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COPY OF THE REPORT OF THE* JUDGMENT

OF THE

IN THE SUIT OP

ST [J ART vs. BALDWIN,

(An Action of Replevin for a Cargo of Iron Ore mined on
Lands in Quebec and seized in Ontario),

Discharging, with costs, defendant's rule calling upon the
plaintitf to shew cause why the verdict, rendered in his favoui",
should not 1)6 set aside and entered for the defendant on six
sevei-al grounds specified, the defendant having attempted to
justify his mining and removing the ore : 1st By alleged
possession of the pi'emises, in (/ood faith, on his part, for
upwards of a year and a day ; 2nd. By the long prescription,
by means oL an alleged possession by himself and those under
whom he held for a period of upwards of thirty y^arg^: the
plaintiff", on the other hand, contending, as to the jwwpossession
referred to, that it v^as not in good faith, and that, even if it
were, it d; I not warrant his appropiiating to himself as Jruits of
the land, ore from a mine which had not been previously opened
and worked ; and an to the second possession set up, that the
defendant, as well as those under whom he held, were, in fact,
mere tenants of the plaintiff" and those under whom he claims,
the defendant's original anteur (the fathe^ of his vendors) having
died in 1854 as a tenant, in possession under a lease, which ho
had accepted in 1847, from the repi'esentative of the estate of the
plaintiff's original anteur, terminable upon six month's notice,
(which had, in fact never been given), and which lease he never
repudiated ; whereas, by the law of Quebec, (unlike that of
Ontario in that respect) once a tenant always a tenant until the
contrary is proved, and the title of a possessor of lands being no
better than that of the party under whom he claims.

N.B. — The within comprises pages from 446 to 484 (both inclusive) of
Volume XLI. of the Queen's Bench Reports of Ontario.

»,'. J.

TO RONTO:
Eowsell «fe Hutchison, 76 Kino Street,

1878.

queen's bench, EASTER TERM, 40 VIC, 1877.

, Stuart v. Baldwin.

Will — Construction — Power to sell — Ore severed from the land — Law of
Quebec— Elfect of upon the rUjhta to such ore — Case stated under Imp.
Stat. 22 tfc 23 Vic. c. 63— " Bond fde possessor" of land.

Replevin for iron ore taken from land in the province of Quebec. It
appeared that R., the patentee of the land, by his will, made in 1829,
authorized his executors to sell and convey all his estate, real and
personal, for such considerations, upon such terms, and in such manner
as they might judge best, and bequeathed the proceeds to different
persons. Four executors were named, of whom only two proved the
will, and the last of these two died in 1861. Administration with the
will annexed was granted on the 20th of May, 1873, to E. S., who
conveyed to the plaintiff on the 31st of May.

Beld, that under 36 Vic. ch. 20, sec. 40, 0.,"E. S. clearly had power to
sell to the plaintiff.

Before the execution of this deed the ore in question had been severed from
the land, but the desd purported to convey not only the land, but all
iron and other ores which might have been at any time severed from
the land. Held, that the ores passed by this conveyance : for though
a chattel, and the conveyance would not, except in equity, pass the
legal title to it, yet the heir in whom it was vested wouM be a trustee
for the administrator, the donee of the power, and it might be presumed
that such donee, as cestui que trust, had authority from the heir as
trustee to dispose of it.

The land was situate in the province of Quebec, and a case was sent,
under the Imperial Statute 22 & 23 Vic. ch. 63, for the opinion of the
Court of Queen's Bench there. That Court decided, thereupon, that
the deed by the administrator passed the land and ores to the plaintiff:
that defendant had no title sufficient to defeat it : that a certain judg-
ment, set out in the case, recovered by the defendant against the
plaintiff there, had no effect upon the plaintiff's title ; and that the
plaintiff by their law could maintain an action for both the land and
the ore, before the ore was removed from that province, but not for
the ore until the title, if in dispute, had been established by a petitory
action to which the action for the ore would be incident. Held, that
the inability to sue for the ore there, except as incidental to the right
to the land or after it had been determinea, formed no reason why our
Court here should not adjudicate with respect to the ore.

Remarks as to the meaning of the term honO, fide possessor of land ; and
Qucere, whether the defendant could claim to be so.

Replevin for iron ore.

Pleas, non detinet, and goods not plaintiff's.

Issue. *

The cause was tried at the Fall Assizes, at Ottawa, 1875,
before Patterson, J., without a jury.

The ore was taken from lots 12 and 13, in the 6th range
pf the township of Hull, in tl e Province of Quebec,

ifUf

' !

STUART V. BALDWIN. 8

The patent of the same with other lands was made to
Kobert Randall, dated the 21st of September, 1807, in fee.

The will of Robert Randall, dated the 2nd of March, 1829,
was produced, and the codicil dated the 1st of May, 1834 ;
and the probate of the will and codicil granted in the
Probate Court of Ontario, on the 7th of June, 1834, to
William Lyon McKenzie and Thomas Horner, two of the
four executors named in the will.

There was power given to the executors or the majority of
them, or the survivor, to sell real estu:e ; proceeds be-
queathed — residue to be apportioned, &c.

There was also produced letters of administration with
the will and codicil annexed, granted on the 20th of May,
1873, to Edwin Smith ; and a deed from Edwin Smith to
the plaintiff of the land in question, with other land, in fee,
dated the 31st of May, 1873. The deed expressly assigned
ores and timber detached.

