IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I tea 128 |2.5 |5o ■'^~ HlllMB I ^ lll£ 1.8 \M |||J4 16 6" ■ ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 do L<9 CIHM/ICMH Microfiche Series. CIHIVI/ICIVIH Collection de microfiches. Canadian Institute for Historical IVIicroreproductions / Institut Canadian de microreproductions historiques ( meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Un des symboles suivants apparaitra sur la derniire image de cheque microfiche, selon le cas: le symbole -*> signifie "A SUIVRE". le symboie V signifie "FIN". Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmte A des taux de reduction diffirents. Lorsque le document est trop grand pour Atre reproduit en un seul clich6. il est film6 A partir de I'angle sup6rieur gauche, de gauche 6 droite, et de haut en bas. en prenant le nombre d'images ntcessaire. Les diagr«mmes suivants illustrent la mithode. 1 2 3 1 2 3 4 8 6 (J^o ci r ^io ' ^ CASE TO BE FOUND AT PAGE 36 OF THE SECOND VOLUME OF THE LOWER CANADA REPORTS, OFFICIALLY REPORTED AND THORITY. " ''^^ LANGLOIS vs. MARTEL. \i " There is no law in this country fixing a uniform rate of cens et rentes — " the arr^s of 1711 and 1732, apply, the first only to cases where the Sei- " gnior refuses to grant unconceded lands, and the last to the clearing of forest " lands, the sale of which it prohibits, — a concession in which a portion of the " rente is stipulated rente constituee rachetabley is not a sale." iiUEBEO: *-..J»f^^.'' PRINTED BY JOHN LOVELL, AT HIS STEAM PRINTING ESTABLISHMENT, MOUNTAIN STREET. "•'' '=•-■" 1652. /• 4 J w*' * "f " -1. «)« Vi»%i«^^ \.,-jir'^ , "lki'*«s;.,Vi.' ■>;. •J ■» T-* iT '' a r «, -**i ^j tr* *, ? f rt if v-W- CASE FROM LOWER CANADA REPORTS. PAGE 36. SUPElUOIl COURT, QUEBEC. Before Bowex, Chief Justice, Duv.vi- and Meredith, Justices. ! 1591 ~) Langlois, or V- 1852 ) Martel, vs. Plaintiff. Defendant. TL'ld Mmt the arrit of tlie King of Ti-anoo, of tho fith of July, 1711, can only be made to apply to case* wlici'c the Soi;,"iiior has ii fused to grant liiti unctmecJed lands ; that the arret of the 17th March, 1732, merely enjoins the elcaiiiig of foiestlauds, iuterdiotlug the sale of such lands ; but that these two arrets afford no rcnu'dy to a Con^;itaile who oninplains that the latc of rcnlea is too high ; that there is no positive law limiting the rate of cc/is tt re/i/t'.'i; thai a deed of concession imposinjj one sol of rem et rentes and seven so/« o{ rente conxliliilc is not a dei'd of sale ; and is not consequently void or voidable ; and that in the case submitted, th« Court has no power to reduce the rate of.«Hs et rentes. TRANSLATION. t ■ ' Judgment i 3th January, 1858. This was an action brought by a Seignior against his Censitaire to recover the arrears of a constituted ground rent {ccns et rentes Joncieres et constituees,) due under a deed of concession. The plaintiffs declaration alleged " that by a deed executed before Panet, Notary, on the 10th September, 1839, the Plaintiff, Seignior of part of Bourg Louis or New Guernsey, did concede to the Defendant subject to the payment of cenSf irredeemable ground rents and constituted rents, {d titre de cens, de rentes foncierea non rachetables et rentes constituees,) a land" described in the said deed. " That the said concession was made subject to the payment, for each arpent in superficies of the laud so conceded, of one sol or half-penny currency, of perpetual and irredeemable Seigniorial cens et rente, and seven sols or three pence half-penny currency annual and constituted rent, at the rate of six per cent per annum, redeemable at pleasure, forming in the whole eight sols or four pence cur- rency o/ccns et rentes, fonciere et constituee /or each arpent in superficies. " That the arrears amount to £10, and the Plaintiff prays that the Defendant be condemned to pay the said sum. 3 To this action the Defendant pleaded : 1. That the land described in the PlaintifTs declaration and in the deed of con- oeMion mentioned, before and at the time of the passing of the said deed, consisted of anconceded forest land, and formed part of the Seigniory