, which has been adverted to, was only a process in anticipation of execution, but the scelld was a general remedy, and must have been Iiad in view by the framers of the ordinance, as well as others, and the respondents were entitled to the benefit of the at- tachment which had been issued, it being in the nature oUscelle. The words "estate, debts and effects," which, it has been said, except as respects the saisie arret, are confined to corporeal goods, include the 1889. Richardson AND MOLSON. »; II 'Hlc n 1 1 1 l H 1 386 '■ 1829. MlH Wm Richardson i: i II 1 u AND MOLSON. r ill u] 1 M 1 'I^^Bl 1 I wM 9 ! hi m foM H . ' i i H ^ Kn ■ ' :i ■ ^HH ■B i' ! !BB h1 i ;. - '.K 1 'l ;|J iK^^H 1 1' i if ' 1 i l! - ■ ;-''! '■Mm li ' ■ ' '■■ .'' H ill ' pII n^^l i ill 1 ■ ^H KlH^ i 1! ' HI S^H 'i i 1 I!|t"' ■ ■]!' f M •M ^ Iji * :l! ! if 1 " : i in II S '^^H 1 i ii 1 1} ^n B »! HI P ' IliH i 1 j It 11 ^H Hi I n K^H ^Bi" I H 1 1 1 1 f Mill H ; ^ ' '. ■1 '^ I| 1 j J i 1 m 1 ' i] ^HB 9^H 11 ul 1 ■H"' 1 'a 1 II: CASES IN THE PROVINCIAL 29. french term meubles, which is not in many instances so restricted. It is true tliat in England choses in action are not liable to seizure, but in the United States where the words estate, debts and effects are used, personal property of ail kinds, including securities, money and personal rights, are comprized. By the French law conservatory process was very frequently resorted to in mercantile cases, where although other process of attachment did not extend to books, accounts and papers, the scelle did, and was a concurrent reme* dy with the saisie et execution, where the latter did not suffice. It existed long anterior to the ordinance of commerce of 1673, and is recognized by it. It did not require any proces-verbal or guardians, or permit of security being given, but as in this instance, secured the things seized without any inventory, to abide the order of the court. This remedy is borrowed from the Roman law, whereby the bona of an absconding debtor could be attached for the benefit of the creditors gene- rally, and by the term bona was understood not mere. ly corporeal, but the whole of the estate corporeal and incorporeal, or estate, debts and effects. Upon the whole, the scelle must be the very process contem. plated by the ordinance ; in proof of its being so it is to be observed, that an allegation of secreting the ef* fects is required, whilst other saisies require only an affirmation of the debt. In cases of insolvency the first steps to be taken by the creditors, is to obtain the books to obviate fraud, falsification and embezzlement This is done by the scelle, and it is stated by different wri' ters, that by it effects may be got at which cannot be taken in execution. Its principal object is a distribution pro rata. The words estate, debts and effects, are used J. COURT OF APPEALS. feXa 387 1829. AND MOUON. in theEngli!|h bankrupt law, within which are comprised books and accounts. The proceedings in England, in ri^urdson a case of this kind, would have been under a commis- sioo of bankruptcy; in Scotland, by means ot a seques- tration, and in France, by the scelle. In all of which, the main point is to secure the books of account. It has been argued that the things seized were not in pos. session of the debtors, but of third persons, we deny that any right was vested in the trustees j the property was in the bankrupts, and in a building where they car- ried on their business. It is competent to the respon- dents to shew that the deed of assignment was founded on fraud, and a nullity not voidable but void, it is so on the face of it, having been made by Simon McGil- livray, who was not competent to make it, and from the fact of his not having put the creditors in posses- sion of all the effects of the firm. Besides, Thomas Thain was no party to the assignment, and he cannot stand acquitted, Richardson stands here as his curator. On this and minor objections, as, 1. the affidavit not being indorsed on the writ, it is to be observed that it is annexed as a schedule. ^. the debt being not due, this is answered by stating that an affidavit of debt is sufficient. 3. that the garnishees are improperly brought in as being trustees, and in legal possession. We deny that they are trustees, and they are not men- tioned as such in any of the proceedings. As to the place where property may be attached, Pothier says it may be taken wherever it can be found, soii en ville, en campagnet dans les champs, en chemin, and unless the property were shewn to be in the garnishees, the she- riff stands justified in what he has done, the premises were in the bankrupts possession, and were not trans- "i! Ml 388 CASES IN THE PROVINCIAL AND MoiilON. i'l 1829. ferr^tl "by the iissignment to the pretended trustees, UiciiABDsoN ^"^ whatever rights the latter might possess, could not interfere with those of the creditors. If the trustees should be guilty of malversation, falsification or embez* zlement, the credit6rs have their redress by u saisie en revendicaiion. it has been said that it was impossible for McGillivray and Thain to be personally secreting their effects in this province, it was possible, however, for them to have done so by instructions to artd through third persons quifacitper alium factt per se. The ob. jet of obtaining the correspondence and papers, is to shew that under the control of MGillivray, funds be- longing to the creditors, had been misapplied, con- cealed and embezzled. No blame or malversation is ascribed to tht; curators as curators, but they are made parties as the legal representatives oi» those to whom such conduct has been attributed. If the books and papers are returned the fraud and falsification com- plained of will be proceeded in. In reply it was contended that the attachment could be considered only as an arret simple. That it was an error to suppose the scelle an attachment and thence contemplated by the ordinance. Some of the effects of an attachment may arise from the scelle, but no DVTiter has included it in the term of saisie. It is quite a different process. The saisie is an open and public process emanating from a court ; the scelle, one of an arbitrary and secret nature derived from a judge alone and 6ften used in France in a high handed and oppressive manner, and there gave rise to many com* plaints. The saisie secures property for payment of a particular debt whilst the scelle is resorted to for the benefit of all concerned, heirs, widows, orphans, e^te* ,t I COURT OF APPEALS. cutors and creditors. It can be resorted to by credi- tors during the life of the debtor in case of bankruptcy or absence ; but as a civil remedy it can only be on a titre executoiret a judgment debt. It is only on proof of fraud on the part of the debtor that it can be had previous to judgment, which brings it under the head of criminal law. It can only be a part of the law of this country so far as it is a civil remedy, the instant it becomes a criminal process it is not,— a distinction which has not been adverted to. In this case there is no judgment debt ; as a civil remedy, therefore it does not apply, and as a criminal proceeding, the law of the land will not allow it. Pothier, in his ProcC' dure Civile, marks the difference between attachments (saisies) and the scelle. The saisie is executed by a huissier and the scelle by a judge or commismire. The forms are essentially different. The saisie secures certain effects for the satisfaction of a debt, the scelie is to prevent an entire estate from being left d Faban- (/on and to secure it for all concerned. The fcelie takes place when the debtor is dead or absent, the saisie when he is alive and present. In fact the §ceU^ was not thought of when the process in question was issued, and was not mentioned as a process of attach- ment. The words " let process of attachment issue** were in the writ which the sheriff' was directed to exe- cute. The judge who granted the writ must have known that a scelle could not be executed by a sheriff, and if he had intended it for a scetl^, he would have attended in person to affix the seals. Had this writ been in proper form the sheriff would have found that he had no right to pass the threshhold of a building in possession of third persons, without rendering himself 389 1829. RlCHARDSOM AND MOL8ON. n ' -J ~ 1' ■ i sgo CASES IN THE PROVINCIAL 1829. AND MOLSON. I 'f I! liable to an action of damages. It was a happy cir. Richardson cumstance that in this violent and illegal proceeding no blood had been shed. If the sheriff's officer had been resisted and killed in the execution of this pro< cess it would have been justifiable homicide, or under some circumstances have amounted to manslaughter, but not murder. If on the contrary, life had been taken by the sheriff or his officer, it would have been murder. It is remarkable that the mass of creditors had confided in men of known honor and respectabi. lity, and but one out of the whole came forward to wrest the books and accounts from their possession. Sewell, Ch. J. The merits being wholly out of the question, the case rests entirely upon the writ of attachment, and the circumstances under which it was issued. It is the ordinance of 1787« and the French laws which existed at the conquest, and were secured by the capitulation, that must govern the question. If the proceedings were found consistent with either, the motion must be quashed ', if with neither, it must be maintained. As to the ordinance of 1787* the proceedings were in several points at variance with that law. The writ of attachment did not follow the words of the statute ; it should have been against estate, debts and effects, and have left to the plaintiff, at his own risk, to direct the sheriff what to take and then to the court to determine, whether the things taken were within the scope of the law. The writ should further have directed the property to be seized in the hands of some particular person,— the property must be in possession of somebody, either of the debtor or of third persons, and if in the hands of third persons not only must those third persons be summoned, COURT OF APPEALS. ^ but the debtor must be served with the writ and declara- tion that he likewise may appear. In this case the judge has given a writ of attachment to seize certain things in a certain building, or elsewhere, without specifying in whose possession it is to be seized ; and goes still further, adding an injunction to the sheriff to retain the things seizrd, in his custodj , to abide the decision of the court -^ all which is in direcc opposition to the letter of the ordinance, and to the provision of the law by which the party seized upon is entitled to have his things restored upon giving security. The writ of attachment is therefore clearly illegal under the ordinance of 17S7* As to the old French law, on whi-^h the respondents profess to have founded their proceedings, it appears that in case of bankruptcy, the property was to be secured, not by an arret simple or any other arrett 'but by the scelle, which did not dis- possess the party of his property and papers, but placed them in such a situation that no one could touch or inspect them, until the time arrived when the court should determine whether they were to be given up to the creditor, or returned to the debtor. This was done by the sealing up of the receptacles, chambers, and places, in which the property was, and was done by the judge in person, or by a commissaire, (akind of deputy-judge, to whom we have no coun- terpart in our jurisprudence,) so that it could not be done by any ministerial officer ; and in ad-lition, a guardian was placed to see that the seals were not broken, and the property and papers not touched. Now, the practice resorted to in this case has been singularly different, supposing this proceeding, as is ;ed, to be in the nature of a sceU^, The judge 3 F SOI I8»9. Richardson AND MOLSON. . i: .j 1 'i t ii } \\ i "il 392 CASES IN THE PROVINCIAL 1829. KlCIIARDSON AND Mouoif. delegates a power to the sheriff, wliich under that law, he could only exercise In person ; and the property, In lieu of remaining safe, under the seals of the court, is left in the hands of a ministerial officer. 80 that, whether it be considered as a process under the ordi^ nance of 1787> or under the French law, as it existed before the conquest, the issuing of the attachment, as it stands, cannot be maintained. To refrain from re. marking on minor circumstances, the fatal objections to the mode of proceeding followed, are : 1. Instead of a special writ, a general one has been issued, with- out discriminating any person, as in possession ; and without summoning any person as defendant, and without using the words of the law as to what was to be seized under it. 2, The injunction to the sheriff, to hold the things in his custody is directly contrary to the ordinance and the provision 'that, upon secu. rity being given, they must be restored. 3. If these proceedings were to be founded on the law existing before the conquest, the forms of proceeding by the scelle, under that law, should have been observed, so that the property might remain under the seal of the court, thus avoiding the irregularity which now de- stroys them. 4. That on the face of the declaration there appears to be a deed of assignment, whereby as Ions: as it remains in force, which must be till it is rescinded by the court, the debt sworn to is cancelled. ^ Kerr, Justice, The writ of attachment in this case is certainly an anomaly and pursued neither the one form nor the other. It has been a question whether books of account and papers come under the descrip* tion of estate, r^ebts and effects. Books certainly are evidence on which claims are founded, but they pos- 393 1829. Richardson ANO MoLSON. ( ",; ^ COURT OF APPEALS. ' sess no intrinsic value, and the true test of their not coming within the meaning of the words estate and effects is, that they cannot be sold under execution or seized previous to judgment ; neither are they debts although they constitute the proof of debts. They thus are exempted from seizure by the ordinance, which is perfectly precise and conclusive in its enact- ments. In Englau'i a defendant cannot be compelled to produce his books. A court of equity might, under very strong circumstances, compel the produc- tion of books and accounts, but a court of law could not, and we have no court of equity in Canada. The writ is perfectly illegal, and the opinion of this court is that the judgment of the court below must be reversed with costs.* For the appellant, the Attorney General, — For the respondents, A. Stuart and Walker. * The above judgment was rendered on the 20th day of November 1829. if , motion to McKenzie, a creditor of the firm of McGillivrays, Thain & co. who had ob- get aside an at- tained a judjrment in the Court of Kind's Bench at Montreal, against the iachmi>ni,byihe Icjtal representatives of that firm, presented a petition bearing date the 21st ••"eriff, of books November, to one of the judges of that court, prayinj; for the reasons "^ »ccouni and therein contained, that seals (/c scelle) minht be put and affixed upon cer- ferted*ina*court tain books of account, papers, munimentt*, vouchei a and effects, — which were of original juris- the same as those mentioned in the writ of attachment in the above oase. diciipn, and its On the 24th of November, the truth of the facts stated in the petition were judgment to substantiated by affidavit, and on the same dav the Hon, Norman Fitzgerald "">' *p5' "" Uoiacke, one of the justices of the court of King's Bench proceeded to the !*," ,|I" "^u,j bDJIding described in the writ of attachment, and affixed the seals of the of appeals will court upon the premises, and named guardians to preserve the seals. On not finm a rule the25t(i of November a service of the above judgment of the court of ap- for an aitach- peal» was made upon the sheriff of the district of Montreal, at the instance P*"* a)?ain»t a of the appellant, and a demand made upon him to discharge the attach- ■[|'^|^ °[ifj'^ mentaiid deliver up the keys of the building in St. Gabriel street, to which on such books he replied that he had already seen the judgment, — that the adversaries of and papers be- the appellants bad got the start of them, and that the deputy sheriff had deli- fore ihcy are re- wed over the keys of the building to Mr. Uniacke. Upon these facts, sub- "/"ej by the sUntiated by affidavit, and certified copies of the documents above mentioned, '^f"^„ \° ^^"^^ possession they were seized, againsi the sheriff for delivering them to the judge for that purpose, or against the party and bis Attorney at whose instance the scelle wu carried into exe- cution. 13th Jancary, 1830. I m il %■ ' u aoi CASES IN THE PROVINCIAL On Appeal from Montreal. I Denis Benjamin Viger et ux Appellants. and 30th April, ToussAiNT PoTHiER Respondent. In the year 1764- Pierre Foretier was married to Therese Legrand, who died in 1784*, leaving several A testator, at the time of his decease, possessed of property be- loDgingf to the suocession of his wife, deceased, by an holoffraph will be- queaths all the property of which he mip^ht die seized to his heirs and lega- tees, who were also his wife's heirs, under the penalty, if any of them con- gested his will, that their share in his suocession should be forfeited. He names two executors or trustees, and the survivor of them, for the adminis- tration of all his property until a partition. la the making of such parti- tion he directs his executors to act for some of the legatees who were minors, and for another who was married, — without the authority of her husband for that purpose being requisite, — and whose share they should ad- minister during the husband's life paying her the rents, &c. :— Held, that the . will is valid, but that its dispositions can be carried into effect only so far as they affect the succession of the testator, and that they could not in any manner apply to the succession of the testator's wife of which his legatees Were the heirs, and of which they were, iu law, seized from the day of her death, and that one of the executors having renounced the execution of the will the other bad saisint of the testator's succession to carry his will into effect. To an action apinst several heirs it is not a valid objection that all of them were not originally made defendants if in the progress of the suit they have been made parties by an interlocutory judgment of the court. an application was made to the court of appeals for a rule, to shew cause why ^''- an attachment bhould not issue against the judge who executed the scelli, '"'•-''•■ * for having by means of an usurped jurisdiction, and by colour of a judicial proceeding, obstructed the judgment of the court, bearing date the 20th day of November then last, and assisted in preventing the restitution of the bookn of account, &c., according to the purport of the said judgdment, &c. An ap- plication to the sam.e effect was made for a rule upon McKenzie, his Attor- ney, and the sheriff of the disttict of Montreal. The appellant having beea beard by his Counsel, Per curiam. We are of opinion that no attachment can issue. lathe first place this court gave no direction to the sheriff to deliver up the pro- perty, but merely reveised the judgment and sent it back to the court b^ ^\ low, to do what to law and justice might appeitain. It did not appear that any thing further had been done in the court below, but a new party, another creditor, had come forward and instituted another proceeding.— .>t«i( &»< The former was by saisit'orret, the present one by scelli; this last, a judve sitting out of court, i& oblig«d upon application, to grant and execute. The whole proceeding may be illegal and contrary to law, but it has nothingto do with the former case, and the motion must be discharged. .1/ COURT OF APPEALS. (laughters, issue of their marriage. Ilcr succession was composed of her share in the matrimonial com- munity and of estates of the nature of propres. In 1785 Foretier made an inventory of her succession and retained possession of the same with the rents, issues and profits, until the day of iiis decease on tlie 3rd day of December 1815. By his last will and tes- tament holograph, bearing date the 20th October 1814, after making several specific legacies, he be- queathed the surplus of all his property to his chil- dren and grand children, whom he instituted his heirs and universal legatees, to be distributed among them in conformity with the law of succession : he declared " that Marie L^ocadie Foucher should have one share, Therese Heney and Hugh Heney one share, Marie Marguerite Foretier and Marie Amable Foretier, wife of Denis Benjamin Viger, each one share, or their children by representation if they died before him. In a codicil bearing date the 0th day of August 1815, the testator declares it to be his intention, that if any of his children or grand children should in any man- ner contest his will, under any pretext whatsoever, that they should be altogether deprived of any share in his succession ; in such case fonnally disinheriting them and giving their share to his other children and grand children. For the purpose of carrying this will into effect he named Toussaint Pothier and Hugh Heney his executors, divesting himself, in their favor, of all his estate, authorizing them to administer the same until a partition should be made among the heirs. He directed the executors, or the survivor of them, to sell, as they knight see fit, such immoveable estate as might be necessary to effect a partition, and in such 395 1830. ViGF.a AND PUTUIER. 396 CASES IN THE PROVINCIAL 1830. m ViGER AND POTHIER. partition he authorized the said two executors, or the survivor of them, to stipulate, act for, and represent such of his said legatees who were minors, as well as Marie Amable Foretier, wife of Denis Benjamin Viger, without its being requisite for the validity of such partition, that a tutor to the said minora ohould be elected or that the said Marie Amable Foretier should be authorized by Denis Benjamin Viger, her husband, or by judicial authority. After partition made he directed that his executors, or the survivor of them, should have the administration and receive the revenues of the minors until their marriage, or until they were of age, &c. also that the executors or the^survivor of them should have the management and administration of the property and the exclusive collection of the revenue of the share which, upon the partition, would fail to Marie Amable Foretier, and this during the life of Denip Benjamin Viger, and if she survived him she should have, at his decease, the free administration and property of and in the estate which would fall to her from this will. During the administration by the executors, the amount of revenues &c. were to be paid to the said Amable Fo« retier, to herself and to no other, quarterly, and upon her receipt merely. The executors were also en- trusted with the care of the estate of Marie Julie Foretier during her life or until her marriage." After the testator's death, on the 20th December, 181.5, by an instrument executed before Guy and another, pub. lie notaries, the heirs acknowledged the will to be of the testator's hund writing, and the signature affixed to it to be his, with a reservation of their rights and without admitting the validity of the will. Heney COURT OF APPEALS. 397 having renounced the execution of the will, an action was instituted by Pothier the respondent, as executor, and in virtue of the trust or Jidei commissum with which he was charged, against the heirs who had taken possession of all the testator's property. The conclu- sions of the declaration were, — " for a sceilct that the will and codicils should be established and the execu- tion thereof ordered, that if the legatees should contest the will their interest under it might be declared for- feited. That as executor and trustee the plaintiff should, by the judgment of the court, be and remain seized of the estates of the testator in conformity with the will. That the defendants be adjudged to deliver to the plaintiff all the moveables, written securities, &c. with an injunction on them not to molest the plaintifFin the execution of the will. That an inven- tory be made and that the defendants do pay to the plaintiffs £5000. damages." In the progress of the suit the scelle was set aside. An inventory was made by the heirs, of all the property left by Foretier, and the moveable property sold . The appellant pleaded by ex- ception, — " that Hugh Heney should have joined the plaintiff in bringing this action. That it was not suffi- ciently alleged in the declaration that Hugh Heney had renounced the execution of the will and the trust thereby reposed in him. The non joinder of Marie Therese Heney as a co-defehdant was alleged ; also that the acknowledgment of the will, mentioned in the declaration as having been made by the heirs, and the deposit of it before a notary, were illegal. That the plaintiff had no saisine under the will, that in the es- tates of which the testator died seized was comprized the succession of Therese Legrand to which the dc- 1830. ViOER AND Pothier. Pi ' In^^^^H ^^^^^^H ||i 1 fllH i d98 ' i'iHl^H n| t^^^l^^^^^H ! ; 1830; t'in^Ho' ^.^-W^tJ 'HJHfl^^BB'' ViOER ij jBM^^B L; ] AND i flIH POTIIIER. 1 iliH ' 1 : 1 IH • j 1 i; ^H \ ■^^^■IB ^m^' ' V '^Hl m^ 1 nil 1 aiifli 1 '■ ' I^Hr H^^I ^^fl 1 'i!^E ^^^^Hl ^fl m ' ;:,,! !|H ^Hu H ^H ' I'll ^ Ii 1 1 in '' Ii 1 1: ' ' 1 ^ III 1 ters of fact by parties concerned, who are most likely to know, it is said by Lord Hardwicke (a) are stronger than if the facts had been determined by a jury. Be- ing thus admitted, the next question follows, what is the rule of construction as applicable to all wills ? Nu- merous authorities from French authors shew, that the intention of the testator alone, governs the construc- tion of his will, and indeed it would be a solecism in language to call it the testator's will if it were not con- strued according to his intention. The English law, in perfect accordance with these authorities, furnishes many didactical rules of construction strongly appli- cable to the case. A late writer says, " there is only one general rule of construction for courts of law and equity applicable to all wills, however the court may condemn the object, the intention is to be collected from the whole will, every word is to have elOTect ac- cording to the natural common import." The court is bound to carry the will into effect, if consistent with the rules of law, and if it can see a general intention consistent with the rules of law, but the particular mode IS not, though that shall fail, the general inteu' tion shall have effect." (^b) — «* There is no certain rule ' in cases arising in the construction of a will, they must be alone construed according to the particular words, (a) 1 Atkyns, 629. (6) 4 Ves. 329. Com. Dig. vol. 8. Appx. 409. COURT OF APPEALS. 401 the circumstances, or views of the testator." " For the purposes of collecting the intention, every part of the will must be considered." (a) But the precepts parti- cularly applicable to this case are, " a will is not to be construed by something dehors, as by the state of property, where there is no latent ambiguity, (^).— - Again, " If the testator might not have contemplated the event, that will not affect the construction," (c) " inconvenience attending the carrying into effect a particular disposition by will, is not a sufficient reason for controling its obvious construction." {d) Few wills can be conceived in clearer or less ambiguous words than the will of the testator Foretier. This will has not been carried into effect, but its execution opposed for these fifteen years, and his designs frustrated by the very persons who were objects of his bounty.— The appellants have urged as an excuse, for their having taken possession of all the testator's real and personal estate, his having devised the succession of his wife, in which they bad a share. If this argument could avail any thing, it could only be so far as res- pects that portion of the estate over which he had no control, and not render nugatory the devise of the re- mainder which belonged to himself, and affords no reason why that devise should not be carried into com- plete effect. The appellants appear to be under an error in supposing that a confirmation of the judgment of the court below will divest them of their claim to a share iu the succession of Therese Legrand. It is true that it declares the will and codicil must be ex- ecuted according to their form and tenor, that is, that 1630. VlQEB AND POTHIER, t a) 1 Ball and Beat 409, 460. c) 7 Ves. 369. (&) 3 Mer, 316, 409. (d) I Mer. 417. 402 1830. ViGEB AND POTUIEB. S^^'wl CASES IN THE PROVINCIAL the whole property of which the testator died seized, including Ther^se Legrand's (which he had quietly possessed for SO years, and might have presumed to belong to himself,) should pass to his fiduciary legatee, subject to such claims as legally attached to it in his life time. Of course the judgment does not place the appellants in a position less favorable than they held when the testator was alive. But even if the appel- lants had surrendered their interest in the succession of Therese Legrand, they would have shewn more res. pect to the testator's memory, and facilitated the exe. cution of his will ; and as they have obtained forcible possession of both estates, I am of opinion, that they have submitted no solid ground of objection to the demand of the executor in his character of fiduciary legatee, and that he ought to be put into possession of all the property of which Foretier died seized. Many objections have been taken to the proceedings in this action, p.s that Mayrand and wife were not ori* ginally parties. They were called in afterwards and took part in the proceedings, and here the maxim con- semus tollit errorem, emphatically applies. Another ob* jection is that the court below pronounced an interlocu* tor, which was rescinded by the final judgment, but the rule applicable to interlocutory judgments of this description is stated by Voet, quce et postea per superom- ientem definitivam retractari potest, in quo djdefinitiva dif- ffert. It has been also objected, plausibly enough, that we must look to the conclusions of the declaration, where we will find that more has been granted by the court below, than is demanded by them : that as the plaintiff has not asked to be put into possession, but that the court slK)uid declare him saisi, they liad decided ultra ' COURT OF APPEALS. 4oa petita and actually gtanted to Uxmsaisine of the estates, which he had not before. If the statutes 14th and 41st of His late Majesty, («) had not operated a com- plete change in the law, so far as respects testamenta- ry dispositions, there might be some force in this objec- tion, but these acts giving to all his Majesty's subjects a right to dispose of their property, real and personal, by last will and testament, it is no longer a question how far Vinstitution d*herieier is not competent to every one who has property; the state of things is no longer the same as before these acts, and it is wisely said that as law is a just rule fitted to the existing state of things, it must alter as the state of things to which it relates alters. " On '*ppelle,".--8ays the Repertoire de Juris- prudence, — " institution d'h^ritier, la nomination ou designation de ceux qui doit succ^der a tons les droits actifset passifsd'un defunt." And further " un her6- dite se defi^re de deux manieres, par la volont6 de rbomme ou la di^tposition de la loi." If the institu- tion of an heir by last will and testament in this pro- vince mean any thing, it must import that as soon as the testator dies his estate passes by the hceres nalus, and vests in the heeres factus on whom he has conferred it* Were it otherwise it would be a departure from the prescribed rule, semper vestigia voluntatis sequimur tes- tatorum, and be a violation of all consistency and com- mon sense, for it would make the law declare that it upheld the testator's intention of giving his estate to his hceres factus, when it actually vested it in the hceres tiQtus, or in other words, that though Foretier's inten- tion to give his estate to the respondent, his fiduciary 18.10. VlQER AND POTIIIER* (a) See Supra, 103, and 233 io notis. 404 ld30. VlGER AND POTHIER. il CASES IN THE PROVINCIAL legatee, was manifest, for the purposes of his will, the law declared it to be actually vested in the appellants, from whom the respondent could only hope to divesi it after a struggle of many years. Nor is this view of the law as applicable to this case, without indirect au- thority, as well as supported by the inference necessa* rily to be drawn from the principle that the intention of the testator is to be the guide in construing a will, for Bourjon says, " ^institution d'heritier n'ayant |fes lieu par testament, tous legs soit universels, soit parti- cullers est sujet a d^livrance," and further on, " en effet par la mort du testateur tous ses biens, pour ainsi dire, volent dans la main de son heritier. C'est ce que la coutume exprime fortement par ces mots le mort saisit le vif, {a) By the words Vinstilution d*herilier rC ay ant pas lieu par testament he plainly indicates that the doctrine of dilivrance de legs cither to the insti- tuted heir or to the universal legatee, is a creature of the law, as it existed before a power was given to all men to bequeath their estates by will, from which we must necessarily deduce this conclusion, that the insti- tuted heir or universal legatee under the altered and new system being substituted loco hceredis nati, the maxim le mort saisit le t'^^disappears, and the testator's estate, at the instant of his death, becomes virtually transferred to the universal legatee subject to all the claims and* incumbrances to which it was liable during his life* I am supported in this opinion by the Napo- leon code which has been dictated by a new and en- lightened policy. The 1006th rule of the chapter on wills is in these words, " lorsqu*au d^c^s du testateur (a) 2 Bourjon, 329. COURT OF APPEALS. 405 il n'y aura pas d'h^ritier auquel un quotit6 des biens soit reserv^e par la loi, le I^gataire universe! sera saisi (le plein droit par la mort du testateur, sans ^tre tenu de demander la d6Iivrance." Although the re.^pon- dent, owing to the opposition he has met with, has not, as fiduciary legatee, obtained actual and available pos- session of the testator's estate, he had, in a legal con- struction, possession of all the property of which he was seized at his death, so that the court below in awarding the conclusion etre declari saisi have not, in my opinion, proceeded beyond the demand in the con- clusions of the respondent. I should add that the reasons contained in the judgment of the court below, have had no weight on my mind: it is the decretal part alone of which I approve, and that I am of opinion, ought to be con6rmed, leaving it open, to the appel- lants, when the respondent shall have obtained actual possession of the entire estate, to take such course as they may be advised to divest the fiduciary legatee of the succession of Therese Legrand. Thus carrying into effect the will of the testator, so far as ihe law will permit, and at the same time protecting the appellants from any prejudice to the recovery of their just rights. Stewart, Executive Counciilor, concurred in the fore- going opinion. Sewell, Ch. J. In this case we have to pronounce upon the legality and the effect in law, of the will o^ the late Pierre Foretier, upon the respective claims and pretensions of his heirs, the appellants, and of his executor the respondent. It is to be observed that in the course of this long protracted suit, the scelle has been removed, that an inventory of the property pos- sessed by the testator, at his decease, has been made. 1830. ViOER AN'D POTUIER. 'if ':| i 406 1830. ViOER AND PoTUIER. r li I i: CASES IN THE PROVINCIAL and his moveables sold, proceedings in which the res. respondent has acquiesced, and that so much of the judgment of the court below as rejected the conclu' sions for a forfeiture of the appellant's share in the testator's estate, ^ and for damages, is unimpeached.— The only points now in discussion, are, 1. the validhy and legal effect of the will. 2. the extent of the exe- cutor's saisine. For whether the heirs are bound to restore to the executor the moveable property, if any they have, belonging to the estate of the testator, whe- ther they be enjoined not to sell them, or receive any debts due to the testator's estate, and not to molest the respondent in the execution of the will, are ques* tions entirely depending on these two points. The validity of the will depends upon its form and its con- text. In its form it is an holograph will which the law sanctions, and it is formally admitted by all parties to have been entirely written and signed by the testa- tor. As to its context, it has been urged that the will is entirely null and void, but no sufficient reason has been assigned to shew that it is so. Foretier had an undoubted right to dispose of his own property, and also to disinherit his heirs if he saw fit, in the first in- stance ; and consequently he had a right to disinherit them upon a contingent event, which was to depend upon themselves, we cannot, therefore, say that the will is entirely null. But we are, nevertheless, of opin* ion that the testator could not bequeath or transfer any other than the property which was vested in him- self on the day of his decease, and that the provisions of the will cannot in any manner affect any property then in his possession, which was vested in the heirs of Ther^se Legrand, and this was the case not only as to ch the res' uch of the the conclu- lare in the peached.— the validity of the exe. e bound to erty, if any stator, whe- receive any >t to molest [I, are ques. oints. The and its con- 11 which the >y all parties t)y the testa- that the will t reason has letier had an roperty, and the first in- to disinherit 18 to depend say that the |le89, ofopin- or transfer isted in him- ^ COURT OF APPEALS. '^'^ all the property which were propres in her succession, but also as to that part of it which formed her share in the conjugal community existing between her and the testator. In both these instances the possession of the testator was merely de facto. The " possession m\i^ was in the heirs of Ther^se Legrand, and from the moment of her decease all her property was vested in her heirs, " le mort saisit le vif," and, therefore, as the testator could not dispose of their property by will, he unquestionably could not affect it by any of the conditions which he endeavoured to impose upon it. Then as respects the second point, " whether the res- pondent is, or is not entitled to the saisine and posses- sion of all the property of which Foretier was possessed on the day of his decease." And here we must ob- serve that the power of the executor over property bequeathed, cannot exceed the power of the testator over the same property. If then Foretier had no power to transfer the property of Therdse Legrand, he could have no power to vest it in his executor in trust for the purposes of his will, nor do the words of the will in fact, shew that such was his intention, on the contrary they prove that it was his intention to vest in his executor his own estate and succession, his words are " I name Toussaint Pothier, Esquire, and Hugh Heney, my grand son, into whose possession I divest myself of all my property, authorizing the said execu- tors to administer the said property until a partition shall be made among my heirs." We are, therefore, of opinion that under the will, the respondent is enti. tied only to the saisine and possession of the property which constitutes, exclusively, the succession of Fore- 407 1830. VlQER AND FOTIIIER. f*V •J 408 CASES IN THE PROVINCIAL 1830. VlOEIl AND POTIIIER. tier, that is, of that portion of the property in his pos. session on the day of his decease, and which will remain after subtracting therefrom the propres of Therese Legrand, and her moiety of the conjugal community; and after deducting from the other moiety of the same community, belonging to the testator, so much as may be due to her heirs for any alienations of property which he may have made, for the rents, issues and prO' fits of her propres, and of her share in the community which he may have received. To return to the mat- ters abo. J stated to be dependant upon the decision of these questions. — It follows, of course, that the heirs are bound to restore to the executor the pro- perty, — if they have any in their hands which may be found to belong to the estate and succession of Pierre Foretier,— when established in the manner above men- tioned: that they cannot sell any property of this description : that they cannot receive any debt due, exclusively, to the succession of Pierre Foretier, and that they cannot be permitted to molest the executor in the lawful execution of the will, as to the succession of Foretier. This court has not failed to give the attention due to the reasons assigned by the court below in support of their judgment, *' That the said defendants were heirs of the said Pierre Foretier, and that in virtue of | tb(? will, codicil and testamentary dispositions of tl said Pierre Foretier, and according to the disposition of the same, the said defendants have intermeddled vith the succession of the said Pierre Foretier, and have acted as heirs under the will, the only quality they could assume, and have thereby bound and obliged themselves to accomplish and fulfil without A COURT OF APPEALS. 409 deviation all tiie charges and conditions imposed by the said will, codicil and testamentary dispositions, and could no longer legally contest the same. That in accepting the said succession by will of the said Pierre Foretier, the two successions, paternal and maternal, to which the said defendants are heirs, have been blended together and form but one and the same suc- cession." But after a diligent examination of the record we do not find any evidence by which they would be warranted in drawing these conclusions ; on the contrary, we find that the heirs have uniformly denied the validity of the will, except as to its form, admitting the handwriting and the signature, but no more, and that they have intermeddled, not as Fore- tier's legatees, but as the heirs of Therese Lcgrand. This appears particularly from the instrument of the 20th December, 181^, wherein the heirs reserve " their rights as heirs respectively and without its being considered in any manner to prejudice them, and without, on their part, admitting the validity of the said will, codicil, and dispositions by will, or the validity of any of the clauses or dispositions therein contained," and from the answer of the heirs to the notarial summons on the 23rd of January 1823, by which they were required by the respondent to pro- ceed with him as executor to make an inventory of all the property possessed by Foretier at his decease ; in this answer they refer to the above instrument and state, " that being seized, as well in fact as in law, of the property left by the said Pierre Foretier, com, posed as they have already informed the said Sieur Pothier of different successions, they have, of them- selves, already commenced an inventory which is in 1830. VlOBR AND POTUIER. h !-i ^:i!i 410 CASES IN THE PROVINCIAL \i I "i . I M h^ ]■• 1830. ViGRR AND FOTHIER. progress and conseqjently they oppose such inven- tory being proceeded in by the said Sieur Pothier." For these several reasons the judgment of this court is, that so much of the judgment of the court below as declares that the appellants in virtue of the will, codicil, &c. as already stated, and their order in conse- quence, that the said holograph will of the said Pierre Foretier should be executed according to its form and tenor, and that the respondent should be seized of all the property left by the said Pierre Foretier, as sole executor of the said will and as administrator, to ma- nage the same until the entire accomplishment of the intentions of the said Pierre Foretier, and also so much of the said judgment as declares the appellants accountable to the respondent for all the estates, moveable effects, &c. possessed by the said Pierre Foretier at the time of his death according to an in- ventory, &c. mentioned in the said judgment, and also so much of the same judgment as dismisses all the exceptions fyled by the appellants and condemns them to pay costs, be and the same is hereby reversed and declared to be of no effect, with costs to the appellant in this court and in the court below against the respondent in his quality of executor,— and by this court it is adjudged that the said holograph will find codicils are good and valid so far as f^ey relate to the estate and succession of the said Pierre Foretier only, and that the said will and codicil are null and . void so far as they relate to the succession of Therese Legrand, and accordingly it is ordered that the said holograph will and testamentary dispositions be car- ried into effect so far as they relate to the succession of the said Pierre Foretier exclusively, and by this COURT OF APPEALS. 411 court it is further adjudged that the respondent, as sole executor of the said will and testamentary dispo- sitions, is entitled to the saisine of the estate and suc- cession of the said Pierre Foretier, and that he is not entitled to the saisine of the estate and succession of Therese Legrand, or of any property not exclusively part and portion of the estate and succession of the said Pierre Foretier, and that the appellants do deliver unto the respondent, as executor, all the moveables* titles, &c. belonging to his estate and succession in their possession, hereby enjoining the said appellants not to trouble or molest the respondent in the lawful administration of the estate and succession of the said Pierre Foretier according to the tenor of this judg- ment, and it is lastly adjudged by this court that the conclusions of the respondent's declaration praying that such of the heirs of the said Pierre Foretier as should contest the said will be declared to have for- feited their share under the said will, and for £5000, damages be dismissed. And that so much of -the ex- ceptions of the appellants as pray that the action of the respondent be dismissed because Therese Heiiey and her husband were not originally made parties to the suit, and because it was not sufficiently alleged in the declaration that Hugh Heney had renounced the execution of the willi be and the same is hereby dis- missed. 1830. ViGER AM) POTIUER. >,!• r ■i-- 1 1/ a VJ «■>■ "■*,' 'i-V 41S CASES DETERMINED • .? V'ii« t James RoGERSON AND OTHERS .,.,, Appellants, and lOth&Hth Isaac Corrie Reid.. Respondent. July. .^^^ . 1830. ' houseatNew- J. HE Respondent, on the 3d July 18^6, instituted an housrafou*- action of rcvendtcation againn the appellant for the bee, to con- recovcrv of some anchors and riffcrinw; and on the tract for tlie ^ ^^ ° building of a Same day the articles were seized by the sheriff under they— the"' * ^"^ °^ attachment, or satsie de revendication, sued Newry house, out by the respondent. The appellant pleaded the out the rig- general issu 6. The facts in evidence, undisputed by Qu?i)ec hSuse either party, established that it is usual for British mer- enter into a ghants to give orders for building of ships to merchants, contract with ^j . •• jr some ship- resident at Canada, as agents on commission ; and tor Sordlngi/.