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(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.

" 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.

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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.

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' <ity of (^lu'liLC,
witlimit it.< iK'iiif? in tlio jiowci- <if tlic fSriijiiims to cliiiiu from tlicin any duos of any Kind \^]mt»•v^l•.

And ll.i-i ilr.'itr ^llall 111' ic;:i'tiriil in tlic iryli-ti-y of tlio Siijii'iior Cuuni il ol'iiiadioi.-. Mid ic.d and jiuti-
lished wherever nerd shall be.

DoiKi in til'.' Ki.i'/d Couiuil of etaie held at Maily, IliaMajoty btiii;^ jiix'siut, tlir 0th day of July, 1711.

(Signed,) I'lIKLiri'KAUX.

Arret of 1732.

(Ii) The luiij; liavini; can-i d tin pf. ihietlonheforc.liini, in Ills C ^iiiifil, of iln decree uinh vc 1 thciein the fith
Jiilv, 1711. ordciiiii,' that llie iiiLaKitiints of New I'laneo, to ■whom laiiilB oi- li.fs have Ikiii jfianted, inid
who have ii.'t y<t cl< .-iic I iniy i"irtioii thcii'of as a doii;aiii, imr caii.ed the inlialiitiinl-. to si tile tluieiii, should
be held (.1 puttlieiu in a .-t.'ite of cultivali.ili. and to place ^-t ttlcrn thereon, within a yeaf fioiii the publicatlou
of the said dcTee, after tlie oxpiiiition of which iKIay. siich Hif^ should be re-united to the doniaiii of Ilia
ihijcsty ; and that the said !Sci;iiioi--i .-lioiildals'i he licl.l |.. e.iiic'.ile to ihc iiihabitaol., (Ii'iiiaiiiliic,' tlniii, siiliject
to the usual sciifiiiorial dues {I'l tlly il'' ri'(krniirfs), and witlmnt exacting' any sum of money, in default whereof
the said iiihiiliitant-', in case of a refusal on the jmrt of the ,Sei(,'niui's, after demand to that etl'ect, uic
i)eniiiUed to apply to the C.ivenior and Liciilciiant (iincial and Intendant of the said Ci.untry, to obtain
eoncig-ions of -udi lands, sub;e" t to the dues imposed ui)oii the lands already eoneedcd, whicli dm - should bo
paid to the Uc'ceiver of the domain of His Majesty, without the hfi ijiniois Lciin; allowed to elaiin any thing
upon the lauds S" eoiioided : and another <li.c;-ee of tli.- raiiiediiy, lilli July, 1111, ordeiiiy that tlie tenants of
lands ni roture should be held to reside thereon, Uti'r feu et lieu, and to put them inn state of cultivatiouwitbiu
u year from the day of pnblieation, on pain of ro-uniou to the domain of the Seigniors, by virtue <if the Ordin-
ances of the Jiilcii(lant.

And m.i Majesty Ijcint,' informed that, iu ooutravention to those two decrees, there nre Seiifniors who have
reserved for iLeinselves, iu their .Seigniories, extensive domains, which they sell as wood hinds, instead of eou-
eediii" them merely subject to the usual Seignloiial dues {a litre i/c r't/fc«)i<'p.«,) and that inhabitants who have
obtained eonccssioii of lauds from the Seigniors, sell such lands to others who do as much, whidi gives rise to
u system of liartering contrary to the welfare of the Colony, and it being noeessary to jmt a stoji to abuses so
prejudicial. His Majesty, sitting in Council, has ordained, and doth ordain, that, within two years from the day
of publication of the present decree, all jiroprictors of Seigniories not yet in a state of eultivalion, shall lie
held to imt them in a state iJ" eultivati.di, and to h cati> 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!;<ls shall, in
the same manner, be re-uuited by force of law to the domain of His Jlajesty; and furtheiinoro. the said two
deereei of the 10th July, 1711, shall be executed according to their tenor and ell'ect, and the present deeieo
elia'l be registered in tlie llegistry Oflice of the Supeiior Council of Quebec, and shall be read and published
wherever it will bo necessary.

Done iulLu Kiug'ii Couucil, iu preioaoc of IILs iluje.^ity, at A'crsailles, the loth JTiirch, 173:;.

(Signed), I'UELIlTiiAUX.

