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PRviNCE ^ ^^ ^^ ^^ ^^ APPEALS.

1.0 \V Ell CANADA,)

IN A CAUSE, between

JOSEPH RUEL & MARIE COULOMBE his wife,
(Plaintiffs in the Court below,)

Appellants,
AND

ANTOINE DUMAS & THERESE BOURGET his

Mvifer"(Defendants in the Court below,)

^Respondents.

CASE OJ? THE RESPONDENTS.

__ HE facts, out of which the present litii>ation between the above

parties originated, are the following. , ^w v « . j

On the 20th. September 1805, the above named Thlr^se Bourget and one
Josepli Rnel, son of the above named Appellants, in the presence and vith the
consent of their respective parents, executed betbr^ Miray, Nptai-y Public and
witnesses, a contract of marriage, whereby the parents of Therese Bourget gave
♦o her, en avancemant d'hoirie, various articles, and the abov^ named Appel-
lants gave to their son apcepting thereof ^oMr tons droits successifspatermels
et maternels a lot of land situate in the seigniory of Lau^on. At this period
the lot ofland in question was worth no more than £2b.

This contract was followed by the solemnization of their marri^e.
Its duration however was not long. Before the J 2th. of June 1806, 1 he-
rese Bourget became a widow, and on that day we C:m\ an inventory com-
menced of the effects and lands of the community wliich ha<l subsisted between
Thtrrsc Bourget and her departed husband by Voycr notary pubhc.

To this inventory the Appellants were parties, and the above mentioned
lot of land is mentioned in it as belonging to the sawl community. •

After the lapse of some time, Th.'resc Bourget consented to beconie the
wife of the above mentioned Antoine Dumas, the proprietor of^a lot ot land
adjoining that which belonged to the widow. Their common funds and com-
mon industry were applie«'~ to the improvement of tlie lot ot land which liad
been given bv the Appellants to thcur son and daughter in law, as above men-
tioned —And at the period of the institution of the present suit in 18 this
Jot of land had been by them so much improved, that the \utnesses state its
value to have risen from 6C'^ to 7 or 8(XX) livrcs.

The Appellants having been taught to believe that in consequence ot
some supposed informality in the marriage contract, they might appropriate
to themselves the fruits of the industry of the Respondents, brought their
action in the Court of King's Bench for the District ot Quebec, tor the recovery
of the lot ofland in question.--The action brought by them is not a special
action, stating the particular grounds upon which they purposed to proceed
and praving that the marriage contract might be declared null and void, and
they restored to the possession of the lot in question, but is a general petitory
action.

To this action so brought, the Respondents pleaded,
1st. The general issue.

2dly. Several pleaj of peremptory Exception, and first, the man'iage con-
tract and grant therein contHiiK.d from the Appellants to their son. Secondlv,
that the said Joseph Huel «& iMari(> Coiilombe his wife craftily and suhtilely
contriving and intending to defraud and ileecMve as Avell the said Therese
Bourget as such peison as might thereafter marry the said Therese Bourget
and more particularly the said Autoiiu! Di-.mas, and to induce and encourage

.1 -1 n\i / \ n_ __i I i\ 1. ..,..:,.. I. » «l.;..i..>.><V<M> iiifiirinnri'V With

tUi: saiu 1 ncrcsc nuurj;i;i luui uit: jitintm Mitu tu-.^m^ nit^i- -.tf^- — ■ -

her. to lay out and expend large sums of money and bestow great wot

k and cSl ^'

labor in ^]nntiiorating and imjiroviii

the said lot of ground and preinises, and

hitciidtng by some subtile device to obtain the possession ot the saul un oi
° irround

1A7037

.-aJ,. .