- the Canadian merchant to contract with the builder to The Newry ajyancc him the requisite monies, according to the house then di- **""" . n .11 1 • 1 rect their cor- terms of Contracting for materials and work m the SvTrpoorto' colony, and to draw from time to time for such ad- send out the yg^ces ou the British merchant, and for the British rigging; he does so; and it merchant to send out to the Canadian merchant the actuaify deU- ncccssary rigging for the ship, and also a master to Quebe?houle: Superintend the building of it, and navigate it to Eu- held, that the ropc. Mcssrs. Henry and Reid, merchants, resident wa? vefted in at Ncwry in Ireland, by a letter dated 23d August lions^*Ind 1825, directed the appellants, merchants resident at that the Que- Quebec, " to Contract for the building of a vessel to bee house had a right to re- tain it against the Liverpool correspondent, on account of their lien on it for advances made to the builders, and payment of Custom house expenses, although previously to the delivery they had obtained an assignment of the ship to themselves from the builders, aud had registered it in the name of one of the partners in their house. BEFORE THE PRIVY COUNCIL. be called the Ocean, to be complete in cabin, and every other thing except the rigging; and they desired to be advised in good time of the appellants having made the contract, so as to be able to send out the rig. ging; and they agreed to allow the appellants two and a half per cent commission for their trouble. Captain Maxwell was to have the command." The appellants contracted with some ship builders at Quebec for the building a vessel according to this order, and on the 26th of ApriU in the following year, when it was part- ly built, they took an assignment of it from the buil- ders; they soon after registered it in the name of a partner in a branch of their house established at Green- ock. Maxwell came to Quebec in the spring of the same year, with a letter to the appellants from Henry and Reid, directing them " to supply him with any money he might require for outfits, and to obtain the certificate of registry, so that they might register her on her arrival in Europe." Maxwell on his way to Canada from Newry, had stopped at Liverpool, and there took the respondent, who was the Liverpool cor- respondent of Henry and Reid, to Messrs. Brown, Logan & CO. and ordered the rigging in question. On his arrival Maxwell was employed to superintend the building of the ship. The rigging arrived at Quebec on the Slst May, with an invoice made out in the name of the respondent, and a bill of lading, expres- sing that it had been shipped by the respondent, and was to be delivered to " Capt. Thos. Maxwell, ship Oceati, at Messrs. Rogerson, Hunter & co.'s" (the ap- pellants.) It was deposited in the appellant's ware- houses, and they paid the Custom house duties and other charges on it. In the June following they dis- 413 1830. Rogerson AND Keid. i' ll ' 414 CASES DETERMINED 1830. ROOERSON AND Reid. m - : km t ^^ i missed Maxwell, the master of the ship, and an ac* count was then made out between " The bark Ocean, and owners, and captain Thomas Maxwell," in which his wages and expenses from the time of leaving Ire. land, were balanced against the sums which had been ad. vanced to him by the respondent, as the agent of Henry and Reid at Liverpool, and by the appellants since his ar- rival at Quebec ; but no mention was made of the money which they had paid for the duties and other charges on the rigging. The amount of the balance was paid by the appellants to Maxwell. In May 1826, the house of Henry and Reid stopped payment, the appel* lants being then in advance on their account for the building of the ship. Thus far the facts of the case were undisputed ; but some difficulty arose on the evi- dence of Maxwell. He deposed, that on the arrival of the rigging he entered it at the custom-house, and that it was landed under his direction : that he then removed some of it to Molson's wharf, and went im* mediately to procure store room for the rest of it; but on his return he found that one of the partners of the appellants' house had removed the articles he had left: That the same partner afterwards borrowed a bower chain, which he,— Maxwell, — had removed, under the pretence of lending it, but he put it into the appellants' stores : that the respondent had desired the rigging to be delivered to him, — Maxwell, — and had sent them out for the purpose of being employed upon a vessel* provided they were paid for : that he, — Maxwell, — was agent for the respondent, whose letter of instructions to him was, that he should hold the goods u.til he re- ceived security for the payment for him, and that he had given the appellants no permission whatever to BEFORE THE PRIVY COUNCIL. 415 take away the rigging, intending to keep it in obedi- ence to the respondent's letter of instructions: that on his producing, at the request of one of the partners in the appellants' house, the invoice and bill of lading, the partner retained and refused to return them, though asked repeatedly for them: that when he ordered the goods, the respondent as well as Brown, Logan & co. understood from him that the goods were intended for the vessel then building for Henry and Reid, and that the goods in question were given by the house of Brown, Logan & Co. on the credit of the respondent, who was debited in their books for the amount. The appellants, to invalidate his evidence, proved by the captain of the vessel who had brought out the rigging, that Maxwell had given him to understand that it was for a ship building in Quebec ; by that of one of their own clerks, that Maxwell had, without any objection, delivered to him the invoice and bill of lading on his application for them, by the orders of the appellants, three weeks or a month after the settlement of the account ; and by that of a ship builder of Quebec, that he had applied to Maxwell for an anchor, sent out for the Ocean, with a view of purchasing it : that Max- well told him he should be glad to exchange it for a lighter one, but that he could not take upon himself to do so, and directed him to apply to the managing partner of the appellants' house, who he said was in charge of the anchor, it having been sent out for a vessel built by them, and that he,— Maxwell, — had no authority to dispose of the same. The Court of King's Bench, on the 20th February 18S8, gave judgment in favor of the respondent, with costs, which was con- 1830. ROGERSON AND Reid. Si 416 1830. ROOERSON AND Keid. ! CASES DETER.>IINED ) ; firmed by the court of appeals on the SOth July in the same year, from which (his appeal was instituted. Spankie, (Serjeant) and Stuart, for the appellants.— The rigging was lawfully in possession of the appellants, as part of the outfit of the ship they were building for the house of Henry and Reid at Newry. It had, for that purpose been consigned, by the respondent, the agent of the Newry house, and delivered over by Maxwell to the appellants ; it was subject therefore to all the rights of lien, which had accrued to the appellants, both on account of their advances in respect of the ship, and of their payments of the duties and other charges on the rigging itself. Neither the appellants, or Maxwell, were ever the agent of the respondent.— Maxwell, indeed, after he had been dismissed from his situation by the appellants, had pretended that he was invested with that character ; but his story was con- tradicted in many points, unsupported in any, and ai> together improbable. He pretended to have had a letter of instructions, which ought to have been pro. duced, if it existed, at the time of the trial, orifitdidnot exist, some evidence ought to have been given as to what had become of it: neither ofs these courses, how- ever, was adopted ; nor was a tittle of evidence offered to confirm his assertion, that he had acted as the agent of the respondent, or even to prove that he had ever pretended to have been so till the failure of Henry and Keid first suggested to the respondent this plan of get- ting possession of the articles in dispute. The fact of the appellants having, as the agents ot the Newry house, paid the Custom house duties upon them, clear- ly proves that they were not considered to have been consigned to Maxwell, as the respondent's agent j and BEFORE THE PRIVY COUNCIL. in the account which was made out upon his dismissal, although the appellants had then the rigging in their possession, he never attempted to charge them with it. Putting Maxwell's evidence out of the question, tberefore,— >as it must be,— the respondent's case can- not be suppoited. The goods, no doubt, were deli- vered to Maxwell unconditionally, and the case stands on the same principle as that of Ogle v. AtMnson, (a) where the decision was, that an unconditional delivery of goods to the captain was an unconditional delivery to the owner of the ship, and that the property, there- fore, vested in him. According to these principles^ therefore, the property would have vested in the New- ry house, from whom Maxwell held his appointment as captain, and whose agent he was. Admitting, how- ever. Maxwell's evidence to be true, he no where says, that he told the appellants that he was the agent of the respondent, or that he had a letter of instructions from him J the same doctrine therefore applies; and the ap- pellants having obtained unconditional possession of the goods, the properly of them vested in the Newry house, subject to the appellant's lien. The respondent had lost all right as an unpaid vendor to stop the goods in transitu, because by the delivery to the agents of the Newry house the transitus was determined, and ac- cording to the English law he had no title to institute such an action. By the law of Lower Canada, an un- paid vendor may in most cases follow his goods in the hands of the purchaser, but this is one of the cases which Pothier (b) mentions expressly as exceptions from the general rule, when he says, that the posses- (a) Ist Marshall, 323. arL 295. (b) Traite de la Propriute, partic 2ndc cap. 1 , 417 1830 KOOERSON AND Reid. i^ 418 1830. ROORRSON AND Reid. CASES DETERMINED ' ' seur de bonne foi, if he loses possession of the articles, may bring his action of revendicalhn to recover them against the proprietor himself. Uninformed as the ap. pellants were by Maxwell of his character as agent for the respondent, they must be considered as posstsseurs de bonne foi. Even if they had lost the possession of the goods they might have recovered them, and dfoT' tlori, not having parted with that possession, they were entitled to retain it. Pollock (K. C.) and Faitisont for the respondents:— The courts below gave full credence to Maxwell's evi. dence, and founded their decision upon it ; and your Lordships' judgment in the late case of Santacana v. Ardevol (a) has established the principle, that it is the exclusive province of those courts to decide whether evidence shall be believed or not, and that their de- cision on that head shall not be questioned before you. [Master of the Rolls. — That decision never was meant to establish the doctrine that this court could not examine the evidence of the res gest(B.~] Even if Maxwell's evidence was put out of the case the decision must be for the respondents; the pro- perty must have been delivered to them (if there was a delivery) under the impression that it was to be em- ployed upon a ship belonging to the house at Newry. Now at the time of that delivery there was no ship belonging to that house on which it could be employed. The appellants, in consequence, no doubt, of intelli* gence they had received of the approaching insolvency of the Newry house, had, by means of an assignment from the builder, and a registry in the name of some of the nniembers of their firm, made the Ocean their (a) Knapp's R. 869. BEFORE THE PRIVY COUNCIL. own. It was a gross fraud therefore for them to re- ceive these articles for the use of a ship belonging to the Newry house, when they knew that at the time of their arrival there was no ship belonging to the Newry house in existence. It cannot even be argued, that they took out the registry of the ship in their own names, in pursuance of the directions from that house to take out a registry. The registry intended by that house was merely an interim registry, or certificate un- til the ship arrived in Europe, under the 6th Geo. IV. cap. 110, not an absolute registry such as the appel- lants had taken. The invoices of the goods were made out in the respondent's name, and this circumstance furnishes convincing evidence, independently of the tes- timony of Maxwell, that the property of them was his. Supposing this to be the case, he had full right, ac- cording to the English law, on hearing of the insolven- cy of the Newry house, to give orders to his agents to stop the goods in iransUu, Fiese v. Wrai/, (o) The French law gave him further powers of preserving his property, for it allows the unpaid vendor to attach the goods in the hands of even a bond fide holder. The Custom of Paris states the law in these terms : " Qui vend aucune chose mobiliere sans jour, el sans terme, esperant etre paye proraptement, il pent sa chose pour, suivre en quelque lieu qu'elle soit transportee, pour etrepay6 du prix qu'il l*a vendue;" and Polhier's com- mentary upon this article, in his Treatise de la Pro- pri^te, is, " 11 r^sulte clairement de ces termes, * il pent sa chose poursuivre,* lorsque le vendeur a vendu sans jour et sans terme, la chose vendue non obstant la tra- 419 1830. ROOERSON AND Reio. ' *. a (a) 3d East, 93. 420 I CASES DETERMINED I 1830. It i KOUERBON AND Keio. dition qii'il en a fail, en quelque lieu qu'elle ait elu traiisportee, en quelques mains qu'elle ait passee, de- meure toujours sa chose jusqu'^ ce qu'elle ait ete paye."(«) Another principle of French law is, that the property of a thing does not pass by the mere de- livery of it ; it is also requisite, that he who delivers ii should deliver it with the intention of passing the pro- perty ; he who accepts it should accept it with the in. tention of taking the property. This is also stated by Pothier in the same Treatise, in these terms : *• II faut que le consentement intervienne sur la personne, a qui I'on veut transferer la propriete de la chose dont on fait la tradition, si voulant me donner une chose vous la donnez a mon humme d'affaires, comptant laiui donner pour moi, et qu'il I'ait re9ue croyant la rece- voir pour lui, cette tradition ne transterera la propriete de la chose ni a mon homme d'affaires, a qui vous n'a- vez pas voulu la donner, ni a moi, mon homme d'affaires ne I'ayant pas re9ue pour moi, si procurator i meoren tradideris, ut meumfaceres, is hdc mente acceperit, ut suam facerett nihil agetur" (b) Here the appellants received the articles with the intention of applying them to the use of their own ship ; they were delivered to them for the purpose of being used in the building of the ship of Henry and Reid. The property in them, would not therefore, pass to the appellants, because there was not that consent or mutual understanding between the parties which the French law requires. In the passage cited on the other side from Pothier, where he says, that if the agent sells contrary to the orders of the owner, the purchaser may revendicate the proper* (a) Pothier's Traite de la Propriete, partie premiere, cap. 2, art. 242 (6) lb. art. 233. BEFORE THE PRIVY COUNCIL. ty from the owner, it is evidently pre-supposed that the purchaser shall have paid the purchase money. — Now here the appellants have never paid any thing. According to our own law, it is clear that goods which have been delivered by mistake can be recovered, Lilt V. Cowley (a) and no person can obtain a lien by a wrongful act, Griffiths v. Hyde, (U) The action of revendication is indeed in principle like our action of trover, w.iich has been termed an equitable action by Lord Mansfield, in Fitzroy v. Gwillim, (c) and nothing can be more inequitable than that a man should be allowed to retain goods, for which he has never paid* and which never would have come into his possession except either by fraud, or misrepresentation on his part, or misconception or mistake on the part of the agent from whom he obtained them. Spanlcie, in reply. The appellants were clearly the agents of the Newry House, and the delivery of the goods was made to them in that character ; even if it had not been so, the respondent had lost his property in them by the delivery to Maxwell, who was also the agent of the Newry House. — The sections that have been cited from Pothier do no^t bear upon the ques- tion ; in the first quoted, the delivery proceeded on a mistake ; the parties were not agreed, and therefore there was no contract ; the second quotation only says, that when no time for payment is stipulated the present time is understood; and thus when goods have been delivered on the understand*/ ;;[:; that they are to be paid for by ready money, and no paj^ment is made, the property of them remains in the vendor* I a) 7th Taunton, 169. c) Ist. T. R. 153. (b) Selwyn's Ni. Pii. MSS. 1388. ' 421 1830. ROQBRBON AND Reid. bMO fl^^^H 1 fH^H||l 1 1 ^BM ^^^^1 ' Jw **' 'HHili' :'|Bi;i| '1 Blf ' I'l a COURT OF APPEALS. and as public property. But this opinion has been con- troverted by so many other writers of greater weight, and upon such strong grounds, that the court can- not hesitate in rejecting it, and therefore reverses the judgment of the court below, and enters judgment for the appellant., Duval for the appellant.— C. Panet, for the respon- dent. >,£ ir 42D 1830. FOURNIER AND OUVA. On Appeal from Quebec. Andrew Paterson and Others Appellants. . and Duncan McCallum and Others., ^Respondents, ff 17th Not. 1830. I HE appellants and others had obtained writs of a general execution against John McCallum, by which they hypofheque seized and sold several lots of land belonging to him JjJJJg^hiddTn in the Township of Tring, which were held in free free and com- and common soccage. But claims were made by the "*° 'o*'**?*- respondents upon the lands in question, founded en a notarial obligation of the late James McCallum of the 27th of November I8I6, and these were admitted by the court below for the balance and interest of that obligation, in the order of distribution and collocation of the monies so levied, on the ground of the tacit but general hypotheque or mortgage, which was included v in that, as in every acte autJtentique, It was against this decision that this appeal was brought. ■ '1 '■I i ;( \'\U lu I 430 1830. Patebson AND McCaixum. ,'('>'' ,''i I M. ■iii CASES IN THE PROVINCIAL The grounds upon which the judgment of the court of King's Bench was impugned were the foUowin*; :-. By the proclamation of 17^3, published immediately after the cession of Canada to Great Britain, by France, it was among other things published and de. clared, " That we have, in the Letters Patent under " our Great Seal of Great Britain, by which the said " governments are constituted, given express power *< and direction to our governors of our said colonies, " respectively, that so soon as the state and circum* ** stances of the said colonies will admit thereof they " shall, with the advice and consent of the members " of our council, summon and call general assemblies " within the said governments, respectively, in such " manner and form as is used and directed in those " colonies and provinces in America which are under " our immediate government ; and we have also given " power to the said r^overnors, with the consent of " our said couu: , and the representatives of the ** people, so to be summoned as aforesaid, to make, ** constitute and ordain laws, statutes and ordinances " for the public peace, welfare, and good government *' of our said colonies, and of the people and inhabi- " tants thereof, as near as may be agreeable to the laws ** of England, and under such regulations and restrict " tions as are used in other colonies ; and in the mean- " time, and until such assemblies can be called as afore. «* said, all persons inhabiting and resorting to our said «* colonies may confide in our royal protection for the " enjoyment of tlie benefit of the laws of our realm of " England j for which purpose we have given power, under our Great Seal, to the governors of our said colonies, respectively, to erect and constitute, with i( i( COURT OF APPEALS. ' 431 " the advice of our said councils, respectively, courts " of judicature and public justice, within our said " colonies, for the hearing and determining all causes, " as well criminal as civil, according to law and equity, " and, as near as may be, agreeable to the laws of <• England, with liberty to all persons, who may " think themselves aggrieved by the sentence of such " courts, in all civil cases, to appeal, under the usual " limitations and restrictions to us in our privy coun- " cil." Courts of justice were erected under this pro- clamation by which justice was administered within the colony according to the law of England. But as doubts had arisen respecting the power of the crown to legislate over conquered countries by proclama- tion, (a) the Quebec act (14th, Geo, III. c. 83.) was passed to regulate, by the acknowledged paramount authority of the Imperial Parliament, the laws whereby the Canadas, then the province of Quebec, would in future be governed. The eighth section of this act provides, " That in all matters of controversy relative " to property and civil rights, resort shall be had to " the laws of Canada as the rule for the decision of " the same," but in the section immediately following it is enacted, " That nothing in this act shall extend " or be construed to extend to any lands that have " been granted by His Majesty, or shall be hereafter " granted by His Majesty, his heirs and successors, " to be holden in free and common soccage." Diver- sities of opinion having arisen and long subsisted res- pecting the true construction to be given to these enactments they were set at rest by a declaratory act (a) Vide Hall v. Campbell. Cowp. R^ SOi, and the Report of Mr. Attorney General Matere$ in 1767, in the Quebec CommiNioni. 5 L 1830. Paterson AND McCallum. 432 1830: Paterson AND McCaixum. « «l CASES IN THE PROVINCIAL of the Imperial Parliament, passed in the sixth year of his present Majesty. The clause relating to this sub. ject being, " Whereas doubts have arisen, whether «* lands granted in the said province of Lower Ca- " nada, by His Majesty or by any of his royal prede- " cessors to be holden in free and common soccage, shall be held by the owners thereof, or will subse* quently pass to persons according to the rules of " descent and alienation in force in England, or " according to such rules as were established by the ** ancient laws of the said province, for the descent " and alienation of lands therein, be it, therefore, " declared and enacted, that all lands within the said province of Lower Canada, which have heretofore been granted by His Majesty or by any of his royal predecessors, to any person or persons, their heirs ** and assigns, to be holden in free and common soc< *' cage, or which shall or may hereafter be so granted by his Majesty, his heirs and successors, to any person or persons, their heirs and assigns, to be " holden in free and common soccage, may and shall be by such grantees, their heirs and assigns, held, granted, bargained, sold, aliened, conveyed and disposed of, and may and shall pass by descent in *' such manner and form, and upon and under siicli ** rules and restrictions, as are by the law of England ** established and in force in reference to the grant, ** bargain, sale, alienation, conveyance, disposal, de* " scent of lands holden by the like tenure therein I ** situate, or to the dower or other rights of married] ** women in such lands, and not otherwise, any law, ** custom, or usage to the contrary in any wise not- ** withstanding : provided, nevertheless, that nothing | 'AH »i If t( «( i( <( (I « ] COURT OF APPEALS. 433 >< herein contained, shall extend to prevent His Ma- " jesty, witli the advice and consent of the legislative " council and assembly of the province of Lower '< Canada from making and enacting any such laws or " statutes as may be necessary for the better adapting " the before mentioned laws of England, or any of '* them, to the local circumstances and condition of •< the said province of Lower Canada and the inhabi- •• tants thereof." (a) There thus ceasing to remain any ground of controversy as to the extent which the legislature intended the English law should obtain in respect to free and common soccage lands in Lower Canada ; it remains only to enquire whether the hypo- thec or mortgage was comprized within the limits declared by the last mentioned statute, and for this purpose to ascertain whether it is to be considered in law as an alienation or not. The import of the term alienation as here used must, it is apprehended, be sought for in that law in relation to which it is used, that is, the English law. By that law nothing can be more clear than that a mortgage is an alienation. (6) In the civil law an hypothec was in like manner considered an alienation, (c) So also it is considered as an alien. ation in the French law. ((/) It was further urged that, beyond all controversy, the English law, relative to mortgages, obtained, and if it obtained at all it must have obtained exclusively, for it would be a contra- diction in terms to hold that two sets of rules differ- 1830. Paterson AND McCallun. (a) 6 Geo. IV. c. 59. § 8. lb) I Powell on Moitjrages, 4, 23, 77, 138, 140. Cruise tub hoc tihilo. Bac. Abr. tit. mortsage. Com Dig^. (e^ Calriiii Lexicon Jur. verbis, — Alienare, Alienatio, Alienandi et Ali- Nutiooia.— Code lib. 4, tit. 5. 1 , ult. Pereizius de rebus alienis dod alieoaodis, 4c. 5 5. {i) L. C. Den. t. Alienation $ 5. Ricard. Substitutions, No. 369. Ir I 43^ 1830. PATBBaOIf AND McCaixuu. CASES IN THE PROVINCIAL ing essentially from each other, but of equal authority, should apply to, and regulate the same subject. The word disposed, used in the Btatul *, is of more compre. hensive import even than the word alienate. Reid, Ch. J. The question to be now decided is one upon which various opinions have been entertained. It is whether an acie authentique, and general mortgage of all present and future property, can affect lands in free and common soccage. The court are convinced that, under the laws of this country, when properly explained, lands held in free and common soccage, can- not be so affected. The statute of 1774, (the Quebec act,) directs, as a general principle, that *' in all mat- ters of controversy relative to property and civil rights, recourse shall be had to the laws of Canada, as the rule for the decision of the same •" but by the next section it is provided, " that nothing in this act shall extend, or be construed to extend, to any lands that have been granted, or shall hereafter be granted by His Majesty in free and common soccage." It is true the parliament of Great Britain did not thereby in terms determine by what rule the civil law should be administered With respect to such lands, but it fol- lows, that this exception being made as to lands liehi in free and common soccage, that is by the tenure by which lands are almost universally held in England, the legislature could alone mean that the same law as governs lands in free and common soccage in England) should govern lands similarly situated here. Doubts and difficulties have, however, constantly arisen, and for a long time existed, a variety of opinions have been form- ed thereon, and the laws of Canada, having, notwith* standing, been construed to extend to such lands, con- COURT OF APPEALS. .• siJerations of the injurious consequences that would arise to estates and families, if tiie subject were to re- main longer involved in those doubts and difficulties, caused the Act of the imperial parliament of the Gth Geo. IV. to be passed, after which, if any doubts ex- isted, they must be removed, for by that declaratory statute, lands in free and common soccage in Canada, are declared to be subject to the same laws, modes of succession, conveyance and alienation, as lands in free and common soccage in England. Now, how can it be said that a paper drawn up before a notary, not specify- ing any particular lands, can have any reference to what is understood by a mortgage in the laws of England. A mortgage there, is not what a notarial act is here, a Until the passini; of the Quebec act no certain guaranty was given to the old or new subjects, as to the laws hy which the Canadas were, in fu- tore,tobe regulated. There can be no doubt that the object of the cam- paign, and the necociation which terminated in the treaty of cession of 17G3, was to introduce into these provinces the English laws, and the En- gligh mannw of government, and thereby to assimilate and associate this province to til <:< - her British colonies in North America; and not to keep it dutinct and separate from these in laws and manners, to all future gene- rations. If the latter system had been that which the British government had adopted, orders would have been given to Sir Jefftry Amherst to keep op, from the first moment, all the courts of justice that were at that time io being in the colony, and even the several officers that composed them, opoD the same footing on which they then subsisted. Instead of this. Sir Jtffery Amherst immediately suppressed all the former jurisdictions and erected military councils in their stead, and in the articles of capitulation refuted to promise the inhabitants of this province the continuance of the Cou- tume de Paris, and the other ancient laws and usages, by which they had been governed, although in that behalf requested by the French general. In the treaty of 1763, nothing is said respecting the ancient laws and usages of the country ; the sole guaranty which i( contains is the free exercise of the catholic religion. The proclamation of the 7th of October 1763, encouraged British and other ancient subjects, to settle in this and the other newly erected (ifovern- neots, and promised them, as an inducement thereunto, the immediate en- j^ment of the benefit of the laws of England. The commission of vice admiral of this province, granted to general Murray, expressly introduces all the laws of the English courts of admiralty into this province. And the commission of the same person to be captain general and governor in chief of this province, directed him to summon an assembly of free holders and planters, and in conjunction with tbeie to make laws and ordinances not ftpugnant to the laws of England, 4,35 1830. Paterson AND McCalluu F ^^ii .!fM ; ;L ! •■|;: l!i» 43G 1R30. Paterson AND McLallum. 11 CASES IN THE PROVINCIAL mere acknowledgment of a debt, but is a conveyance of the land. A mortgage is a contract of sale of cor. tain land for a certain sum, with a power to redeem. it is a special pledge or security given to a special creditor, for a special sum of money, and is a convey- ance, provisional as to its redemption, which must have all the qualities of an absolute sale, excepting as re- gards the proviso of redemption. The judgment of the court below is, therefore, reversed with costs, and the parties sent back to obtain a fresh distribution of the proceeds of the sale, the property having been sold at the instance of two or three individuals. Judgment reversed. • Much controversy existed in the colony between the issuiugr of the pro- clamation and the passing of the Quebec act, npon this head ; and the Que- bec act seems to have been intended as a tinal and definitive adjiistmeut oC the matter, havini; a due regard to the interests and claims of both clmet of His Majesty's sulijectR, and securinff to the inhabitants of tlie sei^nioriei '* the system of laws by wJiich their persons and property had been prutfcted, " governed and ordered for a long series of years, from the tirst establiih- " ment of the province of Canada," and at the same time redpemin^ the pledge contained in the proclamation of 1763, as near as was consistent with the just claims of the inhabitants of the seigniories. No grants in free and common soccage of any consequence, appear to have been made until abont the year 1797, and all these grants were made "to the grantees, and each of them severally and respectively, in free and common soccage, by fealty only, in like manner as lands are holden in free and common soccage iii that part of Great Britain called England." Almost immediately after there grant« the subject in controversy, in the above rase, came to be agitated within the colony, and in its importance was more and more ft* It, when the whole process of township land granting was completed about the yean 1803<1804. In this year a reference was made to the judges in Canada, by order of the gover anient in England, upon the subject, and their opi- nions taken, transmitted to England and referred to the attorney and solicitor general of that day. There is every reason to believe that the declaratory act of 6th Geo. IV. is not onlv in " "orHance with, but absolute- ly framed upon these opinions. ♦ Vide ProT. Stat. 9 and 10. -> . . cap. 77. 7 1 COURT OF APPEALS. 437 ■f '; f . .rn I On Appeal from Quebec. • » •, .1. George Montgomery Appellant, and Samuel Gerrard and others, Executors, &c Respondents. 17th Norr. An action of debt was instituted by the appellant as Partnership executor of the last will and testament of the late Mat- Qrlii'the thew McClure, against Francis and William Honter, as «'«'•''* ©fany , . •Ill- • J J ^ T ofthepartner« co'partners, on theirnotarial obligation dated 1st June individually. 1811. In consequence of an execution sued out on a judgment rendered against the defendants* several lots of land, the property of the said co-partnership, were seized and sold. An opposition was fy led by the res- ~ pondents, executors of the late David David, claiming the monies levied, founded on a notarial obligation executed by Francis Hunter, one of the defendants individually, on the 7th November 1794, which had been assigned to the said David David, it was con- sidered by the court below, that there being a priority of mortgage in favor of David, it would attach up- on the property of the partnership which had been seized and sold under the execution, and thereupon the monies levied were adjudged to the respondents. The reasons assigned by the appellant upon this appeal were, 1. That by the law of this country, the creditors of a company have exclusively set apart to them the partnership estate for payment of their debts, against the company. The particular creditors of T,he firm ^f»K^ ti n 1(1 I pi \» Ii m, 438 CASES IN THE PROVINCIAL 1830. AN!) Gbrrard. have no claim upon tiie property of the partnership, MoNTG^iERY except when there is a surphis after the payment of all the partnership creditors ; and then the creditors of each of the particular partners have a right to be ranker! on the portion of their debtor in that surplus: M'hei eas in this case the particular creditor was allowed to be ranked upon the proceeds of the joint estate, to the exclusion and prejudice of the creditors of the joint fund. Q, That a creditor cannot by law have any other or greater interest in the property of his debtor, than the debtor himself had, and that the right of Francis Hunter in the property seized in this cause, was one subject to the payment of the joint debts un- der the rule, bona intelliguntur cujusque, quce deducto cere alieno supersunt. And that by the judgment com. plained of, there was given to the respondents a greater interest in the subject seized than was possessed by the debtor, (a; r/ ; ; , (a) See an arret of the parliament of Ori^noble of the 22d of Aufrust 1637, in Basset, vol. 2. B. 3. T. 2. cap. 11. Arret of the 11th June \m, in BW''.on, Diet, des Arrets p. 208. Soci^t^-Dettea § 7. Arret of ^oth January 1677, in Jour, du Palais, T. 1. p. 776, and in Jour, des Aud. T.3, ]. 4. cap. 3, p. 178. Despeisse de la Societ6, sect. 4. dist. 2. § 3. Bacquet Tr. des Droits de Justice, oap. 21, $ 136. Dig. 17. 2. 27. Questions snr les privil^es et H^otbdques, par P..^il, Tom. 1. p. 192. $ 1 1 1. No. 60.— Code Napoleon, ^o. 1860, Gow's Law of Partnership, p. 48, where tht cases in the English law are collected, and Bell's Commentaries containin; a SFi lary of the Scotch law, pp. 29, 555, 556, 558. T'e doctrine in the modern French law is beautifully stated in the fol- lowing; extracts from Pardessus. Cours de Droit Cot.'tnercial. *** Une sociot6 est una personne morale, qui', dans uii gnnd nombn da circonstances, pent, par toutes sortes de contrats ou quasi-oontrats, s'en- gaver ou engager i\ son ^gard. * * Le creancier particulier d'un assooi^ ne pourrait faire saisir les effet< et aiitres choses formant I'aotif de la society, sous pretexte qn'une partie indi- vise en appartient & son dSbiteur. II doit attendre la liquidation, se borofr aux oppositions susteptibles de conserver sea droits, et exercerceuxde ni intervenir dans tea d^lib^rationi.— Vol. 4, pp. 17, 18.— No. 975. partnership, payment of le creditors right to be hat surplus: was allowed nt estate, to } of the joint w have any f his debtor, the right of n this cause, int debts un- qua deducto 3gmept com. ints a greater sessed bv the le 22d of Auiruit ilth June Uin2, Arret of 26th ir. des Aud. T. 3, 2. § 3. Bacquet QuestioDi 8iir § 111. No. 60.- ». 48, where tk« itaries containing COURT OF APPEALS. 439 1830. AND Oerrard. Per curiam. — Partnership property is not liable to the payment of the debts of individual partners, — nor montoomkrt can a partner have any separate disposable interest in the partnership property over which his creditors could exercise any control until it has been first ascertained what is the separate interest of that partner in the partnership concern, after the debts are paid. The judgment of the court of King's Bench is therefore reversed, and the monies levied, ordered to be paid over to the appellant. 'J ■ J 1 rr/ I Mais 81 la sooi^te 4tait form^e par aetiods, oomme aktra elle a, ninai que nous Tarons vu n. 973, un caractere pliitut reel 'a personnel, qii'elln est' une reunion de capitaur plutdt que de personnet, i«< ctfttMcier potmfAh prtt- Toquer la vente de ce's actions, a moins que Tacte social rendu public Hans in formes legates ne les eAt d^elar^ ineessiblee. D^ radme', celin qtfi seralt' cr^cier d'un des associfo, et debiteur de la sooiete, ne poiirrait,' ni iavo- Iner, dans son ibteret, la compensation, pour se liberer, ni etre' repousMH ut les pourSBites qu*il exerceroit contre son debiteur, par I'exceptton de compensation aue feroit valoir celui-ci, du chef de la societe. — lb. p. 19. Toutea les aettev qui ont^6 contratot^es par la'socf^t^doiyent^tre ac^ qnitUes aveo les effets qui en oompment I'actif, a I'exclusion iescreanciers particuliers des associ^s, puisque la societe ^toit un i>tre moralj qni avait' M» indiridualit^ et ses droits distinots de oenx de clmeun de ses membresJ La raison s'en fait sentir facilement. Les creanciers particuliers d'un as- mi ne peoTcnt pretendre plus de droits qu'il n'en aarbit lui-mi^e'; or. :!' nepent en ezeroer que dans ce qui resteraquand les dettes seront payees. Maig lorsque Tactif de la society ^tant insumsant, les creanciers exercenit' Itm droits BUT les bvens personnels des associ^, ils nevieonetit qo^en oon>' cnrrence avec les creanciers particuliers. On rentre alors dans le di-oit ctmmuit, rexceprtion 'que noos venons dindiquer ne pouvaot i^os avoir stfn ' effet Lm droits des creanciers contre les associes individucllemenf, sont'plus on mains etendu''. suirant les r^des qac- nous avons donn^es, ils subsistent tpr^la mort de - haque'assooie, contre ses heritiers ; et lorsque la society M continue paaa ee eux, la d^tte totnlese dlrise entre ceux<<, conforM^.' ntnt aux prineipes du droit civil. Par example, deux personnes soni en mM. IlestdAi un tiers 80,000 francs, te cr^ancier peut detnan^der In 20,000 francs en entier a celui des associes qu'il veut choiair, tant qu'ils wnt vivaos. Si Tun d'eux vient i^ mourir avant que I'obli^tion ait H6 Mqaittfe, sa succeasion peat bien dtre, en rtrtude la solidante, pouraniYie pour payer la totalite des 20,000 francs ; mais s'il a laisse plusieurs heritiers, chtean d'enx ne doit personnellement, dans ces 20,000 rrancs, qu'une part "rile, c'eat-i-dirc un quart, ua cinqui^wne, selon qu'ils sont quatre ou cinq beritieri. lb. p. 811. No. 1089. M 3 ill ^f I I i 1 1 t; )i:l t r f- It' Iv W 440 CASES IN THE PROVINCIAL nOBt ,f"i -.H''.;*/ .*.-,ii.,.( . On Appeal from Quebec. AuGUSTiN RouTiER \„ Appellant, and Therese Robitaille Respondeni. 17th Novr. 1830. A notary public cannot be compelled, upon an in- scription en faux, to give evidence touching' the validity of any instrument executed be- fore him. I HIS was an action instituted by the respondent in the Court of King's Bench at Quebec, against the ap. pellants en delivrance de legs, under the last will and testament of the late Fran9ois Bonneville, the husband of the respondent. The appellants fyled an inscrip- tion enfaua; against the will, as not having been made and executed in the manner prescribed by law for a testament solemnel, and in the manner certified by the notary in whose possession the minute was deposited. In support of the moyens defaux, sevtJral witnesses were examined by the appellants, and amongst others the two notaries before whom the will was made. The respondents as well as the notaries themselves objected to their being examined touching the validity of the acte, which they had executed as public officers, but the objection was overruled, and they were examined. The court below, however, considered that the will had been regularly made, and rejected the inscription enfaux. Per curiam. The judgment of the Court of King's Bench must be confirmed, but, according to the deci* sions under the law of the country, the notaries could not be examined as witnesses, and as public officers they could not by law be compelled to give evidence COURT OF APPEALS. 441 to controvert the truth of what they had certified as i830. such, touching the execution of any act passed before roctibr them. Caron, for the appellant. — Taschereau and Tasche reciU, for the respondent. Judgment affirmed. AND ROBITAII.LR. m 1 »- . mt^ On Appeal from Montreal. . .t < 'I ' William Maitland and Others.., ...Appellants, and John Molsoi; and Others Respondents, Near the port of Sorel or William Henry consi- derable damage was occasioned to the New Swiflsure, a steauboat belonging to the respondents, by her coming into collision with the Hercules, a steamboat belong- ing to the appellants. An action was brought in the court of King's Bench at Montreal by the respondents for damages, occasioned by their collision, on the SSrd June 1826, owing, as alleged, to the negligence, carelessness and unskilfulness of the servants of the appellants in directing and managing the Hercules, by means whereof the New Swiftsure was much da- niaged, and divers goods, wares, and merchandize certain circumstaooes one moiety of the aggregate amount should not be borne by each party. 20th Nov. 1830. In a cause of collision by one steam ves- sel as^inst another where the loss was charged to be owing to ne- gligence of the defendants, the court be- ing of opinion that the da- mage was oc- CKsioned by such negli- gence pro- nounced for damages and costs. Quare whe- ther under of the damage : m;, I 44^ CASES IN THE PROVINCIAL 1830. Maitland AND then shipped on board of her were damaged and the respondents compelled to lay out a large sum of money in repairing their steamboat, and whereby they were deprived of the use of their vessel during twelve weeks, &c. to the damage of the respondents, Sec. The appellants pleaded the general issue. Thejudg. ment of the court below awarded a certain amount of damages to the respondents being the amount charged for repairs, the loss of profit on the trips of the New Swiftsure during the time she was laid up, and a por- tion of the sum claimed for furniture, &c. damaged and destroyed by the collision. From this judgment the appellants instituted this appeal on the ground that, at the trial, negligence^ and unskilfulness on the part^ of the persons managing the Hercules had not been shewn so as to entitle the respondents to a judg- ment in their favor. The respondents also appealed on the ground that the damages awarded were insuffi- cient to cover the loss and damage that had been occa- sioned. By the evidence adduced it appeared that the New Swiftsure entered the port of William Henry on the eastern or left side, and the Hercules on going out came down upon her in an oblique direction from the mid-channel towards the same side. That there was rooipn for three or more steamboats to have passed abreast. That the New Swiftsure had the usual lights at her bow and stern and fired her usual signal gun, that her captain and passengers did not perceive any tight in the bow of the Hercules, nor did sevepal persons who were standing on the shore at William Henry. On the other ham), it was proved by persons on board of the Hercules, her passengers and crew, and by a sailor who hung out the bntcrn, that [ COURT OF APPEALS. there was a light on the larboard or left bow of the Her- cules, being where it was always placed, that the sig- nal gun was fired, that the lantern in her bow was broken by the collision ; its being placed on the left side was accounted for because, as was alleged, it was a constant rule for steamboats on the St. Lawrence to pass each other on the right or starboard side. The testimony was conflicting, but it however appeared that the general course for steamboats in entering and going out of the port of Sorel was to go in by the eastern bank and return by the western, until after some accidents one of the steamboat proprietors esta- blished a rule for all steamboats on the St. Lawrence to pass to the right of each other. And the master of the Hercules with pilots and others testified that such had been the rule since 18S], in going in and out of the Richelieu. Again, other pilots and other persons testified that they always went in on the eastern side and out on the western side. The master of the Swiftsure, particularly, testified to this fact. SfiWELL, Ch. J. This case is of considerable im- portance considered either with reference to the in- tent of the parties or to the necessity of establishing a principle of law, ai to collision between steam vessels, an entire novelty in jurisprudence. Ships are impell- ed by outward agents, by winds and by waves, and the same principles of decision are not applicable altogether to vessels whose means of propulsion are vithin themselves. Ships cannot always avoid coming in contact } steamboats can, and the ancient juris- prudence cannot be properly applied to both cases. The facts of the case are that two steamboats met each other while one was leaving and the other cnter- US 1830. Maitland AND MOLSON. ' I tl it II 444 li ti 1830. Maitland AND MOLSON. CASES IN THE PROVINCIAL ing the port of William Henry. By the French law, which is our guide, the damages sustained hy the abordage of ships, — if owing to imprudence, neglect or unskilfulnessj it was evident, either one or the other must be charged with it, but when difficult or impos- sible to ascertain which was in fault, — the rule to be followed was to apportion tie damage between them. If this rule held good as to ships, it ought d fortiori to be followed as to steamboats, as they contained within themselves their own power of propulsion. It has been attempted to shew negligence on the part of the Hercules, and that she had no lantern in the bow where it was customary to place a light : the wit- nesses on board the New 3wiftsure saw none, two witnesses, on the shore, swore that neither did they see the light, this was but negative testimony, whilst two who were on board the Hercules say positively there was a light, that they did see it ; and after the shock saw the broken parts of the lantern, this was positive not negative evidence. It has been attempted to prove also that an understanding existed between the boats as to the particular course they should pursue in entering and leaving the port of William Henry ; on the other hand it appeared, that in consequence of previous accidents, Molson had given directions to his steamboats always to take the right. There did not appear to be any distinction made as to any port or river, but the directions were general. The appellants had a knowledge of this, and Brush, the master of the Hercules, doubtful of the course he ought to pursue, whether as by former custom he ought to -keep to the left, or now, in consequence of the general directions of Molson, keep to the right, applied to the pilot for his 7* French law, ned by the ?, neglect or )r the other It or impos* le rule to be tween tiiem. It a fortiori s contained propulsion, on the part itern in the ht : the wit- none, two did they see , whilst two itively there er the shock VFas positive ;tempted to between the Id pursue in Henry j on sequence of ctions to his lere did not any port or le appellants laster of the t to pursue, ■keep to the \\ directions pilot for his J. COURT OF APPEALS. [opinion, and, it must be remarked that, coming out of port the vessel was, more particularly, in charge of ♦htf pilot, to this the pilot made answer he would ~ take the right, as he was then bound to do, comme je dots /aire. On the other hand the New Swiftsure adhered to the custom previously established, and at- tempted also to take the right. It could not here be said that any bad intent attached to either side, and counsel had admitted it was accidental, and disclaimed imputing wilful motives or culpable negligence to the Hercules. It appeared, therefore, that each party was in the act of prosecuting what he thought right, 9nd it could not be said that there was a greater de- gree of imprudence or negligence on one part than on the other. These facts leave an impression on my mind that the collision was purely accidental, and I now proceed to refer to those laws which, I think, bear upon the case. In the Code Marine, of 168I, liv* S. tit. 7< there are two articles on this particular sub- ject. In the 10th it is said, " £n cas d*abordage de vaisseaux, le dommage sera pay6 ^galement par les navires, qui I'auront fait et souffert, soit en route, en rade, ou au port." And by the 11th, ** Si toutefois I'abordage avoit ^t^ fait par la faute de I'un des maitres, le dommage sera r^par^ par celui qui Taura caus6." Thus, by the first, collision was considered* prima fme, as an accident ; whilst the second shews that it shall be permitted by the captain on either side to prove that it was occasioned by the imprudence or negligence of the other. This law, is not, however, cited as the law of this country, for it was, as such, superseded at the conquest when the r les of the Vice Admiralty Court of England were substituted. 