('■

is not within tlic cases provided by tlieso arrets^ nnd yet ho wants to have his deed
in part annulled, iind in pari nmintaincd. The arret of 1711 it* in the nature of a
penal Statute;, ntid must be intcrpnMed according to the letter. I am of opinion that
tlie Defendant docs%ii6t come at all wilhiu ilio case provided. There has been no
calling upon the 8oigfrior to (ioiicedc, norrcfufial on his part to do so : on the contrary,
llie Agfecmciii entered into between the parties has been entirely free and voluntary.
The Dei«Utlant has not even made the necessary allegations in his pleas, in order
to succeed, nanK'ly, the fact of u concession having been demanded, and the refusal
on the part of the Seignior to make such concession.

I have said that the queslion was not a new one ; in support of this assertion, I
will cite a decision applicable to this case, rendered in the Court of Queen's Bench,
at Quebec, in 1820, No. 92, Dubois vs. Caldwell. It was an action in factum
brought by a Censitairo against his Seignior. The declaration alleged in substance,
that the Defendant had had 1000 livres paid him for the concession of a land in the
Seigniory of Gaspe, at a fixed rate of interest, over and above the cena ; and prayed
that the land in question be discharged from this aimual redevancCy imposed in
addition to the cens, and that the PlaintifT be exempted from the payment of this
capital of 1000 livres. To this action the Defendant answered by a defense en droit. —
Per Curiam : — This action (Dubois vs. Caldwell,) is founded on one of the clauses
of the arr^t of the 6lh July, 1711, which enacts : " 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 ; otherwise,
" and in default of their so doing, His Majesty permits the said settlers to demand
" the said lots of land from them by a formal summons, and in case of their refusal,
" to make application to the Governor and Lieutenant General and Intendant of the
" Country, whom Ilis Majesty enjoins to concede to the said settlers the lands
" demanded by them, in the said Seigniories, for the same dues as are laid upon the
" other conceded lands in the said Seigniories, which dues shall be paid by the new
" settlers into the hands of the Receiver of His Majesty's Domain." This law must
be assimilated to a penal Statute, so that in order that the Plaintiff should succeed,
his case must come within the very letter of the law. The arret requires, in the first
place, that the Seignior shall be called upon to concede at the rate usual in his
Seigniory, and for no other consideration, and the recourse which it grants can only
be had in case of refusal. As the declaration neither alleges such calling upon the
Seignior to concede, nor his refusal to do so, it is defective in one essential point,
and the defense en droit must be maintained.

Such is the decision rendered as far back as 1820 on the subject, and the same
defects as were in Dubois' declaration are also to be found in Martel's exception.

It may be asked with reason (and this question arose in the cause above men-
tioned,) whether the Court has jurisdiction in this case, inasmuch as the authority
conferred by the arrdt of the Cth July, 1711, is not within the ordinary province
of the judicial power ? In eifect, it was the authority to make a concession of lands,
in the place of the Seignior, and this authority was vested in the Governor and in
the Intendant. The first was a purely political functionary j the second was invested

J9 deed
(re of a

)ii that
l<'eii no
[ntrary,

order
|rori]t<al

with administratlvo and judiciary authority. Vide also ; " Ferlav et D^guise, in
Appeal, 5lh January, 1789, befi re Chief Jufitieo Smith." It mifjfht mIho he ankcd,
whctlier the Censitriire, in having agreed to the concession deejl and lalwcii possession
of the land, liad not renounced the benefit of the air^t, according to the rule; unU
cuitjne licet juri pro ae introducto renuntiari.

It is therefore evident that we cannot apply the am-t8 of 1711 and 1732 to the
present case, and that judgment nuist be rendered in favor of the Plaintiff.

Duval, Justice.

This cause is one of great importance, both for the Seignior and for the Ccnsi-
airc ; but the f|nesiion, in the way in which it is brought, does not present much
difficulty. The Defendant pleads that he is only bound to pay one sol of cens, and
that as to the sum or annual redevance of seven aols, imposed upon him in the form
of a constituted rent, he ought to bo discharged therefrom, and he prays that part of
the deed of concession, to wit : so much thertwf us imposes a due of seven aols^ be
annulled. What does he found this pretension upon ? It cannot assuredly be upon
.the arrets of 1711 and 1732 ; both these arrets, the only ones that can be cited, only
apply to the refusal of the Seignior to concede, and to the sale of forest lands, in both
of which cases, the matter had to be brought before the Intendant. No reference
whatever is made therein to the rate of the concessions. ( Vide these airdts above
cited.) If they ire still law, the Court cannot apply them in part ; they must have
their full cflbcl, and render the concession entirely null. Besides, these arre'ta con-
ferred upc/n the Governor and the Intendant, administrative and extra judiciary
powers which do not belong to this Court.