of Bourg Louis, also called New Guernsey, and of the domain thereof, having never been conceded nor charged with Seigniorial rights and dues. 2. That by the law of the Country and the titles and grants of the said Seigniory the Seignior thereof, and especially the Plaintiff, acting as Seignior of a portion thereof, was bound to concede the lands of the said portion of the Seigniory, subject to the payment of cena et rentes or Seigniorial dues, according to the legal rate acknowledged in this Province, and according to the rate of cens et rentes recog- nized at and before that time in the said Seigniory ; the said rate being one sol for each arpent in superficies ; but that the Seignior or the Plaintiff were forbidden to Bell the said lands for a price or sum of money. 3. Now the Defendant alleges that by the deed of concession in the PlaintifPs declaration mentioned, he, the said Plaintiff, did sell the said land and establish a price to be paid for the concession thereof, as follows : that the said concession is made subject to the payment by the said Defendant to whom the land is conceded, to the said Plaintiff, the Seignior conceding the same, of one sol or halfpenny currency perpetual and irredeemable Seigniorial cens et rentes^ and seven sols or three pence halfpenny currency^ annual and constituted rent at the rate of six per cent per annum^ redeemable at pleasure^ for each arpent in superficies of the said land ; the said cena d rentes carrying lods et ventes^ and heingpayable^ as well as the said constituted rents, on the first of November in each year. 4. That consequently, so much of the said deed as stipulates a price of sale, or the payment of seven sols annual and constituted rent, redeemable at pleasure, over and above the ordinary cens et rentes, is null, illegal and of none effect, inasmuch as by the laws of the country, and especially by the arrdts and ordinances of the sixth of July, one thousand seven hundred and eleven, and of the lifteenth of March, one thousand seven hundred and thirty-two, the Seignior is forbidden to sell the uncon- ceded lands in his Seigniory, in any form or under any pretext whatsoever, on pain of the said sale being null, and of reimbursing the Censitaire, the sums of money so illegally demanded of him for such sale. 5. Wherefore, in consideration of the premises, the Defendant hath a right to pray and doth pray, that so much of the said deed as stipulates a price for the sale of the said land, namely : seven sols annual and constituted rent, redeemable at pleasure, for each arpent in superficies, be declared null and of none effect, illegal and void, and that by the judgment of this Court the PlaintifTs action be dismissed with costs. 6. And the Defendant doth further allege, as another perpetual peremptory exception in law, in answer to the PlaintifTs demande, that the rate of cens and Seig- nioral rents and dues at which the Plaintiff was bound to concede the said land, was the old and ordinary rate at which lands were and have been formerly conceded in the said Seigniory of Bourg Louis. 7. That the said rate was no more than one sol of Seigniorial cens et rentes for oi ni ai each arpent in superficies, which rate is mentioned and fixed by the Plaintiflf himself in the said deed of concession, at one sol cena et rente for each arpent in superficies, as aforesaid, and which said rate the Defendant hath offered, hath always been, and is still ready to pay, and hath in fact paid. 8, That consequently, a rate of cena et rente exceeding one 8ol per arpent in superficies is illegal, and the excess over that rate ought to be reduced and deducted. 