44.5 1930. Maitland AND MOUON. |i :ii; 446 1830. Maitlanb AND •it. 1^ "il mi CASES IN IIIE PROVINCIAL • Tlve eode marine was bnt » declaratory statute as to what should be considiered the principles of the Roman law previously existing ; though, it differed frorn that in this respect, that in< case of pure accident the da. mage was borne, withoi»t remedy, by the su tiering ves- sel. By the Roman law,, if it wete an accident, each party had to bear his own damage, by the code marine a moiety of the entire damage aggregated into one mass winch was to be borne by eack vessel without rs. gard to the size of either. Under the ancient law of this country no doubt can exist that the damages in this case would haive formed an aggregate^ one half to be borne by the proprietors of the Hercule» and the other half by the proprietors of the New Swiftsure. Jam strongly struck with the propriety and equity of this^ and still more witb tbe great advantage which it wouldv evidently, be to the public if this principle were fully adopted; It would be productive of the utmost care and attention on the part of managers of steamboats, who, if they were conscious they woold have: to pay a moiety of the entire damage would com- pel every man on board to act most vigilantly and carefully. This is the more evident when the self propelling power which steamboats possess is con* sideredy compafed with tbe liability of ships to be in- fluenced by outward agent^i Such a prindple would produce a saving: of thousands of pounds to indivi* dualsj. and would greatly augment the confidence of every person who had to risk hia life and property on board of steamboats* Long experience in France had shewn that it is a right princi pieman d in the new ** code de cornmerce" we find». " if it is doubtful to determine by whose fault the damage occurred it shall WmSil COURT OF APPEALS. 1 447 be repaired dfrais communs, and experts appointed to determine the amount, (art. 4070 whilst, if the collision be purely accidental the damage must be borne without remedy by the vessel that sustained it ; and if by the fault of one of the captains then by the one who occasioned it. In the present case there appears no possibility of discovering the author of the accident \ and for my own part I am of opinion that the damages incurred should be referred to ex- perts to estimate, and that one half should be borne by each party. Smith, Executive (Councillor, coincided in opinion with the Chief Justice, but Kerr, Justice, and the majority of the court being of a different opinion, the judgment of the court below was affirmed and the appeal of the respondents dismissed. The Solicitor General took occasion to correct an error of the Chief Justice in stating, that the respond- ent's counsel had admitted the collision to have been accidental and not proceeding from culpable negli- gence, whereas it had been admitted that there was no malicious or wilful intent, but it had been averred that the collision was occasioned by gross negligence. Sewell, for the appellants. — The Solicitor General, [Ogden) and Buchanan for the respondents. 1830. Maitlano AND MOUON. IK ni H la ft cftoae of collision against a steam ressel, the high court of admi* ralty, assisted by tiinity masters, pronounced for damages and costs ; hold- in; that the steam Tessel beinif more under command, and manifestly having ueo the other vessel, was to blame. The trinity masters observed ; whe- ther the wind was N. W. as represented by the steam vessel, or N. N. E. is «f no very great importance, as the vessel not receiving her impetus from ails but fiom steam, should have been under command. Steamboats from their greater power ought always to give way ; upon this consideration, ud also being satisfied that the steam vessel had seen the other vessel, they were of opinion the steam vessel was to blame. The court adopting this vievof the case gave judgment accordingly. The Shamwn, Pennefatber, 2 Uaggaid's Adm. Rep. 173. 3 N f \'t ISi I 44S 15th Feb. 1831. A minister of a Presbyte- rian congrega- tion, in cotn- inunion with the chiirvh of Scotland, is entitled to re- gisters, for marriages, baptisms and burials, not- withstanding that in the Elace where e officiates, another church, also in communion with the church of Scotlaifti, has beenprevious- 1^ established iinder the au< thority of the government. Queere. As to any right in the minister to fees for entries in such regis- ters. CASES IN THE COURT OF KING'S BENCH John Clugston, Exparte, JL HIS was an application by petition on the part of the Reverend John Clugston, Minister of the Pres* byterian Congregation of St. John's Church, in Que- bec, for two registers, numbered and authenticated,- /)ar/7/)//e,— under the statutes 35th, Geo. III. c. 4, 44th Geo. III. c. 2, and 9th, Geo. IV. c. 8, for registering marriages, baptisms, and burials ; against which a ca. veat had been entered by Dr. Harkness, the Minister of St. Andrew's Church, at Quebec, in communion with the Church of Scotland. The petitioner set forth that on the 5th January, 1825, he had been licensed by the Presbytery of Glasgow to preach the Gospel, and having been appointed to be nninister ot a certain protestant church or congregation in Que- bec, in communion with the church, of Scotland, called St. John's church, he had been ordained to the minis- try on the I6th June 1830, at Forfar, in the form used by the church of Scotland. The principal objections to the application w«re, 1. That there is in Quebec but one protestant chtirch or congregation, in communion with the church of Scot- land, of which there is and has been, since 1820, a minister, recognized as such by an instrument of the Governor, Sir Peregrine Maittand. 2. That St. An- drew's church is sufficiently large to accommodate all the congregation of the church of Scotland, and that he is able to discharge the ministerial duties towards <' ' ' ' ' ':' ■■■•■■■'■"■■ ■• " ■/• /' ^ " ^ ■ r-:^'""' ^r'" FOR THE DISTRICT OF QUEBEC. A'-) 449 all the said congregation. S. That, according to the laws of the church of Scotland, no second church can be erected without notice to the minister and elders of the first, and that no notice had been given. 4. That up to the petitioner's arrival the congregation of St. John's chapel was not in communion with the churches, either of Scotland or EngUnd, and that their tenets differed from both. The case was first argued by the counsel of the petitioner before the Chief Justice at chambers, when it was contended, that if the privilege claimed by the minister of St. Andrew's church were to be admitted they would go to the utter exclusion of every other branch of the same church ; and if so, how could a second church be ever erected ? The congregation of St. John^s church was a congregation de facto, which appeared from its number being upwards of !^. Tliat there are no stated ecclesiastical divisions of the Scotch church in Lower Canada, and there is HO more repugnancy in there being one congregation in St. Anne-»street, and another in St. Francis-street, depending upon the same general presbytery, than there would be in a Scotch congregation being formed at Quebec and another at Cap Rouge, Batiscan or my other place. The distinction of theological tenets is perfectly irrevelant, the discipline and govern- ment of the congregation being alone in question. — The exaroioation, admission, and ordination of minis- ters belong to the general presbytery, and its power cinnot be controled by the minister of St. Andrew's church or by government. The interference of the governor was illegal and void, it was interfering with 1831. Cluuston F.xi'ARrt:. 4^0 1831. Cliigstom EZPARTC CASES IN THE COURT OF KING'S BENCH the religion of the empire, (a) The colonies belong to the empire and not to the crown alone, (b) With regard to the evidence of the forms being observed) &c. they were not material, for the act of the presby. tery was a judicial act, and omnia prcesumuntur rile et solemniter esse acta, donee in contrariam probelnr. (c) There is, therefore, a due guaranty, for the only giia« ranty the legislature contemplafed was a regular ordi. nation in one of the established churches. The further argument of the cause was adjourned to this term, when it was urged in support of the ca. veat, — that a congregation was not known to the court or government, only a church ; that in fact the asso- ciation of protestant Christianity who assembled at the St. John's chapel were no more part of an established church than a lodge of freemasons, or a cricket club ; they were, speaking of them as religionists, in fact, con. gregationalists, a set of protestants who reject all church government, except that of their own individual con* gregation under the direction of one pastor : registers are given for public purposes and inheritance of property of every description depends on them : this is but an application of a private society, and where is the gna* ranty as to the regular and proper keeping of them ? To keep registers and take fees for the entries would be infringing upon the legal ecclesiastical emoluments of the only minister of the church of Scotland who is Acknowledged by proper authority ; and the applica' tion has been made without the knowledge of several members of their own society. We do not object to '. (a) 5 Anne, r. 8. (b) Vaughan, 402. (c) Enkine, 1. 5. 10. p. 55, and GlaMford, 515. 516. \ FOR THE DISTRICT OF QUEBEC. ./ 5 the petitioner's officiating as a minister of the gospel, nor to the act of the presbytery licensing him to preach, but there is no evidence of the forms pre- scribed having been followed as to the ordination, or ofa special ordination to tiiis chapel ; which, if it be in communion with the church of Scotland, can only be considered in the light of a chapel of ease. The counsel of the petitioner was stopped by the court, and they proceeded to give their judgment. Kerr, Justice, This reverend gentleman has brought himself within the spirit and the very wordg of the act, and cannot be refused his register,— as to any fees upon burials, &c. that is not a ques- tion with which the court has any thing to do. i u -, Sewell, Ch. J. When this question was brought before me at chambers, I preferred to leave it to the court, that it might be more publicly agitated and known. Having been twice called on to consider it, once when a barrister, and afterwards whilst holding the situation I have now the honour to fill, I am well prepared to enter into all its bearings ; but, coincid. ing perfectly in opinion with my brother judges in this instance, it is not necessary to dwell at great length upon it, as there are no special circumstances at- tending this case. By statute, all protestant churches established in a certain way are entitled to have au- thenticated registers ; but there is a wide difference between the right to keep a register, and the right of demanding fees for entries therein. The court is bound to give a register to this individual praying for it, who, it is admitted is an ordained minister within the words of the statute, {a) it is given in (a) Vide supn:., 89. 149.. 451 IRSl. ('M.TiSTON Ex PARTE. 452 1831. C^Ll'OSTON Ex PARTE. CASES IN THE COURT OF KING'S BENCH obedience to the statute, but we give it to the peti. tioner to make ;ise of it in such a way as the h\w may allow. If by any means any other party is injured he has h^s right of action, we do all we can do, direct the register to be authenticated (paraphe.^ leaving the individual to make use of it at his own discretion, and upon his own responsibility. The statute grants a register to the minister performing parochial or cleri. cal ducy and hsre is a distinction, thj minister doing parochial duty could take his fees whether by law or conventional agreement ; but not so a minister simp!) performing clerical duty : and with respect to these duties a ditference might likewise be made ; baptisms md burials are ecclesiastical duties, but marriages are partly civil and partly ecclesiastical, and I i. not think that they come within the term ol clerical duties simply. It has been asserted that the congre- gation of whom the petitioner is the minister is only a private society, and if it were so, and he had no other right, it could not be supposed that a lodge of freemasons, or any other private society, could appoint any one, and constitute an oiScer to carry on the pro- visions of a statute ; but the petitioner did not come forward as the minister of a private sociely ; he stood before the court in a public capacity ; l{e calls him- self an ordained minister, ordained by due authority, which is admitted because not denied ; he is no doubt therefore within the letter of the law. If however, he assumes a r ght, in consequence of this register, to do what Dr. Harkness contends he alone las the liglu to do, to ^oke fees, he must do it at his peril. I have before me a case that occurred in Scotland. It was that of an episcopal congregation, from which there FOR THE DISTRICT OF QUEBEC. ) 45S were dissenters, and not belonging to the established church, or parochial regulations ; the court found that the parish register alone was entitled to fees, and that the clerk of the sessions could officially recover from all persons the fees of right due to the parish. Here, under the same rule of diacipline. Dr. Harkness may say, mine is the mother-church ; and by granting this register, it must be understood that the court doey not, and cannot affect the rights of any party. j I Judgment for the petitioner. ■I .»•.-• III*. 1 .1 A" . • , r Parant and another against Grenier. < ; . .♦• ' • f I > On the 1 9th day of November 1827, Olivier Grenier caused an attachment to be made of the brigantine fiarbadoes, then ready for sea, belonging to Parant and fiisson, on a demand for the amount of a promissory note. The vessel was thereby prevented from sailing until security was given. She sailed on the 23d, and was wrecked in the St. I uwrence, two days after her departure. The action in which the attachment issued was afterwards dismissed, and the seizure declared null on the ground of the note not being due when the action was instituted, and this was; an action for damages alleged to have been caused by the illegal seizure of the vesiscl. Jluotf for the plaint iffi. — Hamel, for the defendant. lait. Ctuearoff 4tli April. 1831. A vessel loaded and ready for sen, can bo arrest- ed for n civil debt iiiiron- nected with the ship. 1.1 454 CASES IN THE COURT OF KING'S BENCH 1831. Parant AKD Grbnier. Kerr, Justice. The question in this case is whether a vessel can be detained for a civil debt unconnected with the ship, when she is loaded cleared and ready for sea ? By the act of the defendant slie was detained until the SSrd November. So late in the season as to expose her to the greatest risk, and whereby her loss was probably occasioned. There are rules arising out of the growth of maritime commerce other than the mere letter of the law< by which this case should be decided. The 10th and 11th articles of the French or'finance of 1681, which regulate maritime cases* gave to the judges ot the admiralty court extensive power, but no where authorizes them, by a s^iisle ar- ret, to detain a ship when afloat, far les<; \ 'en ready for sea. No vessel when afloat can be seized unless for a maritime debt, Usages et Coutumcb de la Mer. Debts purement chiles are excluded , iu> n the prin- ciple that the ship is under mortgi.gc for perfor« mance of the charter party, and mortgaged also to the cargo for performance of thp voyage, whilst the goods are bound to the vessel for freight and general average. If by the old admiralty law a vessel afloat cannot be attached but for a maritime debt, it certainly cannot by the ordinance Q5t\t Geo. III. or by the S4th Geo. III. In England, in the Lord Mayor's court where the powers of attachment are the most extensive of any, ships, or goods laden therein, are specially ex- cepted, and not liable to attachment. This exception is for the protection and preservation of commerce.— If attachments of this nature are sanctioned in this port, the shipping interest must greatly sutler. It has been argued that, at the most, this is an action for & trespass, without any proof of malice; but a misuse of FOR THE DISTRICT OF QUEBEC, ^/.i 455 the process of the court has been made, and the inno- cence of the intention is not to be considered. I am of opinion that the plaintiffs are entitled to judgment. Sevvell, Ch. J. The question is not whether any loss has ensued in consequence of the seizure, but whe- ther the vessel was seized according to law. We have uo occasion to refer to the laws of England, as we have a statute of our own (a) which renders the estate, debts and effects of a debtor, of what nature soever, and whether in the hands of the owner or of any one else, liable for debt. We may go farther and look to the old French law. The ordinance of 1681, to do away with the French common law, declared that ships should not be liable to attachment. This ordinance was set aside by the introduction of English admiralty law, and the exemption of shipping destroyed. Be- tween the I41h and ^th of the King, many ships were attached, and it was then thought proper to in- terpose a certain protection, but that was afterwards iaken away by the S7th, and many instances of attach- ment and sale of vessels have occurred. The law be. ing positive, any reasoning upon the interest of trade or shipping is unavailing. So far as to the law, then as to the facts of this case *, the damage is too remote to be charged to the act of seizure ; the seizure took I place on the 19th November, security wiis given on the 1 20th, and the impediment to the sailin/; of the vessel removed. How did it happen that she did not go to sea until the 23d ? Damages, then, which were charg«;d I to one cause were occasioned by another. BowEN, Justice, concurred in the foregoing opinion. Judgment for the defendant. (ri) V^ido supra, p, 379, in note. o3 1831. Parant V. Grenier. >rtnij «<> til > -i'.'i ^i' .JH rJOu i: • .". -Kvi h, iiiir wcii' >q {•(■afu lid'; nj.t 4^6 CASES IN THE COURT OF KING'S BENCH McLeod against Meek. 20th June, 1831. In an action of anumpait by the endor- see against the endorser upon a note endors* ed for a snm less than that made payable by the note, the plaintiff cannot reco- ver. 1 HIS was an action of assumpsit for the recovery of £19 from the defendant as endorser of a promissory note for £25, endorsed by the defendant in blank.— Plea, the^ general issue and usury in the transfer of the note to the plaintiff. The note was offered to the plaintiff by the defendant, who was indebted to the plaintiff in a small sum. The latter refused to ad- vance any money upon it, but advised the defendant to apply to the banks where, if the note were good, it would be discounted. The defendant made a second offer of the note to the plaintiff, stating that he could not get it discounted, and requested cash for it as a favor, he stated also, that he would consent, on account of the risk to be incurred by the plaintiff in taking the note, the credit of the maker being doubtful, to take less for it than its real amount. The plaintiff then paid £^S. 10s. for the note, when it was endorsed and deli- vered over to him. Hamel, for |he plaintiff, contended that as the note was delivered by the defendant, after the actual risk was fully established, both as respected the maker and endorser, the transfer could not be considered other- wise than as a bond jidc sale, the sale of a debt due, such sales being sanctioned both by the French and by the English law, {a) and therefore, the contract was not at all usurious. (a) Polhicr, Vonte, No. tH\. lb. Contrat Alcatoirc. and Jacob's Law. Diet. v. Usury. 'iEvaus' statuto ^. 1 FOR THE DISTRICT OF QUEBEC. ) Gairdner, for the defendant. All the requisites to constitute usury are fully apparent in this case. There is a loan of £^S. lOs. the money to be returnable at all events, and the sum of £3. 10s. taken as a discount for the time that the note had to run, a sum equal to about 50 per cent per annum, contrary to the provi- sions of the ordinance 17* Geo. III. cap. 3. The ad. vance of the money is admitted, and the obligation to repay was imposed by the defendant's endorsement.— The nature of the contract cannot be altered by calling it a sale, and where a loan is the real object and inten. tion of the parties no colour or form can give it a legal efect if usurious.(a) Taking more than the legal interest upon the discounting of notes, has been uniformly held to be usurious, since the decision of the case of Massa V. Dauling, (6) It was, even, formerly held to be usu- rious if the interest were deducted before the expiration of the time for which the principle was forborne, (c) This decision was afterwards modified in favor of bills, on which it was allowed to take interest in advance* and at a later period the courts decided that a sum greater than the legal interest might be taken as a re- muneration for the additional expense incurred in an establishment for discounting, or for the risk and trou- ble of remittance, (d). But this remuneration must be reasonable. In Brooke v. Middieton,(e) the defendant in discounting had charged 7s* 6d. per cent, but no evidence was given of extra expense or considerable I trouble, and Lord Ellenborough was of opinion that the 457 1831. MoLkod V. Mbek. \ v '•■ if ^ fj 'iEvaus' stalutnHf (o) Lowe V. Waller, 2 Douglas, 736. Barclay v. Walmsley, 4 East, 55.* (b) Str. 1243. (c) Cro. Jac. 25. [d) Matterman v. Cowrie, 3. Camp. 488. Hammett v. Yea, 1 Bos. and I'ull. 144. (e) 1 Camp. 445. 458 CASES IN THE COURT OF KING'S BENCH ' 1831. MoLeod Meek. transaction was usurious. The plaintiff has supposed that by not demanding payment in full, he can reco* ver on the note, but the usury is in the inception, not in the execution of the contract. Our ordinance, in conformity with the English law, makes all securities tainted with usury, void. In Masterman v. Cowrie, Lord Ellenborough said, " a debt founded on usury is no debt at all." When there is usury between en* dorser and endorsee the note is vitiated, and no action can be maintained on it. (ja) As respected the risk there was none greater in this case than in any other, the risk that had been incurred was the ordinary risk of insolvency, incident to all loans and credits general- ly. If the defendant had not been a party to the note, but had transferred it sans recouri?, without prejudice, he might have been justifiable in taking more than legal interest, for in that case there would have been more than ordinary risk. The true criterion by which this case should be decided, is to be found in Evans* sta- tutes, (b) where after stating that there are many cases in which it is taken for granted, that deducting more than legal interest for the discount of a bill, for the time it has to run, is usurious, he adds, ** I conceive that these cases ere only considered applicable when the party from whom the discount is taken, is to bear the risk of the solvency of the other parties, and not when the bill is purchased for a smaller sum than the amount, deducting intermediate interest, at the risk of | the purchaser. Sewell, Ch. J. There does not appear to be any intention of usury on either side, yet the plaintiff having (a). Flower and Edwards, Cowp. 115. Parr d. Eleason, I Enst, 9i- | Daniel and Cartuny, 1 E8p.274. Ellis' Law of Debtor and Creditor, 14^ (A) Vol. 11. p. '-JG», ill note. FOR THE DISTRICT OF QUEBEC. ikA 459 taken £Q. 10s. for the price of his forbearance against the defendant, is not entitled to sue him on this note, for which he has his recourse against the maker, and after failing there, might still have recourse upon Meek, though not by an action of assumpsit. If the plaintiff is entitled to recover from the defendant, it is only on proof of damages arising from the failure of the maker, which does not appear. On this ground, but not on the ground of usury I think that this action cannot be maintained. Kerr, Justice, I am also of opinion that this ac- tion cannot be maintained, and agree with the judg. ment of the court, but not on the principle upon which it has been rendered. I cousider that the^contract be- tween the parties was an usurious contract, and if any consideration had been given for forbearance, beyond the legal interest, it was usury; the, only mode by which it might have been avoided, would have been by an endorsement " without recourse." In my opi- nion, this action should be dismissed on account of its usurious origin. Theprovinoial law against usury is to be found in the ordinance 1 7th Geo. 111. cap. .3, § 5, whereby it is enacted that, " it shall not be lawful, " apon any oontraot, to take, directly or indirectly, for loan of any monies, " wares, merchandize, or otiier commodities whatsoever, above the value "of six pounds, for the forbearance of one hundred pounds for a year, "ind 80, after that rate for a greater or less sum or value, or for a longer or " shorter time ; and the said rate of interest shall be allowed and recovered, " in ell cases where it is the agreement of the parties that interest shall be " paid ; and all bonds, contracts and assurances whatsoever, whereupon, or " whereby a greater interest shall be reserved and taken, shall be utterly " void ; and every person who shall, either directly or indirectly, take, ac- " cept and receive a higher rate of interest, shall forfeit and lose, for every "inch offence, treble the value of the monies, wares, merchandize and "other things, lent or bargained for; to be recovered by action of debt "in any of the courts of oommon pleas in this province ; a moiety of which " forfeiture shall be to His Majesty, and the other moiety to him or them, "that will sue for the same." It will be seen that the 'terms of this or- •tinance ore the same as the statute 18, Anne, St. 2, c. 16, and the whole My of the decisions of the English courts upon this latter statute serve to Kuide us in the construction to be given to the above ordinance. 1831. McLkod V. Mekk. i-j.' > i r .' i- • i'.: !' i: .1 -,. ... .,'< -.t 460 CASES IN THE COURT OF KING'S BENCH ! n! m ^faulill IStli June, 1831. DONEOANI AND OTHERS J^tZfTIf/ DoNEGANT. An alien can- not devise by last will and testament — The succes- sion of an alien will de- volve to his grand chil- dren, natural born subjects to the exclu- sion of his own children who are a- liens. JL HIS was an action petUio lierediiatis brought by the plaintifis as the grand children and sole heirs at law of the late John Donegani against the defendant, their uncle, one of the sons of the deceased. In the year 1794i, the said John Donegani, an Italian by birth, cmi. grated to this country with his family, and settled at Montreal, where he remained until the year 1 80^, having in this interval of time amassed considerable property. By his last will and testament bearing date at Montreal, the 23d day of July 1800, and a codicil of a subsequent date, he constituted his three sons, including the defen* dant, his universal legatees. To his daughter, the mo- ther of the plaintiffs, who had intermarried in this country, and of whose marriage the plaintiffs were the issue, he bequeathed a legacy of £500. The testator afterwards died in his native country. The universal legatees thereupon entered into posK «ssion of his estate, which the plaintiffs in this action claimed by reason of their birth within the dominions of His Majesty, and their being the only legal heirs of the deceased, to the exclu">ion of the defendant, and their other uncles whose character of aliens, they contended, rendered them incapable of taking any portion of the property of their deceased parent either by right of inheritance or by devise. BuchanaUf for the plaintiffs. The statute of William FOR THE DISTRICT OF MONTREAL. 461 I III. (a) which expressly militates in favor of the plain- tiff, is only affirmative of the common law. Had its provisions, however, been adverse to the pretensions of the plaintiffs, they would be inapplicable, as this case is to be governed by the principles of French jurispru- dence, which are decisive as to the right of the plaintiffs to recover. The acc|uisition of real property by trans- actions inter tdvos is competent to all persons, as a na- tural right jure gentium, (b) On the contrary the right of succession and inheritance, and that of devising, tes- iamenti factio, are dependant upon the peculiar law of each state, and can be exercised by those only who are subjects or citizens of such state, (c) In accord- ance with these principles an alien may in England, take and purchase land, (J) although, departing from the jus gentium, the laws of that country permit the King to take the lands, so acquired by an alien, afler an inquisition of office under the Great Seal, (e) By the French law aliens could not only purchase real estate, and hold it without danger of forfeiture to the 1831. DONEOAM V. DoNEGANI. (a) Bj the llth and 18th, Will. III. cap. 6, natural born anbjects may deriva a title by descent through their parents, or any ancestor, though they ue aliens. But by the 25th Ueo. II. cap. 30, this restriction is superadded. Til : that no natural born subject shall derive a title through an alien parent or ancestor, unless he be born at the time of the death of the ancestor who im seiied of the estate which he olaimt by descent, with this exception, that if a descent shall be cast upon a daughter of an alien, it shall be divested in favor of an after born son ; and in case of an after born daughter or daugh- ttn only, all the sisters shall be coparceners. This exception, as it should seem, would have been quite superfluous if Lor^ ^^ ^a<^ not ^^^ ^^^ A SOD of an alien could not inherit from his brother, though the contrary had been since determined.— ^fliar^. Co. Litt. 8. a. — Cii. Bl. Com. 374. {h) Pothier, Propri6t^, No. 19. Des personnes. No. 578. (c) Pothier Cout. d'Orleans 489, 576. 1 Putherfuth's Institutes cf Nat. Uw, 97. 2 lb. 108. Pothier Tr. des personnes, 578. 9. des Don. Test. 330. (d) Co. R. IX. 141. Co. Litt. 2. G. Viner v. Alien, A. 1. («) 5 Co. R. 52. Sugden's, Law of Vendors, 586. 1 Wood, Lcc. 372. im CASES IN THE COURT OF KING'S BENCH 1831. DoNEOANI V. DONKOAMI. Crown, but could convey it away by title inter vivos.(u) And although the alien could not generally devise such lands, he was at liberty to do so in favor of his chiU dren who were natural born subjects. (^) So aliens could not. inherit real estate nor transmit it to their heirs who were foreigners, (c) but if such heirs were naturalized, or there existed heirs natural born subjects, the estate did not devolve to the Crown, but descended to such naturalized or natural born heirs, (d) So far was this doctrine extended in France, that a grand-son, being a natural born subject, excluded his father an alien, and natural born subjects of remoter degree of consanguinity, were preferred in successions to nearer alien blood, (e) The main point for consideration, therefore, is whether these principles of the French law should govern the present controversy, and a cor- rect view of the established jurisprudence as to the King's prerogative, would lead to the conclusion that they were the proper rules of decision. As to the King's prerogative rights they are divided into two classes, the transcendent or fundamental rights upon which the King's authority and political character de- pend, and those of minor consideration. The former are regulated by the law of England, which so far ex- tend over the whole empire, the latter are defined by (a) Delhommeau, Maximos da Dr. Fr. 37. 2. Poullain Duparc, Princ, da Droit Fr. 19. Bacaaet du Dr. d'Aubaine, ch. 18. No. 4. Loikol, des per- sonnes, No. 51. Potnier des personnes. No. 578. (b) Lefevre de la Pl&ncbe, Traits da Domaine, 126-7. Le Bret Tr. de la Sourer. 122. Delbommeau et Barquet, 1. c Potb. Cout, d'Orl. 489. Despcrsonnes 578-9. des Don. Test. 330. (c) 2 Poullain Duparc, 24. 1 Domat, 262. ((/) Lc Brun des Successions, 13. Louet et Brodeau, A. 16. 2 Lefcvre, 127-8. 15G. Loyseau des Seiji^n. cb. 12. No. 115. 2 Domat, 35. Nouv. Den. V. Aub<)ine, § vi. I and 2 Sacquet, Loiscl, Poullain Duparc, &c. (e) Coqnille sur Nivcrnois, art. 24, p. 432. 2 Lcfvvrc, 128, note." Louct and Brodeau, Poullain Duparc, aud LoiscI, I. c. FOR THE DI3TRICT OF MONTREAL. 463 the local laws of the colony, (a) Among such nainor interests of the Crown, are classed all feudal incidents, rights of forfeiture* escheats whether defectu sanguinis feu keredis, or otherwise, and consequently they roust be governed by the local laws of the province "which, in this instance, regulate merely the right of succes- lion to property by excluding the Crown from the Droit (PAubaine, and conferring the succession of the late John Donegani upon his grand children, natural born subjects in preference to his son, their uncle, who is an alien. This could not be deemed a question of public law, or one involving political jconsiderations. The policy of the law in any country as to an alien's property, would be the preventing its descent into the baods of foreigners and no more, and it would seem highly unjust that a natural born subject, though of alien parents, as he becomes by birth entitled to all the civil and political rights of a subject, should not reap the fruits of his ancestor's industry in preference to the Crown claiming under a feudal right rarely if ever exercised. Walker and Mondflet, contra. The question is one of constitutional Uw, and to be regulated by the po. litical law of England, which must be uniform through- out the empire, and extend to such parts of the do- minions as are governed by their own local laws. The niieof law, applicable to aliens in England, is founded on political as well as feudal principles, not imposed as a penalty of forfeiture at the discretion of the Crown* Political rights could not be different in different parts of the same empire. The question is one affecting (a) Chitty on the Preroirntive, 25, 119, 149,229. 1 BI. Com. 240, 281, «9C. 302. p 3 18S1. DOMBOASII V. DOMMANI. «, sr ^^^. ^. IMAGE EVALUATION TEST TARGET (MT-S) Is // ^/ .* 1.0 I.I mm |22 us 14.0 u 11:25 IH 1.4 ■ 1.8 1.6 FhotogFaphic _Scimces Corporation ¥^ ^ \ <^ ^. 33 WIST MAIN STMIT WnSTIR,N.Y. 14SM (716)t72^S03 O^ f 404 HA . i 1831. Mir * DONEOANI V. DoNKUANI. ^5 ., CASES IN THE COURT OF KING'S BENCH the sovereign authority, with reference to foreign in- tercourse, domestic government and civil polity, and it is the fundamental policy of the parent state, that an alien, whilst his allegiance is local and temporary, should not be at liberty to exercise dominion over pro- perty, and a law, clearly of political regulation, could not be dispensed with as a minor prerogative. To adopt the law of France, as laid down by the authors cited, would be to extend to aliens, in a British colony, all the benefits of naturalization, with respect to the acquisition and disposal of property inter vhost and its transmission by inheritance, in defiance of the policy of the parent state. Hence it is inferred that recourse should be had to the laws of England, and that as in that country the possession of the alien, or his descen. dants was respected where the interests of the state, or the will of the Sovereign did not interfere, the plaintiffs as deducing title from one who, by the law of England, could neither acquire, or transmit by inhe* ritance, in opposition to the equitable possession of the defendant, arising out of the will of the deceased fa- ther, and sanctioned by the absence of all interference on the part of the state, were entirely destitute of claim. Besides, the application of the law, which the plaintifis invoked, is based upon a principle so subtle as al- most to escape analysis and would generate a most glaring injustice, *' quand les Strangers ont des enfaiis n^s en France et y demeurant, ils leur succedent, et leurs freres n6s hors de France et demeurans en France, succedent avec eux au p^re." If any one of the chil- dren could be regarded as a natural born subject the interdict was removed as to all. The defendant al- though an alien born is a resident of the province. U FOR THE DISTRICT OF x*!ONTREAL. ilic mother of the plaintiffs had been a natural born subject, the favor attached to that character would have qualified her brothers, although aliens, to succeed* iliey would have taken a fourth of the inheritance each; but the mother being dead, and the doctrine of succession par representation being done away with to favor tiie nearest natural born heirs, the grand chil- dren acquire a right which their mother, had she been alive, and a natural born subject, would not have been entitled to, they exclude the uncles and take the whole. The mother could only have taken a fourth : the plaintiffs claim to exercise a more extensive right than their mother would have had, had the latter been alive and qualified to inherit in her own right. It is further contended that the circumstance of the plaintiff's having been born within the realm ought not to affect the equity of the defendant's case. The latter was not at liberty to select the place of his birth, but from his earliest years he has lived within the king's allegiance, repaying protection by duty and contributing by his efforts to the sum of domestic prosperity. He is an accepted citizen of the State, and the law which has been invoked by the plain- tilTs professes to sanction the acquisition of property by aliens, as a right juris gentium, U such were the case the right of devising ought to be consequent upon that of acquiring. If the defendant could have taken from his father by deed of gift inter vivos there was no reason to militate against his taking by devise. The law of France, in fact, was originally in principle what in England it continues to be. The alien could have no heirs of his blood. The acquisition of real property was a right springing out of the social rela- 465 1831. DoNEOANI V. DoNEOANI. lii' 466 CASES IN THE COURT OF KING'S BENCH 1881. M DotnaajM V. DONBOANI. tier- of the community and confined to its citizens. Harsh and rigorous, however, as the law cf alien disabilities in England might appear to be, it pos. sesses superior advantages to that of France. The question there was between the alien and the State alone* The law there held out no premium for a vio- lation of the ties of natural affection and the domestic charities of life* It did not prohibit the disposal of personal estate by will. In France, the power of testing, even of personal estate, is restricted to the direct descendants natural born. The claim by this action embraces the entire personal as well as the real estate* The laws of England hold sacred the poshes, sion of the alien or his descendants from whatever title derived when it did not interfere with the inte- rests or exigencies of the State. Buchanan, in reply. Per curiam. The rule adopted in Etip^land does not appiy» and the law giving to the Crown the escheat of lands acquired by an alien could have but little ap* plication to colonial settlements, or the principles of colonial government. This province is in possession of a system of laws sanctioned by the parent State, to which the decision of the case is referrible. It ought to be the policy of the country to encourage settle- ment, to create for the stranger an interest in the soil, to attach him to the Country by social ties. It might seem hard that he should not have the power of dispo- sition by will, but the law is express. The right which, it has been said, existed in the crown is a minor prerogative, such as the territorial rights ofquintt lods et verges and others. We must have recourse to the laws ol France to decide this case. The grandfa- FOR THE DISTRICT OF MONTREAL. ther could purchase and acquire, as a1s3 dispose of his property by deed of sale, deed of gift inter vivos or otherwise, but he could not devise by last will. LV- trmger est capable des actes du droit des gens les actes du droit civil ltd sont interdits, liber vivit servus moritur' The legal right to the entire estate is in the plain- tiffs, as lineally descended from the grandfather : they claim, not by representation of their deceased mother, but as the nearest descendants competent to inherit. Judgment for the plaintiffs.* ' 4G7 1831. DONEGANI DoNEGANI. >. ■: . 1 i\ \tPi w''{V^- On Appeal from Montreal. William Scott, et ux» Appellants, '^ and John Prince Respondent, i In the month of June 18^2, the respondent recovered a judgment against the appellants, jointly and severally with three other persons for damages, in an action for an assault and battery. This judgment was reversed in appeal so far as respected William Scott, one of the appellants. On the first day of May 18^4, a writ of fieri facias was issued against the goods and chattels * Affirmed io appeal the 30th day of April 1832, and subsequently be- fore the Pmy council. 25th July, 1831. A contrainte par corps, agfainst a mar- ried woman, upon a judg- ment for pnn- cipal, interest and costs, can- not be ob- tained. 4G8 ) CASES IN THE PROVINCIAL ^r^ 1831.' Scott AND Prince. t. iu^,„ of Catharine Ferguson, one of the appellants, to which the sheriff made his return on the 14th day of July following, that he could not execute the same as the door of the appellants' domicile was fastened and he could not obtain admittance after a demand made upon a grown person in the said domicile. On the 15th day of June 1829, a service, by one of the bailiffs of the court of King's Bench at Montreal, of the judgment above mentioned, and a demand of payment of the same was made on Catharine Ferguson, and at the same time she was notified that to the payme..t of the said judgment and costs she would be constrained by all lawful ways, e en by imprisonment of her body apres quatre mois. On the 15th February 1830, a rule was granted by the court below, at the instance of the respondent, ordering that a capias ad satisfa- ciendum or contrainte par corps should issue at the expiration of fifteen days to take and detain the body of the said Catharine Ferguson in satisfaction of the said judgment. On the 19th of February the court pronounced its judgment upon the above rule, wherein, after stating the demand above motioned and the return of the bailiff that he had declared to her that she would be constrained by her body contrainte par corps, &c, it was adjudged, ** that the said Catharine Ferguson should, within fifteen days from the ser- vice of the present judgment, be attached by her body to pay to the plaintiff the said sum, &c." From this judgment the present appeal was instituted. The parties having been heard, the opinion of the court was pronounced by Sewell, Ch. J. By the ancient laws of France the contrainte par corps was allowed in every case of debt, COURT OF APPEALS. 469 and this continued to be the rule until the year 1^54, when il was abrogated by the ordinance of St. Louis, except as to debts due to the crown. The Ordonnance k MouHns restored the ancient law» but exempted women and men of seventy years of age from its operation, (a) The code civile in I667, in its turn, abolished the general provisions of the Ordonnance de Moulins, but continued the exemption in behalf of women and sepiuagenaires, (6) and confined the con- trainte par corps to the several cases which it spe- cially enumerates, among which are judgments for costs, restitutions des fruits and dommages et interets exceeding two hundred livres. The redaction of the code civile adapted the provisions of that statute to the state of Canada and provided that the infliction of the contrainte par corps should be left to the discre- tion of the judges, and such was the law at the time of the conquest. The statute 14th, Geo. IIL c. 83. followed that event, and the first and second of the ordinances ^-vhich were enacted by the legislative council of Quebec established the courts by which justice was, in futv e, to be administered, and the course of proceeding which they were to observe. In these the several instances where the contrainte par corps should afler judgment be permitted, were, for the security of the subject^ particularly declared, and the dangerous power of imprisonment at discretion, which the redaction of the code had reserved to the courts of the province under the government of France, was thus abrogated. But independent of what has 1831. J" Scott AND Prince. II;: ' w '■^ (a) 3 Fevre de la Planche. Tr. du Dom. 296. 298. \b) Tit. 34. art. 8. Serp. 659, et seq. \l 470 1831. Scott AND PaiNCE. CASES IN THE PROVINCIAL been said, we are of opinion that women, other than marchandes publiques, even in France, were not subject to the contrainte par corps apres les quatre mois, for costs, (a) Quacunque via data, the judgment of the court below must be reversed. • On Appeal from Montreal. 1 9th Novr. 1831. William Smith Plenderleath, et ux Appellants, and William McGillivray, and others Respondents. An interio- SiMON McTAVISH who had established an exten. mentad'optSg, *'^^ trading and commercial house at Montreal, known without oppo- sition, the account of a succeision prepared by iti order, passes in remjudico' torn, and it is not competent to the representatives of a aiioor who was le- ffally a party to the suit, to revive the proceedings and contest any particular item in the account. The court, however, may rectify any error of cal- culation. 1821. * WooDiNGTON V. Tati/>r. — This action was dismissed, and the defendant, y^r^n^j vp«a the autbori^ of the 2d article of the S4th title of the Code Civik, Thcallowance moved for a con/ratn^e par cQ7;p< against the plwntifffo.- the amount of his of ihecontrotnte taxed costs" aprds les quatre mois." Per curiabi. The contrainte par par corj)s ajrres eorps wgs origtnaU^ established by the 48th article of the ordinance dt les quatre mois, Moulins in all pecuniary cases. I Iferon 470 ; but was aliolisbed by tue Code with thcTcoim'^ Ct'vti^, art. 1, 2, 3^ tit. 34, except ia isases of fud^ment for costs exceeding 200 livres, and of judgments against tutors for principal or cost9. The lat* ter exception is not the present case, the former is. But the provincial rSdaetion gt the Code Civile provides that the allowanoe of tiie fontrainte par corps shall in such cases be in the discretion of the court, I Edits et Ordon. 228, and a case mast, therefore, be shewn to the court whenever this extraordinary remedy is asked. No such case is here exhibited, and ' ' tlie plaintiff's demand was fairly and properly made, Serpillon, 650, Jb. 653. 1 S(dle, 640. Jtodier, 676. 3. Feore de la Piemcht, 286, 297.- This renders it unnecessary for us to enquire into the effect of the ordin- ance 25th Geo. IlL cap. 2, upon the 34th title of the Code Civile, and we give no opinion on this point. The defendant takes nothing by this mo- tion.— Vide B. B. Q. Leddy v. McPharlane, No. 1365. in the year 1^20; also Dearness v. Staller, in the year 1834, No. 996. B. R. Q- 1829, No. 1157. Bedard V. Hardy. B. R. Q 1829, - COURT OF APPEALS. A ' t by the name of the North West Company, made his will, by which he bequeathed legacies to his relatives and friends, in amount exceeding £100,000, and he died in the year 1804. Amongst these, he gave £20,000 to his son William, which sum is the subject matter to which this enquiry relates. He appointed his nephew and partner Wm. McGillivray, with Isaac Todd and James Reid, together with other gentlemen who did not act, as executors of his last will and testament.— He declared it to be his " will and desire, that none of " the foregoing legacies exceeding one hundred gui- " neas should be paid out of his estate until seven "years, at least, aflter his decease, unless sufficient mo- " nies for that purpose should have been realized there- " fron), without loss or inconvenience to the concern, " or concerns in which he was then a partner." Mat- ters remained in this state till October, 1811, when the seven years had elapsed, at which time the plaintiff, George Seiby, a legatee for £300, brought his action against the executors to enforce the payment of his legacy. In this action the defendants fyled a plea, in which they admitted that they had assumed the exe- cution of the testator's will, and that estates, monies and credits had come into their hands to the amount of £95,420. Is. lOd. out of which they had paid £34,,660. 8s. 7d. leaving a balance of £60,759. 13s. 3d, for which they were accountable. Accounts of credits and debits were then fyled, but they alleged that the plaintiff must submit to a diminution of his legacy for want of sufficient assets to pay all the legacies. The court below in this stage of the cause pronounced an order calling upon persons interested in the estate and as * 1; *7i , |l 1831. m- PlbndbR' ij :|[. : , LEATH il U ' AND J McOnxi- if VBAY. ' 'i - ; 1 li. V a w 472 1831. PlGNDER' LBATH AND McGlLU- VRAY. lie CASES IN THE PROVINCIAL succession to come forward with their claims, and the legatees and others concerned in the same, in obedi- ence to this order, fyled their interventions, and thus became parties in the cause ; William McTavish, then a minor, was represented by Henry McKenzie, in his character of tutor duly appointed. The court on the 18th June 1814, pronounced an interlocutor whereby they appointed a " commissaire or examiner to enquire " and report upon the state of the effects, and estate of *< what nature soever of the said deceased, which were *< at the time of his decease and since." And in order to enable him to lay before the court such informa. tion as would put it in their power to carry into effect as far as possible the intention of the testator, and to do justice to all parties, very full instructions were em- bodied in the interlocutory judgment. The examiner thus named, fyled his report on the 1 1th October 1815, in which he states, that after examination of the ac- counts of McTavish, McGillivray & Co. and by " ac- ** cess to their hooks and papers" the balance due by the house to the testator's estate, was on the first of that month £53,493. 