The plaintiff, on the 4th of O'une, 1 873, served a written
demand on the defendant for the ores taken from the land,
and he told him not to remove them.

The ore in question in this cause was that which was
shipped on the barges "Delta" and "Thistle," on the 5th of
June, 1873, and on the barge Shamrock on the day after.

The ore was put on board the schooner " Clara Youell,"
and the ore was taken while the schooner was in the Wel-
land canal, with it on board:

A great deal of evidence was given by the plaintiff to
prove the handwriting of Robert Randall, so as to establish
the will and codicil ; and a great deal of evidence to shew
that the ore claimed came from the lands before mentioned,
or from what was called " The Baldwin Mine," as distin-
guished from " The Forsyth Mine," which was on other lands,
and which latter mine the defendant did own. The plain-
tiff gave $12,500 for the lands; he had paid $750, and the
land was mortgaged for the purchase money. He knew when
he bought that the defendant was in possession of the land,
and that he had opened the mine, and had expended money
in doing that.

4 QUEKN'S bench, EASTER TERM, 40 VIC, 1877.

The penalty of tho bond, on which the administration
wa.s issued to Edwin Smith, is only^oOOO.

At tho close of the plaintiff's case, the defendant's coun-
sel moved for a nonsuit, because he contended that more
evidence should have been j,'iven, to make a case to bo
stated for the opinion of a Coui-t in the Province of Quebec,
under the Imperial Statute 22 »Sz; 23 Vic. ch. C3 ; and to
shew what the law of the Province of Quebec was and is,
and whether it was different from the law of Ontario ;
2. Because it was not shewn the patentee, Robert Randall,
was the same Robert Randall who made the will and
codicil ; 3. Because the power under the will had not been
properly exercised — the administrator, with the will and
codicil annexed, Edwin Smith, could not under the 3G Vic.
ch. 20, 0., convey lands under tho will and codicil, even in
Ontario ; but at all events he coidl not convey lands in
Quebec, for the statute could not regulate the conveyance
of lands in Quebec; nor could it have any force beyond the
limits of the Province of Ontario ; 4. Because the letters
of administration were improperly issued; for the reason,
among others, that the will pro\ ed not to hfive been pro-
duced in the Surrogate Court, and there was, therefore, no
proper proof of the will ; and, 5. Because the ore seized had
not been identified as any part of the ore taken from the
lands already mentioned.

The first objection was overruled, because it might be
assumed, at that stage of the cai. ., that the law was the
same as to the matters in this suit in Q^iebec as it was in
Ontario. -

It was also stated that the trial was had on an under-
standing between the parties, that it was merely to find
facts for the opinion of the Court in Quebec upon them,
under the Imperial Statute. The other objections were
merely noted and not rulec' upon.

The defence was as follovs, so far as it is material,
The defendant was called. He stated : I have been in
possession of the lots since Jie fall of 1S71 ; from the
date of the deeds, whatever date that is, I paid for the

! I

STUART V. BALDWIN.

lands, 320,000 for 25 acres for tlie mine; and 85 an
acre for the niountnin land, 149| acres. The land was
only valuable for mining purposes. Since purchasing,
I have expended in opening up the mine, and before I
began to mine, from .^5,000 to $8,000. No one objected or
disturbed me until the ore was seized at the dock, and the
cargo in (juestion was seized. The ore at the dock was
seized under process from the Quebec Courts. The notice
I received four or five days before the seizure, was
the first intimation of olijection I had. I brought an
action against the plaintiff" for the seizure of the ore at the
Gatineau, in the Superior Court of the District of Ottawa,
in the Province of Quebec, I produce a notarial copy of a
deed to me from Charles Pink, Alexander Pink, and Robert
Pink, dated the 22nd of November, 1871, covering the mine
in question; I now remember that I was in possession the
fall before I got the deed, as I liad six months to examine
the property ; I know of my own knowledge that the Pinks
had been in possession of the property ever since the winter
of 1854-1855. .

Cross-examination. — The purchase was made in 1870;
the deed was made in 1871 ; I know all about the Pinks'
title, and that it was a title only by possession ; I had
copies of the Randall deed and other deeds from the
registry office ; these lots and others were usually called the
Randall lots ; I could not say that the lots were generally
mentioned in the neighbourhood by the name of the Ran-
dall property; I did not know the I'inks w ore in possession as
representing the Randall estate; I never heard of that till
after the pi'esent dispute ; there were no improvements on
the land, but the timber was cut off'; I considered the title
was good, or I would not have paid the amount of money
I did ; I had from ten to twelve men at work before I got
any ore.

Alfred Driscoll, a prothonotary of the Superior Court of
Quebec, residing at ^ylmer, produced an exemplification .
of a record of that Court in the case of Baldivin v..
Stuart.

57 — VOL. XLI U.C.R.

queen's bench, EASTER TERM, 40 VIC, 1877.

M I

This was produced as a judgment in rem respecting
these lands

In reply, Jane Bmuson, said : — I am a daughter of the
late Robert Bannister of Hull. I live on part of what is
called " The Randall Estate "; I believe the plaintiff brought
an action t^ dispossess me.

