*r^%. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 150 "■■ m m I 1^ 12.0 u 12.2 IL25 i 1.4 1.6 ^A / / ^ .V V PhotograDhic Sciences Corporation 33 WfST MAIN Sf KEff WEBSTIR.N Y. 14580 (7)«) a73-4503 *# > ^^ ro B o O > o o o 5* i w I re a" a > S w •-^SffH ■ Wi^ .-« *^J ■■« Mm^ ^H^' 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 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..>.> 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 gi 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 I M I t f- 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 I' I 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