These arreta in no wise justify the exception pleaded in this case. The Defen-
dant might have pleaded an error in Law, and alleged that he had signed that deed
without due cause or motive, but he has not thought proper to do so, and can-
not therefore avail himself of that ground of defence (1.) He should have made it
the subject of a special plea, and the Defendant might then have answered and proved,
in consequence of the uncertainty, or of the ambiguity of the Law, that the parties
had entered into a transaction among themselves; and this answer would have been
conclusive. It has been pretended that this deed was a sale, but such is not the
case ; in my opinion it is purely a deed of Concession.

Meredith, Justice. '

It would be almost useless for me to add any thing to the observations of the
other Members of the Court on this important case, but I think it my duty to quote
the very words of the arr^i of 1732, which are supposed to apply to the present case.
They are as follows :

(1.) Revue de Woloski, 18 vol. p. 169 :— 6 Toullier, Nob. 58 to 71 :--l Potliier, ob. 17 :™2 Evans Potliier,
369 : — La Revue, loco citato.

' I

" Ilis Majesty expressly prohibits all Soigninvsor other proprietors, from selling
"any wood lands, on pnin of nullity of tlie deed of sale and of restitution of the
*' priee of lands sold as aforesaid, which lands shall in the same. manner be re-united
"by force of law to the Domain of His jVIajesty."

The Defendant, in order to come within the ease provided by the mT^t of 1732,
has alleged in his plea "That the land described in tlu; Plaintill's declaration, be-
" fore and at the time of the execution of the said Deed of Concession, consisted of
"niiconceded woodbind &;c." If the Defendant liad proved this allegation, we
should have been called upon to decide a number of important (jnestions, which, in
the absence of such proof do not arise. ■

Caro.v, Counsel for Defendant.

I must call attention to the fact, that the Deed of Concession granted by the
Plaiutiltto the Defendant, contains a clause imposing the condition that the Ceusi-
taire shall dear and improve the said land.

Merkdith, Justice,

I do not think tlial, ac(;oriling to this siipuluiion, it must necessarily be inferred
that no pari, of that land had been improved, ^md tliat it consisted of woodland
within the meaning of the arret of 1733.

Duval, Justice.

It is not a Deed of Sale, and besides there is no proof that it is wood land.

Meredith, Justice, in continuation : —

The arrets of 1711 and 1732 were introductory of new Law into the system of
French law introduced into the Colony, a system by which a Seignior could concede
his land at a rate agreed upon between himself and t!ie Censitaire (1). These arrets
are penal laws. In order to subject any one to tlie penalties imposed by these arrets ;
the infraction complained of must be a violation of the letter andof the spirit of the law,
(2) and the Court cannot be satisfied with a presumjjtion as to an essential fact
which it was easy to prove. In the present case, six witnesses examined by the
Defendant, slate that lliey know the laud in question, none of them state thfit it was
wood land at the lime it was conceded. I consider the proof of the Defendant
on this point to be defective, but as tliere may be a variety of opinions in this respect,
I do not hesitate to sfiy (and I have examined this (|uestion also) that I concur in the
opinion of the oilier INIcmbers of the Court, naniely, that the deed in question is not a
deed of sale within the meaning of the arr(jt of 1732.

It is possil)le, (lluough I know no example of a D(^ed of Concession having been
annulled) it is possible, I repeat, that if a case of this nature had been submitted to
the (lovornor, or to the Inlendanl, under the French Covernment, the Censitaire

(1) Ilerve, 5 v. p, ill lo [ti-.—Dunod, part 111 c. X. !>. 311 :— 1 Jr.^ou p. 519.
(-') nv.arris, p. T.'JT :— 3 BiuijlKini p. 583.

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,

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

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 .

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."

QUEBEC:
PBtMIBD BT JOHN LOVEUi, AT HIS STEAM PBlNTINa EBTABUSHMENT^

MOUNTAIN STBEEI.

1862.

..*