9. Wherefore the Defendant humbly prays that for the causes aforesaid, by the judgment of this Honorable Court it be declared and adjudged : 1st. That so much of the aforesaid deed of concession as stipulates a price of sale for the said land, namely, seven sols constituted and annual rent, redeemable at pleasure, for each arpent in superficies, be declared illegal, null and of none effect and void both for the past and for the future ; 2ndly. That the rate of cens et rente shall remain as stipu- lated in the said deed of concession, at one sol of cens et rentes for each arpent in superficies, and be reduced to the said rate, or to such other rate as the law declaxes legal, the Defendant reserving to himself the right of taking thereupon any other con- clusions that he may deem necessary ; and that the action of the said Plaintiff be dis- missed with costs. Lelievre for Plaintiff: * There is no law fixing the quota of cena et rentes ; the cena when payable in money varies as much in amount, as in the mode of payment ; it is sometimes paid in poultry, sometimes in grain, besides a moderate redevance in money; these ar- ticles must necessarily vary in value ; if the law, therefore, did establish the quota of cens et rentes it would not be lawful for the Seignior to impose them otherwise than in a fixed sum of money. (1) The value of money is much less at this day than what it was a century ago; and the one sol of cens with the rente of two or three so/a, charged a hundred years ago, was equivalent to the cens et rentes charged at this day, and claimed in this cause. The stipulation of a redeemable constituted rent, is one which is favorable to the Censilaire, who may be discharged therefrom, by re-imbursement, prescrip- tion, or sale by authority of justice. (2) The arrets of 1711 and 1732 contain no provision fixing the quota of cena: if such be the case, the Defendant cannot complain that he has been left the power of being discharged by redemption. Tessier, for the Defendant : The deed of concession contains two distinct parts ; one in the form of a con- cession, which stipulates one sol of cens et rentes per ajpent in superficies ; the other, in the form of a sale, which stipulates a redeemable constituted rent of seven sola per arpent in superficies. In the case of a dicret., (sale by authority of justice,) the (1) Poquet do Livonitire, p. 634 : — Die. de droit, vbo. cens, p. 249 : — Rtnauldon Dr. Seig. pp. 162, 167: Prud'homme, pp. 87, 129. (2) Denisart, 4 t. tIx>. renief fonciiret, no. 16, b. 246. Seignior inlglit claim \hc capital of tliifti coiistilulcd rent, luul by i1k> rcdoiuption iuh! gradual extinction of thcao rents, tlit; riglil of (/nhil would he less, and the Crown, as well as llic Ccnsitaire, is interested in prcventinij; tliv Seiynior from selling liis forest lands. Besides the edict is positive, and declaies that these sales shall not bo made, on pain of nullity, and even of the reimbursemcni of the price of sah-, if the same shall have been |)aid. As to the rate of cenn el rentes, the edicts of the Cth of July, 17 1 1, and of the 15tli of March, 1732, declare that the lands shall be conceded at the ordinary rate now, no examjjle can be found before 17C3, of any rate exceeding four .so/*' per arpent ; a rate exceeding this one is not therefore an ordinary rate. The Censitaircs have made constant eflbrts to maintain their rights before; the Courts, and among the numerous precedents to be found (and which are hereafter cited) there are a great many in which decisions have been given in favor of the Censitaircs, under the French Government, and there arc none in w hich tiie Courts, since the Cession of the Country, have decided these old ordinances not to \n^ in force; it is true that the tribunals have often avoided deciding the qiiestionf upon their real merits ; the present Courts have therefore nothing left but the duly of enriy- ing these ordinances into execution in the interest of the Censitaircs and of the Seigniors. The Report of the Commissioners on the Seigniorial Tenure, of 1813, declares these edicts to be in force, and that the powers of the Inlendant are transferred to our present Courts. (1) BowEN, Chief Justice : This important case has been pleaded with great care on both sidi^s, and yet the questions which it presents are not new. The action was brought for ilie recovery of a sum of £1G currency, arrears oi cens et rentes due to the Plniiitiiri)y the Defend- ant, under a deed of concession. To this action the Defendant pleaded the provisions of the arret of the 6th .Inly, 1711, contained in the 1st vol. oi llm Edits et Orel.]). 