i' t

groHiid and premises, after the same had been so ameliorated and improved
did on the twelfth day of June, in the year of our Lord 1806, in and by a
certam inventory made and executed, at the parish of St. Joseph Pointe Levy
aforesaid, by and before Charles Voyer notary public and witnesses, declare i
acknow edge that the said lot of ground and premises had been so as afore-
said by them given to the said Joseph Ruel th« younger and the said Antoine
Dumas and Thei;ese Bourget, relying as well upon the gift from the said Jo-
seph Ruel & MarieCoulombe to the said Joseph Ruel the younger as upon
the said last mentioned declaration, acknowledgment and confirmation of the
&**. .'^"*"^^''*^'*' *? '^}\' °» t^«^ first day of August, in the year of our Lord
ISOJ^intermarry, and did with the knowledge of the said Joseph Ruel and
Mane Coulombe lay out and expend divers large sums of money and did
bestow work and labour of a large value in ameliorating and improvinff the
said lot of ground and premises. r o

With these pleas the Appe^ants filed the marriage contract, & the inventory.

1 he Appellants filed a general replication to the plea of general issue and
a special answer to the pleas of peremptory exception.

In this last they aver that the marriage contract was nuU and void, inasmuch
as Francois Bourget the elder and Pierre Bourget named in the said deed, as
instrumentaiy witnesses were related to the principal contracting parties there-
in, to wit, the said Fran9ois Bourget the elder, as paternal uncle of Joseph
Kuel the younger and as paternal grand-father of the said Therese Bourget, &
the said Pierre Bourget as father of the said Therese Bourget : and inasmuch
also as the deed was not signed by the said instrumentary witnesses, but by
Pierre Coulombe who they aver was the maternal uncle of Joseph Ruel the
younger.

In support of this special answer the Appellants filed various extracts of
marriage and burial entries, certified principally by ore Mr. Masse, styling
himself m some Priest, in others Friest Sg Curate, but in none Curate of the
Parish, from the registers of which these entries purport tb be extracted; he

mi^ marriage contract upon which the Respondents rely.

The cause was inscribed on the Roll of enquites.

These conscientious donors were examined upon fails ^ articles and were
both constrained to admit that marriage contract in question was executed
previous to the marriage, but add that they have since understood it was
not valid.

The possession of the land in question by the Respondents and their suc-
cessful eflforts to improve it are established Ijy the parole testimony in the cause.
Upon the whole case it is contended on the part of the Respondents,

1. That to operate the nullity of any instrument some certain, express &
imperative rule of law rnu.st be produced by the party alledffing; the nullity.
— (Rep. deJnr.vcrboNuUitc') J i / o o J

2. That there is no rule of law prohibiting relations from being instru-
mentary witnesses.— The Prench Ordonnances require merely there shall be
two witness<;s.— (Ord. de Francois I. a Ys. sur Thille, en Octobre 1535, c. 19.
art. 66.— de Bloisen 1507, art. 247.)

fTi^lx^"'^ Ordonnance which speaks of the qualities of the witnesses is that
of 1 135. And all that it requires is that the witnesses be males, regnicoUs el
capahles d'effets civita.

From the competency or incompetency of a witness in a civil suit, nothing
can be inferred as to iiis competency or incompetency as an instrumentary
Witness.

Thus women, children and foreigners are admissible witnesses 5n civil suits
and inadmissible as instrumentary v. itnesses. Relations within certain degrees
are m virtue of an express statute inadmissible in civil suits. The aflTection
ielt by them to one ot the i)aiti(>s, the close connexion of their own character
and honor with the character, and honor of a near relative necessarily biases
their judgment, discolours the objects which have passed under their view
and renders them unable to give a true and faithful picture of the conduct dt
language and acts of the parties. An instrumentary witness on the other
hand certifies but one particular act, and that act a palpable and tangible one,
the execution of an instrument. The cases in wliich he can be called upon
to depose respecting the instrument are few. and they all relate solely to this
sim^^le question, was ithe instrument executed or not ? The only care in which
m j.^ ranee tuey were prohibited from being insJruiiieiitary w itnesses, was the
case of resignation of church-livings, and this by particular statute, (Rep. de.
jur. verbo . , ) and even here the prohibition did not extend

so far as in civil suits. It embraced only relations to the degree of cousin

gerinan

improved,

and by a

)inte Levy

declare &

) as afore-

id Antoine

! said Jo<

as upon

ion of the

our Lord

Ruel and

'■ and did

oving the

inventory,
issue and

inasmuch
i deed, as
ties there-
of Joseph
ourget, &
inasmuch
i, but by
Ruel the

[tracts of
;, styling
!e of the
Lcted; he

and were
executed
d it was

heir suc-
he cause,
tidents,
xpress &
3 nullity.