James Wadsworth, said : — I am a justice of the peace in
the county of Ottawa ; I live in the township of Hull ;
I know Robert Bannister; I have seen him write; I
could not swear positively to the letter produced, but ,
I think it is his signature ; I should think the signa-
ture to a lease from Humphrey Gulp to one Pink in
1847, now produced, is Bannister's writing ; I knew Samuel
Pink; I know Charles Pink's writing better than Samuel's ;
I cannot give an opinion as to the signature of Samuel
Pink on the lease; Bannister and I went to the Chats
frequently together lumbering; I recognize my own signa-
ture to a summons produced, obtained by Ruggles Wright
against Samuel Pink on 21st February, 1850; as far as I
remember Wright and Pink arranged between themselves;
I should say the letter of the 1.9th February, 1850, is in
Charles Pinks writing, addressed to I. H. Gulp, Drummond-
ville; it is signed Samuel Pink; if it is any of the Pinks it
is Charles's; it is not Samuel's; the letter of 8th March,
1850, signed Samuel Pink, looks like the Writing of Charles,
and so does the letter of 17th December, 1852.

Cross-examination. — Charles and Samuel Pink were
brothers; I cannot say if Samuel was in possession of the
lands in question; I know he was living about the mines;
Charles was a schoolmaster; I think he lived in Hull; I
lived in Aylmer, nine miles above; I think Charles and
Samuel are both dead, they would be full as old as I am,
say 70 years old, or even perhaps 80 if living now ; their
families were grown up when they died ; Samuel must be
dead five or six years ; I don't remember whether he or
Charles died first; I knew Bannistn- very well; I could not
after so long a time swear positivel y as to his signature.
He-examination. — Some lots in Hull of mining property

STUART V. BALDWIN.

have been known to the old residents in my time as the
Randall property ; I do not know what property it w^as or
whether Pink lived on it ; I heard Bannister say he was an
agent for the Randall estate ; some mining property was
claimed by the Wrights.

An exemplification signed in 1859 by Charles Fitzgibbon,
surrogate clerk, of letters of administration, issued in 1844
to Isaac Humphrey Gulp, of the estate of Robert Randall,
was put in, and objected to as not legal evidence of the ad-
ministration.

Daniel Pink, said : — I am a son of the late Charles Pink;
Samuel was my uncle ; Samuel lived on the property called
the Randall property ; he is dead 20 or 21 years ; I never
heard him say he was agent, nor that he had obtained a
lease from any one to cut timber on it ; I know that his
son did cut logs on the property.

Cross-examination. — Charles, Alexander and Robert are
my cousins and sons of Samuel ; some years ago they lived
in possession of the land where the mine is; they had lived
there over twenty years to my knowledge, from their
father's death till they made the deed to defendant ; my
father died about seven years ago.

John Carrie said : — I knew the late Samuel Pink ; I was
a connection of his ; I also knew Robert Bannister ; I never
heard any conversation between Samuel Pink and Bannister
about a lease ; I have heard some of his sons say that they
held the property under a lease from Mr. Culp ; Samuel
Pink was not present when the sons spoke of the lease ; it
was William Henry who spoke of it.

Samuel Pink said: — T am a son of Charles Pink and
nephew of Samuel ; as far as I know he went on to it ; I
never heard him say he went on under a lease, and I never
heard it in his family ; I never saw him write since I was
a little boy.

Timothy Moffatt said: — I knew the late Samuel Pink
and Charles Pink ; I knew their writing, but it is a long
time out of my memory ; in mv opinion the signature to
the lease is like his hand-writing ; the letter 17th Decern-

queen's bench, EASTER TEEM, 40 VIC, 1877.

bcr, 1852, resembles Charles Pink's hand-writing, and so
does that of 19th February', 1850; I have no doubt this is
the hand-writing of Charles, but I am not sure ; as to
Samuel's name on the lease I certainly have a doubt as to
its being his, though it resembles it ; I helped Samuel Pink
in 1840 to underbrush some land ; he told me that he was
in possession, but I do not remember what he told me; the
property I understood to be called the Randall estate ;
Samuel mentioned once to my mother in my presence that
he had a lease of the place ; I do not remember that he said
from whom he had it; I heard in the neighbourhood it was
from Mr. Culp ; I think Samuel Pink has been dead 25
years ; he was a mechanic, and did not do much wilting ;
when I was a boy he used sometimes to take a pen and
Avrite in my copy book ; he did .'^peak of a lease, I think in
my mind it was about the Randall property; it was in
1849 or 1850.

Emanuel Redm-'.in said : — I knew Samuel Pink ; he
bought from me pai^t of lot 13 in the 5th range, which ad-
joins 13 in the Gth range ; he built his house on what he
bought from me.

Cross-excmiiudiou. — I think it was in 1839-1840 or
1841 I first knew Pink to be in possession; I do not re-
member the building of any house till of late years; there
was some underbrushing done in 1841 ; the Pinks have
been in possession ever since, using the place as their own,
as I believe, cutting timber, tS:c., until they sold to defendant.

Re-examinatlon : Since Samuel Pink's death, his sons
have built a house and liarn on the land ; some of the
young Pinks lived on it ; fi)rty or fifty acres of lot No. 13
have been cleared and cultivated ; I do not know in what
way they had possession of the rest of the lot ; I supposed
they held it all ; I know the Pinks cut timber all over the
land wherever they wanted.

John Currie.y re-called, said : The hou^e and barn are on
lot No. 12, near the north line ; 13 is we \t of 12.

