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fait ce qui a tellement excité mon admiration, s'il n'était pas venu le forcer à étudier sa cause, en travaillant avec lui. Et il parait que lorsque les Conseils de la Reine d'ici étudient une cause, ils en ont vu le fond en peu de temps et n'en perdent aucun détail utile. Il y a ici des causes venant de toutes les parties du monde. Après une cause du Canada, il en vient une autre de Dehli, de Calcutta, de Malte, de Gibraltar, de l'Isle Maurice, de la Guyanne, &c., &c. Il faut un grand fond de connaissances universelles et l'habitude d'étudier vite pour se plier à tant de législations variées. Naturellement il en faut encore supposer d'avantage chez les juges. Mais ici comme chez nous, et partout la partie ardue de l'étude est dévolue à l'avocat. Les juges ne se donnent pas la mission de connaître les causes mieux que les parties intéressées et ils les jugent, sur les prétentions qui leur ont été exposées et non sur des points qu'ils pourraient découvrir eux-mêmes. Ils ont l'expérience de la vie légale et le sens de la justice au plus haut dégré de développement et ils sentent que, juger un plaideur sur un point qui n'a pas été l'objet d'un débat devant eux, ce serait le juger sans l'entendre, c'est-àdire sans instruire son procès. Pour moi qui n'ai plus de cause à perdre ou à gagner, cela me semble être indiscutablement juste. La haute idée que je me suis formée de la manière d'administrer la justice ici, m'a rendu assez insouciant à l'égard des formes solennelles que prennent mos cours canadiennes. L'on n'est pas formaliste au Conseil Privé. Les juges siégent habillés comme de braves bourgeois, dans la vie ordinaire; c'est-à-dire que la plupart portent des pantalons gris plus ou moins foncé. Sir Robert Collier portait une cravate grise. Tous les juges avaient un surtout (walking coat) noir. Le greffier lui-même avait un pantalon gris. Les Solicitors assistent en cravates de couleur. Enfin l'impression que j'ai rapportée du Conseil Privé, c'est que c'est un beau tribunal arbitral, éclairé par les plus hautes lumières de la science générale, appliquée aux conditions les plus variées de l'humanité, inspiré par nul autre sentiment que celui d'être juste et parvenant à ses fins, sans s'embarrasser d'un formalisme qui n'est qu'une concession aux faiblesses des hommes. Mais hélas ! C'est une justice qui coûte cher ! C'est un luxe qui n'appartient qu'aux riches, ou à ceux qui jouent tout pour tout."

H.

DIGEST OF RECENT DECISIONS.

MONTREAL DECISIONS.

COURT OF QUEEN'S BENCH.

(Appeal Side.)

June 20th, 1872.

Pigeon & Dagenais.-Held that notes en brevêt, signed before two notaries, are not subject to the prescription of five years. Caron, Badgley and Monk, J.J.; Contrà Drummond, J.-M. M. Justices Badgley and Monk considered that they were bound by the decision of this Court in Séguin de la Salle v. Bergevin, 1865, although they were much inclined to think that it was wrong.

Conlan v. Clarke.-The decision of the Court of Review, recorded at page 473 of the 1st volume of La Revue Critique, was reversed in appeal by Drummond, Badgley and Monk, J.J., who held that a wife can sue her husband for pension alimentaire, without being séparée de biens and without an action en séparation de corps et de biens. Caron, J., dissenting.

June 21st.

The Glen Brick Co. & Welsh and others.-Judgments reported at page 121 of La Revue Critique, vol. 1, confirmed by Caron, Drummond and Monk, J.J. Badgley J. dissenting.

Kelly & Hamilton.-Judgment recorded at page 242, of vol. 1st of La Revue Critique confirmed. Per Duval, C. J., Caron and Badgley J.J.; Contrà Drummond and Monk, J.J.