3il (2) and the provisions of the or/'e/ of the 25th March, 1733 also contained in the 1st vol. ot Xhc Edits et Ord. p. 486. (3) (I) Aq\. 17, Gcurgo III: Act 3-t George III : — Repovt: of tlic Ci)ni)iiissinnoi's on tlio Sei^norial Teiiuro, 1843: — Cugmt, Tntilc dc^ Fiefs, p. CO : — 1 Iknrion ile Pinunj. DUscriation' Feuiltiles. pp. 'J75 mid 270: — Ancien Bcnlsarl, vbo. cens: — .'7c/e/ of tlio '20tli May, 1713: 2 Kilils cl Oriloii nances, p. 3!t : — .Inels of the 15th Februury 1710, of the 2.Stli Juno, 1721, of tlio 20th September, 1721, of tho 10th OctoluT, 1721, of the 21st February, 1731, of the 20tli July, 173:;, of tho 2ar(l .Jiiiiimry, 1738, and of tlie 23i'd February, 1748. On tho question wliethor a portion of a deed eau lie declared null without iloclariiig tlio wliolo deed to 1)C null : — Perrin, Traile des nulliies... .: — Cuyol, licpcrluire dejuihjirudciice, vbo. nullitcs: Ferriirc, JJicliuunuiic dc droit vbo. nuUUis. Arr^tof the Gill July, nu. (2) Tho King licing informed th.it, among tl)e tiaets of liind-«lii(hl!i.- Mnjesty lirr- been pleaded to grant and concede in Seigniory to his subjects in New France, there are some wliieli have not been entirely settled, and others on wlueh there are us yet uo sellleiB to bring tlicui into a state I'f eultiv;itiuii, and mi wlii.'li iil.-ii) those to whom they have tx'on conceded in Seigniory have not yet commenced to make clearings for the purpose of establisliing their domain thercou. Aud liis Majesty being also informed that there are some Se iguiore who refuse, under various pretexts, Iiiaiid r<;wn, |ii>t 1)(' the ; ISth now, |nt ; a Till* object of lliOM> cri'e.'n was to ()l)lig(» tlic Seigniors to coiu'cdc llii> hauls in ll;('iv Hcigiiiori''s, and lo [)H'vciit tlioui from celling their ibicsl htiids. The Dfftuidanl t.> conopile Iniidri (■• •■<.'ttliT.< who npply to tlnni, v illi ll.< Imni ol' luini,' iil/l( ti m II ihc .-.iinic, iimi iil flif huiho limi' iinpi "o 11)1. 11 (lie puriliii: > t> tlic >: ir..' diK s ii< iiic piii I 'ly tli' inliiiliitj;ii! ■ ;i!' nily m Itli d ( ii IhikI, , v, lilcli is oiitii'tily cuiitiiiiy l<> llii* ^Iiijinty's iiiti'iiluns. iiii'l to tlir cIiiii.-ih iiiui comliliciiiH nl' Miu ui'ii'-isyioui, tjy wlilrli tlry lu'c iiuiily |)ci'iiiilli'd tw cdhociIc iniidrt at iiii iiii:iiiiil inDiind irtil ; wlnrrliy veiy jjrciit di'tiiiiifiit, is d''iii; Id tilt! iU'VV sctllcr^^ whu f'lliii 1« ■•■t l;;iiil hjm ii tn nUlcliniit in 11k |.Iii«r.* In-t ad:i['tu(l to cninriit'i'i'c. \ \ !;■(> !^i t; ll■l^ 1I-- lul-- < 1 I^iUmI \,l\' li llii y luiy di luMidot till 111 111 1 1,. 11- .Sri;,'liliilli-, III II IJi'i i.lid iclil, mill williout • xnctiii!,' IVi in tln'iii iiiiy tmm ot iu"ii<'y ii»< a ('oiisidi'i-i.tii.ii I'nr fiii'Iuviikv^miii.h ;(itlirr\vi-'i', mid In ilt!':iidt oi'ilitMr Hd diiiii',', lli> M:i,)i-ly I'criiiiia till' .-uiJ hcII \vyn tudi iii:;iidllu' miIiI int.s nf liiiiil IVoiii tin 111 liy a t'liu.al suiiinioiis, M'.d in ni.-r of tin ii- ii't'i:,-:il. t • iii:il;i> lU'j 'Iiatiitii Id tlic (iov.'niiir and IJouti iiiiiit. (li'ii.i id and Iiihudiiiit of llio Hiiid (.'(lUiltiy, win 111 His S!iij»'»ly onjcuic to ruiiri'do In the Si'tlUis llu^ line's diiniin Ird liy llniii, in the said Svi;;iiioii<^, T'lr ll.'' fiaim: dius as au' lai'l ii]hiii IIk- ithri- cuiiiM'cl.d laii'i.- In tin ■•niil S. iu,i:i.irir.s, wliicii duvs plliiM lie J'liid li_V t'ur IH'W -cttlt'i'.- ilit') tlif luiinU of tlu' Iliiiivcii.l' lli:^ Maji-ly's d piiifiiii. ill tin' inhabitants therein; in default whereof, and after Iho exiiiriition of such delay, tln' s:iid Seigniories slii'U bi- rc-unitcd to the domain of His Majest j , by virtue of the present decree, and without any other proceeding being required. His Majesiy expressly prohibiting all Seigniors, or other proprietors, from selling auy woodland, on pain of nullity oi' the deed of sale, and of restitution of the price of lands sold as aforesaiil, which la!;. 311 :— 1 Jr.^ou p. 519. (-') nv.arris, p. T.'JT :— 3 BiuijlKini p. 583. 