3s. lOjd. in wliich sum is com. prised interest from 6th July 18U, the date of the account current, to the 1st October 1815, upon the sum of £60,750. 13s. 3d. Thus this latter sum was reported to be nominally in the hands of the executors at that period, though it was not in their actual pos- session. On the ^Oth October 1815, the court below pronounced a judgment adopting the examiner's re- port, and declaring as the reason for such adoption, *< that no objections to the said report had been made " or taken by any of the parties to the suit.*' In the same judgment they prescribe the course to be foi- COURT OF APPEALS. ^ lowed, ill order to carry the testator'tr intention into effect as far as was practicable. In the year 1818, William McTavish, the residuary legatee, died, and his mother, one of the appellants, in- herited his personal estate. The appellants having be- come invested with the rights of the residuary legatee, with a view of contesting the accounts of the executors' administration, revived his intervention by permission of the court, on the 11th October 18^2, and by a sup. plementary demand, (nouvelles conclusions i)sLmong other things alleged, " that they had a right to take such conclusions as the said McTavish might have done and to contest the account rendered by the executors in October 1811, as well as a supplementary account which they had fyled on the 13th October 1820, of their admiiiistratioa during the period which had elapsed since October 181.5. That since the testator's death, the bouse of McTavish, Frobisher & Company, allowed to the executors, which they had received, interest on the money belonging to the testator in their hands, and on balancing the account current every year on the SOth November, debited themselves with the in- terest accrued during the preceding year, which was each year added to the capital then in their hands, and interest on the whole allowed for the following. That from July 1811, to October 181^, the executors had reoeived, as interest, £17)4 tractari non posse, verius est, maxime si ab us appella- turn fuerit." (a) Though it is a positive injunction in the code civile, " qu*ii ne sera ci apres precede d Ja revision d'aucun jugement rendu sur la cloture de compte, yet if the omission in the accounts by not adding compound interest were really an arithmetical mistake, a mere error in calculation, then indeed it would have been competent for the court below under the autho. rity of the note of the 21st article of the 29th title of the code civile to correct the error, for it is there said, " si Perreur de calcul avoit ete commise en la sen- tence, elle pourroit ^tre cc.rige sans qu*il fut neces- saire d'en interjetter appel." This course of practice was taken from the Roman law, and it is there said, ** quoniam error computationis appellare non necesse est, et citra provocationem corrigitun" But if it were permitted to the court below to enter into an enquiry whether the compound interest should be substituted and awarded instead of simple interest, it would vir. tually tend to admit their power to correct and amend their former definitive decree, and thus by changing the principle of the former judgment, materially af* lect the interests not only of the executors, but of all the legatees and annuitants under the will. The court below, indeed, did entertain an opinion that tliey might revise and correct their interlocutory judg* ment of the 20th October 1815, for they permitted the appellants no less than four years after the death of William McTavish to fyle their conclusions im* (a) Voet ad Piadeotw, lib. 4S« tit. 1. $4* 1>« Jre jadioatu, &c. I COURT OF APPEALS. ^ / peaching the interlocutory judgment. But on the 20th October 1826, eleven years afterwards, they ad. hered to their first judgment and dismissed the appel- lants' conclusions so far as respects the claim of com- pound interest. This court cannot but admit the principle contended for, that the appellants took up the reprise d'instance in the precise state and condi- tion in which it stood at the death of William McTa- vish, and how did it then stand? A judgment had been rendered which in so far as regards William McTavish, whom they represent, definitively esta- blished the balance due by the executors to the suc- cession on the 20th October 1815, and shall the appel- lants on whom, in the terms of English lawyers, " a descent has been cast," and who waited five years after the minor's death before calling in question the legality of that judgment, be placed in a more favored situation than he ? It cannot escape our attention that the appellants though they claimed en autre droit were parties to the judgment of the 20th October 1815, and by their silence consented to it, for it is a maxim of law qui tacet consentire videtur. They must be presumed to have then been cognizant of the principle established in the report of allowing simple interest instead of compound interest, and having allowed so many years to elapse both before and since the death of William McTavish, without attempting to be re- lieved from the alleged error, they cannot otherwise be deemed but impliedly to have acquiesced in that judgment. It is proper to mention that His Excellency Lord Aylmer has taken a view of this cause which I think perfectly correct, naniely, that no such evidence has 477 1831. Plendsr- liEATH AND McOlLLI* VRAY. 4''f f.,!-' :)^. U« 5::t«.30i/ i('R 1 V i ¥ :SQ'> 478 CASES IN THE PROVINCIAL 1831. PlENDER' LEATH AND McOlLLI- VRAV. b'een given of the house of McTavish, McGillivray & Co. allowing compound interest on such sums as may have remained in their hands so as to remove all doubts on this point, and considering that the intention of the testator, as manifested in his will, was to maintain the credit of the house, and to grant them indulgence, we think, in adjusting our opinion on this matter that the respondents are clearly entitled to avail themselves of this favorable disposition of the testator towards the house. On the whole this court (one of the judges dissenting,) is of opinion that the judgment of the court below ought not to be disturbed. Judgment affirmed. '■^ihfv Oth Feb. 1832. ■ M ^fk ! ifilM? ?.mj • s ii In the Cas^ of Daniel Tracey. The leurisla- tive council has a right to commit, as tor breach of pri- vilege in oases of libel, — and the court will not notice any defect in the warrant of commitment for such an of- fence, after conTiotion. UN the 8th day of February 183S, a motion was made for a habeas corpus, directed to the keeper of the common gaol of the district of Quebec, or his deputy, to produce the body of Daniel Tracey in his custody, together with the day and cause of his detention. The motion being grounded on an affidavit, which was read, the court granted the motion. On the following day the prisoner was brought up and a return made by the gaoler, ** That the body of the said Daniel Tracey had been committed to the common gaol of FOR THE COURT OF APPEALS. ? f • (be said district by virtue of a warrant from under the hand of William Smith, clerk of the Legislative Coun- cil in the words following* to wit :" Legislative Cqvyxcil, Tuesdaj/t XJih January, 1832. -^ Resolvedt That Daniel Tracey, of Montreal, having presumed to publish a libel against this house in the paper intituled, " The Vindicator," of Tuesday even- ing the 3rd instant. Vol. 3, No. .53, published in Mon- treal, is guilty of a high breach of the privileges of this house. . np Resolved^ That Daniel Tracey be for his said of- fence committed prisoner to the common gaol of the district of Quebec, for and during the present session of the provincial parliament. -^ Resolved, That the serjeant at arms attending this house do forthwith convey the body of the said Da- niel Tr-'-^ey to the common gaol of the district of Quebec, there to be kept in safe custody for and during the present session of ihe provincial parlia- ment. ' 'J Attest, William Smith, clerk of the Legislative Council. ' '# To William Ginger, serjeant at arms, attending this house, and to the keeper of the common gaol of this. district. A, Sluarl argued in support of the motion. This return brings under the consideration of the court one main abstract question of law, whether the legis- lative council can by law commit for contempt in the case of an alleged libel. But before proceeding to the consideration of this question there are upon the face of the conviction and commitment, which are the cause for the detention of the parties assigned in 3 R 479 1832. Case of D. Tracey. ,; t vlj 480 CASES IN TflE CQmt QF KING'S BENCH 1832.' Case or D. Tracet. I V.1iV' I ii>. the ri^turn, other objections, which though certainly of minor irnporiance when compared with this main and principal question, yet objections which could not be passed over in silence. Granting hypothetipally, for the moment, ths^t th^ council has the power to commit for ppntempt, th^ conviction must be examined with reference to the same rules of law which govern other convictions in cpurts of law. Now there ere various fatal irregi^lanties upon the face of (he conviction in question. 1. It does not appear that the party con- victed hfid notice of thp cpmplaint, and' has been brought before the council by attachment or other, wise. Q, It does not appear that any opporti^uity has been afforded to the defendant to answer the charge, or that in point of fact any an&v^^r h^s been asked or given to such charge. S. It do?s not appear that he was presept when the conviction was made. 4. That the first proceeding on the part of the qouncil as against the def(^ndant is the como(utment in execu- tion, and that no precedents could be offered in sup- port of such a proceeding. Even if the council should be held not to be bound down to the strict technicalities required in other convictions, and though it should be said, as was intimated by Lord Ellenbo- rough, in the case of Sir Francis Burdett, that it was not necessary that a conviction for a contempt by one of the branches of the legislature should be drawn up ** in a workman-like manner/** still it could not be thence inferred that the essentials of judicial order cpuVi lawfully be, passed over by them. No human tribunal ^laa the right tp convict withput hearing the party accused or giving h jm a^ opportunity of being hei^rd in his defence. It is unnecessary to urge FOR THE DISTRICT OF QUEBEC. / ) 481 lertainly of , main and >i)ld not be tti^allyi for ' to commit mined with pvern other e^e various snviction in party con- 1/ has been tt or other* ortuuity has the charge, sen a^ked or »pear that lie ie. 4. That i pouncil as It in execu- ered iii sup* the council ,0 tlie strict |, and though ird Elienbo- that it was ^empt by one be d/awa up lould not be 4icial order No human hearing the ity of b^ing ry to urge here« that it Would not be competeiit to aid this sub' stantial irregularity in the conviction by matter dehors it ; nor indeed has any attempt been made to do sd. No precedents can be ofTered in support of such a convictioni but there is one in point against it, the case of Perrt/, editor of the Morning Chronicle, who was committed on the SSnd of March 1798, for a contempt against the House of Lords in publishing a libel in his paper against that body. The commitment is as follows :— «» Die Jovis, 22o Martii, 1798. The " gentleman usher of the black rod acquainted the " bouse that James Perry had surrendered himself "and was in custody. Whereupon he was ordered " to be brought to the bar, and beiiig brought to the " bar accordingly, and heard as to what he had to " say in answer to the complaint made against him " of having published a libel upon this housi^ in the " paper intituled. The Morning Chronicle, Monday, " March 19, 1798, and having acknowledged himself " to be the proprietor of the said Morning Chronicle^ " he was directed to withdraw. " Resolvedi By the lords spiritual and tempbral in " parliament assembled, that James Perry having pre* " sumed to publish a libel on this house in The Morn- " ing Chronicle, Monday, March 19, 1798, is guilty " of a high breach of the privileges of this houise. " Ordered, By the lords spiritual and temporal in " parliament assembled, that James Perry do for his " said offence pay a fine to his Majesty qf fifty " pounds ; and that he be committed prisoner to Ntw- " gate fi)r the space qf three months and until he pdy " i)ie said fine ; and that the gentleman usher of the I" black rod attending this house, his deputy or depu- IS33. CA8C0P D. TnACEY. >? ii if 482 CASES IN THE COURT OF KING'S BENCH 1832. Ca8B op D. Tracey. (< it tt ties, do forthwith convey the body of the said James Perry to the prison of Newgate to be kept in safe custody for the space of three months and until he pay the said fine. George Rose cler. parliament," What is somewhat extraordinary the framers of the commitment in question here, seem to have had these proceedings under their eye, and have, notwithstand- ing, deviated from this form in the essential particulars above adverted to. If then the legislative council had legally cognizance of the alleged ofiences, it has been shewn, it is apprehended, that the proceedings by and before them have been so irregular as to render their adjudication merely null. But the jurisdiction of the legislative council over ofiences of this nature is res. pectfully denied, and if it can be proved that the law does not give to the council any such power, then the proceedings had in the prenr ses by them, are vox et prceterea nihil:— The conviction then would bear the outward form and semblance of authority only. It would be a mere shadow without any substance : and the party here would be entitled to his discharge, un- der the writ of habeas corpus, as b^ing under duress of imprisonment without legal authority : and the ques- tion as to the jurisdiction of the legislative council in this matter, would come directly before the court, who would be called upon to determine upon the same.— The objection here goes to the very root of the tree. and the conviction being held void, the commitment founded upon that pretended conviction- falls to the ground as of course. It has been sometimes argued that there being a conviction and a commitment under it, the court is bound at all events to remand, but this is a manifest error, the rule applies only to commit I 'I FOR THE DISTRICT OF QUEBEC. J._ ments by competent author itt/. In this last case it is admitted generally, but not universally, that the court could not upon the return to a writ of habeas corpus, assigning as the cause of detention a conviction, en- quire into the grounds or reasons of that conviction.— these, it is sufficiently obvious, could only be gone >nto either upon an appeal, or upon a writ oli certiorari, or upon a writ of error, according as the law gave one or more of these remedies to the party, alleging that he had been aggrieved by the conviction. The reason of this is, that thejudgment being a judgment of a court, upon which the law had conferred jurisdiction over the subject matter, that judgment, generally speaking, could not be disturbed by any incidental course of proceeding ; but must remain in full force and effect until it should have been reversed, vacated, or set aside by direct proceeding had for this purpose before the competent legal tribunals, and in the forms pre- scribed by the law. But these reasons militate directly against the assumption that a pretended conviction by persons exercising an authority which has not been conferred upon them by the law, shall be esteemed U and conclusive by the living organs of the law: or, that they shall give any effect either actively or passively to an usurped authority. There is no half, way house, the power exercised is either exercised with the sanction of the law or without that sanction ; and in the last case it is exercised against the law and can. not in any form or way be countenanced by the law which it violates. It is a contradiction in terras to suppose that the law would lend its aid in support of an usurped authority. It has oAen been said that there could be no injury without a remedy, the quies* 483 1832. Casb of D. Tbacey. H ■ •■ ■ ■ 481^ CASES IN THE COURT OF KING'S BENCH 18S8. Cmbop D. Tbaost. c6nce of the hw in the case of usurped powers and iu wilfully shutting its eyes to such usurpation of power would be a tacit co-operalion and alliance of the law with the subverters of the law, and would leave the subject to suffer from illegal acts* without affording him any remedy, which v»ould be contrary to this rule. And the true legal remedy in a case like the pre- sent is by thd prerogative writ of habeas corpus which has here been brought. This doctrine is supported by the opinion of Lord Chief Justice Wilmot.{a) It is not intended to be denied however, that if the legis* lative council had jurisdiction over the offence of libel, and if they bad proceeded in due judicial order though summarily, to hear, try and determine this matter, the grounds of their conviction are not examinable here. Upon a point so clear as the present one, it might not perhaps be thought necessary to offer any authority, but misconceptions have obtained, which it is material to rectify ; this is one of the disaitvantages which coun< sel is Subject to when obliged to argue a case, without counsel appearing on the otto side, who might have relieved him from going into this part of the subject) by at once admitting th6 principle of law as sitated.— Th id consideration in truth gives the vast importance (a) Hie nature of tBis writ mast first be considerecf : It is a demand by the King's supreme eoart of jastioe to pvodocift a perwti utder oonfinemmf, and to siraify the reason of his confinement. In imprisonment for cri- minal omnoes, the Mtart cnil act trpoii it only in 6ne ef these three man- ners: 1. If it appean clearly that the fact for which (he party iacbmniitted, is no crime ; or that it is a crime, but he is committed for it by a person who has no jurisdictitm, the court discharges. 2. IfdouWol whether a crime or not, or whether the party be committed by a competent Jurisdiction ; or it appears to be a crime, but a bailable one, the conrt (mils him. 3. If sO offence not bailable^ and committed by a competent jdrisdiction, the court remands or commits, t'he nature and quality of the act with which the party is charged, ani the jurisdiction lOhich hea taken cogtkittmos of it,ist to be considered in the return. — Wilmoi's Decisions, 107. FOR THE DISTRICT OF QUEBEC. AO 485 which belongs to the main and general question ; for, if it be held that the legislative council has jurisdiction over libel at all, then their power in relation thereto would be a power without any controul whatever. In referring to the opinions and arguments of that emi- nent lawyer, the late Mr. Hargrave, I refer to the opinions of a man who would be as little biasred by any Utopian notions of perfection as by any ra^^cal prejudices. Consulted in the case of the commitment of the Honorable Simon Butler and Mr. Oliver Bond, by the Irivh house of lords in 1793, for contempt and breach of privilege, by what they adjudged to be a libel on that body, he says, " con^dered according to '* tiie general turn and genius of the law of England, *' the legality of the imprisonment and fine in question, "could not I qonceive, be supported; because by the " general rule of our law, an accused person can nei- ** ther be put on trial for a crime, without the present- *< meat of a jury, nor in case of a denial of a crime be " tried for it without a jury of his peers, nor in a cri- "minal trial be himself interrogated; and in every ** one of these points the present case seems a devia- " tion." And he goes on to point out some exceptions to this general rule as in the cases of information ex officio (br misdemeanors^ contempts against the courts of Westaainster HaU» ftummary criminal jurisdiction given to justices of the peace by statute, criminal ju- risdiction exercised in certain cases in. the ecclesiasticii courts, &c. And again, being consulted in 1798^ in the case of Perry, whotie comniltment has already been referi^ed to, he says, ** pFoceeding;^ in either house of •'parliament foi? contempt and breach of privilege, " more especiajiy wbere,^ as ia the present case, the 1832. Ca8B of D. Trac&t. i;i:( ! 486 CASES IN THE COURT OF KING'S BENCH ]83S. Case op D. Tracet. (I (I (( " charge is for a libel, are in their nature very con* '* trariant to the ordinary rules and course of ad mi. " nistering justice in England. The offended parties " act as judges. The court is not an open one. The " witnesses against the accused party are originally " examined in his absence. The accused party is called upon to defend himself, without the oppor- tunity of cross-examining the witnesses against him. He is not in general allowed to have the benefit of " counsel. He is in some degree interrogated against " himself. He loses the benefit of trial by jury ; " and if the imputation is for a contempt against the " house of lords, andthe apcused is a commoner, he ** is tried, not by persons of his own order, but by ** those of a distinct and a higher one. The judg- ** ment is said to be, not only unappealable, but " wholly unexaminable, except by those who pro- " nounce it. AH this variety of hardship, upon the party aqcused, I understand to be at least incident to the ordinary proceeding for contempt against ** either house of parliament. But if the contempt be publishing a libel, which is the case now before me, there is a still further hardship : for in the first instance and before hearing of the accused party, it is sometimes adjudged, as it appears to have been in ** the present case, that the offence has been commit- ** ted -f and so it is only lefl to the accused to con- « trovert his having committed it. This seems a very " severe deviation from the common course of crimi. ** nal justice. Surely it is essential to the defence of ** the party accused, that he should have the oppor^ " tunity of shewing, ^ot only that the fact charged ** was not done by him, but that such fact is not an « II « tt u tt FOR THE DISTRICT OF QUEBEC. ' ) ^ «* offence ; and denying the latter to him appears like •< adjudging one half of the case without a hearing." " In the former of these cases he says further, «• that •' though in a criminal case the accused party may •< have been examined on oath, may have been tried •< on information only, or may have been adjudged •< without a trial by his peers, it Is not of necessary ** consequence, that the proceeding should be illegal. " To decide that point it should be previously consi- " dered, whether the case i'alls not within some spe- " cial rule or course of proceeding. The onus indeed *' of taking the case out of the general rule falls upon " those who claim benefit of the exemption. But if " they succeed in the proofs, it is a vain objection in " point of law to say, that the general principles of " the law and constitution are to the contrary. If *' the exception is established, whether it be a reason- '' able exception or not, it ought to prevail, until "'revoked by legislatLe or other competent autho* •• rity. In the present case, therefore, 1 conceive the " true question to be whether the case is, or is not, " one of the cases excepted from the ordinary course " of criminal prosecution." As in Great Britain and Ireland the power to convict and punish for a libel by either bouse of parliament, as for a contempt against one or other of t)iose bodies, could only be maintained by shewing that it wta supported by law as an excep. tlon to the general rule, so also in Lower Canada* where the English criminal law obtains the power of the legislative council to convict and punish for a libel could only be maintained by, in like manner, es- tablishing, on sufHcient legal grounds, the exception to the general rule, which as a general rule stands ad- S s 487 1838. Cask op D. Tracev. i-lii \r\ v 488 1832. Case op D. Tracey. CASES IN THE COURT OF KING'S BENCH mittcd by all. Now, at the very threshold, we arc struck with a marked difference between the two Eng. lish houses of parliament and our own. The origin of the powers of the English houses of parliament goes back to a very remote antiquity, they at one time formed a part of the Jula Regis, and claimed to have all those judicial powers which had not been transfer. red to the king's courts after the breaking up of the Aukt Regis, The house of lords has long exercised, and now exercises, the highest judicial powers of the state. The contest between the two houses upon this head may be seen in t1ie case of Fitton and Can in 1667, and after the restoration) in the case of Skinner and the Easi India Company, in the case of Sir Samuel Barnardiston, and in the case of Bridgman and HoU in the common pleas, and of Shirley and Fagg with which last case the controversy ended. There is also the notorious Aylesbury case, {a) It does not seem necessary to enter into the detail of any of these cases. They are referred to, generally, as evincing essential differences between the constitution of the two branches of the British parliament, and the two branches of the provincial legislature, where preten* sions so lofty as these were made by both branches of the British legislature, to judicative power, and where as to one of them they were to so large an extent maintained, that the practice of attaching for con* (a) The whole learning upon this subject is to be found in Lord Cbief Justice HMt Treatise on the Juriidietim of the Lord's House of Parlia- ment.— la Harg^rave's Introductory Preface thereto. — Uargrave's Juridival Arguments — together with the judgments of the Courts in Brass Crosbys case. 3 Wils. ] 98.— > Case of Betyamin Flower ^ printer and publisher of the " Cambridge Intelligencer," 8 Durnford and East, p. 314,— and in that of Sir Francis Eurdett, reported in the Hth vol. of East's Reports. e / FOR THE DISTRICT OF QUEBEC. ^ ' > tempt by libel, came to be adopted by both houseSf and now stands supported by a long usage, recog. nized by the courts of the kingdom. It rests then, in England, upon the same basis as the powers and the privileges of those bodies, to wit, immemoridl usage, and accordingly it is upon this footing that Hargrave puts it. Thus he says, *< in respect also to *' both houses, their respective Journals contain evi- " dence of a continual exercise of judicative power, " in cases of privilege, for more than the last two " centuries," — and in no other part of these opinions does he offer any other ground for the exercise of this anomalous privilege. — We come now to the powers exercisable by either branch of the provincial legisla- ture in relation to matters of contempt generally. The two branches of the provincial legislature are established by the Slst, Geo. III. c. SI, commonly called the constitutional act. They have no powers except those which they derive from that act, either directly or incidentally. They have never claimed or possessed any judicative power, other than that relat- ing to matters of contempt, and it is as to the limits of this power that we are now called upon to inquire. The words of the act are as follows : — " That the " legislative council and assembly, by and with the '' advice and consent of his majesty shall have power " to make laws for the peace, welfare and good " government of the province." It will not be said that the power claimed is given to them directly ; they have not, as claimed by the parliament of Great Bri- tain, any inherent powers. — They have no immemorial usage to sanction such a pretension. Whatever pow- ers they possess in relation to matters of contempt can .489 1838. Case op D. Tracky. '< ■ 490 CASES IN THE COURT OF KING'S BENCH i83i. only be had by them as incidental to the powers given Case OF ^° ^''®"™ ^Y ^^^ Statute, founded on the well known D. Tracet. rule of law, cut jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio expHcari non potuit, * No doubt can be entertained that, as incidental to the powers given to those bodies by the statute, they have the power of com^mitting for any actual obstruc- ' tion of their proceedings, but this does not extend to the case of libel. Mr. Hargrave seems to have had this distinction present to his mind in the following > passages : " But though I take a judicative power in cases of privilege to be thus fully established bi/ long use in both houses of parliament in England, yet as to the extent of such power, and as to the manner of exerting it, there are difficulties, which might perplex the most conversant in parliamentary law and prece- dents. So far as this jurisdiction applies to direct and positive infringements of the privilege of parliament, such as hindering or interrupting the two houses or their members or assistants in their functions, whether by arrests, assaults or. otherwise, I cannot see the least room for doubting. So far also as this judicative power is applied to the writing, speaking or publishing of gross reflections upon the whole parliament, or upon either house, such an extension, though perh^ips originally questionable, seems now of too long a stand- ing and of too much frequency in the practice to be well. controverted ; and I am struck in the same way in Vespect to other instances of extraordinary latitude, to which both houses have sometimes stretched their doctrine of contempts." And again—" Upon this review at the course of * proceedings for contempts against the lords or com- FOR THE DISTRICT OF QUEBEC. 491 mons, it might perhaps be e)cpected, that so anomalous JJ^ a mode of administering criminal justice should not be Casbop extended beyond the demands of the urgency whence it ^' Thacet, originates. But the practice, which hath frequently prevailed in both houses, is not quite consonant to such an expectation. In point of fact, the proceeding has not always been confined to cases of actual inter- ruplion of the two houses and their members in the exercise of their functions. On the contrary, both houses have occasionally taken cognizance of libels upon the whole body, and of libels upon individual members, and sometimes even of libels upon the king's family and servants ; and under that latitude of construction have tried and punished offences, over which there could be no doubt of the competency of the ordinary courts of justice to exercise a jurisdiction. Nor, hs to themselves, have the two houses always confined the proceeding for contempt to libellous pub- lications reflecting upon their exercise of their legisla- tive or judicial powers, or upon the conduct of indivi- dual members in that respect. Sometimes, indeed, these extended constructions of contempt have been loudly complained of, particularly where the lords, ' not content wi^*' committing for the offence, in which case the imprisonment of course terminates with the session of parliament, have gone the length of fining and of imprisoning for a term certain." The privilege in England having been established in trouL)led times, the courts of justice seem to have been afraid to risk the consequences which might have fol- lowed from a collision between the high courts of judicature and the legislature, and as they treated a denial of their privileges as itself a breach of privi- ^ p/ i 492 1833. Cask of D. Tracey. I i ii: 11* I \ CASES IN THE COURT OF KING'S BENCH lege, the situation of private advocates, even when called upon to give professional advice or assistance, might, where considerable public excitement existedf be somewhat delicate. Some traces of this would pro* bably be found in the following passage from Har. grave: " What is the boundary of the jurisdiction to lords or commons as to privilege and contempt, and how that jurisdiction where it really exists is exercisa- ble, very much depends on the law and custom of par- liament. Of that law and that custom, the judges have sometimes declined to be the interpreters, even when called upon by the lords, with whom they are assessors. I feel, therefore, that it might be deemed unbecoming, and in other respects might be hazardous in me, pro- fessionally to avow more than doubts upon the law and custom ofparliamentt against t/iat, which both lords and commons so often heretqfbre, and the lords so recently, have decided by their own conduct** True lord TMn- borough, in the case of Sir Francis Burdett, considered the power of attaching for contempt by libel, as inhe- rent in the two branches of the British legislature, and he seems also to have considered such a power as essen- tial to their protection. This case it is conceived is the only case wherein this doctrine is countenanced. With all possible deference to the authority of that case, it does appear that that position might perhaps be questionable even in England, but there is no reason whatever to extend such a principle to a colo- nial legislature. In a state of society such as that of Great Britain, it is necessary that every branch of the public authority should be armed with higher powers than is required in countries circumstanced as these new countries are. So too, having founded the pri- FOR THE DISTRICT OF QUEBEC. 493 vilege upon immemorial usage, the question as to its exact nature, origin and gounils theoretically, comes to be rather a subject of speculative enquiry than of prac- tical utility. So too the opinion ihere must be taken pro sulfjecta materia, and it must not be lost sight of, that Sir Francis Burdeit was a member of the house of commons when the offence complained of, was com- noitted; and as well the house of 'commons as the house of lords possess a power of discipline inforo domestico. How far that power was abused upon the occasion of Sir Francis Burdett, we are not called upon to inves* tigate. We are then at full liberty here to examine the grounds upon which such a power could be main- tained, as incidental to the powers directly given by the statute. In entering into this enquiry it is pro- per that I should make this preliminary observation ; that inasmuch as the grounds and reasons upon which the legislative council proceeded in declaring the ap- plicant guilty of publishing i^ libel, are not examinable before this court, it would be travelling out of the re- cord, to enter into the question of libel or no libel. — This is mentioned lest silence on this head might be misunderstood as implying any admission of culpabili- tyin the party before the court. That question does not here arise. The ground of complaint is that that question has not been brought before the proper tribu- nal, '" a jury of the country," the benefit of which form of trial has been denied. Libel against private indi. viduals, and libel against public bodies, stand upon totally different grounds ; the first cannot be too se- verely repressed ; as to the last, care must be taken not to allow to be impaired the public discussion of the public conduct of public bodies. This is essential for 1832. Case op D. Track?. 494 CASES IN THE COURT OF KING'S BENCH 18G2. Case op D. Thacey. the protection of the public liberty : majorities of all public bodies will occasionally, under certain influences of the moment, do acts of injustice which no one individual of that majority would himself do. The individual responsibility is lost in the crowd: the individual members of the body calumniated, if one will by the agency of the press, suffer not the pain, inconvenience and injury which a private individual would, under similar circumstances, suffer. The legal entity of the whole body is impassible, whether it as- sails or is assailed, — as no one who suffers from it can touch it, so ought it not to have the power of punish. ing those who animadvert upon its proceedings, by constituting themselves a court of justice, to judge the examiners of their public conduct. If you take away the power of this full examination, you destroy the action of public opinion, which cannot be brought to bear too strongly upon the proceedings of public bo* <;lies; and this power of full examination is taken awayi if the public body whose conduct is to be examined, have the power themselves to assign the limits of that examination, and to punish those whom they declare to trespass beyond those limits. So too, where the aspersions are unfounded, their efl^ects must be short- lived, and must themselves soon fall back on the calumniator. Again, the body calumniated or alleged to be so, cannot exercise judicial power with impartial!' ty and competent discretion. In those cases wherein the public opinion is not a sufficient protection for the body accused, or where, from the peculiarly aggravated character of the offence, the offender may be thought liable to condign punishment *, his case may safely be i left to a jury of his country, in the ordinary forms of FOR THE DISTRICT OF QUEBEC. i i judicial trial. No public body was ever injured by the public press. That power, so far as public bodies are concerned, might be compared to steam, which, with a proper use of safety-valves might be made r ubservient to the best purposes, and only produces explosion and death by being unduly compressed. Now all the powers which can be claimed as incidental to the main power given, are such only as are of necessity, without which the main and direct power given, could not be effectu- ally exercised. The press, except where it touches private character, carries along with it the antidote of any poison which it may distil. ii [Kerr, Justice, here read a passage from Doctor Johnson's Life of Milton, wherein he says, " The dan- « ger of such unbounded liberty, and the danger of " bounding it, iiave produced a problem in the science " of government, which human understanding seems hi- " therto unable to solve. If nothing may be published " but what civil authority shall have, previously ap- « proved, power must always be the standard of truth ; " if every dreamer of innovations may propagate his "projects, there can be no settlenient; if every mur. " murer at government may diffuse discontent, there "can be no peace; and if every sceptic in theology " may teach' his follies, there can be no religion."] It is not surprising that such a doctrine should come from Doctor Johnson. Milton himself stated a very different 'one, and one much more consonant to the truth. It is to be found in the prose works of that distinguished poet. I cannot pretend to give the words of the original, but the opinion which he there states, in substance is, that if the powers of truth and falsehood t8 >. 495 1832. Case of D. Tracby. 496 CASES IN THE COURT OF KING'S BENCH 163S. 5 ■• ' 'I W . j»-i«* were to go forth andgrapt)le on the same arena, no man Case of "®®^ ^^^^ ^ *° ***® triumph of the former. The vhole D. TRACEf. burthen then lies upon him who would support the conviction in question, id shew that a public legtgla. live body cannot fully exercise its legislative functions, if it be subjected to libellous attacks in print, and that ^ these constitute such an actual obstruction to their proceedings as to prevent them from discharging their legislative duties. Neither branch of the provincial legislature requires this species of protection. It would not be contended that individuals animadverting upon the public conduct of public bodies, and doing so tru- ly, ought to be punished: and where the aspersions are false and unfounded they might safely be left to the good sense of the community. Generally, the le- gislative and judicial functions ought to be kept apart. These powers are entirely distinct and separate in their nature, there is no point of natural relationship be- tween them. If they are made to run side by side, they will not, like the two fabled rivers of antiquity, pursue their steady course without mixing ; and, sala- • - tary as they are by themselves, when they do mix, : their waters become the waters of bitterness. If in any instance a judicial power, except for state I offences on impeachment, could be rightly conferred upon a legislative body, the power in question is the last which should be granted. The essence of the offence for libel lies in the intention. The overt acts which are to constitute this offence cannot be stlictly ^ . defined. It has been assimilated and rightly so in this ; particular to the offence of nuisance, the overt acts constituting which offence are equally undefinabie. Wherever the question comes to be a question of in< FOR THE DISTRICT OF QUEBEC. [8>.U 497 tention it is of the last degree of consequence that the persons called upon to judge of such intention should be free from all bias of passion,— -of feeling even. Where the overt acts constituting the offence are clearly defined by the law, there a man of honor and truth may judge rightly respecting the evidence esta- blishing the offence even though the accused should be his greatest enemy. Not so where the offence is undefined ahd undefinable, resting entirely in inten- tion. His wounded self-love and the natural indigna- tion arising from a supposed insult are but bad asses- sors with him in the judgment seat. Again, suppoi^ing him to be able to surmount these influences, will the public be satisfied with the sincerity of his judgment ? It is feared not j and where this is the case, one of the capital advantages of the institutions for the adminis- tration of justice in criminal matters is lost, the confi- dence of the public impaired and the tranquillity of society jeopardised. Where this has existed the rudest forms of criminal codes, as in the case of the trial by ordeal and by battle, have been sufficient to maintain a tolerable order of things. The passages already given from Hargrave let us sufficiently into his sentiments as to the propriety of such a power being vested in a deliberative body. He could not, and ought not to have got over the ita lex seripta est, proved by the immemorial possession of them by the house of commons and house of lords. If this had been a case of the first impression there, not so sup- ported, we can entertain little doubt what decision would be come to in the present day. Junius, in his Hth number, attacks this practice, and althouglkthe power of committing for libels cannot be denied to the 1832. Casb or IX Traget. 498 CASES IN THE COURT OF KING'S BENCH 1832.' Cabs OF D. Tracet. f' house of commons, yet it is a power which has been but rarely exercised by that body for many years past, the commons having adopted the constitutional course of directing the Attorney General to prosecute for all public offences. And is it at this time and under these circun^stances that broken columns of remote and rude antiquity are dug up from the ruins of feudal times, and are transferred as ornaments to the vesti- bule of the legislative council chamber ? In conclu- sion, the court will recollect that ours is a written con- stitution and has not grown up as that of the British island, during a long period of time, gradually adapt- ing itself to the new emergencies arising from the changes in the social condition of the people and bringing down with much pure gold and with an inex- tinguishable vitality some of the rubbish of a rude age. And the liberty of free discussion of the public con- duct of public bodies is in the present state of things irrepressible and carrying along with it some slight inconveniences, incident to every thing that is human, a large quantity of positive good purifying, by en. lightening, public opinion. The court took time to consider its judgment, which was pronounced on Monday the Idth of February, the justices delivering their opinions seriatim, as follows : Kerb, Justice, With every desire to give our judg- ment on the matters which have arisen out of the return to this writ of habeas corpus, we have consi- dered it our duty to look into the authorities referred to by the defendants' counsel in his long and able argument. This and our many judicial avocations during this term have prevented us hitherto from delivering our opinion on the constitutional question FOR THE DISTRICT OF QUEBEC, ir / D 499 involving the cause of civil liberty, which has been presented to us for our determination. The main question is, whether the legislative council, being a type and similitude of the house of lords, has a right to commit, as for breach of privilege, in cases of libel ? or, in other words, whether the principle on which the imperial parliament rests its rights, powers and privi- leges can be admitted to apply to the two branches of the provincial legislature ? In regard to the two branches of the imperial parliament there can be no doubt that the privileges which they now enjoy, and the functions they exercise, were claimed, enjoyed and exercised by them previously to the separation of the two houses, so early as the close of the reign of Henry III. Their rights and privileges appear to be self-created, and absolute, founded on precedents and immemorial usage ; nor is the exercise of their power to commit for contempts limited to such as are perpe- trated in the face of the two houses, but it extends to all acts committed, which in their view, are calculated in any way to impair their dignity or to restrain the free and independent exercise of their functions. Of this, innumerable precedents are to be found, from the case of Thrasidas in 15^9, who was committed by the commons for a contempt in words against the dignity of the house, to that of William Perry, Beiyamin Flower and Sir Francis Burdett, in our times, who were Fsverally committed for breaches of privilege in the publication of libels. But it has been argued by the defendants' advocate that the legislative council has acquired no such power by immemorial custom and usage, and that the parliamentary charter of the year I791 confers no such authority upon it. , I cer- 1832. Case op D. Tracev. "! 600 - 1839. Case OP D. Tracey. CASES IN THE COURT OF KING'S BENCH. tainly admit that this body does not possess, like the house of lords, a right to fine, or imprison beyond the session, nor so extensive privileges as the house of lords and commons possess. But can the exercise of the power of proceeding summarily and committing for a libel against the legislative council, as an aggre* gate body, be refused to them, without their sinking into utter contempt ar d inefficiency ? A passage from the Pandects has been cited, which I feel myself bound to adopt on this occasion : ** Cut jurisdictio data est, ca quoqtte commiasa videntur, me quibus juris- dictio explicari non potest. The legislative council has no judicial powers conferred on it, it is a branch of the legislative government, entrusted with the autho. rity to make " laws for the peace* welfare, and good government of the province.'* And whether a politi- cal institution is vested with the authority to make laws, or to explain and enforce them, it must of neces. sity possess all the powers requisite to ensure the pur. poses for which it was created. If the two bodies (for I speak both of the legislative council and assem* biy) had no authority to commit for written slander, calculated to expose them to public odium or derision, perhaps to intimidate them in the exercise of their important functions, there is no man can doubt bul they might be impeded in the performance of the Bacred duties which are confided to them* and become less efficient in their endeavours for the public good. It has been urg^d that the law is quite sufficient to protect them from insults and indignities of this nature, and that all which ought to be conceded to either house, is a right of punishing by imprisonment for insults, outrages, and interruptions committed in the \ ess, like the beyond the le house of exercise of committing IS an aggre* heir siniiing A passage ; feel myself a jurisdictio quibusjum- I council has I a branch of h the autho' je, and good ither a politi- rity to make lUst of neces. isure the pur* } two bodies il and assem. itten slander, or derision, cise of their in doubt but ance of the and become public good, sufficient to if this nature, led to either [isonment for itted in the FOR THE DISTRICT OF QUEBEC. '^ j face of the house. But I fear that the slow and tardy proceeding by indictment or information, and the un- certainty of the legal result, would little conduce to maintain the dignity of these bodies, or to protect them from the natural effects of contemptuous and defamatory libels. I am free to confess that this power of commitment for libel may be abused, but of two evils it is far better that this privilege should be confided t6 bodies selected by their sovereign and the people, for great and important purposes, than to leave them without those means of self-defence which are common to all courts of justice. Nor could we limit and define the cases within which such powers ought to be circumscribed without materially affecting and restraining the council in the free exercise of its func* tions. The counsel for the defendants appear to con- sider the privileges of both houses of parliament, of punishing for contempt, to be derived from the Aula Regis yfhich exercised all the authority of a supreme court of justice ; but the ecclesiastical and admiralty courts which do not derive their jurisdiction from the same source, exercise the same right of punishing summarily all contempts committed against their dig« nity and authority, (a) It has been said that the proceedings taken against the applicant as set forth in the return, have been irregular and the teturn defective, and the precedent in the King v. Terry ^ has been referred to as illustra- tive of this position. I do admit that the return is wanting in that explicative precision which might be desirable. But considering this as a conviction by (a) ClMrk's Prexis, tit. 52. 