Cross-examraation : The Pinks cut limber over both
lots for a number of yeais, and I have bought wood from

STUART V. BALDWIN.

them, and so did others ; the wood I bought was on lot 12,
close to the new mine ; there was no clearing where the
mine is till within ten years ago.

lie-examination. — I bought the wood and asked no
questions as to their right to the timber ; the property was
called the Eandall property.

Re-cross-examination. — I never heard any but 600 acres
(11 in the 5th range and 12 and 13 in the 6th range) called
the Randall property.

James Walker said— I knew Samuel Pink; after his
death I dealt with his sons ; I bought some white pine
timber on 400 acres of land they claimed to have there ; it
was the property I have heard called the Randall property ;
they sold me the timber as if it were their own property ;
they said nothing of a lease, or of being agents ; they sold
to me as if they wore owners ; it was in February, 1855,

Cross-examination. — I had seen the fninily in posses-
sion of the property for forty-five years ; both before and
since they sold to me I knew of them selling timber off the
land, Avhich was cut and taken to market.

Charles Flynn said : I live in the township of Eardley ;
I own land in Hull ; I was brought up in Hull about a
mile froni this land ; I never heard the property called any
particular name ; I know Samuel Pink ; I went on the land
once, and was chopping and improving; I had been work-
ing some four or five days when Samuel Pink told me not
to chop any more on it, as he Avas in charge of it and would
not allow it ; that was about twenty-seven years ago.

Cross-examination : I think I can be positive he used
the words " charge of the place" ; I gave up at once.

Joseph B'ulan and Charles B. Wright said : They lived
in Hull ; that the property was called " The Randall Pro-
perty." Wright, on cross-examination, said there was a
good deal of the property there called " The Wright Pro-
perty."

Alfred DriscoU said : I am clerk of the Circuit Court; I
produce an original record and copy of judgment in a case
of William H. Pink against Roger Sparks, in the Circuit

queen's bench, EASTER TERM, 40 VIC, 1877.

Court, of which I am clerk ; the action was to obtain pos-
session of lot 12 in the Gth range of Hull, in which action
the plaintiff in that case failed. As prothonotary I produce
a copy of judgment in the case of William Lyon McKenzie
against William H, Pink, finding that the plaintiff in that
case failed to establish his title as the executor of Randall,
and the action was dismissed ; costs were taxed to the defen-
dant in that suit, and execution issued, a copy of which I
produce, against the goods and chattels, lands, and tene-
ments of the^plaintifl' in that suit ; I look at an adver-
tisement in the Gazette of the 30th October, 1860, which
seems to be a sheriff's advertisement on this execution, and
advertisingHhese lands for sale; the sheriff's return is that
on behalf of McKenzie the debt and costs were paid to
Pink's attorney.

Cross-Examination : The judgment was in favour of
Peter Ayler, the attorney, for Pink, and not in favour of
Pink for the costs ; the attoi-ney gets judgment by way of
distraction.

Augustiis Kcefer said : Mr. Culjj, who has been men-
tioned, lived at Niagara Falls, and married, as I under-
stood, a daughter or granddaughter of Randall ; after
McKenzie left the country, Gulp came down here and
represented that he had taken out administration, with
will annexed, to Randall's estate ; and he put Bannister in
charge of the lands, and gave me a power of attorney as to
these and other lands to take charge of and sell, lease, kc,
on instructions from him ; it is dated on 2nd of November,
1848, and I now produce it ; previous to that, in July,
1847, there was a license of occupation to Bannister, which
I now hold, and under it Bannister was in possession ; I
knew nothing of SLXiy lease to Pink ; I have an indistinct
recollection of seeing Pink, but no recollection of seeing
him in connection vnt\\ these lands. ;

Oross-examination : The power of attorney does not
describe Gulp as admini.strator ; I had a letter of Gulp say-
ing that he had given up the lands to McK mzie on the
latter's return to this country ; it is dated on the 8th of

STUART V. BALDWIN.

July, 1850; I produce it; another is dated June, 1850,
saying he has surrendered his administration toMcKenzie
and reported to the Court, but had not transferred the
deed of the iron mine, &c.; I left here in 1850.

Re-examination : I never heard before I left here of
any one claiming adverse possession of the lands.

John Stuart, re-called, said: The letters of the Pinks
which I have produced I received thus; the letters of the
19th of February, 1850, and 8th of March, 1850, I received
from Mr. Delisle, who Avas the attorney of McKenzie in
his unsuccessful action^ against Wm. H. Pink ; that of the
17th of December, 18^2, I received from Mr. Lindsay, of
Toronto, son-in-law to McKenzie, and from whom I re-
ceived some other papers ; I received the lease and the
patent also from Mr. Delisle.

At the close of the evidence O'Connor, Q. C, for the
plaintifi", argued that the plaintiff had established a legal
title to the hind in question under the patent to Randall,
and the will made by him, and the due execution of the
powers of the will by Edwin Smith, the administrator with
the will annexed ; and that he had also shewn that the
ore, which was claimed, was taken from the land ; that the
question of possession set up by the defendant must be
decided by the Court of Law in Quebec, to which the case
might be referred under the statute ; that it appeared that
Samuel Pink had a lease from a person representing Ran-
dall's estate of a portion of the land, with the liberty to
cut timber on the rest of it ; and that neither he nor any
of his sons ever claimed to hold otherwise than as agents
or lessees.