9 might have succeeded. But these officers exercised very different powers from thoee vested in us, and a very great latitude was allowed them in the interpretation and execution of the Laws, which is not allowed us. It would seem that it was suf- ficient for these officers to know the intention oi the Sovereign, in order to impose a duty or an obligation, without its being necessary ihat such intention should be ex-' pressed in a law ; while in a case like this, with the powers which we exercise, we must confine ourselves to the letter of the law. In order to show what the extraordinary powers were, that the authorities under the French Government exercised from time to time, in respect to the Concession of lands, I refer to a judgment of the 20th July, 1733. (1) " which on the petition of " the Seigniors of Portneuf, condemns the Censitaires of the said Seigniory to " furnish them copies of their deeds, and those who have not taken them, to " procure the same on the same conditions as the former ones, unless they would " rather submit to the rent of thirty sola and one capon for each arpent in front by " thirty arpents in depth, of six deniera of cena and the eleventh fish, which choice " they will be bound to make, or leave the choice to the Seignior, &c. I refer also to an enactment of the 4th October, 1743, passed by virtue of orders from the King, requiring the Seigniors of the Mingan Island, to concede certain Islands, on the condition of the payment of a redevance of three per cent upon the Seal Skins and Seal Oil prepared by the Censitaires. (2.) I refer, moreover, to an Ordinance of the 27th May, 1758, which subjects all lands within the domain of the Crown, in the city of Quebec, to an annual payment of five sola six deniera per arpent, and those of the banlieue to one denier per arpent. (3.) With respect to the Arr^t of 1711, the obligations which it imposes upon the Seigniors, as regards the concession of lands are in the following terms : " And His Majesty ordains also, that all the Seigniors in the said Country of " New France, shall concede to the settlers the lots of land which they may demand " of them in their Seigniories, at a ground rent, and without exacting from them any " sum of money as a consideration for such concessions." This arr^t does not define the rate at which the Seigniors were to concede their lands to the Censitaires, but it is evident, from the provisions therein contained, with respect to the rate at which the Governor, Lieutenant General and Intendant were bound to concede, and it appears from divers arr^ta and regulations, that the intention of the Kings of France was to oblige the Seigniors to concede their lands at the or-- dinary rates, and that these rates were less than those charged at the present day. Many persons believed, formerly, that there must have been a law in existence in the colony, regulating the rate of concessions, and determining the maximum thereof^ It is nevertheless universally admitted, I believe, that this supposition had no founda- tion. The Courts of Justice then, in this Colony, in the presence of a law obliging the Seignior to concede and in the absence of any law fixing the rate of concessions,, (1) 2 Edits et Ordomuuce, p. LXXI of Table. (2) 2 EditB et Ordonnance, p. LXXXII of Table. (3) 2 Edits et Ordonmtace, p. 121, P 10 or forbidding the Censitaires to pay any such redevances whatsoever agreed upon between them and the Seigniors, have always, since the conquest, so far as I have been enabled to ascertain, determined that a voluntary convention agreed to between the Seignior and the Censitaire, regulating the price of the redevance, cannot be an- nulled on the grounds that the said redevance is higher than those imposed in 1711 and 1732, or than those formerly imposed in the Seigniory in which the Censitaire asking for the reduction of his concession, is settled. This doctrine has been applied in several causes in which I was myself employed as an Advocate. In 1840, I brought several actions in the Court of Queen's Bench at Montreal, at the suit of the representatives of the late Gen. N. C. Burton, against censitaires in the Seigniories of Bleury, DeL6ry, Lacolle and Noyan for arrears of cens et rentes the rate whereof was higher than in the