501 I8»2. Casc op D. Tracet. 503 1832. Casb op D. Tracby. CASES IN THE COURT OP KING'S BENCH the legislative council adjudging these defendants to be guilty of a breach of the privileges of that honour* able house) I feel myself bound by the law which is laid down by Lord Chief Justice de Grey, (a) and since recognized as high authority, to pronounce that these proceedings are unexaminable here. In giving this opinion on the question how far the legislative council and assembly may proceed to en* quire summarily, and to commit during the session, for contempt, I cannot but feel that I have been some, what influenced by the case of the King v. Monlc,(b) which occurred nere in the year I8I7, and of the no* tice given in the journals of the assembly of the year 1818, of the predicament in which general Carmichael was placed, when commanding His Majesty's troops in Jamaica. But I beg it to be understood that I am not prepared to say that no case could occur, or be presented to us in any shape, of assumed privilege, in which this court might not feel itself bound to ;elieve the subject from a commitment. I am of opinion that the defendant must be remanded. ./ BowEN, Justice.^-By the return to this wril it is cer* ti.'^ed tQ us that the applicant,^ Daniel Tracey, stands committed to the common gaol of this district, upon a warrant of commitment, made by the legislative council of this pno^'ince. From this commitment so returned, the party l>as applied to be discharged, principally upon Vae ground that neither the legislative council nor the assembly of this province have the right to con* vict for libel, and to commit the offender thereoo as guilty of a breach of the privileges of the house. (a) 3 Wilson, 199. (6) Supra p. 120. FOR THE DISTRICT OF QUEBEC. AO 603 R that the offender can only be proceeded against by the ordinary course in the courts of law. Objections have likewise been made to the form of the proceedings returned to this court, as that it does not appear by the comnutment that the party was brought in custody or had communication of the charge : that he was called on to make ansNvcr, or did answer, or that he was pre- sent when convicted and sentence pronounced,— these lait being purely technicai, will be best considered af- ter the main question submitted to our consideration shall have been disposed of. It is not denied that in England both houses of parliament have frequently enforced the same rights which have been exercised by the legislative council in this instance, but it is said the houses of parliament in England derive their authority from long and im- memorial usage, and claim it as an inherent right de- rived to them from the judicial authority formerly exercised by both branches of the legislature, as part of the Aula Regis, And it is contended that as the legislative council and the house of assembly of this province' owe their origin to the constitutional act 31, Geo. III. cap. 31, they cannot legally exercise such power, having no inherent right to it. Unless, first, that it be expressly granted to them by that sta- tute, or secondly, that it be ** necessarily incident" to I the correct discharge of the functions required of them by the act. It is however admitted that if the legis- lative council have the po*wer to convict, which is de- nied j then the question of libel or no libel cannot be examined into by the court upon the return to the \y)eas corpus. This admission is perfectly correct, for I not having the supposed libel and proceedings before u 3 1832. Caib op D. Tracsy. r ' i 1 ; $ L. •"i: 11 . 1 ^1 ' M 504, 1833. Case OF D. Tracet. ■ i^^ IhI 1 ' ifl IHh • Bi 1 HBHw 0. 1 if * J :1 Bi 1 1 ,1 ji BBBBm^j^^jwraa 1 H : It ^M I^^^^E3P9^0w]Mn 1 i: 1 1 ' 1 ^ ' I^b9 j|-' ' ■ .; n ■;- 1 CASES IN THE COURT OF KING'S BENCH us, nor the means of bringi'^tg them under our view, either by appeal or certiorari, we cannot know any thing of their contents. Looking at the act 31, Geo. III. cap. 31, we find that the Provincial legislature is empowered " to make laws for the peace, welfare and good government of the province." and in no part of this act is there any mention of what shall be the pri- vileges of either branch of the provincial legislature, but it is certainly true that the framers of it intended to confer upon the provinces of Upper and Lower Canada, a constitution modeled, as far as circumstances would permit, precisely upon that of Great Britain.— It has been well observed by Sir William Blackstone, treating upon this very subject, " that the privileges of parliament are large and indefinite : that if all the privileges of parliament were once to be set down and j ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof, to| harass any refractory member, and violate the freedom! of parliament; the dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges iW^nf>."Ca) Chitti^ in his notes upon this passage combats the doctrine, and the compilers of a more recent edition of the Commenta- ries, think with Chitty, that the privileges of parliament ought to he defined'^ though they add, " it is djjfficm to do so where the same power that binds may loosaul But a more intelligible and clear reason why the houses of parliament should have the power to punish libels od| either house, and which is equally applicable to the colo- (a) 1 BUok. Conm. 164. FOR THE DISTRICT OF QUEBEC. ^ , nial legislature, will be found in Holt, wherein he treats '< of libels against the two houses of parliament." (a) « The doctrine of contempts,** says the author, *• as it lies open to natural reason, and as it has been explained by all our soundest lawyers, may be laid in one princi* pie : it is the self defence of a court, of its moral person and functions. The origin and necessity of it are intelligible in the mere statement. It is evident from the mere statement, that this privilege of punish- ing contempts answers to self-defence amongst indivi. duals, being the defence of the dignity, body and functions of the court.' Self-defence in an individual embraces three points, character, personal security and personal liberty. Now a moral person has the same pro- perties, itnd therefore the same subjects of self-defence. The character of a moral body is its dignity, and the liberty and security of a moral body are the free ex. ercise of its political functions, and the free enjoyment oi Its political rights. The first contempts, therefore, and the privileges which are founded upon them, are those which respect the character of the two houses of parliament, and hence it may be laid down as a ge- neral principle, that whatever grossly reflects on he character of a member of either house,— whatever im- putes to him, what it would be a libel (6) to impute loan ordinary person, is a contempt and thereby breach )rivilege->-it is a direct assault upon his character, through the odium presumed to be excited there- by, a consequential obstruction of his political duties. It has been demanded why privilege of parliament should interpose where the act is cognizable by common la) Hou on libel, 117, cap. 8. (b) Written imputations as affecting a memlwr of parliament, may amount to a breach of privilege with'OOit perhaps being libels at comiAon lavr. 505 1832. Case OP D. Tracby. !■•■ 506 CASES IN THE COURT OF KING'S BENCH 1832. Case of D. Tbacev. law ? The common law has given a remedy, and more particularly in the case of libels and assaults, — where is the equity therefore, or where the necessity, that the same offence should be doubly punished, or that of two possible courses of proceeding, that should be chosen, which takes from the accused the forms of trial, — the security of a known law and a settled juris, diction ? To this it may be answered, that it is not contrary to any known rule of law, and certainly not to any maxim of natural Justice, that there should be two remedies for the same evil, — and that where the par* liament, as a court, and the law, have a concurrent juris- diction, either, or both, should vindicate its right. It is not two punishments, and each of them equal to the act for the same offence, but two punishments for different parts of the offence ; two satisfactions for two wounded interests. Parliament is injured in its privilege, the law in the public or private wrong.— Parliament heal their privilege, and the law takes com- pensation, for its own wrong. Is it not thus in libels at common law? The party has an action for the special damage to himself, and the King 'an in'dictment for the injury to the public peace. In all these cases, however, of concurrent jurisdiction, it is certainly an argument to the prudence and discretion of either house to consider whether the penal hand of the law be not sufficient, and whether that necessity in which the anomalous power of privilege is founded does not I cease to exist where the law is at hand with its sword and its shield." From the principles here stated it ap- pears to follow as a direct consequence, an incontrover- tible truth, that the right of the moral person, namely the legislative council, to convict and punish in a sum- • FOR THE DISTRICT OF QUEBEC, uv/. ) mary manner, persons guilty, of a gross outrage or scandalous libel upon that body, must exist without having recourse to the ordinary modes of proceeding in the courts of law, which the legislative council could not effect by a civil action, because as a body DO such action could be maintained — nor even by in- dictment in a court of criminal jurisdiction ; first, because such indictment would depend upon the will of the crown, — and secondly, because the offence would be tried as a breach of the peace, and not as a violation of the privileges of the house : with this right then, they are vested as being necessarily incident to the free exercise of their political functions, ab- stracted from every consideration connected with judi- cial authority which that body is said generally not to possess. The privileges of parliament, like the prero- gatives of the crown, are the rights and privileges of the people. The language of Lord Elknborough in the case of Burdettv. Abbot, in 1811, is also strictly applicable to the case before us. " The privileges which belong to them (the houses of parliament,) seem at all times to have been, and necessarily must be, inherent in them, independent of any precedent : it was necessary that they should have the most complete fersonal security, to enable them to meet Jreely for the purpose of discharging their important functions, and also that they should have the right of selfpro' tection ; I do not mean," says that learned judge, " merely against acts of individual wrong ; for poor and impotent. Indeed, would be the privileges of parlia- ment, if they could not also protect themselves against injuries and affronts offered to the aggregate body, which might prevent or impede the full and effectual 507 1838. Cask OF D. Tbacet. in i'il 508 CASES IN THE COURT OF KING'S BENCH 1832. Cask OP D. Taacet. exercise of their parliamentary functions. Indepen. dentil/ of any precedents or recognized practice on the subject, such a body must d priori, be armed with a competent authority to enforce the free and indepen- dent exercise of its own proper functions, whatever those functions might be. On this ground it has been, I believe, very generally admitted in argument, that the house of commons must be, and is authorized to remove any immediate obstructions to the due course of its own proceedings. But this mere power of re- moving actual impediments to its proceedings would not be sufficient for the purposes of its full and effi. cient protection ; it must also have the power of pro* tecting itself from insult and indignity wherever of. fered, by punishing those who offer it. Can the high court of parliament, or either of the two houses of which it consists, be deemed not to possess, intrinai> cally, that authority of punishing summarily for con* tempts which is acknowledged to belong, and is daily exercised as belonging to every superior court of law, of less dignity undoubtedly than itself ? And is not the degradation and disparagement of the two houses of parliament in the estimation of the public, by con* temptuous tibels, as much an impediment to their efficient acting with regard to the public, as the actual obstruction of an individual member by bodily force, and in his endeavour to resort to the place where par* liament is holden ? and would it consist with the dig* nity of such bodies, or what is more, with the imme- diate! and e^ctual exercise of their important func- tions, that they should wait the comparatively tardy result of a prosecution in the ordinary course of law, for the vindication of their privileges from wrong and rS BENCH FOR THE DISTRICT OF QUEBEC. J insult." In the lords, on Tuesday the 12th April 1831, the Earl of Limerick called the attention of the house to a paragraph in the Times newspaper of the preced- ing Saturday, terming him " a thing with human pre- tensions, who did not blush to treat the mere proposal of establishing a fund for the relief of the distressed and helpless Irish, with brutal ridicule or almost im^ pjpus scorn." After a debate in which Lord Eldon and others declared their approbation of such attacks being noticed by the house, the motion " that the printer of the Times be ordered to attend at the bar of this house to-morrow," was carried without a divi- sion. On the next day he appeared and was commit- ted to CHStodv with the usual vote. In the course of the debate Lord Tenterden said, " And why was this power conferred ? it was conferred not for the protec- tion of those who possessed it — not for the sake of the house of lords— ^not for the sake of the house of com- mons*— not for the sake of the courts of law, all of whom were in equal possession of the power, (a) but for the sake of the nation at large, for whose welfare and well government it was absolutely necessary, that 509 1833. Case of D. Tracbt. ii ft n (a) A pioposition for fining the printer failed, and the Lord Cban- MUor in a most eloquent speech, set Lord Tenterden right, and shewed that the right to fine did not exist in the conunons. The following is a« txtraot:— Good Ood I my lords, whoever heard till this moment — when wero I Lord Chief inflict flnet of their prt Tileges'? No one who knows any thing of the law and constitution of the (Matry can hesitate for a moment in saying that my Lord Chief Justioe ia irisTously in error here, and until I am told by mj noble friend in terms the most clear, and the most explicit, I will not believe that he is prepared to defend and justify in law what he has thus said ; for he has thereby coo- ftrred upon the house of commons a power which none of his learned, oone of his worst, none of his most corrupt, none of his least calm, hia Inat temperate or his least respectable preaecesaorB ever dreamt of arming lbs commons with." 510 1882. Caib of D. Tracev. CASES IN THE COURT OF KING'S BENCH all men should be taught to pay due reverence to the great.legislative council of the kingdom, and to those tribunals of justice in which the laws of the land were administered. It was for these reasons that the houset of parliament and the courts of law possessed this power ; it was for these reasons they ought to possess it» and lie was quite sure that if they, and especially the two houses of parliament, did not possess t|;iis power of vindicating themselves, it would be impossi- ble that their respective duties could be performed with dignity to themselves, or with advantage to the country." This again shews the privilege in question does not depend as has been argued in the present instance, upon the judicial authority vested in the body exercising the right of imprisonment for libel ; • Mt upon the principle of self defence as much and as correctly applicable to the legislative council as a branch of the provincial legislature as it can possibly be to either branch of the parliament of Great Britain. Besides, by the conviction before us, the legislative council have done no more than the house of commons has invariably done upon similar occasions, imprisoned the offender during the session of the legislature, and in so doing have exercised a power which during a period oi nearly forty years, has been frequently exer. cised by the assembly of this province, and rdore par* ticularly in the recent case of Monk, who, on the Slst February 1817f was committed to the common gaol during pleasure by the assembly, for a contempt and violation of its privileges, and was subsequently dis. charged by the court on the S2nd of March, the same day on which the legislature was prorogued. That these privileges have likewise been acted upon ',i FOR THE DISTRICT OF QUEBEC. ^'> ^ by other provincial legislatures, and have been recog- nized by the highest authority, may be seen by the Journals of the assembly of Jamaica, in 1808, in the case of Major General Carmichaelt and by the Jour- nals of the assembly of this province, in the case of Monkt in the year 1818, in which the cases are col- lected. "^^"^ With respect to the objections taken to the war- rant of commitment in this case, it is a sufficient an- swer to say, that it does appear the party has been convicted for a breach of the privileges of the house committing him ; the same certainty is not necessary in a commitment^ which would be requisite to support a conviction. There is no necessity in the commitment to state that the party was brought before the house in custody, was made acquainted with the charge, was called upon to answer, was present when convicted and sentence pronounced : all this must or ought to hoe preceded the commitment, but the following au- thority is conclusive on that head : — See the case of hx V. Hawkins (a) which is expressly recognized to be law, in Rex v. Taylor, (b) on which Paley (c) ob- serves, " indeed it is a general rule that if a warrant of commitment in execution, manifestly defective on the \pce qf it, shews that there has been a conviction ; the I court will not notice the defect until the conviction is [returned into court, and if the conviction be right the defects in the commitment will be cured, provided the latter shews the like offence as is stated in the fODviction," Much more might be urged upon the present occasion, but it is unnecessary, coinciding as I (a) Fort 27a {b) 7, D. & R. 3 M. C 491. [WBTictions, note(e) p. 853. 3 X (c) Paley on 511 l83i Case of D. Traceit. "* 512 1832.' Cmbof D. Tracky. CASES IN THE COURT OF KING'S BENCH do in the judgment of the court, and being decidedly of opinion that we cannot afford the relief sought for, therefore let the prisoner be remanded. Taschereau, Justice^ This question leads us to con. sider, 1. If each house of the imperial parliament has a right to imprison for libel against that body ; 2. If this right of the imperial parliament extends to both houses of the provincial legislature; and 3. If courts of justice can take cognizance of this matter. It is unquestionable that the lords and commons have inva. riably exercised this right, and although it may have been questioned by some individuals, courts of justice have recognized it in all cases. The lords and com* I mons, according to the enormity and tendency of the libel, have sometimes considered it as a contempt of | their body, sometimes as a mere breach of their pri- viieges, but in whatever light they may have consi* dered it, they have uniformly exercised the right of I punishing it. Examples without number, before and up to the time of the commonwealth, from the period | of the re'CStablishment of the monarchy to the revolu- tion in 1688, from that time to the end of the reign ofl William the third, and from the latter period to the[ latest reigns, attest that under all circumstances, either of revolution or political changes in which Englandl may have been placed, the two houses of parliamentl have always enjoyed and exercised the right of impri-l soning person8« whether members of their own bodyl or not, for breach of their privileges, either arisingl from injurious language, or writings derogatory to tbej honor and character of the house, or any of its meo-l bers, after having declared them guilty of a breach ofl their privileges. Whatever may have been the origiol FOR THE DISTRICT OF QUEBEC. 013 of this right, whether it is derived from the Aula Regis, whose privileges parliament enjoyed when both houses were united, and which they respectively preserved when they became separated into two bodies; those precedents establish the parliamentary law on this point, as well as its utility and necessity for maintain- ing the dignity and independence ofboth houses ; they also establish an acknowledgment of this right by the courts of justice and its analogy to their own powers. Although on certain occasions the house of commons may have thought it proper from circumstances of the moment, to have recourse to the ordinary tribunals, it lias not thereby renounced the right of maintaining its privileges by its own authority, and the case of Sir Francis Burdett proves this fact. These bodies have always considered themselves as sole judges of con- tempts against themselves, and as guardians of their own privileges. In fine, it is a right coeval with the constitution, it is a right which may be truly said to be part of the fundamental law of parliament. Parlia- mentary law is a part of the law of the land, and part of this lex terrce is to be found in the great charter, wherein it is declared *' that no freeman shall be im- I prisoned, unless in virtue of a judgment of his peers, Whifthe law of the land" This right so essential to the liberty of speech, to the independence of these bodies, and to tlie general safety of the state, as well as of these bodies themselves, must be considered as inherent in theip. It is upon these principles that prosecutions instituted in courts of justice in order to contest these rights, have been dismissed, and that per- sons brought before them by Iiabeas corpus, have been invariably remanded upon siglitof the return to the 1832. Case or D; Tracst. m 5H CASES IN THE COURT OF KING'S BENCH 1883. Cask of D. Tbacbt. writ, when it appeared they were committed by war rant of the speaker. This province enjoys a constiiu- tion similar to that of England, in virtue of a.particn> lar statute, it is true, to make laws for the welfare and good government of the province. Although the sta. tutes mention only this power, it does not deprive the colonial legislature of their powers which are inherent and necessary to bodies constituted to perform their duties with liberty, independence and for the general good. Each body of the colonial legislature must have in itself the elements of its own preservation and pos. sess those rights which are inherent to similar bodiesi and without which it would be constantly exposed to contempt and destruction. Then where, to what coun- try or body must it look to seek for its powers and protecting laws, if it is not to the bodies, — both houses ' of imperial parliament, — who have given the country a participation in a free, but strong and powerful con* stitution, capable of maintaining itself? If in England this power is recognized as inherent in the constitu- tion, that is to say, as a parliamentary law necessary to the independence of their bodies, as a law of the country, it exists in this country. In granting us the constitution. Great Britain has given us the laws to protect it. Although the constitutional act maintains but certain particular duties, this does not deprive the colonial legislature of the other powers which are en- joyed by the other colonies, where constitutions are only established by charter; indeed the provincialie- gislature has performed other duties inherent in the imperial parliament, and the right of doing whifch can.| not be denied to our provincial legislature, although not mentioned in the constitutional acts, and their M^ FOR THE DISTRICT OF QUEBEC, t ) 515 duties are also of Itigh importance, and required power and independence of a constitutional character to ful- fil them. These rights have been claimed and exer- cised in this country since the commencement of the constitution, and the same thing has obtained in other colonies, in Jamaica as well as elsewhere, and they have been sanctioned by the courts of justice of this country in the case of Samuel fVentworth Monk, It is true that th ' case was for a contempt of the house ; but the constitutional act does not maintain the case of contempt more thdn it does that of a simple breach of privilege, and if the court considered that the house had a right to imprison Samuel Wentworth Monk, for a contempt, notwithstanding the silence of the con- stitutional act, on the same subject, by analogy, the courts cannot deny it the right of imprisoning for a breach of privilege by the publication of a libel, since this right of noticing and protecting its own privileges is as essential as the right of judging on contempts of its own body. This power must be considered in this country as in England, as the law of the land, and which could not be yielded without the concurrence of the three branches. The legislative council,«-as well as the assembly, — being the sole judge of contempts against its own body, the guardian of its own privi- leges, it had jurisdiction in the present instance, and if it had jurisdiction, it being a body not inferior to other tribunals, we have not the power to revise its proceedings, we are not a court of appeal, froin what it may have decided. We cannot take cognizance of its privileges, it belongs ad aliud examen. The habeas corpus act in England could not certainly give to one judge alone in chambers, or to a court the power of 1632. Cabb op D. Tracey. h < 5iG 1832. Case op D. Tracey. I CASES IN THE COURT OF KING'S BENCH judging the privileges of the lords and commons, nei. ther then can the habeas . jrpus act give us the right of judging the privileges of the legislative council or assembly. The Bill of Rights which forms part of the parliamentary law says that, " the lit)erty of speech and debate, or proceedings in parliament shall not be impleaded, nor be called in question ! "iy court or other place out of parliament." This what he will do with us." This seems to have had its effect, and Warr and Walsh taking the lead, the men all came down upon deck. At this time the captain* oti coming from his cabin, sharply remonstrated with the men for their conduct, and accused fVarr of being their ringleader ; he shook his clenched hand in the captain's face, telling him that he was no gentleman, i!nd the most scandalous captain that he ever sailed \Tith. It also appears, that on Holbrook, the second officer, interfering and desiring him to desist, he called him a liar and a half-drilled soldier, and said that the rest of the officers were no better. After much more *: abusive language both to the captain and his officers, Warr was by the captain's orders placed in irons.-** This happened early in the morning of 26th May, and on the same day a court of enquiry being assembled in the cuddy, and the officers being of opinion that it became absolutely necessary for the maintenance of subordination and discipline of the ship, that fVarr should be punished, he was accordingly condemned to receive three dozen of lashes at the gangway. In the necessity of this punishment Mr. Harrison, the sur. geon, concurred, though he states that being only coDDected with the health of the ship he had no vote on the occasion. It further appears that the boat- swain's mate, whose duty it is to inflict such punish- ment, whether from sympathy towards his messmate, Y 3 . I m ! ! 5W CASES IN THE PROVINCIAL ^^^ or from iinskilfulness in the use of the instrument, only Coldstream, exhibited a mockery of punishment, and as Mr. Har- rison states, " dropped the cats upon his back," and on this the captain desired Taylor to complete the punishment, which was done accordingly. This is the case, as disclosed in the evidence, though it has been attempted on the part of the promovent to give a coloring to the transaction which does not belong to it. It has been said that the punishment was inflicted with great severity, — even with cruelty, — insomuch that the blood streamed from the back, and that the blows were not inflicted between the shoulders, as usual, but on the neck, side and loins, and as represented by Goddard, who admits he himself had been flogged, that Warr's back was, from the severity of punishmeDti like a jelly ; but this is contradicted by the surgeon, who says that no blood was drawn, nor was the skin broken, * and that in his opinion, fVarr was able to do his duty the same day. In these facts he is confirmed by Mr. Holbrook, and by Dj^er and Davenport, It has been represented that when Warr was brought on deck to be punished, the captain seized him rudely by the lips, and that previously to his being flogged, no intimation was given to the crew as to the cause of his punish* ment. On both points, however, the promovent's wit- nesses are contradicted. On the second, by Scott, the promovent's witness, and by Mr. iSo^, the third of- fleer; and on the flrst point the fact is explained away by many of the defendant's witnesses, who swear that when JF'arr was brought to the gangway his language was so abusive ard seditious, that the captain only put his hand on his mouth to prevent the continuation ofit. The promovent's advocates have relied on the testi- COURT OF VICE ADMIRALTY. sn 1832. mony of some of the crew, who swear that the beha- viour of fVarr was always respectful and obedient, and Coldstream. particularly on that of Goddardt the boatswain's mate* who is pleased to say, that Warr is a civil, honest, and quiet man, and that he never utfered a bad word. But how is this to be reconciled with the evidence of Walsh,-— 'Vi\\o appears throughout this matter to have been a co-ringleader, — for he swears that when the cap- tain said several abusive words to Warr, he made a reply to some of them, and that he persisted in speak- ing until he was threatened to be gagged. Walsh does not mention the promovent's words, but other wit- nesses supply the deficiency; for. Dyer, the sailmaker, says, that when the captain desired him to hold his peace, he told him that he had spoken in the company of gentlemen, where he, the captain durst not shew his face, and that he, had been flogged in a better ship, and by a better man, and by his, captain HaWs, master. That during this time* to use the witness's own expres- sion, Warr " bobbed his head in the captain's face." He further says, that though he had been eleven years at sea, he never saw a captain so insulted ; to the ^me effect, is the testimony of Davenport, the carpen- ter, who says that Warr*s conduct was mutinous, des- perate and outrageous. That when he was brought up to be flogged his tone and manner were unruly and (lisrespectful, and that though he, the witness, had been ten years at sea he never saw such unruly con- duct. So says Solby, the third officer, who states that Warr insultingly said to the captain, ** I have spoken to your masters on his majesty's quarter deck." And that on all occasions of dissatisfaction among the men Warr was always the spokesman. In this they are \ sn CASES IN THE PROVINCIAL 1832. corroborated by Comyn and Sewell, \\\e midshipmen, Coldstream. ^^^ first of whom says that the captain repeatedly told Warr to hold his tongue, which he refused to do, in- sisting to speak, and at the same time pushing his head, to use his words, in the captain's face ; that he never addressed the captain by the word, " Sir," and that his gestures and deportment were so menac- ing that he appeared to the witness to have thereby intended to provoke the captain to some act of vio- lence. The counsel for the promovent have called in ques- tion the right of the master under any circumstances of misbehaviour to inflict so public an act of castiga- tion on a seaman ; but the cases of the Agincourt and Lowther Castle, (a) and that of the IngHs East India. man, to which my attention has been called, clearly establish the right to punish in the mode proved to have been practised on this occasion, the master thereby assuming on himself the responsibility which belongs to the punishment, being necessary, fur the due maintenance of subordination and discipline, and that it was applied with becoming moderation. The same maritime principle has been adopted by a neigh- bouring commercial and enlightened nation, justly boasting of the freedom of its laws and institutions. Indeed, it is an arbitrary power which dire necessity sanctions, and the execution of which necessity and moderation alone can justify. On the whole I have | no hesitation in saying that this individual, by his in- fluence on the minds of the crew, led them to an act| of disobedience and mutiny. The mutiny, it is truei (a) I Hagniard't Adm. R 271-384. COURT OF VICE ADMIRALTY. J. 523 was not carried so far as to lay violent hands on their 1^32. commanding officer, or to put him into confinement ; coldstbkam or to carry away the ship ; yet, considering that fVarr excited the men to come down from tlie yard in a body in disobedience to the orders of the captain ; that on the captain's saying he would shoot the first man who came down on deck, IVarr, scoffingly said, " and pray who will shoot the second ?* I cannot, coupled with the whole of his language and behaviour, bat consider him as a mover of sedition, having a di-' rect tendency to subvert the good order and discipline of the ship. His punishment of course became abso- lutely necessary for the preservation of the whole concern. I am also of opinion that it was in no de- gree excessive under the circumstances which called for it. The conduct of the captain is admitted by all the witnesses, excepting on this occasion, and that even by Walsh, to have been mild and humane, and \"\\ his going down to visit fflarr, when in irons, and say- ing to him, " Warr, I never confine a man without seeing that he has a convenient place to lay down upon," is to me a convincing proof of his reluctance to punish this individual, and a desire to forgive him if he had shewed the least contrition' for his conduct. In respect to the other defendant, it must be recol- lected, that he was the first officer of the Coldstream^ which had a crew of about sixty men, and that on him devolved the active duties of the ship, and the enforc- ing of all lawful commands. Such a person must often incur the odium of the crew, and I am not sur- prized that his character should be represented as arbitrary, and his orders unreasonable ; however, it is not for the crew to pass judgment on their superior 5^4, 183S. >C0U>»TRBAH. CASES m THE COURT OF KING'S BENCH officer, and to rise up against his authority. Nor am I at all inclined to believe, contrary to the weight and respectability of the witnesses in his favor, that he was in a state of intoxication on the night of the Q5th of May, or that such is the habit of his life. I have pi. tientiy gone through the evidence on both sides, and the result is that I decree this suit to be dismissed and condemn the promovent to pay expenses. Ussher and Aylwin, for the promovent. — Black for the respondents. SOth Octr. 1833. Oliva against Boissonnault. riveii^'flve i HIS was an action of damages by the plaintiff against always been thg defendant, for obstructing the river St, Thomas by puViio hij{b- booms and otherwise, and thereby stopping certain JSendes *" ^ogs of timber in their descent towards the St. Law. of the public pence from the land of the i>laintifr,— which lies on the domain ; and . „ mt • • /. i » . floatable ri- same river St. Thomas, above that of the defendant,— III5ed?n Ae »"^ t^"* interrupting the free passage of the river. f"f ^Wu"" The defendant averred that the river St. Thomas was In both the . . , . nnbiichavea not a naugabk rwer, and that the plaintiff and othersi tSeforSit- had therefore no legal right to use the waters of that "/rilST Md^ '*^®'' ^°^ floating logs tc the St. Lawrence, or other the pronrie- similar purposes. ton of the ad- joinioff banks cannot use the beds of snoh rivers to the detrin&ent of soon serritnde. FOR THE DISTRICT OF QUEBEC. 5^ — Black for Sewell, Ch. J. It may, I think, be received as a general principle, that the public have a right to all the advantages, suited to public purposes, which the natural state of a river affords, and that no change can be effected in the state and condition of a river^ which does afford such advantages, unless some greater degree of convenience is thereby obtained for the pub« lie (a) Where there is a small stream of running wa-* ter,— coKr* d*eau, — the owners of the land over which it flows, have certainly a right to make use of so much of it as is necessary for their convenience, during its passage. But even in such streams, the law carefully protects the rights of all who may be benefited by the water which flows in theni. The quantity of water in such cases is in fact so small, that it can only be ap- plied to the ordinary purposes of life. But whoever does so apply it, is bound to do it in a manner which is not inconsistent with the rights of other owners of lands over which the stream naturally flows. A par- tial diminution of its quantity, if reasonable and neces- sary, is permitted ; but he who avails himself of this permission, in the exercise of his right, must not injure or annoy his neighbour, by causing it to flow back upon his land, nor will'the law allow him to direct the water from its course, or to detain it unreasonably. ** Si le " propri6taire d'un heritage," says Touliier,(^b') " qui " traverse un courant d*eau, pouvait d6tourner ce cou- " rant, ou en retenir toutes les eaux au prejudice du '* fonds inf(6rieur, le propri^taire sup^rieur aurait' le '' mSme droit. La loi done s'y oppose par un motif d.'6- " quit6} et en defendant k Pun et k I'autre de d^tourner 1892. Omva AND BOISSON- NAULT. (a) 2 Starkie. Th« case of Lord Orwrenor. (b) 3 ToulUer, p. 90* 526 CASES IN THE COURT OF KING'S BENCH 1832. Oliva AND BolSSON- NAVLT, i -• " le cours de Teau, protege egalement leurs proprietes " par la limitation meme qu'elle y apporte. lis peiivent *' user de I'eau pendant qu'elle traverse leur heritagei " I'v faire circuler comme bon leur senable, mais a la '* charge de la rendre, a la sortie de leurs fonds, a son " cours ordinaire.** (a) The maxim therefore, " «c utere tuo ut alienum non Icedas,** applies in its full force to the enjoyment of brooks and rivulets hi/ indU viduals, and d Jbrtiori must be equally applicable to the enjoyment of rivers, in which the volume of water is so great, as not only to benefit individuals, but to afford additional advantages, which benefit the public at large. Accordingly, in the law of France, naviga- ble rivers have always been regarded as public high< ways and as such dependencies of the public do- main ; (6) and floatable rivers (rivieres flottables, as they are there termed) have been viewed in the same light, (c) In every river which is navigable for boats or larger vessels, and in every river which is floatable, that is to say, capable of floating logs or rafts, (d) the public as in England (e) and in America, (^f) have an easement or legal servitude, viz. a right of passage as in a pQblic highway, and consequently the proprietors of the adjoining banks, be they who they may, can neither use the bed or the water of such, rivers, (in what regards the public) in any way which is incon* sistent with the easement to which the public are so (a) 2 Henry's, p. 999 to 1002. (ft) I Fevre de la Planche, p. 15. (c) Ordonnances des Eaaz, &c. tit. 87. de la Police, Ste. dee Eaux, arts. 44. 45. and 46. Phndectea Franeaise, Tol. 5. p. 108. Kent's Com. vol. S. p. 342. Toul- lier, vol. 3. p. 99, No. 145. (. 2nde. art 6 532 .jr CASES DETERMINED 1832; CUVIIXIER AND AVLWJN. vember 1816 and the SOth of July 1821 ; and on the 23d June 1824, he obtained an order of Council, that he should be permitted to do so, without prejudice to the question, whether the appeal was competent or not, upon giving security in the sum of £100 to pro. secute the p.;/peal within a year and a day from the date of the order, and to stand the determination, in case the appeal should be dismissed. In December 1826» the respondent presented his petition to the King in council, that ths appellant's petition should be dismissed with costs. This petition was heard be< fore the committee for hearing plantation appeals, on the dOth of January and 2d February 1827, when their lordships ordered that cases should be printed on both sides, confined to the question of the competency of appeal. Cases were accordingly prepared, and the petition came on now for hearing. ^ CoUman, (K, C.^ for the petitioner : The right of the King in council to hear and determine appeals from the colonial courts, on every subject, and of every amount in Vti ue, is one of the mosc ancient and un* doubted prerogatives of the Crown.(a) No pierogative right of His Majesty, much less one which is calcii* lated, as this is, for the relief and protectioii of the subject in .-'jitant countries, can be abridged or abro* gated, except by the most direct and express words of an act of the general legislature. The King hiitiself cannot derogate from his own right, or refuse to ex- ercise his own prerogative for the hsoefit of the subject. Lord Mansfield t in thr case of Hall v. Campbell, states it as a clear proposition, '* that if the King has a power tvt .tiiuv (a) Black. Conn. vol. lit, book lit. o«p. 5, p. 881. BEFORE THE PRIVY COUNCIL. "to alter the oUi, and introduce new laws, in a con< "quered country, this legislation being subordinate " to his own authority in parliament, he cannot make "any new change contrary to fundamental princi* " ples."(a} One of those fundamental principles has always been understood to be, the right of all who are injured by the deterniination of the courts in His Ma- jesty's colonies, to appeal to him in his council for redress. It is true, that in the instructions to the go- vernors of plantations there is a limit put upon their power to allow appeals in causes where the amount in dispute is under a certain value ; but in all those instruc- tions there is an express reservation of lie power of the King himself, in council, to admit appeals upon any terms, and for any value. As far as regards the province of Lower Canada, there are no words in the English statute of the 31st Geo. the III. which take away from the subject the right of appeal, to which he is entitled by the common law of England. The words of the provincial statute of the d4>th Geo. III. are cer- tainly more extensive ; but in that also there are ex- press provisoes, that nothing theiein contained should derogate from the rights of the Crown, either to con- stitute other courts of justice, or from any other right or prerogative of the Crown whatsoever. It would, indeed, be beyor J the power of a provincial Legisla- ture to take away the rights of His Majesty to receive appeals, even if such were their intention *, and if such a construction were to be put upon this provincial act. it would be inconsistent with the 31st Geo. the III. which has been always regarded as the constitutional charter of the Canadas. (a) Cowper, I^ 209. 533 1832. CUVILLIBR AND Aylwin. 534, ai- CASES DETERMINED 1832. CUTILLIER AND Lushingtorit (Dr.) and McDougall, appeared for the respondents. Master of the Rolls : It is not necessary to hear counsel on the other side. The King has no power to deprivd the subject of any of his rights ; but the King, acting with the other branches of the legisla- ture, as one of the branches of the legislature has the power of depriving any of his subjects, in any of th^ countries under his dominion, of any of his rights.— This petition must therefore be dismissed. This caae is reported in Knapp*s reports of cases before the Privy Coun- cil, p. 72, Yol. 2. Before the iostitution of the fore{|^oiii(|[ appeal, i.he opinion of the late Lord Chancellor, then Mr. Brougham, was taken upon the case, and whether under the facts therein stated, notwithstanding the statute of Lower Caoada establishing a limitation of the right of appeal as above mentioned, Mr, Cuvillier might not by petition to His Majesty in his privy council, ob< tain the benefit of an appeal from the said judgment of the provincial court of appeals of the 30th of July 1821. Opinion. I am dearly of opinion that no such limitation is valid to bar an appeal to the King in conncil. By law his right of appeal can only be taken from the subject by a new law. I should greatly doubt if any colonial act though allowed by the Croum, if unconfirmed by act of parliament, has power to take from the subject this right. But a colonial act never allowed, can clearly have no effect. Even in cases where a limitation h^ been validly introduced by law, thr privy council have been in the practice of allowin)^ appeals almost as a matter of course; Such petitions are termed petition* of doleance, and I believe never refused, although the law may have ex- cluded appeals under a certain amount or after a certain time. ■> Lincoln's Inn, 21st June 1823. Hbnrt Brougham. It would perhaps not be found inconsistent with the foregoing decision that an appeal might be allowed to His Majesty in his privy council, where the sum in dispute was less than ^500 sterling, and where more than a year and a da3r had elapsed from the judgment in appeal which one of the |mr- ties is desirous of bringing under the revision of His Majesty in his privy council. It would seem that where the question arising upon the appeal from a sentence of a colonial court to His Majesty in his council, is one of ordinary municipal regulation, relating to the credibility or competency of particular witnesses, or to the weight of evidence, or to the regularity in point of form of the proceedings in the cause, or generally wherein the grievance complained of is applicable to the party appeflant and confined to bis cause, then the limitation of the right of appeal to certain cases in amount, would bo followed bjr His Majesty in his privy council. And this not merely because the limitation in question was established by the colonial legisUture, but because such limitation is convenient and sanctioned by lontr \ IT Bbougbah. BEFORE THE PRIVY COUNCIL. J QOgfe, and the court of the Kin^ id coancil itself. Such a limitation hat itul times existed in relation to appeals from the French Islands of Ouem- Hj, &c. and in the old British colonies ; and as to the latter it would pro- bably be found that the limitation had been extended t«i them by analoffy, from the practice which had long obtained as to the former, and to be traced to the power of entertaining^ or rejectinff appeals from the colonies, aeeordiog^ to a certain known practice which the supreme court of appel- late jurisdictim. has at all times exercised, and which, bein;; the practice of tut court, is the law of it. It is difficnlt to conceive any other reasoa why appeals from interlocutors rendered in the courts of the French Islands, and ot the colonies, have been universally disallowed by the privy council, whilst appeals from interlocutors rendered in the Scotch courts have, in the cases permitted by law, been allowed by the house of lords. Appeals from Guernsey, &c. to the King; in council, have in all inses exceeding £300 been allowed, and a like rule obtained in all the British colo- aiei. In this view our provincial statute then in enacting that appeals to the Kiii^ in council shall be only in cases above jE500, cannot be said to bare abridged, or attempted' to abridge the appellate jurisdiction of that coart. At the same time that such, it is apprehended, is the general rule, there is a class of cases which may perhaps, not be comprised within it.— It seems to be essential to the maintenance of the imperium of a metropo* litan state over its subordinate possessions, that the judicial pre-eminence ihoald reside in the metropolitan state, and, therefore, that the right of jud^ng in the last resort, as well in criminal as in civil matters arising in the colony, or subordinate state, should be held by the parent or metropoli- tan state: otherwise it would be in the power of the subordinate state, by jadicial decisions, to undermine and ultimately to absorb the authority of the metropolitan state. It is in questions touching the relations, however remote, between the two states, — and the operation of the laws of the one within the limits of the other, and concerning in any way, however indi- rectly, the sovereignty of the one over the other, — that the acts of the colonial legislatures, must be interpreted, or if need be, controlled by the aathority of the metropolitan state. And with respect to this class of cases, the King in council could and ought, it is conceived, to entertain appeals, — however small the sum in controversy might be, — if the cases were such as called for the interposition of the judicial authority. Thus, in the case of a decision in the colonial courts concerning the operation of the English bankrupt laws within the colonies : or, the s^itute of George the-second, enacting that lands in the colonies should be seized and taken in execution as chattels, and that examinations taken before lord mayors of towns in Great Britain, shall in <*a&es be received as evidence in the colonies, — or toaching the prerogativL', the ecclesiastical establishment, or connected in any other way with public laws, — appeals would probably be entertained by the King in council from the colonies. The above distinction appears snf- ficiently clear, and according to it the public convenience is consulted with- out any infringement of the right of the parent state. The following oases may be consulted Christian v. Corren, 1 Peere WiU li«m»,p. 329. Fryer v. Bernard, 2 Peere Williams, p. 261. Sel. Ca. Ch. 5. 