Cockhurn, (I C., for the defendant, contended that the
plaintiff s title had not been made out ; that a case must
be stated for the Quebec Court, and the opinion of that
Court given upon the law of Quebec, before the cause could
be decided ; that Court must determine the important
questions whether the evidence of possession upon which
the defendant relied of Pink and of himself was or was not

queen's bench, EASTER TERM, 40 VIC, 1^77.

a possession in good faith ; and whether Pink held or not
adversely to the Randall estate title. He denied also that the
identity of the testator with that of the patentee had been
establishcil, and that the ore in question was proved to
have been taken from the land in question.
The learned Judije found the facts as follow : —

By jiiiteiit, dated 21st September, 1807, the Crown L^ranted to
Eobt'i't Jlandal], his lieirs and assigns forever, in free and common
soccrtge, six hundred acres of land in the township of Hull, being
lot No. 11 in the 5th range, and lots 12 and 13 in the 6th range,
of that township.

2. The oi-e in question was taken from lot 13, in the 6th range.

3. Robert Eandall made a will, in Upper Canada, where he
had his donncile, on 2nd March, 1829, duly execut*;d so as to
])Hss both real and personal estate situated in the Province of
Upper Canada, being signed by the hand of the testator in
])resence of thi'oe -witnesses, who attested the same by signing
their names thereto in the })rescnce of the testator, and in the
jn-esence of each otlier, by which, Inter al!<i, he apjiointed William
Lyon MacKeiizie, Thomas Honior, and two others, hifs executors,
and authorized them, or a majority of them, or the survivor or
the survi\ u-s of them, to sell or convey, by deed or otherwise, all
his estate, real or personal, for such consideration, upon such
terms, and in such manner as they might judge best; and, from
money, to be received from debts collected, or from sales of
property, he bequeathed two sjieciiic legacies; and directed the
I'emninder of his estate, if any, to be divided into ten equal jtarts,
which he becpieathed in separate shares among a nund)er of per-
sons, including his daughter Levinia Cul]). the wife of Isaac Gulp,
of Stamford, one Edwin Smith, and William L. MacKenzie and
Thomas Horiior ; and he also made a codicil, on the 1st May
1834, not affecting his Lower Canada lands.

4. Robert Randall died before 7th -June, 1834, and, on the
last mentioned date the will and codicil were proved in the
Probate (J(5urt of Upper Canada, by William L. MacKenzie and
Thomas Hornor. The proliate was registered in the county of
Ottawa, in Lower Canada, on 8th January, 1836. On 20th May,
1873, all the executors named in the will being dead, letters of
administration, cion tesfnvieiitn annp.xo, were granted Ijy the Sur-
rogate Court of the county of Welland — which wah' the Court
having jurisdiction so to do — to the same Edwin Smith, who was
residuary devisee under the will, the administrator giving a bond,
an exemplification of wdiich is put in.

5. By the law of Upper Canada, and of Ontario, the exesntors,

STUART V. BALDWIN.

appointed by the will of Robert Ilantlall had power to sell and
convey all the real and jjersonal estate of the testator in that
Province, and, l)y an Act of the Legislature of Ontario, passed in
the year 1869 (33 Vic. ch. 18), the said Edwin Smith, as
adniiiiistrator, cum tesfmnento aumxo, had j)ower to convey the
real estate, as well as the j)ersonal estate, of the testatoi-, and any
estate or interest therein, in as full, large, and ample a manner
as the executors might have done.

6. Until the passing of the said Act an administrator had no
power, in the said Province, to sell freehold lands of a testator or
intestate, but had full power of disposition over the personal
estate. On the 31st of May, 1S73, Edwin Smith, the adminis-

. trator, made a deed to the plaintiff", conveA'ing to him lots 12 and
13 in the 0th range, and assigning, also, all timber and ores which
had been detached or severed from the land. The consideration
money for the purchase is $12,5C0, which the plaintiff secured to
Smith by mortgage on the land, and of which he has ])aid about
$500.

7. In the winter of 1872-3, the defendant took from lot 13 a
large quantity of iron ore, which, during that winter, had been
drawn away from the lot, and piled at a distance from the lot, on
the bank of the river Gatineau, in the Province of Quebec, where
it lay when the deed from Smith to the plaintiff was made.

8. On 4th June, 1873, the plaintiff" served defendant with a
notice (which is put in), and demanded the ore; shortly after
which a portion of tlie ore — being about 420 tons — was removed
by the defendant into the Province of Ontario, and was seized by
the plaintiff", in that Province, under a writ of replevhi.

9. That ore forms the subject of this suit.

10. The plaintilf has no title to the ore other than the title, if
any, conveyed to him by the deed from Edwin Smith.

11. The defendant claims to be entitled to the lands and ore
in question, and he has the title, if any, shewn by the following
statement of flicts, and no other title :

12. In 1847, Thomas Hornor, one of Randall's executors, being
dead, and William L. MacKenzie, the other executor who had
taken ])robate, being out of the Province of Canada, Isaac Hum-
phrey Gulp — the same person mentioned in the will as Isaac Gulp
— acted in exercising a general oversight over the estate of Ran-
dall. It is not shewn that Gulp had any interest or authority
other than what belonged to him as the husband of one of the
residuary devisees, except that adininistration was granted to
him, cvjn testamento aunexo, but expressly limited to the pur-
pose of enabling him to be a party to, and to prosecute, some
proceedings in Chancery ; and this administration he surrendered
on the return of Mr. MacKenzie to Canada, iu 1850.