Judah & The Corporation of Montreal.-Held that corporations, in using the power, conferred to them, of expropriating, are bound to use due diligence, and that, consequently, they are liable for the damages suffered by the expropriated proprietor by reason of unnecessary delays.

September 19th.

King & Tunstall.-Badgley, J., for the Court :-As the same points of law and fact are involved in these four cases, and as they will receive the same judgment, one statement and argument applying to the whole will suffice.

General Gabriel Christie had been stationed in Canada for someyears towards the end of last century, and had become possessed as owner of the several seigniories and properties, the subject of the appellant's demand against the respondents, holding the same. The General had one legitimate son, hereafter referred to as Gen. Napier Christie Burton, and several daughters, and four natural sons. The daughters married as stated in the records and factums of these cases, and had legitimate children of their marriages. The son, General

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Burton, was also married, but had no legitimate offspring. Whilst in England, in 1789, Gen. Christie there and then made his will, which enters prominently into this contention, and in 1799 he died in Montreal without revoking it.

By that will, he devised his property by way of substitution, first to his son, General Christie Burton, and to the heirs male of his body lawfully begotten, and in their default to the testator's natural sons successively and their several heirs male of their body lawfully begotten.

Upon the death of his father, Gen. Christie Burton entered into possession of the property, and continued to hold it until his death in 1835, without lawful male children.

In the interval, the 2nd, 3rd and 4th intermediate appellés, the three eldest of the natural sons, having predecessed the greve, William Plenderleath Christie, the fourth in order, the last appellé, him surviving, entered into possession of the devised property, and held it until his death in 1845.

Gen. Burton, by his will of 1834, devised all these properties, and the appellant claims under that will.

W. P. Christie by his testamentary dispositions, also bequeathed these properties, and the respondents severally claim through him under his will.

There is a conflict between these testators as to absolute right of property devised by each. As the appellant's demand is petitory, he must prove an absolute, indefeasible title in his devisor, and that title can only be found under Gen. Christie's will, which was adopted, proved and acted upon by Gen. Burton, as his title to the property. Under the original or Christie will, Gen. Burton had by its terms only a limited life estate, being the use, usufruct; but upon his failure to have lawful male heirs, then followed the substitutions pro-vided by Gen. Christie's will, the proprietor of the estate having power to devise them as he pleased. Gen. Burton had no absolute property under the will, and having no legal male children, could not devise what he had no power to alienate or control, under the limitation over to the appellés after his use or usufruct had ceased as the grevé.

But the limitation over is alleged to be a legal nullity, the testator being alleged under the law of Lower Canada to have no power to devise in favour of his bastard children. This involves, first, the capacity or the extent of the devisor's power to give, and second, the capacity of the devisee to receive.

But it must be observed that the legatee, Gen. Burton, adopted and acted upon the will during his lifetime, and at no time or in any way, by law or otherwise, tested the validity of the alleged objectionable bequests during the 35 years of his tenure of the property, nor during that time is any act of alienation shewn to have been attempted by him.

Now, first, the extent of General Christie's, the original devisor's power to give at the date of his will in 1789, and of his death in 1799, is assumed to be governed by the law in force in Lower Canada at those times, namely:-1. The law and jurisprudence under the custom of Paris, with their limitations and restrictions affecting the devisor as being the existing common law, and 2, the absolute abolition of these limitations by the provision of the Act, 14, Geo. 3, ch. 83, sect. 10.