9 Mod. 124. No words in a grant can deprive a subject of his right to ippeal, much less if the grant be sl!ent. A 4 585 1832. CUVILLIER AND Aylwin. 536 CASES IN THE PROVINCIAL I > ->■. 30th April, 1833. The court wilt quash an attachment by wi it of arret simple where- by any other person than the defendant in an action is divested of possession of property. On Appeal from Quebec. Robert Wood Appellant, and Horatio Gates ei ah Respondents. I HE respondents in this case procecuted an action of debt on a bond, and obtained a writ of arret simple, or saisie conservatoire, by virtue whereof an attach. nient was made in the hands of the appellant of a certain quantity of timber alleged to belong to the de- fendant. The sheriff seized the timber, dispossessed the appellant of it, and appointed a gardien for its safe custody, A motion was made in the court of King's Bench to qgash the seizure, which was disaU Jowed, and thereupon this appeal was instituted. Reid, Ch. J. The arret simple, or saisie conserva- toire, although not in general use, yet when made upon property in the hands of the debtor, may be executed in such way as to divest him of the posses- sion of that property ; the law in certain cases gives the creditor a right, even before judgment, thus to attach his debtor's property ; but when the atlach- ment is made in the hands of a third party, — as the debtor of the debtor, or as holding property belong- ing to him, — there cannot be a corporeal seizure of the thing attached, nor can the tiers saisi be dispossessed of it, inasmuch as he is not the personal debtor of the party seizing, nor liable to any condemnation until he has made his declaration (or refused to do it) of what he owes, or has in his hands, belonging to the - COURT OF APPEALS. debtor, and even then he is considered only as the depositary of the thing seized, subject to the order of the court, by which only a personal liability attaches on the tiers saisi. The attachment of property en main tierce^ is a mere notification or denunciation of the right or claim of the creditor upon the property of his debtor in the hands of a third person ; — it is com- pared by Pigeau to an opposition made in the hands of such third person, so as to prevent his disposing of it to the injury of the creditor j — he considers it more an acte de conservation qu'une contrainie, and conse- quently neither the same formality is used, nor the same (Constraint exercised, as when enforced upon property in the hands of the debtor ; nor can the pos- session of a third party be molested until his liability as a debtor has been ascertained. This case has more the appearance of a saisie'Cxecution than an act merely conservatory, or saisie-arret, in the hands of a third party : here is a commandement de paj/er, — the whole debt of the plaintiffs,— the contrainte or actual seizure of the timber, and the dispossessing the appellant thereof by the appointment of a gardieut proceedings which could have been warranted only on the saisie-execuHon, and Which Bourjon seems to consider as a nullity under the saisie-arret :— he says, " Le cr^ancier ne peut faire " saisir des effets, des meubles, des hardes, qui seroi- " ent entre les mains d'un tiers, ce serait une espece " de saisie>execution, et non saisie-arret, et par conse- " quence il y aurait nullity." Although the injury here may not have been great, yet it is the principle to which we have to look, and it must be held un- juBtifiable, that the property of any individual, who is not a debtor, or wrong doer, nor charged as such, 5S7 18^3. Wood AND Gates. i t ..i •JO H tilt t»t ^38 1833. Wood AMD Oatw. CASES IN THE PROVINCIAL should on the suggestion of another be locked up, or put into the hands of a bailiff under colour of a writ of sahle-arret. In such cases the injury may be great, but the remedy uncertain. < The appellant's motion for setting aside the attach* ment is therefore granted.* £JjfC.£i. On Appeal prom Quebbc. -sea Job Moor and Another Appellants. and Joseph Dtke and Another Respondents. 30th April, 1833. A sells a -l-N October 1830, the appellants sold to the respond- SmWto B a ®"** * quantity of red pine timber contained in two part of the ' lafts, at 7id. per foot, on the following terms of pay* {"paid'onde- ment. One fourth of the amount to be paid on the livery of the delivery of the timber, one fourth on the first of timber. A *' makes a deiu April, oue fourth on the first of May, and the remain- omits''to pay i"S fourth on the first of June then following. On any part of ^jje fifth and 6th of November 1830, the measurement the price, therenpon A and delivery of the timber was effected, when the rafts briogfs an ac- tion to rescind the contract of sale and by process of «at«ie revendication attaches the > timber. Held that this action could be maintained and that the timber so far as it could be identified should be restored to A. * Lee v. Taylor. Per curiam. If an attachment be issued to seize pro* perty in the hands of A and under the writ the sheriff attaches property in the hands of B the seisure is null propter defectum auctoritatUt and the court will restore the property to B without enquiring into bis right or title io it. B. R. Q. 181 1, No. 518. ! J AT COURT OF APPEALS. J were found to contain 10 imprisoned by him for three years, and then discharged without trial. Calvert submitted a memorial to Lord North and Mr. Fox^ and npon a change of Ministry, Lord Sidney ; these memorial were published with a statement of the case in London in 1774, dedicated to His Majesty. These memorials all contain a prayer for an order upon general Haldimand to proceed direct Mi i'.r\ (a) 1 Smith's History of New York, 5. ;: FOR THE DISTRICT OF QUEBEC. to Entrland to prevent his returning to Switzerland, of which country he was a native, and the reason assigned for so doing was, that he could not be sued in the province of Quebec, so long as he continued governor! his high office placing him above the jurisdiction of the courts of the province, and because during his re- sidence therein he was beyond the reach of the King's courts at Westminster Hall. In the appendix to a work published in London in 1776, intituled an ac- count of the proceedings of the British and other pro- testant inhabitants of Quebec in North America, to obtain a House of Assembly, will be found some re- marks on the illegal arrest of Mr. Thomas Walker, by Gf, A, Carlton* s warrant in 1775. The writer is sup- sed to be Mr. Mazeres, formerly a 'torney general of the province, after citing authorities of imprisoning by his own warrant, to shew that the power is with- held from thd King himself, and for this reason, that if he was to do wrong the injured party would have no action against him, observes that the same law subsists in the American provinces with respect to the power of the governor, and for the same reason he cannot imprison any of the King's subjects under his govern- ment by his own warrant, or order of commitment, because he cannot be sued and compelled to pay dam- ages to the party whom he migl i thereby have injared, in the courts of the province of which he is the gover- nor. These cases are of course not cited as authority, but as written reason, and in the absence of authority as historical facts. But the judgment of Lord Mans- field in the case of Fabrigas v. Mosiyn,(^a) is conclusive upon this question ; the action was for banishment and false imprisonment. A verdict and judgment was («> Coii>p. 161. 11 SUtoTrials. 547 1833. Hastbt «. Lord Atuirr. 548 CASES IN THE COURT OF KING'S BENCH 1833. Uabtit V. Atlmbiu given against the defendant for £3,000 damages; upon the refusal of the common pleas to grant a new trial general Mostyn resorted to a writ of error, the case was accordingly heard before Lord Mansfield in the King's bench, and the judgment of the common pleas affirmed. One of the grounds of exception to the judgment was, that general Mostyn was governor of Minorca, and therefore, for no injury whatsoever could any evidence be heard, and that no action could lie against him. In disposing of this objection Lord MarH' field said that the first point he should consider was the sacreuiiesB of the governor's persoi at-tl declared that an action if it did not lie in England against any other person for injuries committed by them in an English colony, that is beyond seas, should emphaticituy lie against the governor; he proceeded in these words, ** It is truly said that a governor is in the nature of a viceroy, and of necessity part of the privile:,f!« c f the King are communicated to him during the time of his government; no criminal prosecution lies against him, and no civil action will lie against him, because what would the consequence be: why, if a civil action was brought against him and a judgment obtained for dam* ages, he might be taken up and put into prison on a capias; and therefore, locally, during the time of his government, the court in the island,—- Minorca,— can not hold pleas against him." It is not considered tliat the governor of Canada is above the law, the Kirif^ himself neither has or pretends to any such privilege; the imperial ** m voh sic jubeo stet pro raiione volm- taSt* neither is or ought to be the maxim of an En* glish King or of his representative. A governor of Canada cannot be guilty of any act oi either pubfic or FOR THE DISTRICT OF QUEBEC. Si>9 private oppression with impunity, his removal and punishment would follow as a matter of course, any such dereliction from the path of his duty. It is, how- ever, of the very :ssence of the British constitution, for the sake of unanimity, strength and despatch, that such powers as have been enumerated, should be en* trusted in a single hand. It is a principle that in the exercise of lawful prerogative the King is and ought to be absolute, there is no legal authority that can either delay or resist him ; so in the exercise of his delegated authority, a governor is and must be absolute, nor can any power within the colony delay or resist him. This doctrine it is contended, is neither dangerous or in<- consistent with English ideas of liberty ; civil liberty as understood under the British constitution, consists jo protecting individuals by the united force of society, that protection cannot be afforded nor society maiii' tained without obedience to some one individual in- vested with sovereign power, whose person must be sacred, and that individual in this country is His Ma- jesty's representative. Aherrtt for the plaintiff.-— If this plea can be main- tained there exists in this community, a person not alienable to the laws, and possessing powers move than dictatorial, claiming not only the prerogatives of the King, his master, but privileges greater than those of the Monarch. We every day hear the govern0r called the King's representative, and the defendant in this cause has allowed himself to be led away by this ; nothing is more inaccurate than this expression in the sense in which it is used. " Constitutionally the King is the founder of all office, honour and pov;er, and each officer of the government, deriving his authority from 1833. HABVsir V. LOBD ; !i ^50 CASES IN THE CDURT OF KING'S BENCH 1833. Hartev V. Lord AVuniB. the Kingt represents tl.c King in the exercise of his legal power, — this is as true of the highest as of the lowest officer:!, — it is as true of a constable as it is of the lord chaicellor of England. In no other sense can it rightly be applied to the governor of a colony. None of the particular attributes of sovereignty, under the constitutional laws of England, are applicable to that officer. The King can do no wrong. Is that true of a provincial governor? his powers are originally in* herent and perpetual ; that of a governor is derivative, temporary and dependent upon the will of him who conferred it. Constitutionally the king is answerable to God only for his acts. The governor is answera. ble to his royal master. The king is amenable to no human tribunal for the discretion which he exercises in the execution of the functions of his public dutj-. The governor is answerable to the king and to his courts for every act by him performed j the privileges of the king are personal and cannot be delegated ; the governor is but the minister or servant of the king, and cannot pretend to any privilege beyond his personal liberty. The maxim that the king can do no wrong is a necessary and fundamental principle of the English constitution, meaning only, that in the first place, whatever may be amiss in the conduct of public affairs, is not chargeable on the king ; nor is he, but his ministers, accountable for it to the people . t^nd secondly, that the prerogative of the crown extends not to do any injury, for being created for the benefit of the people it cannot be exercised to their prejudice. The subject in England has recourse against the king if any of his private rights are invaded by petition of right or monatrans de droit, upon which execution may T FOR THE DISTRICT OF QUEBEC. issue, (a) Shall then a governor of a province claim exemption from a process to which bis royal master is amenable ? Shall he who shines with a borrowed light, claim privileges greater than those belonging to him from whom he derives his temporary grandeur ? This question must be decided by the kx loci, where the ground of action arose ; in this instance it is the old law of France, and it may be asked if the king of France could not have been brought before the courts of justice in Lower Canada ? It appears that he could, and no where is this more clearly stated than in the Discours sur Vitude de la Procedure in the preface to the Procedure Civile duChdtelet de Paris, 40 and 41. *' Notre gouvernement a toujours regard6 comme une de ses principales obligations de De pas g^ner I'exercice des actions qu'un citoyen croit avoir droit de diriger contre un autre : de sorte que I'on pent en France traduire en justice sans aucune permission, lesgens lesplus eleves, meme le souverain, lorsqu'on pretend ses droits portes audela de leurs homes legitimes par ceux qu'il a charges d'y veiller." Thus, not only was the king in France answerable for the wrongs done to his subjects of a private natiu'e, but also, for those committed by his servants when they exceeded the powers legally vested in him. An opinion of Lord Mansfield in the case of Mostyn v. Fabrigas has been cited, " that locally during his go- vernment no action will lie against a governor ; be- cause upon the process he would be subject to impri- sonment i" such may be the law in England, and such appears to have been the law at that time in Minorca, 551 1833. Habvit V. Lord Aylmer. 1^ IN (a) Chitty, 348.9. 4 C IMJ CASES IN THE COURT OF KING'S BENCH 1833. Haryey V. Lord Ayluer. where the ground of action in the case above alluded to originated ; but such is not the law in this pro* vince, and it does not here follow as a matter of course, that upon process the party is subject to im< prisonment, cessante causa cessat effectus, that being the only difficulty in the way, and that diffic^ilty being removed, there is no disability incapacitating the plain. tiff from seeking redress here ; and further, as the present action is a purely personal action arising from acts in no way connected with the public character of the defendant} it is clearly maintainable in this coun* -ry, and the question of prerogative or not prerogative cannot, strictly speaking, be taken notice of by the court. The exception ought to be dismissed ; should it be otherwise, I fear the public, with too much truth, will apply the lines of the Roman satyrist, on the drunken Marius, to the present occasion ; and they will say of the defendant in this cause, (for set- ting up such a defence) as was formerly said of bin), hie est damnatus inani judicio, and if this court main- tains the present exception, well may the colonists exclaim, At tu victria: provincia ploris. And then in- deed will I begin to believe that which was said of | the Roman colonies, viz. ; that a colony is better go- verned when the metropolitan state is subject to a despotic government, than when under a free go- vernment, for each governor of a province being a petty tyrant, the colonists cannot obtain a sufficiently! speedy relief by the tardy forms required under a free government ; whereas the despot, jealous of others, upon the first complaint, removes the imitator, and the only hope a governor has under such circum* FOR THE DISTRICT OF QUEBEC. 553 stances, of maintaining his post, is to secure the aiFec- tions of the people. Thus far on the merits, now ss to form : this plea ought to be dismissed, 1. Because the defendant has not produced or fyled his commission, and the de- fendant in this cause is liable to the same rules of pleading as any other defendant ; and if he sets forth in his plea a written instrument, he must produce it. Now, as to the sacredness of the defendant's person a governor, if it were true that the law makes him that sacred character, he must plead it, and set forth bis commission as special matter of justification, be- cause prima facie the court has jurisdiction, and if the defendant in this cause has not produced and fyled his commission, the same rules apply to hini as toothers, de non appareniibus et de non existentibus, idem est jus. 2. Because in every plea to the juris- diction, the party pleading must shew a more proper and a more sufficient jurisdiction. Bowen, in reply. It has been admitted that the defendant is privileged from arrest, and that his per- son is sacred ; now, in admitting this, the plaintiff admits the truth of my proposition ; for if his person is sacred, he can with impunity resist the process of the court, and is therefore not subject to its jurisdic- tion. It has been said, however, that according to my statement the defendant possesses powers and pri- vileges which the king himself does not possess, and therefore cannot delegate, and that by Magna Charta, the petition of right is secured to the subject. It is true that in England the subject is entitled to a peti- tion of right, but it is not true in this country, nor is there any proceeding here in any way analagous to 1833. Harvky V. Lord Ayuier. Ill 554, CASES IN THE COURT OF KING'S BENCH l88.^ HAKTBf «. Lord Atuicb. the petition of right by which a governor can be sue It is of the very essence of the petition of right, th it should contain nothing of a mandatory nature, ai the writ of execution, if necessary, is issued, direct to his majesty's treasurer and chamberlains, who they neglect to satisfy the judgment out of the fii monies that come into their bands, are )ield perse ally liable, for if the court had not the power of ( forcing the judgment, the petition of right would perfectly useless. It is contended that this action successfully prosecuted to judgment, would not gi a right of capias ad satisfaciendum to the plaintiff, would certainly give a right of' seizing the defendan effects, who could resist the execution of the judgmc with impunity, because the court cannot comi him for contempt. The citations from the Fren law are not binding here, because it is a question prerogative to be decided by the law of Englai As a part of Lord Mansfield's judgment in case of Fahrigas v. Mostyn, has been used as argument against me, I mean that part of it wh alludes to the omission of general Mostyn*s cour in not filing his commission in support of the a gation, that being governor of Minorca, he was answerable for any injury done by him in that pacity : I shall' explain the difference between th( Lord Mansfield was undoubtedly right in his v of that point, the King's courts in England co not know that general Mostyn had been governoi Minorca, except by the production of his commiss: for the action was not brought within the limits of government : the situation of the courts in the cases is not at all similar, for the court here is bo 1 KING'S BENCH FOR THE DISTRICT OF QUEBEC. to know and obey the governor of the province. The constitutional checks upon the power of governors of colonies, have hitherto proved sufficient, and when it is considered that upon their recall, governors are no longer protected from the process of the King's courts, but are answerable not only for their debts, but also for any abuse of their delegated authority, the appre^ hension that might be entertained from entrusting tbem with such powers as I have contended they possess, and of investing them with such important privileges, must be entirely removed; any slight inconvenience that an individual may suffer is much more than recom- pensed by the public peace and security of government which is found under our present constitution. Sewell, Ch. J.— -If there were any room to doubt the validity of the exception which has been filed, on the part of the defendant, we should certainly be dis- posed to put this case en delibere, but as there is none, and the question submitted has received a judicial ilecision on several occasions, and has been for some tinib pending before us, we think it right to deliver our opinion without further delay. It is not for courts to enquire whether the rule of law in any particular in- stance be or be not wise or politic, it is sufficient for them that such is the law, and as they find it so they are bound to declare it. The question which we are now required to decide is singly this: whether an ac- tion can be maintained against the governor of a pro- vince, while he is in the administration of the govern- ment, as the representative of the sovereign ? and we mait say that an action cannot be so maintained, because we are satisfied that such is the law. The decision on the case of Fabrigas and Mostyn is well 555 1883. Hahtbt V. Lord V i 656 CASES IN THE COURT OF KING'S BENCH 1888. Haiitit V. Lord Arumu knoMrn, and is sufficient even alone to determine this question. Fabrigas, for a civil injury done to him by Mostynt at Minorca, while the latter was governor of that island, instituted an action of damages in England against Mostyn, and in his defence it was contended that Fabrigas ought to have prosecuted his suit in Minorca, but it was answered that, Moslyn being the governor, no action against him could be sustained in Minorca, and on this ground the action instituted in England was maintained. In deliver- ing the judgment of the court of King's bench, Lord Man^eld declared the law upon the question before us in the following explicit terms : *< It is truly said, '* that a governor is in the nature of a viceroy, and '* therefore, locally during his government, no civil or " criminal action will lie against him."(a) In the case of Van Dam against Crosby, governor of the late pro- vince of New York, cited at the bar, this principle was recognized by the supreme court of that province, and the cross action instituted by Van Dam, in con- sequence thereof, failed. So in the case of the cele* brated Napper Tandy v. the Earl of Westmorelandt which was instituted in the court of exchequer of Ire- land, in the year 1792. The Earl being then the Lord lieutenant, was summoned by writ of subpoena to ap- pear and answer. The attorney general moved that their lordships would be pleased to quash the subpoena, and prohibit further process. Butler, of counsel for the plaintiff, in answer, contended,— as it has here been contended,— that the court had no judicial cogni- zance : that the Earl of Westmoreland was lord lieu- tenant of the kingdom. The court, however were of (a) Cowpcr'jB Reports, p. 17S. FOR THE DISTRICT OF QUEBEC. opinion that they held the fullest judicial knowledge of his excellency's authority as lord lieutenant of Ire- land, in a degree which made it absurd to doubt. — They saw him in parliament acknowledged by both bouses; they saw him ministering in all the functions of His Majesty's representative, and acknowledged by the whole kingdom to be such. " Then," said the court, ** where in there a shadow of doubt,— there can " be none, — and knowing and seeing all this de facto '* as we do, we have nothing to do with speculations " dejure," The motion of the attorney general, on ac- count of its being the last day of term, was continued to the next term, but it was ordered that no process should issue in the mean time against the Earl of fVestmore* land, and here the matter dropped. Wc are informed in a way which leaves no room to doubt, that a deci- sion similar in its effect to those which have been cited, has lately been given in a neighbouring province, but as the particulars of the case are imperfectly known, we can make no further use of it at present>(a) Upon the whole, we are of opinion that the excep- tion must be maintained and the action dismissed quant a present. Kerr and Bowen, Justices, expressed their assent to this opinion. Panet, Justice. — I do not concur with my brethren on the bench, not being fully prepared at this moment to pronounce an opinion upon the question which has been submitted to the court. , , (a) The oa*e here alluded to was that of tlio Honble. Mr. Black, a meiv ebaat in the province of New K-unswick, and the senior member of the Council. He was, a few years since, the President of that province, and when hi became President, two or more actions, in which he was the de- fendant, were pending in the Supreme court. These actions were all sus- pended by that court, and during the period of his presidency no proceed- iDgs were bad in them. 557 1833. Hartst V. Lord AVUfBR. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 J4 1^ Uj ^^" ■■■ ■^ lii 12.2 » li& |2|0 ■IMU Sciences Corpmalion 23 WIST MAIN STMIV WnSTIIt,N.Y. MSM (716)I72-4S03 .«^% C5S CASES IN THE PROVINCIAL J ; ! I ; . • ■..' ■I. On Appeal from Montreal. Hector Russel and others Appellants. and William Field Respondent, S9th July, 1833. Litispendance jfxN action was instituted by the appellants against the jtate is^ino bar Respondent, to wiiich was pleaded the pendency of an- IcKtit'ited In ®^^®^ *"^* between the same parties, and for the same (>*«» province, cause ofaction, in the state of Vermont c-— This plea was maintained by the judgment of the court below, which gave rise to this appeal. The grounds upon which this judgment was im- pugned were, that whether such respect should be shewn to litispendance in a foreign ccuntry, as to suf. fer it to bar or suspend a suit, is a question of public law, and so must be decided by the laws of England, as a paramount authority throughout the empire.— According to the principles of English jurisprudence, litispendance in a foreign country, or even in one of the colonies, could not bie pleaded in any way to an action in the courts of Westminster Hall, (a) Upon the supposition that this were a case to be governed by the practice of the French courts, litispendance in a fo- reign country could not be pleaded, as France was distinguished from most of the states of Europe by her shewing no regard for foreign jurisdiction, (b) (a) 3 Atkyns, 687. rope, L 07.— Ord. 1629. art. 121 10. Emengon de* Auarancet, 1. 125. (&) Kluber Droits des fens moderne de I'Ea* Merlin, Qu. de Dr )roit t; Jugement, § 14> T COURT OF APtZALS. , Viewing the plea of litispendance abr9ad, in its true light, as ascertained by force of obh'gation, but ex co. miiate, the basis of that comity, which is reciprocity, would fail in the present instance, as in the state of Vermont, and the other United states of America, litispendance in a foreign country, or even in a sister state, cannot be pleaded to an action brought there.(a) Per curiam. — Acco-ding to French authorities this appears to be a question of public law. In France foreign judgments had no effect,(b) It was a part of the public law which might be regulated by treaty* not dependant upon comity. This principle has been maintained by the Napoleon Code, and a modern French arrei has declared that litispendance in a foreign coun. try is no bar to a suit. The case cited from Atkins, went to support the same doctrine. It has been made a grievance in this case, that two arrests had taken place, but an answer to this would be found in the case of Maule V. Murray, {c) where it was held, that a defen- dant who had been arrested in America, might be again arrested in England, for the same cause of action. Buchanan, for the appellant. W. K. McCord, for the respondent. Judgment reversed, f \ (a) 9 Johns. Rep. 221. 12. Johns. Rep. 99. (&) 10 TonlUer, 143, ctseq. (c) 7. T. R. 470. Di / 55C 1833. RUSSEL AND Field. ** ■*■ lil 560 'ir CASES IN THE PROVINCIAL On Appeal from Three Rivers. Our Sovereign Lord the King, ex relatione Thomas Coffin and others.,, Appellant. and Magloire Gingras and others Respondents. 29th July, 1833. A certiorari will lie for ex- cess of juris- diction and iU leg;ality in the proceedings of commission- ers appointed by the g^over- norofthe|(ro- Tince under the ordinance 31st, Geo. III. 0. 6. for the building and repairing of churches. In this case the principal subject of controversy related to the place where the new church of the parish of SL Pierre les Becguets, which was admit- ted by all parties to be required, slioiild be placed ; certain parishioners being desirous that it should be on or iu the neighbourhood of the site of the present church, in the first concession of the parish, others again, contending that it ought to be placed in one of the rear concessions. An essential element in this enquiry, it was argued on the part of the opposants, would be in the will of the majority of the parishioners and in the relative proportion of that majority to the minority of the parish. It was understood that this had been so considered by the ecclesiastical authori- ties. But the opposants to the proceedings of the commissioners were under the impression that .as well the commissioners themselves, as the ecclesiastical au- thorities, had been led into error on this point, by a series of illegal proceedings giving to the minority of the parish, the appearance, of being the majority, and at the same time, of such irregularity as to vitiate and render null the assessment and all matters con- >i COURT OF APPEALS. ' 661 nected therewith. The grounds stated in the petition of the opposants were various alleged irregularities in the notice for the meeting, in the nomination of the Syndics in the making of the assessment, and in th^ establishment of the site of the church. The prayer was for a certiorari ; this, the court of King's bench at Three Rivers ordered, and from this order the iip- peal was instituted. Sewell, Ch. J. A certiorari does not go to try the merits of the matter in issue, but to see whether the limited jurisdiction has exceeded its bounds, and the jurisdiction of the court of King's bench as to the m'lt of certiorari is not at all affected by any statute which does not take it away in express terms. These points are so peremptorily settled that a clause in a statute which enacts, " That no other court whatso- ever shall intermeddle with any cause or causes of appeal, but they shall hejihally determined in Quarter sessions only" were held in the case of Rex v. More^ ky (a) to mean no more than this> " that the facts shall not be re-examined," and consequently it was in that case determined that the legality of the proceed. logs of certain magistrates in the exercise of a limited jurisdiction vested in them by the statute, might be heard and determined in the court of King's bench by certiorari } and it is in fact obvious, that these princi. pies must be well founded, for if it were otherwise there could be no such thing as a limited jurisdic- tion. (6) In the present case an application for a writ 0? certiorari upon the ground of excess of jurisdiction and illegality in the proceedings of the commissioners 1P33. (a) 2 Burroughi, 1012. 213, 232. (b) See Groeuvelt v. BurielL 1. L. Ray. The King AND GiNGRAS. Nf if:; I' 56^ CASES IN THE PROVINCUL 1833. The Kinq AND GiMQBAS. I I I I for erecting churches in the district of Three Rivers, has been allowed by the court of king's bench, and from the allowance of that writ, this appeal has been brought. 1. Because the commissioners are under virtue of the especial provisions contained in the ordinance dlst, Geo. III. c. 6, appointed by the go^ vernor, and that he only can enquire into their con> duct. 2, Because the powers exercised by the com- missioners are legislative powers. Now, admitting that the governor has an appellate jurisdiction over the decisions of these commissioners, that wou)'^ go to the merits of the questions before them, while the certiorari allowed by the king's bench can only go to their jurisdiction, id it has been settled that the existence of an appellate jurisdiction does not in any Case take from the court of king's bench the right of proceeding by certiorari, {a) If it could be even made to appear that the governor might proceed upon appeal or by certiorari to determine the limits of this particular jurisdiction, his authority in this respect would be no more than a concurrent jurisdiction with that of the :ourt of king's bench, for there is not a word in the ordinance which can affect ihe jurisdic- tion of the king's bench or the authority which that court possesses to proceed by certiorari. It has indeed been argued that the governor may exercise in person the power which he has delegated to the commission- ers, and thai: in such case no certiorari could be issued. But it is not necessary for us at present to enquire what could or could not be done by the court of king's bench, if the governor should see fit to do (a) Rex V. Moreley. Supra, « COURT OF APPEALS. 563 80. This is not a case in wl)ich the governor has ex- ercised in person the jurisdiction created by the ordi- nance ; far from it, it is one which has relation only to the exercise of that jurisdiction by certain commis- sioners appointed to carry it; legally into effect, and as a certiorari does lie in the case of justices of the peace, who are appointed by the king to carry into effect the powers, which with respect to their juris- diction, are by law vested in his majesty ; so a /or- Hori, a certiorari may issue to commissioners ap- pointed by the governor to carry into effect the pow- ers which are vested in him by the ordinance for the erection of churches. It would, however, be a strong argument against the exercise of these powers by the governors in person, if it should hereafter be matle to appear, that no certiorari can issue, even from his Majesty's supreme courts of law, to restrain a go- vernor in the exercise of a limited judicial authority. The remaining ground for this appeal alleges, that the powers held by the commissioners are of a legislative nature, ina^^much as they enable them to assess a tax on the inhabitants of parishes for the erection of churches ; now if they be so, the power held by the justices of the peace in England, which makes them to assess the tax for the support of the poor, must be of the same description ; and yet the writ of certiorari lies and is daily issued in such cases,(Aj and this is a manifest proof that the powers so exercised are not legislative in either case. In fact the tax in both in- stances is imposed by the legislature, and the authority exercised by the church commissioners is confined to 1833. Thb Kino AND QlNGRAS. (a) Res v. Millaod, 1 Burr. 576 ; Rex v. St. Luke's Hospital 2 Burr. 1053. 664, 1833. The Kino AND GiNGBAS. CASES IN THE PROVINCIAL the calculation and distribution of the amount required for the erection of a church in any particular parishi among the parishioners upon \(rhom it is already im- posed by law; just as the authority exercised by the magistrates in the assessment of the poor rates in £ng. land is confined to the calculation and distribution of the amount required for the support and maintenance of the poor of any particular hundred or parish, among the persons upon whom the tax is by law already im- posed. Upon this view of the case before us this court is of opinion, that the writ was rightly allowed, and the judgment of the court below is therefore confirmed with costs. On Appeal from Quebec. ^ - Nicolas Boissonnault Appellant, and James Oliva Respondent, 16th Novr. 1833. thw'nlJiJaWe ThE Respondent, plaintiff in the court below, in- or not, are stituted an action against the appellant for damages Crown for the alleged to have been occasioned by the appellant's JndnopereonI Stopping up the Communication on a public navigable seigneur or other, can exercise any right over them without a graat from the Crown. In an action of damages, by the stopping of comniiunication on a nariga* ble river with a boom and chain, it appearing from an agreement between the parties, after the commencement of the suit, that the placing of the boom and chain tended to their mutual benefit, the action was dismissed. vl COURT OF APPEALS. > V river called the Riviere du Sud, by means of a certain boom and iron chain ; whereby certain saw logs and pieces of timber belonging to the plaintiff, were stop- ped and prevented from arriving at his saw mills at St, Thomas, to his damage £S,000. Reid, Cr, J. — The appellant, by his plea, admits the placing of the booms and iron chains on the Riviere du Sud, but denies that it is a navigable river: on the con- trary he alleges that it is not navigable, but the property of the adjoining seigniors, whose permission he has to erect the boom in question, and to maintain the same : and by the general issue denies the facts stated iu the declaration. Testimony has been adduced to a very considerable extent, to sliew the waters of this Riviere du sud, the difficulties and obstructions to the navi- gation, and the kind of communication of which it is capable. Part of the evidence adduced by the defen- dant consists of an agreement made between the parties, and executed before Gagn^, notary, dated 14th De- cember 1831, which is a document of some importance in this cause as affecting the question before the court. Had this agreement been in existence at the time the plea was fyled in this cause, there is reason to presume it would have been set up as a bar to this action ; but as it comes now in evidence before this court as re- sisting the plea of the plaintiff for damages, we must receive it accordingly, and must hold that in the face of such evidence the plaintiff cannot maintain his ac- tion. By this agreement it appears that it was for the mutual interest of the parties that a boom should be erected with a view to prevent the loss of timber float- ing down this rapid stream. This fact also corres- ponds with the other evidence in this cause; and in r )65 1833. BOISMN- NAULT AND OurA. mm 1 1 i I 4 .506 CASES IN THE PROVINCIAL 1833. BoiflSON- NAULT AND Oliva. order the better to enable the defendant to keep his booms which iie had erected for this purpose, the plaintiff agrees to pay a certain proportion of the ex- pensei and that they should remain under the controul and direction of the defendant. The words of the agreement are, " Cependant les frais d^ autre lieu des booms appartenant d M, Boissonnault, sur la riviere du Sud. savoir ; celui de chez Joseph Tetu, et celui du basin de St, Thomas, seront supportes par chague parlie a proportion de la quantite de billots qu'elles y auront ou pourront y avoir ; et neanmoins les dits booms et tels aulres booms, que le dit N, Boissonnault a sur la dite ri- viere du Sud, ne s'ouvriront qu*d Vordre du dit Boisson- nault,** The respondent here acquiesces, in the clear- est manner, in the right of the appellant to keep up these booms without any reservation as to the present claim; he has judged his own cause, and must be stopped from claiming damages in the face of his own agreement, and even as respects the damages claimed, nothing is proved that would enable the court to as- sess them, and they cannot be ascertained by experts. It matters not therefore whether this river be naviga- ble, or not navigable, seigneuriale or Jlottable, the con- sequences, as respects the damages, being the same. Looking, however, at the right of the parties at the time the action was instituted, we are of opinion that the plaintiff was entitled to his action, whether the Riviere du Sud is to be considered as jlottable or set- gneuriale. There may be some doubt whether this river can be considered Jlottable, as rivers of this des- cription would appear to be ranked among navigable rivers, portant bateaux et radeaux pour le transport du bois et autres merchandises, and as such were the proper- a;;: COURT OF APPEALS. iy,ind under the protection and jurisdiction of the Crown. The Riviire du Sud appears capable of floating only single logs, and not rafts or bateaux, from the frequent interruption of the navigation from the rocks, shallows and rapids, to be found in it, and therefore is not to be considered as a navigable river; but, allowing it to be of the description of seigneuriale et barale the use of it, even in that case, must be free and open to the public : for according to FremmvUie,(a) the King preserves his right over all such rivers as may be used for the floating of timber, inasmuch as he is considered to be the protector of commerce, and of the public in- terestk ** Sa Majest6 se charge de la police de ces ** rivieres qu'il convient d'exercer pour I'aisance et la « surety des bois flolt^s a I'effet qu'il ne soit d6tourn6 ** des eaux de ces rividres, ^tablies des moulins nou- " veaux gourds, vannes et autre Edifices capable de '* nuir au flottage des bois par consequent au com- " raerce." But if the King were not to retain this authority over a rivih'e seigneuriale ; yet the seig- neur feodal cannot claim the property of these rivers, as according to the French system they belonged to the seigneur fiaut justicier, who was vested there- with, and exercised a jurisdiction over them; not so much for his own interest as for the public benefit, and was said to hold them in the same manner and for the same purpose as the King held and exercised jurisdic- tion over navigable rivers. In this country the King is the sole and only seigneur haut justicier ; and as such protects the rights of all his subjects in matters of this kind, which under the French system was in- (a) Vol. 4. ob. 4. p. 434, 5. e4 ■"' * '■--■ '■'"' 6&7 1833. BOIHON* NAUI/r AND Our A. ' 1 d68 CASES IN THE PROVINCIAL lesd. BOIMON- NAUI.T AND Out A. trusted to inferior of}icers.(&) The waters of all river« whether navigable or not navigable, being matters of public benefit and public interest are vested in the Crown, and no man whether seignior or other can hold or exercise a right over them, without special grant from the Crown. No such grant has been ascertained to exist in the seigniors of St. Vallier and St. Thomas, nor could they convey to the appellant the right to stop up the communication on this river ; but as the plaintiff has acquiesced in the act of which he has complained, and has agreed that the defendant shall keep up these booms as a thing beneficial to both par- ties; we therefore think that the judgment of the court below should be reversed, each party to pay his own costs, as well in the court below as in this court. (£) 3 Desp. 128, 129, 158, 159, 219, 213. Boatarie, Dt la Jattieft. &o. .506, 558, 577, 578. Renauldon, Dea Droita Saigoaariaox, 865, 871, 37!, 391. 4 FremiDTiUe, Prat, dea Ten 477, 497, 498, 480. OoTpape, Qaett. 514. Bouthillier, Som. a. Lit. 1. oh. 73. Loiaeau, Dea Sei|^n. eh. 12, No. 120. Diet, dea ArrSta, y.RiTiira, Laoombe t. FUuoe. Ferridre, D. D.t. Ri< ▼idre. Tr. du GoaTemement dea bienatt affairaa dea Commiinant^ d'Ha* bitana, 508. COURT OF APPEALS. On Appeal from Quebec. James Swinburne Appellant, and Louis Massue and Another Respondents, 5G9 Messrs. Caldwelh Crawford ^ Co. of London, in pursuance of orders from the respondents, pur- chased divers goods for them, which were packed ia si^Kteen packages, whereof the case numbered 14, contained amongst other goods, those oi which the value was in controversy in th^ case. Th^y were delivered at the office of Caldwell, Crawford 8^ Co, by their clerk, to a carter, to be conveyed to the London Docks, Neither the agents of^ the respond- BDts, nor any person in their employ, accom|:anied the goods. The clerk saw the cases and packages 00 the quay about an hour after th(;y had been put into the custody of the carter, he did not see thera shipped, and did not know when they were shipped. The mate of the Great Britain deposed that they were regularly stowed in the hold of the ship, and that they were landed at Quebec, to all appearance in perfectly good order, and taken away by a carter, an4 conveyed, by the directions of a clerk of the respond- ents, to their store in the Upper Town of Quebec ; the. clerk not accompanying the carter. On opening the packages the clerk of the respondents found that thi« particular case. No: 14, did not require the use of a hammer to open it,-^that it was fastened at one end by one nail only, and at the other by two, which offered April 2d, 1834. Several pauk- aj^eg of goods were shipped at Londoa to a merchant at Quehec,where upon the arri- val of the ves* sel, and after delivery of the pnckages it was ascer- tained that some of the goods wre missinf^ from one of the pacliages. No- tice not hav- ing been given until several months after- wards, it was thereupon held that the master was not responsi- ble for the de- ficiency. i 570 CASES IN THE PROVINCIAL 1834. SwiNBUBNB am; Masbub. Am but little resistance. The other nails appeared to the clerk to have been cut by a sharp instrument, and to have been recently done. No notice of this appeared to have been given by the respondents to the appel- lant : no survey was called, and no claim set up for the value of the goods missing until the following season, when the present demand was made atid action brought. The bill of lading contained at its foot, the words, ** contents unknown." Reid, Ch. J. This action appears to have been instituted by the respondents, merchants in Quebec, against the appellant, master of the ship Great Bri- tain, for the recovery of a sum of j^llO. 15, 10. be. ing the value of certain gnods and merchandize said to have been shipped by their agents, at London, on the 15th day of August, 1831, to the respondents, and packed in a certain case. No. 14, which, it is said, was broken open on board the said ship, and goods and merchandize to the above value pillaged and removed. The appellant has set up three points of defence to this action. 1 . The want of proof that the particu. lar goods in question were contained in the said case, at the time it was received on board the said ship* 3. The want of proof that this case, after it was deli* vered from the ship to the respondents on the wharf, at QuebeCi was safely conveyed to the warehouse of the respondents, and there deposited in the same state and condition in which it had been so delivered. And 3, The want of any notice or demand on the appellant for loss or damage alleged to have been sus* tained by the respondents in relation to the said goods and merchandize, until the return of the said ship to Quebec, in the year 18dS. In a case of this kind, COURT OF APPEALS. 671 where the right of a plaintiff rests upon the mere legal responsibility of a defendant, — where no personal fraud or collusion can be attributed to him, — the lat- ter is entitled to avail himself of every point that can either diminish or destroy that responsibility. Now, it is certain that if the goods in question were not delivered on board the said ship, or if there be no proof of that delivery, which in law is the same, no responsibility can attach to the ship or master. In like manner, if the case has been delivered in the same state in which it was received on board the ship, but has passed through different hands before the damage was discovered, the presumption will be in favor of the master. The court, however, does not think it necessary in the present instance to enter particularly into the merits of these two points, and of the evidence adduced thereon, as they consider the other point of defence, namely, the want of notice to the appellant, after the delivery and receipt of the said case, during an unreasonable delay of several months, and after the departure of the ship from the port of delivery, as sufficient to exonerate the appel- lant. As the law has attached great responsibility to the master, and makes him liable not only for his own negligence or misconduct, but for that of others on board of his ship, so in like manner it extends to him a protection in the discharge of his duty consistent with the responsibility he thus incurs, and the nature of the trade in which he is employed. When a ship arrives at the port of delivery, the master necessarily has many objects which demand attention and dis- patch, and as the interests of his employers require that his delay in port should be as limited as possible 1834. SWINBUBMB AND Mamdb. ^7« CASES IN THE PROVINCIAL AND Mamob. 