58 — VOL. XLI U.C.R.

queen's bench, EASTER TERM, 40 VIC, 1877.

13. In 1847, one Samuel Pink was, and had been for some
time, in occupation of about twenty-five acres of improved land
ou the southwest angle of lot 13, and one Robert Bannister was
also in occu[)ation of some part of lot 11 in the 5th range, and
of lots 12 and 13 in the (ith range.

14. On the 29th July, 1847, Gulp gave to Bannister a deed
giving him license to occupy the three lots, at one shilling per
lot pt-r annum, especially stipulating that Bannister should not
cut timber on the lots, and that he should give notice of any
trespass on the lots to Augustus Keefer, the agent of Culp ; and,
on l;5tli August, 1847, (Julp, with the assent of Bannister, made
a deed to Samuel Pink, granting to Pink license to occupy the
southwest corner of lot l.'j — which he had theretofore occupied —
and giving him leave to cut timber (not saying from what land)
only for tlie purpose of fencing and onclosing the leased ])remises ;
Pink'to surrender j)ossession at any time, on receiving six months'
notice, and to pay fifty shillings a year.

15. In 1848 Culp gave a power of attorney to Augustus Kc^fer
to do certain acts, including the prevention of trespass on the
lauds in question.

16. Samuel Pink correspondeil with Culp about the lands, in-
forming him of trespasses upon them, until 1850, when Culp
handed over the management to William L. MacKenzie, and the
latter, who lived in Toronto, assumed the care of the Kandall
estate, including the lands in question.

17. On the 17th December, 1852, Samuel Pink addressed to
William L. MacKenzie a letter, promising, in reply to a letter
receiv(!d by, him l...m MacKenzie, to take charge of lots 12 and
13, but declining to take charge of the lot occupied by Robert
Bannister, because, he says, there was no timber on it worthy of
notice, and he asked from Mr. MacKenzie the privilege of cutting
a few saw-logs on the lot which he occupied, for a few boards for
his own use.

18. Samuel Pink died in August, 1854, and, in December,
1854, Robert Bannister wrote to William L. MacKenzie resjjec-
ting threatened tres[)asses, and informed Mr. MacKenzie that he
had warned the parties tliat Mr. MacKenzie was the only person
who had authority to deal with the lands.

19. The letters and documents referred to, with others, are put
in as evidence.

20. The letters, written in the name of Samuel Pink, were
■written in the hand of liLs brother, Charles Pink, with his autho-
rity, and as his amanuensis.

21. Up to the death of Samuel Pink, in August, 1 ^54, he had
no possession of the lands in question, except that part described

STUART V. BALDWIN. * 15

in his license of occupation of 1847, and never claimed any title
to any part of the said lands, except the title under the said
license ; and, except the part so occupied hy the said Samuel Pink,
no part of lots 12 and 13 was, up to the death of Samuel Fink,
occupied by any one, uidess so far as Ilobert Bannister may have
occupied those lots without enclosing or improving them, or cut-
ting timber upon them ; there is no evidence that there was any
such actual occuj)ation either by Bainiister or any one.

22. Samuel Fink did not live on the land in question, but on
adjoining land, which did not form part of the Randall estate.

23. Samuel Pink never disputed the title of the rejjrosentatives
of Ilandall to the lands in question, or claimed any right or title
adverse to them.

24. After the death of Sanmel Pink, his children continued to
occupy as he had done in his life time, knowing, as I find th(; facts
to be, that their father had and claimed no title except as licensee
of the Randall estate, and having themselves no title excei)t what
descended to them from their father, or was, after his death, ac-
quired by them by their own possession.

25. After the death of Samuel Pink, his sons cut timber off
the lots 12 and 13, and sold timber to others to cut, without the
consent of any of the representatives of Robo't Randall, and in
the same manner as if they had themselves been owners of the
lands ; and they also erected buildings on some portions of the
land.

26. The lands hereinafter mentioned as conveyed to the defen-
dant were never cleared or improved, and were not included in
the corner let to Samuel Pink, nor in the |)arts of the lot on which
the sons of Siimuel Pink erected buildings, and were never in the
actual possession or occupation of the sons of Samuel Pink, further
than as possessed or occupied in the cutting and selling of timber
from them.

27. In the fall of 1871, the defendant bargained for the pur-
chase of a part of the said lots 12 and 13, containing the mine
from which the ore in question was taken, from Charles Pink,
Alexander Pink, and Robert Pink, sons of Samuel Pink, and on
the 22nd November, 1871, they made a deed conveying to the
defendant their interest in the land, and gave him at that time
possession of the land, and the defendant has, ever since he so
obtained possession, remained in actual possession and occupation
of the land ; the defendant paid for the land upwards of $20,000,
and expended upwards of ^5,000 more in opening the mine and
pi-eparing it for being worked, in addition to the expense of
■working it. '

28. The defendant, when he purchased the land, knew of the
Ilandall title, having obtained information thereof from the

queen's bench, EASTEtt TERM, 40 VIC, 1877.

■1:
11

Itof^istiy otTice of tlie county of Ottawa, anfl he know of tho pos-
HCHsion wliich the sons of tSamuol I'ink had since tlie wintftr of
18r)4-r).

29, Tlie (lefcnchint was not clisturbed in his possession and
enjoynuMit of the lands or tlie mine, until the notice waa given to
him by the phiintiffin June, 1873.