present case. These Censitaires and some other persons, interested in the question, joined together in contesting the legality of those demands, and for that purpose secured the professional services of the first lawyers of the . Montreal Bar. Four of these cases (Hamilton vs. Fortin ; the same vs. Chouinard ; the same vs. Lamoureux ; the same vs. Brouillette ; ) were brought to judgment- The sole question submitted to the Court was this : " Can the reduction of the cens *' et rentes stipulated in a deed of concession be demanded ? " This proposition was supported in the affirmative with great ability but without success. The judgment in one of these cases, and the reasons on which it is founded, are detailed at length in the Report of the Commissioners on the Seigniorial Tenure. The question of appealing these cases was mooted, but that idea was aban- doned ; and similar judgments were rendered in all the other cases. At that period, the researches which I was obliged to make had convinced me that those judgments were correct, and now, after a new examination of the question, I can find no reason to set aside the doctrine which those decisions has laid down. I concur, therefore, In the judgment, which is in support of the Plaintiff's action. The judgment is as follows : — The Court, considering that the arr^t of the King of France, dated the 6lh of July, 1711, cited by the Defendant in support of his plea, only applies lo the cac-e in which the Seignior has refused to concede to the inhabitants the lands which they require of him, and that the arr^t of the King of France, dated the 15th of March, 1732, also cited by the Defendant in support of his defence, orders all proprielors of lands in Seigniories, yet uncleared, to put ihcm in a state of cultivation and place settlers thereon, and that, by the said arret, His Majesty expressly Jirohibits all Seigniors, or other proprietors, from selling any wood land, on pain of nullity of the deed of sale, and of restitution of the price of lands sold as aforesaid, which lands shall be re-united by force of law to the domain of His Majesty ; considering that it is established that the Plaintiff in this cause. Seignior of the north-east half of the Seigniory of Bourg Louis, now called New Guernsey, did, in and by a deed made and executed before Mtre. Panet and his colleague. Notaries, at New Guernsey, on the 17th September, in the year 1839, concede, but not sell, to the Defendant, the land therein described, subject to the several charges, clauses and dues therein men- tioned, which concession of the said land, and the said land, he hath held since the passing of the said deed until this day ; considering that the allegations contained in m 11 the peremptory exception in law, which are established by the; proof adduced in this cause, are not sufficient in law to annul the said deed of concession, in whole or iti part, doth dismiss the perpetual peremptory exception in law in this cause filed by the Defendant, and condemn the said Defendant to pay to the Plaintiff the sum of thirteen pounds four shillings and eight pence, being the balance of the sum of £16 lis. 4d., currency, for eight years' arrears of cerw et rentes due by the Defendant to the Plaintiff by virtue of the aforesaid deed of concession, due the 1st November, 1848, with interest from the 28th April, 1849, and costs. LKLitvRx and Axoehs, Attorneys for Plaintiff. A. Stuart, Counsel. Tessier, Attorney for Defendant. Carov, Counsel. '»*"5 •, I ',h . #. M CASE TO BE FOUND AT PAGE 36 OF THE SECOND VOLUME or THE LOWER CANADA REPORTS, OFFIOIALLT REPORTED AND PUBLISHBD BT AUTHORITT. LANGLOIS vs. MARTEL. *' There is no law in this country fixing a uniform rate of cens et rentes—' ** the arrSts of 1711 and 1732, apply, the first only to cases where the Sei- ** gnior refuses to grant unconceded lands, and the last to the clearing of forest " lands, the sale of which it prohibits,--^ concession in which a portion of the " rente is stipulated rente constitute rachetable, is not a sale." IS QUEBEC: PBtMIBD BT JOHN LOVEUi, AT HIS STEAM PBlNTINa EBTABUSHMENT^ MOUNTAIN STBEEI. 1862. ..*