1884. so it appears reasonable and necessary for the security, SwnnviurB ^^ *'^ parties, that a consignee of goods, having any cause of complaint, either as to short delivery or injury done to those goods, should notify it without delay, that an opportunity may be given to the master to make the necessary inquiries to detect offenders, if pil- lage has been practised on board of his ship, or to make satisfaction for the loss. An immediate examina- tion into the facts and circumstances of the case is best calculated to ascertain the truth, and to secure the in- terests of all parties ; and as daily changes may occur, and the departure of the ship be uncertain, the neces- sity of such early precaution is strongly apparent. It is in evidence that the case in question was delivered to the respondents, in the same state and condition, as to outward appearance, as when received on board the ship ; and when the master of a trading vessel has de- livered the goods to the consignee, his duty is fulfilled, and his responsibility ceases, (a) This ought to ap- prize a consignee, that every instant of the time he allows to. elapse after such delivery, without objection or complaint, carries a presumption with it in favor of the master that the goods were safely delivered, or that no blame is to be imputed to him. But after the defici- ency here complained of was discovered, not only days» but months, were allowed to elapse, and the ship to depart before any objection or complaint was made, — the respondents in the mean time disposing of the goods without the usual precaution of a survey and examination of their state and condition when re- ceived. To attach responsibility to the master under (a) Woolrich'a Com. Lav. p.46.--Jone» oo Carriers, p. 91.— Emerijon. p. 679. ». 91.— Emerigon. COURT OF APPEALS. such circumstances would be unjust, as he is, or may be, thus taken unprepared and unprovided with the means of defence he had in his power at the time of delivery. From the moment he delivers the packages he has received, according to his bill of lading, he is entitled to consider himself exonerated from all fur- ther responsibility, and consequently to give up any recourse he otherwise might have retained against his seamen, his passengers, or others, had he oeen ap- prized in due time of any claim or difiSculty respecting what had been so delivered. It is inconsistent with the dutiesTand obligations of the master of a ship, and would be injurious to this branch of commerce, that bis responsibility should be continued for months and years after such delivery. The silence of the con- signee in such a case is a presumption against him, and he 'innot be allowed after so great laches to ex- ercise a right which must inflict an unwarrantable injury on the master. The provisions of the French ordinance of 1681, on this point, are just and equita- ble. It directs that no action or demand can be main- tained, on the part of the merchant or consignee, against the master for damages accrued to goods on board of his ship, if the consignee has received them without protest.(a) This is considered to be necessary for the ease and convenience of trade, and for the security of persons in it, that all contests and difficulties may be re- gulated without delay. The more modem commentators on this ordinance commend its decisions as of gene- ral benefit^ and of great practical utility, (b) and (a) Orl 1681, lir. 1, tit 12, art. 5. (b) 2 PardeMui No. 730. Ibid. toa. 1, No. 543. Potfa. Charte Partie, No. 38;— 2 Boulay Paty, p. 325.— Bottchar, loatitatioaaii droit naritimt, ch. 47, No. 2508.9. 57S 1834. SwimoniK AND Mamdi. ■\ n i m m i ifH y u,5 im Mf}m 574 1834. SwntBVBNB «1«D CASES IN THE PROVINCIAL on this particular point, one of them observes, ** il est '* int6res8ant pour celui qui a une action k former pour " cause de dommage ou avarie, de faire ses diligences *' a tems pour en faire constater la nature, la qualite et ** {'estimation relativement auz circonstances, a I'efTet ** de quoi il faut qu'ii fasse faire la visite des Marchan* " discs ou du navire> et qu'il fasse dresser un procds. <• verbal de leur 4tat, partie pr^sente ou duement ap- ** peMe,**(a) Although no decision of the English courts upon this question has been adduced, yet as the general principles of law in all commercial couo. tries, in relation to the duties of masters of trading vessels, are drawn from the same source, have the same objects in view, and are founded in reason and justice, we must consider them as applying strongly " here in favor of the appellant, and to say that as the respondents had received the case in question and re- tained it, without giving notice to the appellant within a reasonable time, of the loss and damage complained of, they are not entitled to maintain their action against him. i The judgment of the court below is reversed, with costs to the appellant. (o) Valin, liT. 1, tit l2, art. 5 and 6 in nofti' / N hhhs 'iHMI .COURT OF APPEALS. «75 On Appeal PROM Three Rivers. Antoine Gadioux St. Louis and others, Appellants. and AuGUisTiN Gadioux St. Louis and Pierre ; Benjamin Dumoulin RespondentSm ' SOtL ApriL 1884. Judgment of dismissal was rendered in the court belaw, in an action brought by the appellants, against AiigusHn Gadioux St, Louis, one of the respondents* for having in the fnonth of November, 1831, contrary to tbeprohibition of the appellants, illegally cut a ciliml, commencing above a certain grist mill and carding and ftilling mill of the appellants, on the river Yamachichet »Qd .diverting the waters of that river from the said iQills of the appellants, to a certain saw mill belqngiiig iOi the aforesaid Augustin Gadioux St. Louis, situate OP the said river Yamachiche, below the aforesaid mills tfth? said appellants; and inconsequence the appel- lants prayed that such canal might be ordered to be ^losed, and the river and premises restored to the con- dition they were in before the making of the said canal. Thertupofi this appeal was instituted. The declare* tion stated that so far back as the year IS^O, the said Antome Gadioux St. Louis, the elder, being then one of the co-seigniors of the fief Grosbois, did upon the refusal of the other co-seigniors thereof so to do, cause tp 1^6 erected a grist mill within the said fief, with the knowledge o\ the said co-seigniors, and of the tenants Hf t()#^d fief> AH the great rivei of Yamqhiche, bff f4 A8ei|(Dior,b7 his grant from the Crown, acquirm a ngbt of pro . perty in the soil oyet which a river, not navipible, flows, but ia the ranningf water he has only a right of servitudo while it pas- ses thronffh or before this land he re« tains in hia possession, which doea not authorise him to divert the stream, or use the water to the (reja- dice of other proprietors above or be- low him. An action by a seignior a- gainst his co« seignior for the improper use of the common ea- tate, can be nuuntaiotd* CASES IN T6E provincial 18Mi I i^t;r': 8v. Lom AKD 8v. Louu. ing a river not navigable; the waters of which river have since that timei until they were diverted by the said respondent, Augustin Gadioux St, Louis, as com- plained of in this declaration, caused the said mill to work by means of a dam across the said river, near the said mill, all which being upon the lands of the said Antoine Gadiotix St, Louis, the elder: and which mill became at the time of its erection, and thenceforward had been, and still was a banal mill, grinding the corn of that part of the said fief. That shortly afterwards, 16 witf in the year 1821, the said Antoine Gadioux St, Louis, the elder, caused also to be erected a card- ing and fulling mill in the same place, near the said grist mill, and upon the said river, the waters whereof in like manner thenceforward, down to the time of their being diverted, as complained of worked the said last mentioned mill. That by a c rtain act inter vivos* bearing date the 18th dtiy of January, 18S6, and set forth in the declaration, three of the said appellants be- came proprietors of the aforesaid premises, with the land whereon they were erected, subject to an usufruct in favor of the said Antoine Gadioux St, Louis, the el- der. After the return of the writ, the respondent Pierre Benjamin DumouKn, by petition in intervention, alleged that the saw mill and canal complained of^ were built by him jointly with Augustin Gadioux St. Louis, that the said saw mill and canal were theiir property pro indiviso, as partners, and prayed for leave to inter- vene and defend the said action, jointly with Augustin GadiouxSt,Louis&"^' The respondents pleaded the general issue, and also by several pleas of peremptory exception, in bar to the action, 1. That the said Pierre Bet^amin Dumou^ .-■■^ft'lMIWP' ' "■-' IHHMIHI'-'I'**'"""*!'' •"" COURT OF APPEALS. Un was seignior of the largest portion of the said fief* through which the river Yamachiche, not navigable, flowed, and that the saw mill and canal in question were held pro indiviso by him and several other per-, sons of whom the appellants might form part, of which said river he the respondent was proprietor as seignior, the same being not navigable, whereby he had a right to use the waters of the said river, and to build the said mill and canal. S. That the appellants had not a right of banaUt^, because many years previous to 1820, there was another grist mill in the seigniory, which still existed for grinding the corn of the censi- taires, and which had always been sufficient for that purpose. 3. That he the said Pierre Benjamin Du- mouiin acquired the right of banaliie within the censive by sheriff's sale, and by which sale he acquired undi- vided shares in the said seigniory, from which he was entitled to use his rights and privileges in every part thereof as proprietor pro indiviso, totum in toto et to* turn in quaUfwt parte, 4. That the appellants as co* seigniors, &c. had not any right within the whole ex* ' t^nt of the fief Grosbois, and if they had, at most it could only be in a part where they did not designate or allege that the disturbance,— /rouf/?,— in question was committedt 6, That the appellants had not any right in the waters of the said river, even if they had acquired the right of banaUte, beyond what was neces- sary for working their said mill: that there was suffi- cient water for both the mills, of the appellants and of the respondents, and that the respondents had used every precaution in taking of the said waters, only the i^urplus, after the appellants had been supplied.-* XotjheiegcQimds of exception the appellants fyled« 5fg 1884; St. Lovn AMD St. Loon. "wpp" A79 1884w fir. Louw AND Mfr, Loun. ik t CASES m THE PROVINCIAL general answer, and also by a special answer, pleaded that the grist mill mentioned in the said declaration was erected by the said Antoine Gadioux 8L Louis^ seignior as aforesaid, at the instance of the tenants — cenw/flrire*,*— of the fiei Grosbois, by reason of the ne- gleet and refusal of all the other ccseigniors to erect and provide a good and sufficient mill on the aaid fief as appeared by several protests made on the 10th April ISSO, by certain tenants of the said fief, against the said Antoine Gadioux SL Louis and others, co-seigniors. The parties having been heard by their counisel, the opinion of the court was delivered by li Sewell, Ch. J. The general course of a river or rivulet cannot be diverted or altered without compe- tent authority. This is the general rule, and he that claims aright to change it in any respect must shew his title to do so, because his claim is an exception to the general rule. The River Famar^icA^ whqse wa< ters have given rise to the action now before us is not a navigable river. It is, however, a rivulet included within the limits of the seigniory bf Yamachiche and granted to the seigneur by the Crown of France, But although by this grant the seigneur acquires a title to the soil over which the rivulet in question flows, yet of the running water which constitntes the rivulet and is perpetually changing from one moment to another he is not and cannot be proprietor. In that he has and can have by law, no more than a right of usufruct or servitude while it passes through or before the land which he retains in his possession, a right wliich enables him to make Use <^ as much as he may require of it for all necessary t>urpds^ but does not authorize him to divert the ftream or tb^ ai6 I^ I COURT OP APPEALS. the water to the prejudice of otlier proprietors above or below him. He can even conduct such portion .of the stream as he requires for the amelioration of hie property by canals or otherwise through the extent of the land which he occupies, but he roust return it to the stream before it reaches the confines of hisneigbf hour's estate, (a) In the present case the a'^C com- plained of is the diversion of the water from ite na- tural channel of the river before it has passed th« land« possessed by the appellants, which is the supe- rior estate, and before it reaches the confines ot the estate possessed by the respondent, which is the info* . riorestate, and this the respondents have effected by ^4.s CASES DETERMINED 1884. dr. Lonu AND 8t. Loini. cannot justify the use of the common estate by one to the prejudice of the others, and there is a case in tlie Journal des Audiences in which this principle 18 'thus stated, " L'un des deux cO'propri^taires par indivis, peut bien se servir de la chose commune entr'eux, sufvant I'usage auquel elle paroit naturelle- ment destin^e, pouvant mime I'appliquer g^n^ralement k tcutes sortes d'usages licites, que Pautre proprUtaire n'apas interest d^empecher, Un co-propriltaire par in- divis ne peut done ni constituer ni acquerir par cette raison sur la chose commune aucun droit de servitude^ qui en diminue rutiliti avec la liberty de I'autre co-pro- priltaire. £t conform6roent au mi^me principe, celui ^ qui appartient un heritage voisin d'un autre heritage, qui lui appartient en commun et par indivis, n'a pas droit de faire Icouler les eaux du premier de ces hL ritages en celui ci, au prejudice du co-propri6taire." (a) For these reasons we are of opinion that the judg- ment of the court below must be reversed and judg- ment entered up in favor of the appellants, according to the conclusions of the declaration, with costs. A, Stuart and Black, for the appellant.— ^Dut^a^ for the respondent. (a) 4 Joar. det Aad. 198. Arrdt, 3, AoAt 1689. VidaMtrlin Qi tiona de Droit v. Diaondation de noarel ceaTre, § 6. p. 177 Ed. 1888. Supra 4,m. BM. BEFORE THE PRIVY COUNCIL. 591 William Meiklejohm, Tutor, &c Appellani, and The Attornet-General of Lower > jiesnondenia • Canada and Sir John Caldwell... f ^ted either quently passed an act, 41st, Geo. III. o. 4. which, the laws of •fler reciting the 10th section of the Quebec act, and c^din^tllSt that doubts " and difficulties had arisen in this pro- /<"T/r*",. vince touching the true intent and meaning of the iawso/Eng. said act ia this respect," provided « that it shall and ^^^nX- i^id accord- ing to the FMneh law, and not executed according to the prorisiont of the Statute of Frauds, so as to pass freehold lands in England, will not pass lands in C*. nada, althongh it would pasa copyhold or leasehold properly in Englaod* * FirsMiit : the Vice Chancellor, Mr. Justice Parke, Mr. Justice Boean- JJ^ msy be lawful for ail and every person and persons of IIIWT4U0I1N Bound intellect and of age, having the legal exercise AWD of their rights, to devise and bequeath by last will and mv Obniiial testament, whether the same be made by a husband AND Ckuy jjj, ^j£g Ijj favor of each other, or in favor of one or more of their children, as they shall see meet, or in favor of any other person or persons whatever, all and every his or her lands, goods or credits, whatso. ever be the tenure of such lands, whether they be propres, acquets or conquetSt without reserve, restric* tion or limitation whatsoever, any law, qsage or cui* torn to the contrary thereof in anywise notwillistsnd* tng : provided always, that it shall not be lawful for a husband or wife making such last will and testament to devise and bequeath more than, his or her part or ahare of their communit^i or other properly and estate which ho or she may hold, or thereby to prejudice the right of the survivor, or the customary or settled idower of children ; provided also, that the said right of devisingf w above specified and d^lared, shall ndt be construed to extend to a dQvise by will or testa* m«f)t in favor of any corporation or other persons in mortmain, unless the said corporation or persons U by law entitled to accept thereof/ And whereat doubts have arisen touching the method now followed 0f proving last wills and testaments, made and ex^- cuted according to the forms prescribed by the lawi of England, before one or more of the judges of the ^courts of civil jurisdiction in this province : be il therefore further enacted, that siich proof shall have the same force and effect as if made and taken before the court of probate.** BEFORE THE PRIVY COUNCIL. 569 Mr: Henry CaldweU, the proprietor of th« leig- niory of Lauxon, made a will, which commenced in these terms : " In the name of God $ Amen* I, Henry Caldwell, Esq., of Belmont, near Quebec, be- ing of sound mind and memory, blessed be Ood, and seeing the uncertainty of every thing in this world, do now make and publish this my last will and testa- ment, hereby revoking all and every other will here- tofore made." The whole of this will was in the testator's handwriting, but he had not subscribed his name at the end of it ; it was attested by no wit- nesses, and there was no date affixed to it $ but it was argued in the courts below, that as one of the legacies was to Mr. Bowen by the title of Attorney General, who was not appointed to that situation until 1808, tbatJt must have been written subsequently to that year* All doubt, however, on the latter subject was removed by an affidavit of the testator's housekeeper^ which was taken in England after the decision of ^he ^ourts in Canada, and of which the appellants w^re admitted to the benefit, under an order of the judicial committee of the 7th December 1833. She deposed that she had seen the testator write the will a few months before his death (which took place on the 28th of May 1810); that he told her it was his wil|, and ordered her to lock it up in his escritoir, which she accordingly did. The principal, and indeed the only question that was argued at length before the judicial committee, was as to the validity of this will to pass the seigniory of Lfluzon, It was supported by the appellant, who appeared on behalf of Mr. H. Caldwell's grandson, who was a devised under it, and oppugned by the 4 o lSS4b MnEUJonf AMD Tub Antnu wa OnmuL amdOauk ■ tion of appeal against the judgment of the superior provincial court, affirming iJie judgment of the court below. 8 Knapp'i Report!, p. 388. YHe Agin^ p. 327. COURT OF APPEALS. 58t On Appeal fbom Montreal, Benjamin Hart Appellant. and Henrt Jones and Another Respondents. SOtb Not. 1884. J/HIS was an appeal from a judgment dismissing the appellant's action to recover the value of three crates of earthenware from the respondents, who were forwarding merchants at Montreal and Brock- ville. Three crates belonging to the appellant were consigned to W J. Bell, of Perth, and a receipt was taken for them from the respondents' clerk at Mon- treal, as being in apparent good order and condition. Upon the arrival of the goods at Brockville it was intimated to the appellant, by the consignee, that as part of them were much damaged he could not re- ceive them, but held them subject to bis orders. A survey was then made by two merchants at Brock- ville who signed a certificate of the damaged state of some of the goods. In the meantime the respond, ents intimated to the appellant, that they held the goods subject to freight. Sewell, Ch. J. This is an action of damages against a common carrier in a boat in the usual course. The common law of Canada renders carriers liable for damage or injury to goods entrusted to their care, unless occasioned by the act of God, or the King's enemies. This is from the edict of the Praetor. By If mereban- diie, in good order, is en- trusted to • earrier^andar* riTssatitidea- tination, in a damaged state, whereheholda it sntgeot to freight, he ia liable for the yalne. And if he pretenda that fraud or Goncealnient has been prae- tised, the omu of proof liea upon bim. '! M S. -i'lj i» fcl r, « £>• N»- 590 1834. Habt AMD Jones. CASES IN THE PROVINCIAL the French law this liability has not been carried to the same extent. It has created a third exception, viz. Jbrce majeure or irresistible violence. This lat- ter constitutes the only difference between the law of bailments in England and in France. In all other respects they are perfectly similar. In both countries the law is founded on the broad principles of public policy, and according to it the carrier is to take as much care as a prudent man would use for his own family, otherwise he is answerable. The owner on his part must observe perfect good faith, if guilty of fraud, deception or concealment, the responsibility of the carrier ceases. Goods are to be put in proper condition for the journey, if not, the responsibility will also cease, but this requisite the carrier may dis- pense with. Slor^, in his law of Bailments states, ** that the owner of the goods is bound to observe good faith towards the carrier, and to pack his goods, and to put them in a fit condition for the journey ; and if he does not, he must bear any loss arising from his own neglect. But the carrier may himself, by implication, dispense with an exact performance of part of this duty, and assume upon himself the proper care of securing the property in a fit state for the joui'ney." {a) There is one other principle to which it is necessary to advert j if the carrier pre- tends that there has been fraud, deception or conceal- ment, the onus probandi lies on him, and he must shew ^that he is discharged. (a) $ 563. See Btdi ▼. Evant. a Stwk. R. 324. 16 Bnt's H. 845. S(uM^. Crawleg. uki Stuart f. Crawltjf. - COURT OP APPEALS. These principles which have been recognized iti the court of king's bench for this district* bear upon this caisci and from the facts established in evidence I think it clear that the carrier is the person who must bear the loss. The appellant has proved the value of the goods to have been £28. 5.— that several of the crates were landed at Brockville in bad order — that when they were delivered to the defendants they were in the very best order,; to the latter fact there is the ; . * BofiNB against FEnsAULT and Anothbri . , Tht defendants in this oase n^ere owners of a schooner naTigfating be« twreen Quebec and Montreal, and one of the defendants, Naud, was the Itiaster. In April a oaiyo of wheat .was shipped iuthis Tesselfor Qaebec by the plaintiff, and a bill of lading was signed by the master. With this turgo, and in company with iseveral other vessels, he' proceeded in safety to the*head of the Richelieu Rapids, and as the rirer was there free from ice the other vessels in company proceeded on their voyage and arrived at Qafeb«c in safety. Ndud, on the contrary, oast anchor and immediately leaving th« vessel in the chaise of one man and a boy went on shore to seo his family. He was absent for several hours, and during his absence a field of ice descending the river tore the vessel froim hw naoorings and threw her on the shore where she bilged and was entirely lost with her 'Caivo. ■ ■ • ■ . ■ ' ' ' Per curiamt Carriers of oery description are necessarily trusted by their employers with the dominion and custody of their property, and the Ijiw therefore^ for the sake of the public security, e^tionds their responsibi- lity to all accidents and losses by want of due care, attention or experience en their part or on the part of their servants. 1 Domat,Lib. l.tit.\6. aec» 2. art, 1. 2. 3. ^ 4. p. 160. 2 Jurisp. Conmlaire, 192-3, Nos. 9-\0. 1 Vidm, 373. The evidence befbre us in this case shews in the conduct of iVoiM/, the master, a great want of that ordinary care and attention which he was bound to give. He anchoied in a perilous strait, without cause, and at,a moment when he mirhthave proceeded to his port of delivery in safety. He left the vessel without any necessity when she lay in a posi- tion, which — if he had had any ekperience-^he must have known to be one of great risk and danger when the ice breaks up, and he left in the vessel only one man and a boy who were not sufficient to get up the ancnor or the saiu'when theieldof ice was first seen descending, and as yet at a dis- tance. We cannot but, therefore, attribute the loss of the schooner and her Cargo to the fault otNaud, who, as one of the joint owners, must be res* ponsible for his own misconduct and neglect, and as he was the preposeot Perrault, the other joint owner, Perrault must also be responsible. 2 Tmbeau Imtit. Cons. 280. 281. 262. 2 Juri^. Cons. 192, ^o. 9. Judg- ment for the plaintiffs. Vide Bruneau v. Cormiert B. R. Q. 1816, No. 565* 1 Domat, 160, No. 4. Vide Sir Wm. Jones' Law of Bailments, p. 103. See No, 3. Locatio operU mercium vehendamm. 4 H ^91 1834. Habt AND JOMBI. 1821. The owners of river crafk are responsible for losses occasion' ed by (heir own want ofcarr, at- tention or expe- rience, or that oftheir servants. % i < ! ,,-.«'■' 590 188A. IK'^HI' Hmt ■ll|| AMP .Jons. BiiR ! Hi Ifil' ■ Hill ^K;'^H' ;■ s^^^kM piMl . HH II • IBliHI 1 IS i i CASES IN THE COURT OF KINO'S BENCH testimony of two witnesses. These gentlemen speak as to the custom at Montreal of the head carter of the forwarding merchant being sent to receive the goods for him, and then to examine them. Now, in addition td these two witnesses, we have the testi- mony resulting from the silence of the carter who received the goods, which affords a strong confirma- tion of their testimony. There is one other circum- stance in evidence» that liecMth, the clerk of the respondents, afler the crates were delivered to them gave a receipt stating them to be in apparent good order. When the crates arrived at Brockville no notice of the damage was given to the appellant by the respondents. The consequence is, that the onus pro^efo' lies upon the respondents to prove, as they have alleged, that the damage to the crates was not occasioned by their negligence. The crates when shipped in the respondents' boat were perfect, when they reached Brockville they were injured beyond one-half, and we liave no exposition of any part of the circumstances of the case which would impose res- ponsibility upon the shipper. The only remaining question for consideration is, as to the quantum of damages. The respond«nts have declared that they held the crates until payment of freight, and have disposed of them. A case very similar to this occur<* red it France in the year 1799< reported by Mer- tin, (a) where the court compelled the defendant to keep the article damaged and pay the value. The only -difference between the cases is, that in the one cited the carrier was willing to restore the goods da- (a) QaMtieu 4» I>rm JJJJ;^ against him and miliam Henry VallUres de. Si RSal, ExpARTB on the 11th July last, for a nuisance, before Joseph ^sUtSi^^ ^flffeflia", acting as a justice of the peace for the dis- trict of Three Rivers, and Benedict Paul Wagner, and James Dickson, Esquires, justices of the peace for the same district, then holding or pretending to hold the court of general quarter sessions of the peace. That on the @Oth of the same month the deponent appeared personally before the court of quarter sessions, and moved upon an affidavit, then fylec^ that a day might be assigned on the first day of the then next sessions, to plead to the said indictment, which motion was granted ; and the said affidavit, bearing date the ISth day of July, the deponent averred to contain the truth. That on the said 11th day of July, the said Joseph BO' deaux was not by law qualified to act as a justice of the peace, and that then and since, he was and is inimical to the deponent, and determined to vex,' harass and oppress the deponent under color of justice, and the powers unlawfully assumed by him as a justice of the peace. That on the 16th of the same month, the said Joseph Badeaux, Benedict Paul Wagner, and James Dickson, acting or pretending to act as justices, as aforesaid, adjudged the deponent to be guilty of a con* tempt, as well in making and fyling the said affidavit, as in refusing to shew cause in justification of himself, and then condemned him to imprisonment for the space of one hour. That the deponent believed the said Joseph Badeaux, Paul Benedict Wagner and James Dicksout to have been actuated by malice in pronouncing the said condemnation, and that they had not at any time any reasonable or probable cause to suppose him guilty of any contempt. 2, A copy of the indictment above FOR THE DISTRICT OF THREE RIVER& 895 referred to. 3, The affidavit referred to in the fore* going affidavit to the following effect : ** That at or about the time laid in the said indictment, the depo* nent did cause and procure the road or king's high* way in the said indictment mentioned, to be widened and made straight or nearly so, in such manner that the said road was made to run across the land of Mart/ Ann Esther Nelson, whose agent he is and then was, and who then represented and now represents some one of the persons across whose lands the said highway is di- rected and ordered to be opened by the proces verbal, of the said highway, dated the fourth day of October 1799* and homologated by this court on the twenty- eighth day of the same month. That in widening and rectifying the said highway, the deponent also re- moved the same conformably to the said prods verbal, to the distance of more than fifty feet from the preci- pice or banks of the river St, Maurice, and that previ- ous to and until the aforesaid acts of this deponent, the said highway did run in a curve and oblique line over the said land of the said Nelson, and at a less dis- tance than fifty feet at one place, or more, from the precipice and bank of the river St, Maurice, and with- out any railing, contrary to the said procis verbal, and to the rights of property of the said Nelson, And this deponent further saith that his aforesaid acts were done by him in concert with William Kent, the proprietor of the adjoining land and representing Moses Hart, also named in the said proces verbal, which the said William Kent had long before requested, and did then request this deponent to make the said highway straight from curve and oblique, and promised this deponent to open the said high way on his land so as to correspond 1834* EZPABTB YAVUMtlU DB St.Rbau \\ I ■■lit . 'S I- n 1 1 Aii m CASES IK THE COURT OF KINO'S BENCH 1884^ with the highvtny so widened, rectified and renoveci BxrABTi ^y ^^'* deponent, which promise the said WilUam Kent ^vit'lSL^ has accomplished in part. That the aforesaid acts of this deponent are the same for which he now standi indicted io this court as for a nuisance. That the said highway across the land of the said Nelson has been rendered by the said acts of this deponent* and is now in consequence of thosc^ acts wholly conforoiable and agreeable to the requirements of the said proc^« terbalt oikd of the road act 86, Geo. III. cap. 9, which before it was not. And lastly, this deponent saith, thtit Br nedicl Paul Wagner and James Dickson, Esqrs. two of the sitting magistrates in this court, are proprietors of lands lying contiguous to the said highway, and are person<^ly luad especially interested therein. Also that 9ieveral justicea of the peace residing in this town are the persona^ enemies of this deponent, and prejudiced against bf m^ and that in his defence on the said indict- i;nent, involving important questions of property and other difficult questions of law, this deponent is ap« prehensive full and equal justice would not be done in this court, between our lord the King and himself, and ' 8 is therefore resolved to sue out a writ of cer* Horarif without loss of time, for removing the said i^dic^ment into his Majesty's court of King's Bench tor the distnct, in order that his trial thereon may pro^ ceedin thatciQiMt." 4. An order of the court of quar« ter session;;, hearing date the 14vh day of July 1834.' Present Joseph Badeat^, Benedict P. Wagner and Jfamea JDiekson, and signed by the two Ifiiter, whereby it wasr ordered that the said Joseph JRmi VaiUhes dc SU i?^«4 do shjBw cause before thiscoiirt, op the sixr tee^h* ^y of July instant, ^ eleven of th« clock iQ li'tti FOR THE DISTRICT OP THREE RIVERa the forenoon, why he should not be proceeded against by this court as to law and justice may appertain, for acontempt of this the said court, for having in a cer^ uia aflSdavit fyled and put on record by him the said Jofeph R^trii VatHires de Si, Riah in the said causey made, inserted ihe following words and expressions^ to wit: ** And Ja^ly the deponent saith that Benedict **Paul Wagner and James Dickson^ Esqrs. two of the <' sitting magistrates in this court are proprietors of "land lying contiguous to the said highway; and are M personally and especially interested therein ; also that " several justices of the peace residing in this town are I " the peivoual enemies of this deponent, and preju« ["diced against him ; and that in his defence on the [^said indictment,— 'involving important questions of property, and other difficult questions of law,— this deponent is apprehensive full and equal justice would j«not be done in this cause, between our sovereign " lord the King and himself." Whereupon the said [Benedict Paul Wagner and James Dicksont two of ihe [littiDg justices, here now personally present, desire id order that the following statement and declaration [by them made and signed, and now openly read m court, be fyled of record in the said cause, and insert- ed in the register of this court. ** We the undersigned ["justices of the peace, in and for the district of Three ["Rivers, and sitting justices in the said court, on the ["twelfth day of July instant, — when, in a certain cause ["then before the said court, between our sovereign: ["lord the King, and the Hon. Joseph Rim Vah^ I" Ures de St* RiaU for a nuisance, the said defendant '"fyled an. affidavit, setting forth that we were person.. 'ally and.especially interested in the highway thea and 597 \w^ RxPAvn VALuma Bi 9r. Rial. r I ; m i , 608 I8M. EXPAMTB Vallibmbs DB St. Rbal. CASES IN THE COURT OF KINGS BENCH " there in question,—- do now ^ay and aver here in open " court, that we are in no wise interested in the issue " of the said cause, but on the contrary free and unbi^ ** ased in our sentiments, both as individuals and as "justices of this court." 5. The following entry in the same case dated the l6th day of July 1834: " The Said Joseph RSmi ValHeres de St. Rial appears person- ally in court, and being asked what cause he hath or 'can showi why the rule made on Monday the fouN teenth day of July instant, should not be made abso. lute? He answered and saith, that he doth not deem it necessary or proper to show any cause upon the said rule, and that he rests his case upon the discnetion and prudence of the court. The said Joseph R6mi Vol Hires de St. Rial then withdrew. The court then ad- journed for one hour eodem die. at twenty minutes past and after twelve of the clock, noon.'* 6. An order of the court of the same day, present the justices above named, whereby it was adjudged that the refusal of j the said Joseph Rimi Vallieres de St. Rial, to show cause upon the said rule, was an additional trespass and contempt, by him committed in the face of the court J and moreover, that the said rule should be made absolute. It is therefore adjudged that the said Joseph Rimi Vallieres de St. Rial was guilty of a tres- pass and contempt, by him committed in the face of the court, as well on the twelflh day of July, instant, as on this day; and thereupon all and singular the pre- mises being seen and fully understood by the court, j it was considered that the said Joseph Rimi Vallieres | de St Rial be forthwith apprehended iti his body, and i be imprisoned in the common gaol of this district for and during the term and space of one hour, and that FOR THE DISTRICT OF THREJE RIVERS. m m \ 1834. upon the expiration of the said term and space, he be discharged. Exparti A, Sluart was heard in support of the rule, and ^giJ'SJJJ* H, Judah -Md Wagner in person, contra. The points made for the applicant were in sub- stance, 1. That the affidavit complained of appeared to have been fyled in the regular course of a judicial proceeding, and involved no reproach or disrespect towards the court of quarter sessions, and did not appear to be accompanied by any circumstance chang- ing its intrinsic character, nor was it found by the quarter sessions to have been produced for a contu- melious purpose, nor indeed for any other purpose than that for which it has relation. S. That so far as the alleged contempt in the affidavit is concerned no circumstance is found dehors the affidavit to give to the words therein a contemptuous import, which of themselves they have not ; and that the finding of the contempt was therefore without premises and the conviction irregular and' insufficient upon its face. 3. That the same objections lay as to the alleged con- tempt in not shewing cause, &c. 4. That if the fore- going positions were true, then the court of oMaiter sessions had exceeded its jurisdiction, and that: the proper remedy was as here, by certiorari. If con* tempts be an exception to the general rule, that fertiarari shall lie in all cases of summary conviction where an inferior court exceeds its jurisdiction, unless taken away by statute, or unless there be a subsisting right of appeal from the conviction ; then it was for ^he party supporting the conviction to shew such ez« ception, which could not be done ; on the contrary, all the authorities went to shew, that on a conviction 4 I 006 CASES IN THE COURT OF KING»S BENCH ^^^ for a contempt by an inferior court, if isuch convic- ExPABTB ^^on did not shew wherein the conviction consisted, ^Sr'^SSL"" *^® conviction was bad, which proves that the supe- rior court can inquire and determine whether the facts found amount to a contempt or not, and that the case in Ventrist (a) and cited in Viner as law, was in point. The celebrated case of Bushel (b) might also be re- ferred to where the commitment by a court of Oyer and Termin6r of a juror who was fined forty marks by reason of his verdict in a criminal trial before that court was considered as a nullity and the party dis- charged upon habeas corpus. That the case of The King V. IVoodland (c) went some length to shew that when the sessions had stated all the facts particularly, and drawn an improper conclusion, a superior court had a right to inquire into the propriety of such con- clusion. 5, That if a contrary doctrine to that last stated were maintained and constructive contempts A allowed in the inferior courts without any power of supervision or control on the part of the superior {aS In an habeat corjnu and certiorari fortbe |>odv of J. S. who bad be«n impniODed for not paying of a fine of £26. set at the quarter sessions, the return was, that he being oonstable, and demanded by the court to present an higbwav, which was sworn before him bv two ^l^nc'ses to be out «f repair, said in contempt of the court, that be would not present it ; for which and certain other contemptuous words the fine was set. The oonnaal for the prisoner moved that it might be fjled, which was done. Thaoourt were of opinion, that the fine was not well set; for oonstables are to present unon their own knowledge, and the two witnesses should hare been carriea to the grand jury ; for the eonstable was not obliged to present upon their testimony^. This court is to judge of their fines, whe- ther without cause or to mitigate them when excessiTcly imposed ; and for the contemptuous words the return is ill, because not expressed what On the other side it was prayed, that the return might be amended, for ho had spoken opprobrious words ; but that could not m admitted after the fyling. And so the party was discharged. I Fenfru' R. 386. Fmct's Abr., Contempt, C. 3. (b) Vaoghan's R. (tf) I T. R. 261. FOR THE DISTRICT OF THREE RIVERS. QQf courts, the inferior courts could extend their juris* ^^^ diction indefinitely ad libitum, Exparts Sewell, Ch. J. We have before us an application, Vaixibrbs i>i by motion, for a writ of certiorari to the court of quarter sessions of this district, to remove a summary conviction in that court, by which the Hon. Joseph Remi ValiiSres de St, Rial was declared and adjudged to have been guilty of a contempt in the face of the court. There are various means provided by law for the revision of the proceedings of inferior jurisdic- tions, but of these, upon the present occasion, it is only necessary for us to refer to the writs of appeal Mid certiorari. By the former the proceedings of the court below are brought before the superior tribunal, with the evidence on which their judgment is founded, and the judges take into consideration the facts o£ the case and decide upon the merits. The writ of certiorari, on the contrary, enables the court above to examine the proceedings of the court below, and to decide whether they are or are not correct in point of law, but does not enable them to investigate the facts. They may inquire whether the information sets forth a cause of complaint, which by law, is cog- nizable in the court below, and whether the proceed- ings against the defendant have been such as the law requires. Whether he was duly, summoned and (if he appeared) had a day to plead, and permission to pro- duce, and examine his own witnesses, and to cross- examine those who were heard in support of the charge ; but they cannot inquire into the facts, or even take into their consideration the merits of the case, and therefore cannot examine or determine whe- ther the deductions which' the court below has drawn { I I 1 ; I II 1 j 1 f 1 1 100 CASES SN THE COURT OF KIKG'S BENCH fVom the facts in evidencie btifere them are correct. In the case of The King v. Season the court said^ '^SSlSu' ** The evideffce is entirely and exclusive^ for the con- ^ 'sideration of the justices below," (a) and in the tolMequciit case of The King v. Strath, Lord KenyoUf ai^r observing that where the magistrate who con- victs lias drawn his conclusion from the evidence be« ibre him» tihe court above cannot examine the pro- priety of his conclusion, immediately adds, ^* for the •« magistrate is the sole judge of the weight of the evi- <^ dence.** (6) As we have no power to investigate the merits incases of ordinary convictions brought before us by certiorari^ it must be plain a JbrtiorithM the same rule most obtain upon convictions for cpni' tempts. In the case of Brass Crosby, Lord Chief Justice Dtf Grey said, ** That every court must be " the sole jiidge of its own contempts." (c) And he particularly mentions commitments by the court of admiralty and by the ecclesiastical courts for con- tempts, and observes that even the courts of Westmin- ster Hall never interfere with them. The case before us is thus narrowed to one point, can the coiHt of ^Qarter sessions commit for contempt in the face of the court ? To shew that they can I shall citei per. Iiaps unnecessarily^ a single authority ; ** The jus* ticee assented in general or quarter session, heve an undoubted power to commit for any eont^pi in the face of the couttjbr the period qf ^idr sesshn* for this is a power incident to every court of justice." (d) Upon these grounds tiiis application canno&be granted. (a)i6T.B.376. («)8T.R.«90. («) 1| 6totoTri.837. (cQ IKokeoMD*! Gude, 47.48. SrdBd. tlio Cb. Cnm. Lav, 631, aad FOR THE DISTRICT OF THREE RIVER& 60i Boyfm, Justice. It it scarcely necessary to add any tbibg to the opinion delivered on belialf of the court by the learned Chief JuSitice. The law of the case does not appear to admit of doubt. This 6oart does not lit as a court of appeal to revise the judgmentt of the qtiarter sessions. Every court is by kw eon* Btituted the sole judge of its own contempts, partial* larly of contempt committed in the fkce of thie court The ^authorities upon this subject are numerbni and conclusive. As to the facts of the cbsq so Ikr as they hive been disclbsed by the affidavits in support of this Application fbr a writ g£ certiorari, if I had sui opinion to express upon them, it would be, that the affidavit made by the defendant in the court below, contaiai i(io offensive matter whatever ; the grounds stated itk i^or putting off the trial are such as usually foTm tfai ba^is of similar applications, namely, that. Upon the trial of the indictment preferred against him for > liuisance and obstruction of the king's highway, titteib to I4ndff and questions of law, intricate in their Ma- ture^ ^1 be Submitted— questions which cannbt s6 kdvautageously be tried in the quartet* sessions as in ih^ court of king's bench. The affidavit of the de* fettdimt further states, tKat two of the magistrate^ {henii^ti the bench of the quarter st^icfnt, are per- ^tM\ty hiterested in the road in ^uesthn, (A hm, ^6W^etv ^ich it would at>pear they h&ve detited iipFoii the redord.) The affidavit likewise alteges ^iiit ^Veral justices of the peace residing !n Thr^ li.i¥i^ M^ir personid enemies of tb^ liettm'iit)lb Jc^dge, iinfl consequently that he could' not expect to have s flllr trial in the quarter sessions. This court has already cooiidered that affidavit so made as sufficient for the 1884^ 8«. Riib jg iMy f ,ww )|j ff i^iii . i * i | i ii ; M4 ip" ^ *«w^ jyiyiu ii iB iiy wi^ H>i«nprli m n ' M t P^ 'M W ^yi^H pV - 60^ CASES DETERMINED 1884. jBr.IUtAL. purpose, and has ordered a writ of certiorari to re- ExpARTB ^ove the indictment for nuisance into this court for VAuiniu DB trial. Had I been upon tha bench of magistrates, it certainly would not have entered into my mind to consider such an affidavit a contempt of court. That tribunal, however, thought otherwise, and acted ac- cordingiy. I do sincerely regret, that the honorable judge did not see fit to employ counsel, instead of appearing before the bench of magistrates in person, as well upon his application to put off the trial as upon the rule for an attachment for contempt ; had he done so, and it had been stated that no contempt was intended, instead of declining to shew cause and contenting himself by declaring, ** that be did not de^m it necessary or proper so to do, resting his case upon the discretion and prudence of the court '" it L ../ be presumed, the rule for an attachment would have been discharged. ,Nor can I, even in this an- swer, see grounds for an attachment ; nevertheless, the court of quarter sessions viewed the matter in a different light ; and as it must be allowed to be the sole judge of its own contempts, the relief now prayed for, to remove the conviction by certiorarip cannot be granted. The motion must: therefore be disalfowed. Gale, Justice, It is not my intention, nor do I see the necessity of adding any further observations upon a matter which has been so amply dilated upon ; at the same time it may not be improper for me to ex- press my entire concurrence in the judgment ren- dered, and in the opinions already adduced in support jof it by the judges who have preceded me. Motion denied* mmmm BEFORE THE PRIVY COUNCIL. ^-^IJ Joseph Doneoani. and .Appellant, Jean Antoime Donegani and others Respondents, BdFebroanr, IHE Vice Chancellor.— In this case it appears ^JiriTan that Jean Donegani a native of Moltrazh in Lombar- •^"o? '• • dyi and Marie Galla, his wife, who was also an Italian JJSdU'th. by birth, in the year 1794, went to Montreal, for a tern- uTrdJut wKn porary purpose, and left it in 180^. They had three jJ|;?S2i'5,r sons Joseph, John and Daniel, and a daughter Theresa, consequenoM all of whom were born in Lombard^. In September fromu'SS'to 1797, Theresa married. The respondents arc the three b*S?k!?rf chiliiren of that marriage, and were all born at Mont' cWd^ real. In I8O7, Theresa died at Montreal. In 1809^ aiil JSthJ!? Jean Donegani, her father, died in Lombardy, and in ^|J**^*5^ 181 J, bis wife died there also. Jean Donegani, during Crown, bat if his residence at Montreal, acquired some real proper- ^n^THw^ ty there: he died, leaving a will and codicil professing Jj^'ildoaS; to give all his real property to bis three sons. Upon nonthefonaw bis death, his son Joseph took possession of all his real SjSjJ! ^ property at Montreal, and continued in quiet posses- JtulrSiSj. sion till the year 18^, when the respondent^ com- "* «• tftli«jr menced the proceedings to recover it, which gave rise bonTMbjwh. to the present appeal. The respondents alleged that KeYhSVU Joseph hid taken possession of personal property be- ^bouabou drao of tho !•• tpr inbtrit froB th« mi)d4btiMr to tlio taeliuioii of tbeir affect tbe rigbta of a party as thev ax- lated at tbe institauon of a init, tbis drooiastance oaanot b« taken adraii- ti^a of in an appaal from the jodpnent. 