30. The defendant brought an action against tlie jtlaintifl in
the 8u|)erior Court for the Province of Qiuibec, in the District of
Ottawa, an cxoniplificatiou of the judgment wherein is put in
evidence.

The learned Judge resevvodthe cause, and postponed the

giving of a verdict until a Case should bo transmitted to

one of the Superior Courts of the Province of Quebec for

their opinion thereon, according to the statute in that behalf.

This case tlie learned Judge subsequently prepared in

accordance with the foregoing findings.

The following were original documents accompanying this case
and forming part thereof :

1, Letters of ndministration with the will and codicil annexed
thereto, of the said Robert Randall.

2, Copy of deed, Edwin 8mith to the plaintiff, John Stuart,

3, Deed of Pink and others to the defendant, Alanson H.
Baldwin.

4, Exeinpliflcatiou of judgment in the Superior Court of Que-
bec, for the District of Ottawa, between the said parties.

Copies of other documents produced and proved at the trial,
and forming part of this case ;

(1)

I, Isaac Hurajihrey Culp, of the township o^' Stamford, in the
Niagara District, C.W., do hereby grant license of occupation to
Robert Bannister, of the township of Hall, in the county of
Ottawa, in the district of Montreal, Lower Canada, to occupy lot
No. 1 1, in the 5th range, and also lots Nos. 12 and 13 in the Gth
range, of the said township of Hull, until countermanded by the
said Isaac H. Culp or his attorney, at the yearly rent of one
shilling per lot from the time he, the said Banniste)-, took posses-
sion ; and it is further understood that the said Bannister will
not cut any timber on the said lots above mentionet', and if any
other person should interfere with the said premises, t le said Ban-
nister will forthwith give notice to the said Culp's attorney at
Bytown, Mr. Augustus Keefer, of the same.

STUAUT V. HALDWIX.

In witness wl oroof, I liereunto set my liivnd and seiil, this L'Otli
d«y of July, 1847.

Signed, scaled and delivered iu )

w. ,c.- '•'■',f;'."=^' •'^' ^ (Signed) Isaac II. Cui.i-.

nitncsa (Signed) IkonEiiT.soN Lyons. ) ^ ° /

(2)

I, Isaac ITuniplirey Culj), of the township of Stamford, in the
^district of Nia,i,'aiM, Canada West, do liereby j^nnit liconso of oc-
cii])ation to Samuel Pink, of the township of Hull, in the county
of Ottawa, to occupy the southwt>st eoi'uer or iin,t,de of lot iNo. 13,
in the fitli range of the said tow iship of Hull ; the said premises
havi-'g hercitofoi'e been occupied Ijy the said I'irdc ; and the said
l>remis(s contain on or about the tpiautity of twenty or twenty-
five acres of improved land ; and it is further understood that the
said Pink has license to cut tindjer only for tlie purpose of fencing
and enclosing the said premises ; ami it is also understood that
tiiu Said I'ink will surrender jiossession of the said premises to the
said ('Ulp, or his attorney, at any time hereafter, on giving a
notice of six months ; and the said J''ink agrees to pay an amiual
rent of forty shillings per annum to the said C'ul)>, or his attorir^y,
the said annual sum to be jjaid on the first day of August in ench
and every year during the term of occupation or occu2)ying of the
within described lands.

In witness, the parties have \
liereunto set their hands |

(Signed)
(Signed)

Isaac II. Culp. [L.S.]
Samuel Pink. [L.S.]

and seals, this 13tli day of
August, 1847. Witness, |
(Signed) i{oj)i;KTBAX.NisTi:u. ,/

Received one j'oar's rent on the above agi'eement.

Township of Hull, Lot No. 11, in the Gth range.

(Signed.) Isaac II. Gulp,

(3)

Hull, February 19th, 1850.

Sir, — I have to inform you that Mr. Euggles Wright, Jr., has
"made timber on the land that I have rented from you. I liave
taken the trouble to forbid them either to make any n)ore or to
take away what thej have made. I would wi:;h to know if that
Mr. Keefer, your agent, has authority for to sell the timber
without either your sanction or mine. Write immediately, and
let me know how I am to act, as a few days will take off all the
timber. I am, Sir, yours truly,

(Signed) Samuel Pink.

Direct — Samnel Pink, care of Mr. Geo. Marston, Postmaster,
Hull, L. Canada.

18 queen's bench, EASTER TERM, 40 VIC, 1877.

I :l

! )l

I M<

District of Montreal.

(4)
James Wadsworth, Esquire, one of Her Majes-
ty's Justices of the f eace in and for the said
) District, to Samuel Pink, of Hull, Farmer.

Whereas information and complaint has been lodged against
you : — That, on the twentieth day of FeVjruary instant, you, to-
gether with another person, each armed with a double-barrelled
gun, proceeded to Lot No. Twelve, in the Sixth Range of Hull,
and then and there unlawfully forbid and prevented certain men
there employed, of Ruggles Wright, Jr., from working, and that
you further stopped the road made by the said Ruggles Wright,
Jr., by felling irees across the same.

These are, therefore, to require and command you to be and
appear before me, or some other of Her Majesty's Justices of the
Peace in and for the said District, on Friday, the twenty-second
instant, at C'onroy's Hotel, Ayimer, at the hour of eleven o'clock
a m., to answer to the complaint as the law directs.

Dated at Aylmei", this 21st day of February, 1850.

(Signed) James Wadswouth, J. P.