ig instru-
shali be
35, c. 19.

ses is that
nicoles el

.'. A

gcrman inclusive In civil suits it extended to second cousins. A stronir
confirmation of this doctrine is found in the Provincial declaration of the I
May 1733, Edits et Ordces. t. I. p. 499.

In the examination of the various irregularities in marriage contract which
are there specified and to which relief is aflbrded no case like the present, is to
be found. And this evidently because it required none ; relations beinff bv
law competent witness to marriage contracts. '

But, secondly, there was no sufficient evidence of the alledged relationshio
In notarial mstruments omnia prasumuntur rit^ |r solemniter acta. Now the
greater part of the marriage and burial entries are not certified in leeal form
and there is no evidence of the identity of the pereons witnessing the contract
with those named m these extracts.

The Appellants call upon the Court to presume that the Notary was ffrosselv
and culpably regardless of his duty. ^ grosseiy

.u ^"^ ^\'J^^^' ,^''»t«v«'' ""'l^ht be the situation in which a bond fide nur-
chaser would stand in respect of his land, the Appellants, by whom the contract
was made, cannot now set it aside, it having received its full and complete ex"
cution: m the subsequent intermarriage and co-habitation of the parties and a
.nn'iKf "i^^^T^ ^"•'"?'^ having acquired an interest in the land. It is
contragto the first principles of legal equity, that one man shall profit at the
expense of another, or that he shall be allowed to lead another into error and
avail himself of that error for his own benefit. This would be to make Court of
Justice accessory to a fraud : Nemo debet alterius detrimento locupletari As
Jo the second objection of the Appellants, that the instrumentary witnesses
have not signed the deed, it is to be observed that there is no law wS re!
quiresi that instrumentary witnesses shall sign the deed

^^^^^J\l^^''''''i'^'y'}^^F''^''''^Ordomaiiccs contemplate and advert to the
case or their not signing it.

1 ■J^V«<^'ia'"'f.the IX. at the Etats d'OiKans in 1560, savs : Seront tenus
^Lf!^'"^' ?^ faire signer aux parties et aux temoins instrumentaires, s'ils sa-
I^u^T^' • "' ''*^' '* .• ""^'^*' *i'V"^ recevront. The same words; seront
ienus feire signer aux parties et aux temoins instrumentaires s'ils saven si-ner
are met with in the Oidon. of Blois A. D. 1579, art. 165 "

In the following article of the ^ams Ordonnance," it is provided that the
Notary, s . est ^s villes et gros bourgs esquels vraisembtablemcnt on pui^e
recouvrer temoins qm sachent signer et que la pa.tie qui s'oblige ne pu s^e
signer, shall cause at least one of <he witnesses lo sign. ^ ^

n* f'^".^^ Pf *he Ordonnance is merely directory, does not create anv
nullity and IS besides confined in its operation to the cities and towns ^

a*.tJ \ *VT- "*^ ''f""^ ^^^"^^^ '^ necessary to enter into a more full
statement of their case than is perhaps usual, because they are persuaded that
the more hdly the claims of the Appellants are examined, the more sat^facj.

:;iL:"i:i;; :k r. ''-' ^'^ "°^ ^-^^ ^-^^-^ ^^ ^-d conscirnc:t^^?o

, nothing
uncntary

rivil suits
1 degrees
affection
character
ly biases
leir view
tnduct &
he other
ible one,
led upon
y to this
in which

was the
(Rep. do
)t extend
)f cousin

geriuan

■r