606 188A. DomnAm AHD DOMMANI. GASES DETERMINED * longing to his father, and real and persdnal property belonging to hia mother, and that property also, the respondents claimed. But It does not appear that there was any such property, or any other than the real estate acquired by Jean Donegani at Montreal ; and the judgment that was given by the court below related only to the real estate of Jean Donegani at Montreal. The court, in effect, decided in favor of the respondents, ftnd by a decree dated 18th June 1831, directed restitution of the estate to them» with all the intermediate profits. The appellant appealed to the court of appeals in Lower Canada, and the judg- ment below was affirmed by a decree of 30th April 1832. From that decree the present appeal has been brought before his Majesty in council. It is said that the judgnaent complained of is wrong, because it is alleged that the law o£ Canada, vit the time these proceedings took place, was not the old law of lancet including as part of it, the droU cPauhame, and even if that were the law, yet und«r the circumstances above statedi the respondents were not the persons en»> titled to inherit the r^al estate of their grandfather t^ the entire exclusion of their uncles. That the law oi France, was in general the law af Canada, as one of her colonies, before its cession, canppi; be disputed.-<- It appears from %he edicts of Lorn XIV. published Id March and Jj^il 1663, that after the company of Ca^ nadah^ ceded to the Freticbi KinS the (:olony of M'ew France^ CA\UACanad0, Lauif%TV* ^pppinted a sovereign council in Canada, giving them power " pour yjvgeir souveraihementei en dernier ressori'selohles loix af ordotmanceB de noire roifaume,*\a) But it is said (^) lEditl«tOr4oorS8. uwiMia Si«0 mmm BEFORfi THE PRIVY COUNCIL. j \ht droit (Fau^aine was no part of the French colonial jaw, and to prove this a passage from Pothier was quoted, ** La p^cessit^ de peupler nos colonies a en- " gag6 nos rois k naturaliser tous les Strangers qui s'y ** transporteraient dans la resolution d'y former un 6,ta- <* blissement fixe et durable."(a). And it is said that this passage, when taken in connection with the para- graph immediately preceding it, shews that all strap- gers in French colonies, were naturalized generally* and as of course without the grant of letters (>f natvi- ^lization to individuals from time to time. But that this is not the true construction of the phrase, *' a en- *> gagi nos roi^* is evident from the edict of October 17^27, ** Les Strangers Itablis dans nos colonies, mSme **ceux naturalises, ou qui pourront I'^tre ^ I'avenir." And a similar expression occurs in the third article, ** {^litres persopnes, qui soient Strangers, encore qu'ils,^ /* soient naturalises." In the edict of August 17l7r- which established a company in Canada, under the flame of "Lacompagnie d^occident," the ^d article ii thus '* voulons que ceux de nos sujets qui pass^ront *'dans les pays concedes k la dite compagnie, jouis- ifeent des m^mes libert^s et franchises que s*ils etaient [« demeurants dans notre royaume, et que ceux qui y ['* naitront des habitants Frangois du dit pays, et mSme 1^ des Strangers Europ^ens, fiiisant profession de la !<' religion catholique, apostolique et romaine, qui poiir- "ront s'y ^tablir, soient censis et repu^s r^gnicolesj ^* et comme tela capables de toutes successions, dons, 'legs, et autres dispositions, sans Stre obliges d'ob- •lenir aucun^a lettrea 4e naturalite."(c) There is \ ■ " " " -j' B-(A '^' *• Pwwnnet, tit. 8, aee. 3. vol. & p. I. Ed. 1887. h Orion. 475. tit. 6. art. 1. 3. («) Edits et Ordon. 866. •rt. 23. m (ft) I Edit! 3. Ik p. 37. 1835. DONEOANI AMD DOMBOAMI Ki, ■ri-«l>lll mmm^mmt ■n ^8 18^ SOHMANI urn DomoAifb CASES DETERMINED a similar passage in the S4th article of the edict of Aftfy 1664. Denizart lays down the law in this ihanner, " Partout oii les Fran9ais ont des colonies, I'on suit la *' Coutume de Paris. Nous avons dit au moX ttuhaine *\ que le droit d'aubalne n'est point aMi dans les colb- *' nies. II sy exerce en son entier k l'6gard de toutes "les nations 6trangeres. Michel Etienne de Vaux, <*originaire Fran9ais, mais naturalist Anglois, ^tatt ** d6c£d^ en voyages, ses efiets fureht mis en ddp6t i ** I'amiraut^ de Louisbourg, Sa fille lek reclama : I'af. " faire portde au conseil du roi, la confiscation fat , <• ordonn6e par arrdt du 13 Mai VI4^.\d) Their Lord- ships are of opinion that nothing advanced by the ap* pellant's council, has shewn that the general law of { France, including the droit d'aubalne, was not the law of Canada at the time it was cfeded to the English, and ivhatever might have been the effect of the proclama^ tion of the 7th October 1763, there can be no doubt { that, since the act of 14th Geo. III. nif •(*) I/Usage a introduit une exception gln^rale W M r^gle qui declare i*au bain incapable de trans- Ktffl^tre aa succession. Cette exception regarde les j^Wfans, et descendans de I'aubain, nes et domicili^s l^nFrMce. • • Si P^tranger adesenfens qui soient |;^8, le? uns en Franpe, le^ autres hors le royaume, Ipeux qMi sont n^s en France habilite leurs frares litrangerApour succf der au p^re commun. JLcs pre- J^mieys ^e^ont pa? i;eceyables ^ opposer aux ai^res Ue vij^ de p^r^ynitf Quoique les enfans soient ff admis dans les cas donton vient de parler, k !« sue- -^ l^ession de leurs pere et mere, ceux-ci ne succ^dent (a) Vol 2. tit apbaioe, 576, 577, 580. (6) 2L.C. Den. 682. 689. § 6, p. 1. 609 iWk DONMAMI ARD ComMANI. ■ i i ^'M . 1 . . ir .iii tw i fc i i I njUpiC 9 m 1 11 1936, V^'N'V/ DOMWANI 1 Atn> OOMBOANI. »l M CASES DETERMINED «' point k leiirs enfans ; la 6ciprocit6 n'a pai lieu k « cet ^gar4." The same propositions are to be found '< in passages that have been cited to us from the Die- ** tlonnaire da Domaines p. 141. Lefevre, Traiti du Domame, Chabot de VAllier, Brodeau sur LoueU Le Brun, and Pouttain Vuparc, Principes ^ •^'^oit Franr i^ais^a) V Les descendants de I'aubain second d6- *' gti, ou dans un d6gr6 plus 6loign6 lui succddent, ** s'ils sont regnicoles ou naturalises, quoique leur p^re ** soit vivant et aubain." Trait6 du Domaine de Lefe- vre, speaking of the same rule, says, <* Eile > I'appli. ^* quera non seulement aux enfans du premier d6gr6, *' mais mSme aux petits enfants n^s dans le royaume, ** le pdre vivant ou mort."(3) It appears to their Lordships from the passages quoted, that according to the droit d'aubaine, if a foreigner died, leaving lands in France, his lands would belong to the ¥' ^g, unless he had a child or other descendants borr France. If he left several children, some born in i^Vance, and others not, those who were born in France would ex* elude the King from taking, and the consequence was that, as he was excluded, all the children would take in the same manner as if all had been born in France, and if the foreigner left a son born out of France, who had children born it. France, in that case the grand children would inherit to the grand father, to the ei- elusion of their father. It is said that, if the grand children of Jean Donegani could take by reason of the droit d*aubaine, then the appellant, as their uncle, bught to share with them in the same mantier, as he j would have done in case Theresa had been born at i Montreal, and had survived her father. This objec-| (a) Vol. 8, p. 80. (i) p. 187. note b. I |. u. .ii i wi » >Uj ir ^ it n^ ^ BEFORE THE PRIVY COUKCIL. tion teems to be an after thought} no such point ap- pears to have been noticed in the pleadings. The ap- pellant relied on his title under the will and codicil ; The respondents on their title as heirs under the droit faubalne. No authority has been cited to shew that the alien son could share with the natural born grand children, in the same manner as he could have shared with the daughter, if she had been a natural born sub- ject. If Theresa had been living at the death of her father her children Wi>iy(d have taken in exclusion of her. She could not share with them, and if she could not, analogy seems to require that her brothers should not share with her children. Their Lordships /?rtm<^ fide must give the judges of the court below, credit for knowing their own local law, and it lies upon the appel- lant to shew by something more than mere assertions, that the judgment complained of is wrong. It was lastly said that, under the provincial statute Ist Will. IV. the appellant is entitled:* that act, though * The first olaose oftbis stataM, (1st Win. IV^ cap. 53,) cnaota io sab- ■turae," that rit penoat who hava at any time reoeired gtmatM of hind in this province from the Crown, and all persons who have held any pablie office In the province,- under the Great Seal, or the seal at arms, and sini auiDual of the governor, and all persons who have taken the oath of alle- E'aooe, and all persons who had their settled plaoe of abode fn thisphivineo fore the year 18SS. and are still resident therein, shall be, and are thereby admitted and con^med in all the privileges o( BHtish birth, and shall ht itkauA and taken to be, and so as respeots their eapaoity at any time here- ti^rei to takoj hold, posiiess, enjoy, elaii^ recover, devise, impart or trans- mit any real estate in the province of Lower Canada, or any right, title, pnvilei[e or app^nrtenanoe thereto^ or any interest therein, to have been, Mtwral born subjects of His Majesty, to all intents, oonstruotions and pnr^ potea whatsoever, as if they and every of them had beob bom in His Majesty'a UMted Kkigdom of Great Britain and Ireland, apd that the children or tMi remote descendants of any person of either of the foregoing desiorip- tbas who may be dead, sbalkbe and are thereby admitted to the muw pri« ▼Uems which such parents or ancestors, if living, could claim undisr thijk i0ti Pronded nevertheless, that any of the iiersons above described, i^XMptf^liliies,) who h»ve not taken the oath, stall not be entitled to the baoefit of tM act, unless he shall have taken Sesame before tome person «aly nnthorived to adminifter it. 611 1885, OoiraBAia ANB DoMMAMb 6ie 1880^ PONWAlfl. CASES IN THE COURT OF KING'S BENCH assented to by his Majesty on the Hth of A} * ISS9, was not signified by proclamation till the 5tn of ^une I83S. The question before us is whether the coiirt of appeals below was right in holding that the judgment pronounced in June 1831 was right. That judgment iQMSt have been right or wrong, according to the state of the law at the t;me it was pronounced^ and, though the provincial act may have had the effect of giving to th^ appellant, as against that judgment, rights which he had 4ot before, yet whatever may be the operation of that act, no facts appear upon the record which can enable their Lordships to sa^ that the appellant has isny title under it. Upon the whole their Lordships are of opinion that the petition of appeal ought to be dismissed with costs. B^ the teeond clause,— persons actnelljr domiciled in this proVlliee on the 1 St day of March 1 83 1 , not lieing of the description of perspns a^pTf nen- tioQedi and who may have resided sereq years continually, in this, or any of His Migesty's dominions, are talien to be, so far as respects their capacity to hold real estate, && natural bom sulgects of His Majes^, as if they bad been bom within this province. ProTided that no one of this descrip- tion ersons, (except females,) who ri the pasbing of this act has been veaideot in His Migestjr's dominions seven years oontinoally, M aforesaid, shall be eotiUed to the benefits of this act, unless within three isvf fffM and after the nassiidg of this act, if at the said passing of the act 00 ^«Jt be nl the age or le years or apward8,<>-or if he shall qot M the sdid wmt^ of the act, be of the said age, then wit^iin three years after he shell atteia the Said isge he shall take and and subscribe the following oath} " I do twear AeU I' have niifUd seven peare. ni Bit MajeBtjf*$ dominimut without having beat during Oatiime, a etated renders in atij/ foreign coutflrjfrOnd that IwiU ho ^hfati nndJbear true alieffiaHce to the Sovereign t^ the United SSnqdom of Cfteat Britain and Ireland, and qjf thif prom^co, ae dipisnddiU thereon^* and that aooae ef* 1%* Admiralty E. 1. 8 Black. Cwn, 106. 4 Eran*! Stat 911, And timra, Hamilton «. Fnuwr, SI. (b) Ladbnik* v. Crickett, 9 T. B. 649. Cowpar R. 494. Douglas R. hi 6U 1685. HxtfaxM V. Qmonr* CASES IN THE COURT OF KING'S BENCH vince of Lower Canada, then the statute does not apply to the case, for here the cause of action iirose toithin the limits of the province and within the county of. Quebec, where this court exercises jurisdic* tion daily. It is impossible to define ihsi eipression •* local limits" so as to giye^the court of vice admi« ralty jurisdiction in this case, nor is there any reason why it should. Why grant to a subordinate autho- rity a power which has been expressly refused to its superior ? The court of admiralty cannot, in Eng- land, extend its jurisdiction to such a case as the pre- sent. Moreover, this statute was passed, npt with a view of conferring jurisdiction in cases in which the existing law denied it, but to remove doubts nhich might exist whiere the cause .pf action did not irise within the ** local limits*', Qfiji^e)Vi)Ce; admiralty urt and for this there is great reason, as in the ^ase of a sailor who proceeds in rem against the vessel for his wages, if this recourse were denied, in most cases he would lose t|iem. In the case oi Murphy v» Wilson this court denied the jurisdiction of the vice admi- ralty, because the cause of action had arisen in a fo- reign port, (a) Sbweli., Ch.J. — I have carefully perused the Im- perial Statute, upon which this application ifor a prohi- bition to the court of vice admiralty is founded, and I confess that I find it obscure. It is, however, the duty of this court and of all courts, to carry into effect the general object of a remedial statute, in all cases to which it can be safely applied^ and as it is pltii^y the intention of the law ^ver, to give jurisdiction to the (a) Yid« ivpra, p. 89, in not*. ■■i: jg^ ■■■UK E^jg , , _,^;- , . , . -"""IH -^^4 ^^^^j^ ■■■■■■1 mmm wi?m!!msfV!!sif!:sgr:^s:wWB^^:vrr:z i-OR THE DISTRICT OF QUEBEC. 1 _ court of vice admiralty in this province, in some case of collision, in which, before the statute was passed, it had no jurisdiction, and as there is but one instance to which the jurisdiction of that court, before the sta* tute was passed, did not extend, namely, collision iit- Jra corpus comitatus, thefitatute must necessarily beheld to apply to it so far as to give to the admiralty a con- (Current jurisdiction with the court of king's bench, in cases of collision happening upon the river St. Law- rence, and within the body of a county. But I am by no means prepared to say that this court has been oust- ed of any portion of its jurisdiction in such cases, or that the statute intends to deprive the subject of the benefit of the trial by jury, to which he is entitled and can obtain in this court. ' BowEN, J.— There cannot be a doubt that this sta- tute, which is intituled, ** an act to regulate the prac- tice and fees in the vice admiralty courts abroad, and to obviate doubts. as to their jurisdiction," was pas- ted to remedy an inconvenience which existed a short time previous, and that the intention of the legislature iirai to efford a remedy against the ship itself, as well as against the master, tiie remedy against the latter prov- ing in many case.) insufficient. Notwithstanding the vords ** local limits/' the effect of the other words, fhereby jurisdiction is given, cannot be destroyed. 615 1835. RrrcHu V. OsKiunr. 'A^. " A jfcj i jf ii ii ! i UL ii'" Wi.'S '! i i nTr -. i n w ii ' n n i r i n^[ ii ii " '^ JlJ ' . ■-.. . ' , " '''■'•" ^:.fd ■' :yS^^J9 M^riHP? ^'■JI^- ; r ■;. :< ■..:>{)■ .v; ^lO iOiu.u i:o , 1, 1 i - \> ^ J .-'. i ifffibliffj ./\r\ ■! •''Til ').:* 7."<> H' blf i ,ci Xifl ii, Ji. i ii r> , 1 J i iJ I i :^ Of il Jo, iliJU^ ;Si(>'tij- •c;^. ,(r 'U'f^ 'li'ji 'ft '■ i 1 "J ; >, i . I C' -J i Tf'). '■DiHi'jV liv. •>fif nn r ; / 1 i 'J . * i ! .■ . , f <].g aiiJ y! ^^ '-! ■ ' r lOJiOK') ,fi 4:? -.jl (■ Ji ^SEh!^^SS55S^SS3 , <4^-«MIWW««^ji5iM>1«««**|MrJTW# JJ!>|,iu«ivi||i;pwwppHpiipg|HmBp[| u 11 E P O R T S OF CASES ARGUED AND DETERMINED IN TUB COURTS OF LOWER CANADA, &C. kc. &c. 1834-5. f:^' '■y 4'. 9"*n IF I- EMtnd aceoKUag to Ael of the Fio*IimUI t4igUbitttK, In the |e«r One Tbeannd El|ht Hundred end Thirty Fife, by eiORCS OKILL nUART, In the OetM Offloeef the Court of Klngt Bench for the DiMrict o( Quebec. QVfuci mated by Kelltan * Cowan, II, UounUtn Street «^ '?^Si!5^^SS^^? ', /^.'^■" "^'■■"?fT' ' . -"^ indnd and Thirty Fin, • t INDEX OF CASES REPORTED IN THIS VOLUME. Fag* AUen v. Sovfe • - • lOS Aodetvon, Broge v, - "IS? 4ftori>. fiena • • - 6d iktIcimoD, ]|?orbM v. - • 106 Awniv. Ojnms . . it35 Aylmer, Mittlianr Lmrd, Hw* roj V. - - y , . 54S AylwiD ». l^cNallj -V '^ 541 .. .. ■ CnfilUertf. - - 527 , B. . Baldvin v. Otbbon • • 72 Barocnr 0. Qarria - •> • $2 fimalilen, Puroohv v. •307 Bfldwid. the oMe of . . 1 Bell, .Saroqy o. - - . 346 B«nD» Astor v. • . .69 Bkolc V. N«w«OQ - - 298 - — ~ The Kiiur ». - . ia* Boinonnaolt 0. Ouva - -564 ■ ' OliY* V. • - 524 Borne V. Perraalt - . 591 Borne o. Wilson ... •133 Bowie V. Skinner - . 54 Bfoot V. Andenon . .127 Cild. the Kinf . .327 — *^r^ and the King, Meikle. John V. ... - 681 Camilliie, Qownrd v. the < 158 Cuai^beU «r Shepherd • -138 C«nniHi,tf..LBrne . - 338 Curoii, Oa«f in f . . .136 ChMMorv. Hamel Claphlm, Poser v. Clwtton^ exptarte . Coffin, the King e* reUUimu, ». Gingras . - , . „» . Colditream. HaU . CniwCprd, Urue ©. . . CuviUier 0. Ajiwin . Daadalos, White v. the DeWry v. ])el£nr Desrividrei v. Riohardaon . —-—--. The Royal Inati. tution for the adTancemeni of learntngr tf. . . . DiokefMn p. Fletcher - Don^gmni V. ]>on«|[ani . The Mune v. the same . Doryal p. l.'£speranoe - Dados V. Dapont Danoan, Rivers o. Dnrocher V. Beafibien - Djke, Moorv. . £ Exparte Monk Neiison 'Roues* - ISO - 168 Valii«resdeSt.RM' 593 Field. Ruaiel v. - INDEX OF CASES FUh«r. th« MM of - - Ftomtng V. the Scmiiuiry of Mdntrcal - FIfltohar, Diokenon v, ForbM V. Atkinsoo Foamier v. OUt* - FraMr, Hamilloii ». " ■' ' MoDomU v. O OMpard, Paoqmt v. . . Gatei, Woodv. . . . Cbavin v. Caron ... Oeorgvn v. MoCarthy • Oemurd, Montgomery v. Gibbon, Baldwm «. . * Gillespie v. Peroerol Gingras, the King ex relatioM, Coffin V. - — ' ■ ' " ■ Anger e. - Goudio V. Langloia " - Grant o. Plants ... Gr«inier, Parent o. • * Gugy V. Kerr ... Hamel, Chasseur r. . > Hamilton o. Fraaer — , Whitfield V. > Hanna «. Hannc . Harrower, Perceval v. the Harris, Barney v.- Hart V. Jones • ' > Bart, Patterson v. - > Harvey v. Matthew Lord Ayi. mer - - . - Hogan V. Wilson Howard v. the Camillas > Jok M V. McNally . 9. Laing -• Hart V. . Joardain v. MtvUle K Kerr, Gu Page 245 184 876 106 487 81 lai 106 143 036 136 53 437 78 365 560 135 148 60 453 898 310 81 40 103 80 58 589 58 648 145 158 56 185 589 863 V. ilson V. Keys V. the Quebec Fire Assn- ranoe Companv King the, ex remtione Coffin, • V. Giflgras 898 341 485 560 King the, Caldwell v. ' ' — Spratt V. V. filaok Lainff, Jones «. Langiois, Ooudie v. Larue v. Crawford - " Cannon v. Latouche r. RoUman Lee V. Taylor L'Esperanoe, Dorval v. Lindsay, Scott v. M Page 387 149 384 185 148 141 338 151 538 57 68 Maitland, Vankoughnet v, ■ V. Melson Massaie, Swinburne v. - McCallum, Patersons v. MoCarthy, Georgeti t. McClure «. Shepnerd > McDouall i>» Fraser MoGillivray, Plenderleath \ MoLeod V. Meek MoNally, Jones v. ■ Aylwin v. Meek, McLeod v. Meiklejohn v. Young - .— — — — V. The King and CaldweU . ■ Poifcr V, Miville, Joardain v. Molson, Richardson v, - Maitland v. Monk, Exparte Mootgomenr v. Oerrard Moor v. Dyke Morrogh v. Munn N Neilson, Exf,arte Newton, Black v. Norris, Wilson v. > Oliva 0. Boissonnaolt — — Boissonnault t>. — — Foumier v. - Orkney, Ritchie v. PacqUet c. Gaspard 357 441 569 489 53 75 101 470 456 56 541 456 43 581 128 863 376 393 441 180 437 538 44 168 898 163 584 564 487 613 106 143 msm^m^^'smma masa^ a^ass tSSSL iimwf mil I H "-"^mm^. ^'t REPORTED IN THIS VOLUME. vn Parant v. Grenier Ptttenon v. Hart - The Saninary of Qaebao v. • Fatorsont v. Peroaval • ■' V. MoOallam - Paddie v. Tha Qoabao Fire AMuranea Company 453 5i 146 815 489 Paroaval «. The Harroirtr ■ '■ V. Patonooa ■ Patenooa v, I Price V. Gillespie v. 174 80 - 870 - 815 179-189 - 365 • 591 Perraalt, Borne v. Phosnix Aaaurance Companyt Scott o. • - ■ 158-354 Plants, Grant V. ... 60 Plenderleath r. MoGilliTray - 470 Potbier, Viger 9. ... 394 Poier V. Clapham • . .188 — — V. MeiKlejohn . .188 Price V. PeroeTal . . 179-189 Prince, Scott V. • . - 467 Q Qaebec Fire Aunrance Com- Scotto. 147 174 Keya «• 425 R Raid, Rogerton v. Richardeon v. Molson ■V. ————— DeiriTidrea v. - Ritchie v. Orkney Rivers v. Duncan Rofferaon v. Raid . Roilman, Latonche v, • Roosse, JExparte . . . Rontier v. Robitailie Royal Institution for the ad* Taneement of Learning v. Desrividrea Rossel V. I^eid - Sarony v. Bell S 418 376 393 818 613 139 418 151 381 440 884 558 345-^ Scaife, Allen v. - - - Scott V. Lindsay . . . V. The Quebec Fire Aa- aurance Company V. The Phoenix Aua* ranco Company, V. Prince - . . Seminary of Quebec v. Patter- son . . . Seminary of Montreal, Flem- ing w Shepherd, McCInre o. . ■ — Campbell ». - Skinner, Bowie v> . Spratt, Exparte . . ^ — V. The King St. Louis V. St. Louis • Swinburne v. Massoe - Symes v. Sutherland Taylor, Lee v. — — — Woodington ». Traoey, The Case of Turner v. Whitfield PdRO 105 68 147 158 354 467 146 184 75 138 54 90 149 575 569 49 538 470 478 46 VallidresDeSt. RM,JSrparfe 593 Vankooghnet v. Maitland . 357 Viger V. Pothier ... 394 W White V. The DsBdalus Whitfield, Turner v. V. Hamilton Wilson, Borne v. . H<»anv. - ■ ». Korria - —— — V. Kerr Wood V. Gates - Woodington o. Taylor Yuong, Meiklejohn v. 130 46 40 133 '145 163 341 536 470 43 """'W'^ipipPPW«»~'"''"^iPf^"^[^™»!f I H' IJ*J|,!» Itpwpf I ,ifmmmm^mHf'fl>fl'^'^'^''^'''^'f'^^^^''^^^ 6\1f iiV.ire*' 62 o ▲K INDEX TO Tm PRINCIPAL MATTERS* ABSENTEE. JEm ** CUBATOt." ACCOUNT. ACTION ON THE CASE. Sh « DufHK" « Tmwah** 8; iftij li ADiilBALTT. AFFIDAVIT. «.t wl'»U SfiU ALKN. lit A» Alitft dMUflibfl ia Giuiilh W« not S.~Aiijttiin 4«n tabtdtitlM p«no lofn Bfiliah wal^MLi (&»mv «* iB|^ 3. AaaUan ounot dayiM bj last ifiUandi tHuiMil tion of a soit, this circumstance cannot be taken adiuitage of in an appeal from the j udgmen|. 0onegani y. bonegani^ ? 4 605. \ \ Se4 f Relationship." AI^ITRATIOK. Upon i'feferenefli to three arbiters, or* spe- oiCcaUy ««. anjr two of them, an award by two is idod^iritbe third has had due noticeoftbemittters referred and of the sereral meetings; but if the reference be to three genorally, all should be present at the meetings, especially when the awrjrd is made, apd then the award of two is Talid, ev«n*if the third refuses to assmt to it [Mei^^t^n y. Youtiff.],,. »3, •^rdt 'it ^H M-i8(M ** Insubamob.'.' ARRET SIMPLE. 1. The oonrt will quash an attacument by . writ of arrSt limpfe whereby any other person, than the defendant in an action, u diyested of possession of property.— [Wood y. Gates.] 536 9. If an attachment be issoed to seise pro- ' pertyihthe hands of A. tn^ Muderthe writ the Shetfff attaches prc.>,rty in the bands of B. the seiknre is niul proip- ter dffictum mfcforito(M,and tbeeonrt will reMore the property to B. without ienqviring into his right or titio to it. [let y. 9V^li>r;J...,»M..........M.......5S8 A88AULT. Ina^ action agaiiist tha oaptidnofraship , «narteredbytbe!^LC.^anasBante|ud it^v frte* fanpHfonmont, a jnsti^Motioai on I r the non« pament of monies levied by one of them, altlough the other may not have assumed the duties of the office, or acted in any manner under their commission. [Black T.Netclon.] ^ 298 2. A writ of attachment' under the m^i- nance of 1787, may /be set aside, I. if it be not, in the ianguage of that law, against the estate, debts and efTcots of the defen.dant, to be attached in the hands of some person iu particular, and does not contain a. summons to him, as well as to the defendant, to appear. 2. If it be ac- - companifld by an iiy unction from the judge to the sheriff to retain the effects seised to abide the judgment of the court 3. If it appears in the declaration that the debt sworn to has been cancelled. [Richardson v. Jliblson.\.»^ ^76 3. If a motion to aet aside as attachment, by the Sheriff, of books of account and papers, be rgected in a court of original jurisdiction, ani its judgment to that effect be reversed in appMil, the oonrt of appeals will iiot grant a rule for an at- tachment against a Judge for potting a scetff upon such books and papers borore Ihey are restored by the sheriff to the penon in whoeo possession thevwere seised, against the sheriff for detfyoriDg them to the judge for that pn^oao^ or against the party and his attonfoy at wnose instance the scM was earriaa in- to exeotttiont—Ib.,..,..,...,....... 3SS . iSM " EXOVFTIOIt,"' **. SOBU." f" BANKRUPTCY. An Pngltah ooniMm^QPi of ,bM))irapti7Me. rates, in Gaqpllfyjp » rvmWfJ mm- * ; IMOSX. 619 UMi by th« banknipL The udgnMt, tlMrefor*» maj aaa for debts doe to the Iwnknbt, or for hii property, and May take tb» sharo of tbo proceeds of the hankrapt'a estate arhioh belongs to the Eariish creditors, but such proceedings of the asdmees cannot deprire the pro- Tinoial creditors of any acquired rights or privileges as to the property of the bank- rupt, or the proceeds thereof, to which they, by ^he Uwr of Cunda, may be en- titled, nor oan such rights or pririleges bedncted by the commission, or by $e assignment. [Bruce r, JtiutertoH.] 127 BAPTISMS. 5m ** Rbqistbri^" 2. 3. 4. BILL OF EXCHANGE. 1. The dranrer of an inland bill of exchange : M giioad Aoe a merohant, a^d a capiat ad ^mtfedcndum may be had, upon a jndg- Ifept therfsapon obtained against him, ?^!?'^'!2"'**°*"<^ *5 O^ IlL c 9, ^J»'—iQ«orgen^. MkCarthjf.]... .63 2. The drawer of a bill of exchange is liable to the damages provided by the laws of the ooantry in which it is drawn and to no other. [Attor Vi Betm.} 69 BOTTOMRY. Sec « iNTnvT,'* 1. BURIALS. Sec ** Raoisms." BYE-L/W. A stockholder in a joio, stock oMipany ma bring ao action o* acsoaat against the .>^ratioo, and thereby contest the nHdity of a bve-Uw aada W a board of iti dir«>tors. UO^r.TAc Qti^ Fire ' CMVaiv.].....*...............425 CAPIAS. ij^ia saeiivf^ata «* f mottpn to dis- t firom the ahsriff 's •lU RiifMfM ^lUavit to form, is the mode of taking advantage of such irregahuity. [Bamcjf y. BUrric] " 52 Sec - Bnx or Exohamoi.'* CARRIERS. 1. Sererd packages of goods were shipped at London to a merchant at Quebec, where upon the arrival of the vessel, and after delivery of the packages it was as- certained that some of the goods were missing from one of the packages. No- tice not having been given until sevmil months afterwards, it was thereupon held that the master was not responsible for the deficiency. [Swinbimic r. Mat- tnrbance by entering a pew in a church, by one parishioner agdqst another. [Au- ger v. CmgraB.],f ....135 CONSIGNEE. See « DxLivnr." CONTEMPT. See " Tbbspass." 5, « Ceetioium,*' 2. CONTRAINTE PAR CORPS. 1. A. eontraintepar corps against a married woman, upon a judgment for prindpal, interest and coato, cannot be obtdnsd. [Scott T. Prhnfie.]... 467 2. The diowance of the contrainte par eotpe aprie let quatre mote is discretion- ary with tko court. ....«•.. 470 1. The beqnesfr of a sum «f monay t» trus- tees, for the benefit of a corpomtiiMi not in esse but in appariM Expectancy, is not to bo conddered a Juaed logai^. 8. A dttibr biM^lSht Mpod t9#ftrds ddbyiiw tUMM ^tt K;liilb^ ia i^n •rsofioip^ i^imm^tmE^'l^ dai. H^twM ba ataMfetfiiiHiiiMfiftitlvraiia tan yaaia from tha taatatw^a dspiaii, such IKPfiX. Hi 11 1 >«•••••••••••" condiUon !• Mompltihel if a eorpento ud politiral ezittcnee be ^vao to saoh naiTenity pt oollflg« by Itttor* p»tont^ Mvuiatiag fivm the orowo, alUioafl^ a baildia^ applied to the porpoaes of each noiveisitj or college naT not hare been ereeted with; a that perioa of time. [ Des- rMi)re$ ▼. Ili(Aardton.].,., .218 S, A deviie of real eeiate to a corporation opon condition that it should, within the period 9f t^n yean, erect and ettqbliaht or ooMM to be ereeted and eetabiMed, upon the said Mtate, an uoifenity or collM[e : held, that the words erect and eeitdtSih, £B. extend oply to the erection and e»- blishment of the corporation or body politic, forming the university or college, and not to the erection of a building in which the university or college is to be Mtablisbed. [rke JbiyaJ Ltetttutiom v. l)MrMndrM^....»............ 884 A. ir a corporation, to be oompoeed of oer- tain trasteee to bo aubseoaently naaaed by the crown, be eetablianed by statute, the exiatance of the corponitioa will oom* aft the liaM when the statato was and not when tiie tmsteea are i. The bead, of a oorpocation nay bind the body oorponato by any oontract from whidi it nay derive a beoefit..........[i&.] CRIMINAL LAW. L The slatnto 14th, Geo. IlL e. 88» has introduced into this provinee, that por- tion of the criminal law of England only, whioh was of universal application ther% and not such parts an were merely nunidpal and of local importance. t. By that atatnto tin (Hh. Geo. L e. 19, •ad 6tb, Goo. IL e. 85, vhich impose eer- tain penaltiesi oa peraMSi selling tiekets in a roreign lottery, have been made to farm a pitft of tbo orimioal law of Lower Qanad^t [£!qparfe JleirtMk] ***.»*..*.88l CURATOR. Hkei by thftprsMtmplivoboir to tbo-eo. •ioa ot M abaentoe, if he to tkoeitato of saaliab- os' oHtit'ri to the poMSMioa by «r»ltaal dffu/rtmee of the eatate aad fuoocnioa. (CraNOM T. GimMI.J..|i«........M.M.«..*.lSv DAMAGES. See **Bai. or ExauxaM.** 9. ** Tebspass.'* DELIVERY. 1. Merchandine imported from abroad is delivered to the oonsignee when phMod on the wharf, and is from thence at bis risk, provided notice of the arrival of his goods has been given to him. [Jinwre ▼. Z^anoaa.]. ^ ^...188 . A mercantite house at Newry dfareds a house at Quebae to contraeifbr tim boild- iag of a ship, for which they, the Kowry house, womd eend out the rigging.^ The Quebec house enter into a coatraot with some shipbuilders a uu g rtfaj iiy. The Newry house then direct tiMir corrsa* pondent at Liverpool toeend out the rigw ginr, he does so ; and it having been ae- tually delivered to th? <^bee house : held* that the property in it was vested in the Newry houses and that the Quebee houso had a right to retain It against tho Liverpool eorrinondent, on account of their lien ou it ior advanoes amde to tho builders, and payssent of custom honao expenses, although previously to the do* livery they had obtained an assignment of the ship to th sm se l ves from the build* ers, and had rsg iste red it in the naaso of one of the jmrtoers in their house, [fie^ V. J&MLI. ]. .418 3. 'A sells a 5piaothy »t timber to B; a part of tho prioaoaly to bo paid on dettrery of the timber. A ankea a deKvery and B omits to pay any pari of tho prloi^ thereupon A iitinn an aotion to resdad tho oontraot of sue and by process of taiiie rfonuifeactoii atladles tfio tfnbor. Hold,tiiatthiB action oonldhaiMtelii*ed and that tho timber so ihr asit oaohtbo idMtidedsboaldbonatoredtoA. [ilbor ▼.X^]............................. Su « Saub" « VMmm**' « DBLITRAlfCB. en INDBX* thfrefora, TMti in the heir tt kw, and h« ii not diTMttd of tho Muno until • dUi- vranee de leg$ hu been obtained. [Camp- httl V. Shepherd.] '. 138 Ste ** PBTiTOBY AonON." * CCBATOR." DEVISE. Sm ** AuEN," 3. ** Cokporation;* 1. 2. 3. DUTIES. B7 the worda ** fint or ateriinflr «oat," in !. the proTinoial statnte. 53rd, Geo. III< c. ; 11. ifnpofinff dntiee on the importation of certtta Modlf ia to be nnderetood, the price paid for them at the phee from whence they were exported, leaa the dia- counb And an aff^n on the oaae mav be main- tained agwnat a colleotor of the onitoma who refoies to admit the gooda to an en- trr, until dotiea, aa calomated upon the pnee of the gooda, without a deduction of the discount, have been paid. [Pater- MOM T. PereeviL] < 81A • Ste «• Tbmpass,** 2. * Cowa." EKVOI EN POSSESSION. S>e " CoBATon." EVIDENCE. I. In a commercial matter, if it appeara, in an aotion of anumpait. at the trial, that , the pfadntiff haa a partner who waa a partT to the contract, and ia not a party fo the anit, the action will b« diamiaaed atthouffh the defendant haa not pleaded tlM facta; iPoMer r. aapkam.-\»...» 122 I. The tfanaactiona of tradeamen and arti> •ana in the way of thdr trade, are to be oonridered aa commerdal matter*, and b all actiona brought upon auch tranaao- tiona, recourae must be had to the Eng^ Ush rolea of eTidence under the ordinance taU, Geo. lit c t. j 10* f^g^^J in all caaea, which by theUw firFVaaoe were cofniaaMt by the cwiaalar jarladio. tloB. {Pwur ▼. JvetUcpMN*]***'**— *•'" 8h 2."»i«,-.8."K«TA«T.'»8. EXCEPTION. 1. Any irregularis in an aiBdavit to attach troperty, cannot be taken adTantage of y an exception aa to form. [Banujf r. Harris.] 52 2. Misnomer cannot be pleaded by an ex. ception as to form. [Jcme r. JucffaUj/.] 56 See" Capias." * Puadimo.** EXECUTORS. See'*Wa^"5. FEES. 1. No fbe of oiKce can be exacted by a pub- lic officer unleea establiahed by legishitive eiiaetment, or by ancient uaace which preauppoaee the sanction Mf legiaUtiTe authority. [Price r.l^cew^'] ..189 2. The action for money bad and receiTed will lie for exorbitant fees paid to Cus- tom house officers, and in the name of the owner of a Tesael although paid Iw the master....^ i». 3. The Imperial atatute 5, Geo. IIL c 45, enaeta that wh«re no feee haTc been eata- bllahed in a colonr of Great Britain, the Custom house fffieera there ahall be en- titied to reorire such fees m were re- ceiTed by the like officers in the nearest port in any British oolony before the 29th Sept 1764^ and the oonrt will take notice of the rdatire geographical posi- tiona of conntriea to ascertain that port lb, Ste *« Ntmoi,'* « Jdbob," *• Rniaraas." 4. FI0EJUS8EUR. A Jtdfftuteur haa hia aotion againat a «o^- davuMwr fSar hia proportion of the aum which he haa paid for their common prin- cipal, but if udr bo no couTontion to the con^my in the deed by which he became aecttrity, hia action ia only fbr Bcney paid* and conaeqoently, he can hate Bo merlgiice upon the pfopevtf ef the eo^fi^l^imetar until ho haa obtaiaeda jndgMcnt, and then only from the date ef that Jsigmtnt [Jom* ▼. Ltantgi^^va %*V^,!»^^; ■»wp|!PiPiPpyP!t)pi I MiiiiiiiiiiUij r- s *'RiGUTni."4. ^ FIERI FACIAS. •SmxSuufp." 1. FORFEITURE. $e«*>Rnu8TB>s."l. FREIGHT. Goods brought on freight, to be paid at Qae- pM^on deliverj, cannot be renored from the wharf before the freight is paid» and if in good order, thejrare delirered when placed on the wharf [Pta^ton r, Do' fidion.] „ 140 FUGITIVES. TIm Exeootire gOTemment mar delirer np ton foreign state, for trial, anj fugitire fromjnstice, ohaiged with baring oom- mittod anj crime witUn its jurisdiotion. [ The am qfJouph PiAtr,^ 845 GOODS. floods sold for cash, but not paid for, may be followed and churned in an action of nvMOieaHon, provided that the action be commenced within eight days after the transaction, and the goods hare re- nained until then in the state in which ttey were delivered. [A^hoin r. JTcAU^ ^'•l 541 See *• Dblvtbrt,'* «• Dctibs.'* GOVERNOR. An action cannot be maintained Mainst a gOTernoir of tiiis proTlnoe while in tiie adminutrmtion of the goremment. {Har- vtff T. lard A^laur\ ..54a HABEAS CORPUS. See ** MmnE OF Pauuiiint." HBIRa To an action against seTeral heirs It Is not • !^y ?'^.?'*^«» *•>•* •»» of them were Mt originaHjr made defondaata, if in the fMr*M«r the suit they hare been made l^^l^ M lalwploootorjr Jndg ment of INDEX. OtS See •'CinuTOB," «IteLmuMOB,** "Pwi- TOOT AoTioii,'' «» ** Wni," 5. HYPOTHEC. See « Um OS,'* * FiDinmnm." INCIDENTAL DEMAND. If an incidental plaintiff does not, on the face of his declaration, shew that his de- mand u conaeeted with the demand in chief, the defendant mnst arail himself of this omission by an exception as to form i if he does not, bnt answers, he wairea the irrwnlanty of the proawdings, and admits Aat he is reetue in atiidrlfSif Mr V. W^dteld.] .„„4e INJUNCTION See ** MANDAwrl.^* INSURANCE. 1. Policies of insnraace are to be oonstnMd by the same roles as other instruments t therefore, where there is an express, war- ranty there is no room for implicatioo of any kind. [Scott r. the QuAec JPire • fiT^ OwVavO- 147 8. Under the danse or oondition in polide* of Insurance, that in case of any disnnto i'^VfUL^* 9^*^ »' •'»•'» be rd'sS;;^ to arbitration, the courts are not ousted of their jurisdiction, nor can tiiey com- pel the partiee to submit to a refcrenoo *£»*!!, P'?i'^ «'•«"**• iScottr.the ^ ^ l^""*!^ fol"*^ fir* tho insafsn K ?*Jt¥ * ^ My loss which doea •TCIIfjM amount insured, aUhonrik t gJK?y »wwd> of greater TalueT-. gwwt. etdahu.'\..,..»,„f 130 1. The Crown can racorer iatereat where a private individual would ba entitled to, it, as in an action for money pidd under a written contract on aoconnc of a third, 4r person, in which it may be recoyeredi ffom the date of servica of process of the oonrt [The King f.Blacl^. 384 INTERLOqVTORT JUDGMENT. ^ee ** Bib SxsvKkjUL^* JXJPGIf. -If? •ni^^ooiMiof 1C.Bi has no jurir^ictioa in an TION.** LEGISLATIVE COUNCIL. Tha legislatiTa council baa a right to con. mit, as for breacbof privilege, in caaes of libel,— and tha oonrt will not notice any defect in the warrant of commitment for such an offence, after conviction. [Tht etue ofDorni 2Va(My.]*»***»>*»*»»*478 LETTER OF ATTORNEY. Proof of a letter of attorney, executed nm tehiffprivS,. ie not required where a deed executed by the attorney in virtue there- of, is proved, if the principal, by any snb- sequent use ha has made of the deed, hu ratified it— [The Mojfol JnUiiutUm v. llMAardlMM.]..»........,...................884 LIBEL. See <* TmMBt** ^ ** Lmiilatiti Co^n* LIEN. See ** SBiFBcnonu" " DauvnT.** 8. LIBUTATIONS. 1, 13ui ftatute of limitetiooa ia.a gwod^M to ade^. yw tr ac te d in Loadoo witbont rffef««m^dir«ai or iadira«t»to tha law of «p»otb«f oamotij. [Begm ▼. Wilem) H« KM," **,CORP0>A- BonLAim CSoini' INDJSX. m ▼•7or,<-.who bad Mted andtra iad^ent or tht court of Qaartor SoMiont,— for •ptering the plaiotilTt olom and drntroy- in|r eertair boiidinn, moit'^be brought wilbia Vuree months after the right of utiun aoorued, as prorided bj the sta- tote 38, Geo. 111. cap. 9. § 76. 3. Hoch action may be maintained against porsons, acting under the orders of the road snrreyor, rho do not plead a justi- fication of their conduct. [Catmonr. La- »*«•] « 338 See « Notion" LITISPENDANCE. Litispeadance in a foreign state ia no bar tttw action instituted in this profince. IBvtHtt. Field.] „. 559 :'ii. LOTTERIES. *'' See *• Criminal Law," 9. MALICIOUS ARREST, It U not neoesnry, in Canada, in an action for a malicious arrest of popertr, to set forth, in the declaration, that the action in which the arrest was made Ium been terminated. I Whi0eid r. aamilton.]„.40 MANDAMUS. I. The court will not grant a mamhnm to tho Aenff to cause theeale of lands and ?ilf"jf*** ■■ 'l''«rted hf thn ordinance 85th, Geo. IIL c 33, to be advertitad in • newspaper intituled, " The Quebec Ga- nette. where it is not shewn that there is no other speciiio legal remedy. [Ex. parte Ntuum^ ...*rt........il6S '•i!!*!^'*^***?. •*",'■* ^"* ••» injunction to 1^ King*., ^trinter enjoining him not tondvertiae the sale of lands andtbae. M«Mi under the same ordiaaftce. [lb.\ V MARRIAGES. . See « RsGunRay" $. 3, 4. MASONS. Th* flMMii hai an «spMtel.ptlvUi|«^ in tht nature of a moHgage, upon any bnildiv •rseted by him, and for repairs. This privilMw^ howeirer, will not- ba al- lowed to ua pr^ndice of other cratftora of tho promietor, unless, within n jnar and dav there be something spadnato shew the nature of the work donai, or tbn amount of the 'lebt due thereon. [Jbnr- dam T. ilfivt7^].M...*..«.....«.........t6S MEBIBBR OP PARLIAMENT. 1. On a motion for a writ of habaaa oorpna to produce tho body of a person in ent- tody, Zander a wammt from tbraa nam- tera of the ezacutire conndl for ** trw* sonable {practices,) founded upon Itt ** priTilcge" as a member of tba pi«fin- dal parliament, two papers pufporting to be two indentures of election prodnoMi in support at tba motion, are not aUB- dent cfidenca of bis beiorauch namber to entitle him to the benefit of tba writ 2. A member of tba provindal pailianant held at Quebec, the pbwe wb'ra beta ra- ddent, arresM dgbtfan dnya after iti dissolntion for ** treasonable prfeotiaM,** and dnriiw hia confinement elactad n member ofa new parKanmnt, is not enti- tled to prifileM from sMb arraat, kf reason of his election to dther parii». liament [Exparle Bedard.]„,„„»„„„l MINOR. A minor, of the age of twenty, can be- oneatb personal property to a tut«irA lieanoaitt nortiaain nndar the deobi* ratipn of tha kiof of Fnuioe, of 1743, ia notzaqttirad loooablo tbo Royal Inatita- tion for the adnuioaaieot of learoioff to I tMfift of- a deviae of real aatata. [The Mffoi butittUion r. JDemvUret.] .....824 :; ikORTOAGE. if-r, MOVEABLE ESTATE. Ae«Wim*»l. MUi^ SfIT0YEN. iJkift'aaliovt fi»r aaoaiey paid and advansed, iM^Im ottiMaiiiedM^ a propiUtonlafa V k fliwtdym agalmt bia cofroprieter for jMt'proportioa Of tho aaoi expended in the repairs of.the walUif the hitter has lapliiealjr acqoieaoed in the makinH^ of i tiioli repairs. iZatouche r. MoUman.] 151; J ; NOTARY* X If a paper iri^Ak, oontldpod in a iMiedi ' OtfTdopOb purporuoif to oontain an hdo- grnih will„ be opaned by a notary poUie and retainod by him after the deoease of die testator; aoi^ notary cannot keep it •n reoord IA his offiee, bat most produce the san^e beforo a jadge^ that probate may bo made, and the will is then to re* main deposited with tho records of tiiO Oowrtoi King's bench. itSrantr.I^antSA S. A notaiy nnbHc baa no antiic^^ to onp r«eal-«n hMOfraplt wiUriinlcaa in ^i>ro> aence and by the ord^ taarrii^ of bis lather's widow, at the prioa at which it may then b« adiadired ^ the highest bidder. {Borm v. WU- - «qn.]..... 133 See <^ COMTIAIMTB.** An exception to natter pleaded by axeep- ' tion may bo iyiedavan under the oi^< nance 25th, Geo. III. c. «. ^ 13. [Puc ^tt T. Chu^df and Potie$ ▼. Afftiit- 40M.]..;......... 106-116 POSTHUMOUS CHILD. ; ' PREROGATIVE. Where tfa# greater fi|ht8 and prarogitiTM of the crown are in question, reoonrse ■ ijrMst be had to the pubBebtw of the em- pire, by which alone they can be deter- minad t but where iti nilnor prerogativea Bn4 Mtertsts ara intmastion they most to TWfuUited by the aatablished Uw of tk* |daea where th« daoumd ia made. IThtJBiifft. Black.] »...384 ■ Ste. **. CODB JfABlMB." ** ApPKAUr" 2. PliBSORIPTION. 1. Hm pvaacription of a year, under tha ouS'i torn of JVfHSi, does not affect dabU duo to mendiantB, which are not barred by a Issa period than six ywnrs. [Morroghy. iHMMi.].,..,...,....,.....,,,....,,..,, ^, 4^ . t^Oftpeogfor SO yMiapMMnioi^ the party is not bound to prndiyaa Mitlt or to oAr any evidence to shew that, he held aatmo domMt orde boimefai until the contrary is proved by the phnntiC [f%9 Semi- nary of €^ubec v. PattenoH.],.„»„„l4a See ** Lvtajmom,** . PRIVILBaB. I See *' HfnanB mf PABUAanflp.** <* Lbois- I.ATIVB Covhcuh** ** Smp^^S. « Uasons." PROBATE. PROHIBinON. 1. A prohibition may iasua from the court of King*a bMoh to stay praoaadiai* *« the court of Vica mibtinitf. 7^ > 8. A suit for saln^io of a sbto atraudai «n a sandbanli in tiaa Hivsf 8t Lawranoa. the hauv^mio being i^amrptuemi. talas; hald. ihat the qaa iraaai0«iif uf admiralty jumdictloa^ aM liuffvUfai- tMMB fraated to atey farther pi«caadlmii tbarmn. [BamikonY. FinBtr4.^J^IZ2l ^Coixiuoi^'Vl, " ViOB ^MipnuLvr.** PROMISSORY NOTE. In an ution of assumpsit by tiia aodopea against tha endorser upon aaote aadoiied for i aum less than that auda payaUa by the note, the.plabtiff csiniia| f^V«. IMcLeoav. ^i^j.M».....„,«,.^..,»^^ PUBLIC LAW. ; See <* QopB Manau." *• PBuooAnv*.'* PUBLIC OFFIGBR. Where a person oontnOp aa « pa^ aft- cer, he is Hot panonaj^ mmt *" without some peculiar caoia to him. [Scott ▼. X^id^.] ........... See " Raoisnns;'* C 8. 4. •« Fum** l. " CoiuiisiKnnit.*' ** Tanpass," i. MUDBASESL Set •Bjom^* ' m i t. i ?, i t m .. QS8 INDEX. QUEBEC. Tht ItiTer St. Ldwrence^ from the WMt end of ^iilJ0O«plic8tion if there be no evidence to sheir. that the sheriff ha» actniOly been guilty «d(a&M.].M.. .....ISO STATUTE. An act declared by the legishitnre. general- ly,to be tempenry, has no more ^m a temporary effect. Yet a temporsnr. aot may repeal a permanent slatntoif th« in- tontion of the lM;islatore to effect soch a repeal be raaniftst. [Chaaewr v. Ifa- ww']"."." .w810 SURETY. ^ . See" FiDBivs^nnu'' I \\^ m ) W .j^- |*Si^ INK) iirofix. '# rj TENDER. ' '/Sh$*' Coira." TIMBBS. MfilfUMi^ w «Mmi.B» » eontraotor Ipr lopAfr^to out MM «oaT«y to the Quebee auorkft, a qnmtiij of tfoditr upon the ooiidU|oDt«-<4hat M MOO M drMM eutes a writ iMued upon a judgment ren> derad by an iitfBrior court in a matter «Ter whiohthcy had jurisdiction. iOoU" die V. X<#fei<.l M.........I49 S. All action of trespass on the case, fdr a aiisfeasanoe, can be mdntidQed agiainst a oottecCor of the cusfoais for ezactiiiffa larger sum for dntie* than the Uw autbo* rises, unless some rMsonable ground of axeusa Ibr bUseoodact is shewn, or sn^b fi#ts balaid'befora tha ooor»asez- dnde every impatation of malice or wiU Aal'intaat. [Ptrem>air.PaUr90iu^,.2tb 9. If the dedaratioa; in tUs action, coataia A stateaMDt -of all tta ouitarfad fiwis. it will be sufloiea|tu*MMM«*m«»«. .•..•..[!&«] 4. Where qpecial oaaMfe is the gist of the aetioa, and 4i he ii4t alleged, or if at lege^ ba aaiprovef,, ti^ action must be dianaaed. mt wfearatim law givea a right of action for aa Injory, it [ that damagse are the conaeqneBCO»aad a condosion for general daiMgas will be saiBcient...M....... [R.] 6, In an sotion of trespass for amault and imprisonment, aMinftt the provincial Judge <^the inferior dbtriat of 8U Atm- eiftlbfr imuiag proceM of illaidwiiBt for contempt agtinst the eiUfar and nrintsr of a public newspaper, for publishing therdn certain. papers :— held, that as the acts complained or were performed by the judge in his iudioial capacity the court could not take cogoiaance of them and therefore hftA no jurisdiction. iDiektr- son V. JPtB«rA«n].*f •••*••• »....^t70 6. An actioo will not lie against a judge for any act doae by him withln^e asfsat orhisjartsdietion. [Ouf^r. Jurr^.„t9i . TRUSTEES. She ** CoaroBATioif," 1. 9. 4. *' Wiu," 5. -.TUTOR. See ** Mmoiu'* USURY. See " PaoMiMoftT iTotk** VICE ADMIRALTY. 1. Jurisdiction with rCepect toaaili for ica- mok's wagea, pile^ga^ hettOmryj daawge to a chip by' collision, contempt ki breach of the reguations and instntdtons relat- ing to his majesty's service at sea, -sal- vage and droita of the Admiialtyt.»....39 9. Under the words « coartOflesMMikav- iapr jurisdiction in tile pari t ve.*' «lMitMMdin ).§8. The eoort It jnriadiotioa in ee and forMtorei WILL. 1. An hdlofrnph will of penoani nad omto- •ble property is talid, by Uie law of Eng^ land, and probate may ue made thereof aoooiding to the provinoial atatate, 41i^ Geo. 11170.4. [Grmil?,iRbMlli]......60 >• Tho|i|U|.«rftj!oetluvMils oUM rafokes the lAlorfli lAer partiaUy..... 103 3. The condition of a deviso to the Royal Institution for the adTanoement of learn- ing, that it shonld. within ton/tan, to'bo ereoted and establishea an nnirerb sity or ooUege, beariog the testator's muae, is aooomplished, if k onirersity of royal and not of ntivate foondationi be treated and estabhshed within that pe* riod. [TAe So^ iMtitutUm t. HmH- viiira$.].»,. 224 4. It is essential to the TaUdity of a doTiae of real estate that the hotogn^h* will, in, whieh it is oontalnsd, should be entirely written by the testator, and dosed by his sifnature. [Catdweli and The JSWO , 327 5. A testator, at tho time of hia deoense, posssssed of property belonging to the snoosasion of^his wife, deoMsed, by an holograph will bequeathe all the property of wtioo bo might die seiied to nis heirs and legataee, wno were also his wife's heirs, under the penalty. If any of them oontested his will, that their shars in his sucoiss i oa should bo forfeited. He names two executors or trustees, and the sur^ TiTor of them, for tho administration of all hia property until a partition. In the making of anoh partition he directs his txecotors to act for lomt of the Isgatoea who were minors, and fbr another who was marriedf without the authority of her husband for that purpose being re- quisite,— «nd whose share they should administer during the huaband'a life pay- ing her the rente, ftc ;— held, that uo will is valid, but ttat Us diapoeitione can be carried inlo adhal oaly ao te aa they affect the auceeeaion of the teatator, and that they could not In any manner apply to the auceeeaion of the teatetoHa wife of wMoh hit lagateea were the heira, and of which they were, in law,aeised from the day of her death, and that one of the ex- eoutora haTing tenounced the executioa of the will the other had taiiineci the teetator'a aucceaaion to earnr hia will into effect. [ Viger r. Pothier,]. 394 6. The Quebec act haTing proTided, that CTcry owner of lands, goods or oredite, who has a right to alienate the said Unds, goods or chattels In hia or her lifetime, may derise or bequeath the same, at hia or her death, by hia or her laat will and tee- tmnent, auw will being executed either acoordbg to the hiws of Canada, or oe- cording to the firma pnseribed Av th« kutt qf EitokmA Held, that a wfll, in- Talid according to the French law, and not executed accoidiag to the proTisions of the statute of firauds,so as to pam free- hold lands in EngUnd, will not pass Unds in Canada, although it would pass copy- hold or leaaehola property in Enidrad. [MeiU^ohm r. The JOng and CatdweO,} 581 See '*NoTABT." **Aijm** Cobposation." " FiRiTORT Acnow," 2. THB IND. TY. at,"!.