The 9th section of the Act secures to H. M. Canadian subjects their property and civil rights and their laws, as before the conquest and proclamation of '63, until varied or altered by future Provincial Legislation; and subject further-1st, in the 9th section to the proviso of the Act as to soccage lands; and 2nd, in the 10th section to the proviso as to those things referred to in the 8th general section, namely, property, rights and laws, to the general amendment and change, that it should be lawful "for the owners of lands in the Pro"vince having right to alienate them in their lifetime, to devise or "bequeath them at their death by last will, any law, usage or custom "heretofore or now prevailing in the Province to the contrary not"withstanding," &c. This provision thereby became our municipal law as much as any other portion of our common law, as much, indeed, as if it were recorded amongst the customary laws of the Province. The provision has always been considered as an enlarging law in the matter of its reference, as regarded the devisory power of the testator, owner of lands, to give by will unrestrictedly and absolutely, in the language and with the intent of the Imperial Legislature, where the law originated and was promulgated, and where the restrictions objected in these cases, under the Coutume de Paris system, had no force or effect. The devising power under this amendment of the common law became as legally effective as by any act of alienation, sale or otherwise entre vifs, and no correct interpretation of the provisions could have sustained the previous restrictions or limitations of the old law against the testator's free and absolute power to devise as he did. The will of '89 is the law, and even in France, it is distinctly held to be so, as Domat says, "si le testateur n'eut rien ordonné contraire aux lois et aux bonnes mœurs, et à l'honneteté publique."

Now as this a matter of morals, where are its constituents to be found? Bastardy is no disqualification to receive in England where the will was made. It is not so in the United States, and our Code has taken care to provide that other illegitimate children, except incestuous and adulterous ones of the donor, may receive by gift, and therefore by will, like all other persons.

In these cases it is not shown that the appellés were either incestuous or adulterous children. The devise here, however, was not a legacy; the legatees capacity to receive possibly might or could be questioned as at the time of the testator's decease, but here it was a gift of property to take effect by substitution upon the contingency

of a certain event taking place, if at all, after a long interval of years; the capacity to receive and appropriate the gift then only arising, under any circumstances, when the condition happened or the substitution opened to the appellés. It must be again observed that Gen. Christie's will has through all these times been unquestioned, and it has been allowed to stand as a valid will, and did so stand at the death of Gen. Burton in 1835, and was not interfered with during the lifetime of W. P. C. the last appellé, nor effectively, until the institution of these suits in 1864, more than 29 years after Gen. Burton's death and the opening of the substitution to W. P. Christie.

This introduces the second point, the capacity of the last appellé, W. P. Christie, to receive the gift at the death of the grevé. There appears to be no conceivable doubt in law that the disposition of Gen. Christie's will, assuming the bastard objection did not exist, is substitutionary, and that the actual capacity of the receiver to take would be governed by the law as it existed at the opening of the substitution.

It has been seen that the enlarged devisory power under the 14 Geo. III was our municipal law at and from that time, however promulgated at the time, because it was an act of supreme legislation affecting the province and its common law; but having become and being such municipal law, it became subject to the power of the provincial legislature to extend its operation and explain its intent as any other existing law, part of our common law, and quite as much and as legally as the articles of the Custom; and its law and the jurisprudence under it have been repealed, revised, enlarged and codified by the code legislation. The provincial legislature established by the act of '91, which was an Imperial act like that of 1774, received plenary authority to make all required laws for the peace, welfare and good government of the province, and in the exercise of its power under its own act, 41 G III c 4, interpreted, enlarged, and added to the common law or provisions of the 10th section of the 14 Geo. III, and declared the perfect freedom of bequeathing and receiving by bequest; that general right to devise carried with it the power to devise to any person generally, and necessarily allowed universal legacies to be made under the generality of the legislative enactment to any person, even to bastards or illegitimate children. The objection of personal incapacity as regards legatees was thereby abolished from the time of the 14 Geo. III, under the explanatory declaration of the 41 Geo. III, adding increased strength and vitality to the validity of the right of the substitute, which could have had no possible existence until the opening of the substitution in 1835, the will of General Christie standing all the time valid and unrevoked, so far as W. P. Christie, the last substitute, was concerned; the transaction was then and at that time only perfected as between General Burton, the grevé, and himself. under the municipal law as it then existed. The capacity to take under a substitution, to be determined only when the substitution opens for the substitute, is too elementary a

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