(5)
To Mr. Gulp. Hull, March 8, 1850.

Sir, — -About three weeks ago I wrote to inform you concerning
the timber on the land that I have rented from you. I mentioned
that Ruggles Wright, jr., was making timber in opjiosition to
re])euted notices I gave him. Since that I blocked up the road
he had cut, and he then went to Mr. Keeier, your agent, in By-
town, and purchased the timber, on all the lands, at (iovornment
price. He then summoned me before the Court at Ayimer, for
trying to stop him from making the timber on the laud I hold
from you. I put ^[r. Wright on oatli at the Court, and lie con-
fessed that lu; had trespasseil ou the premises before he had made
any arrangement with Mr. Keefer.

I have taken the trouble to inform you of the particulars so
that you may take any steps you think the most advisable.

I am. Sir, with respect, yours, «fec.,

(Signed), Saml. Pink.

Please write immediately. Direct to Saml. Pink, care of By-
town postmaster.

(6)

Hull, 17th December, 1852.

Sir, — I receive<l your letter dated 3rd December, on the 1 4th,
authorizing me to keep off all trespassers on six hundred acres of

STUART V. BALDWIN. 19

land belonging to the late Mr. Eandall. I have to inform you in
reply, that I will take charge of 12 anil 13 lots, but I shou'ld beg
to decline taking charge of the lot occupied by Robert Bannister,
as I consider there is no timber on it worthy of notice. Should
a case of trespass occur, I shall give you immediate notice.

As to Mr. Leamy, who applied for the timber, he is a worth-
less chai-acter, and a man not to be depended upon.

If you would be so good as to allow me the privilege of cutting
a few saw-logs, on the lot I occupy, for a few boards for my own
use, you would oblige me very much. My best respects to you
and your family.

I am, Sir, your obedient servant,

(Signed) Samuel Pixk.

To W. L. MacKenzie, Esq.

P.S. — If you will have the goodness to answer this as soon as
possible, you will oblige me very much. — I am. Sir, yours,

(Signed) S. Pink.

Hull, October 5th, IS;")!.
Mr. Wm. Lyon MacKenzie, M.P.,

Sir, — I have lately be^n called upon by a person, calling
himself McCalluni, who is acting as agent for the Hon. Peter
McGill, to look after lauds in different parts of this country,
and, among the rest, an undivided sixth part of the Randall
property, which he obtained by a transfer from the late Tiioinas
Mears, of Hawkesbury. Immediately after lie left I went to
Aylmer and found he had been at the Registry office, with another
person that I suppose to be connected with a com[)any that have
purchased an ore bed from Mr. Ruggles Wright, which lies one
hundred rods to the northeast of No. 12 i*i the Oth Range, which
belongs to the Randall estate. They have examined every lot on
the mountain, but, as they could find no ore on the surface, they
selected No. 1 1 in the 7th Range, where they have coirtmenced
operations, and as the road is now opened to the rear of your lots,
and as the^ ai-e contracting with persons who live backward, I
think it very likely they will be trespassing on your lots, as few
of these people have timber on their own land adapted for rail-
road purposes, and some of them have been with me wanting to
know if you had anything to do with the land, or if I thought
you would sell it, I told them that if they were found tres-
passing on any part of the land I would write to you, and they
would ther find that you were the only person had any power to
do anything with it in any shape, I have paid the taxes on the

! St:

QUEEN S BENCH, EASTER TERM, 40 VIC, 1877.

back lot, and you will have the goodness to let me know if
statute labour must be done on absentee lands in Lower Canada,
when they are not crossed, nor any road within a half-mile of
them. Mr. Pink is dead since the beginning of August, after
eight months' illness. Please direct to Robert Bannister, Hull,
P. Q. — Yours truly,

(Signed) Egbert Bannister.

The opinion of the Ilonoui'able Her Majesty's Court of Queen's
Bench for the Province of Quebec, at the city of Montreal, is
requested with reference to the law of the said Province of Que-
bec, as administered hy that Court, and so fir as the same is
a|)plical)le to the facts set forth in the above case, in terms of the
statute of the Imperial Parliament, 22 & 23 Vic. ch. G3, u])on

the following

Questions :

1. Do the powers of the will of Robert Randall authorize a
sale of lands in Quebec (1) by the executors named in the will or
the suivivors, or (2) by the administrator, -cum testamento
anncxo ?

2. Is the deed, made by the administrator c^nn tes^tainfiito
mine.ro, to the plaintiff, valid by the law of Quebec, to sell and
convey the said land and ore in pursuance of the terms of the
said will ]

3. Has the defendant any title to that portion of the said lands
claimed by him, or the ore in (piestiou taken therefrom, sufficient
to defeat the title of the representatives of the testator, Randall,
or of the plaintiff?

4. What effect, if any, has the judgment of the Superior Court
of the District of Ottawa, of which an exemplification is a part of
this case, upon the plaintiff's title, if any he has I

5. Could the jtlaintifl' have maintained an action or actions iu
the Coip'ts of the Province of Quebec, against the defendant
herein, for the said land and the said ore, or either of them,
before the same was removed from the Province of Quebec ; and
coukl the jdaintiff, in such action or actions, have recovered the
said lands and the said ore, from the defendant herein 1

(Signed) Rob'^. G. Dalton,

' C. G. (i- P. Q. B.

DuriiigMichaelmasterm,November 18, 1 ^7 o , Hector Came-
ron, Q. C, for the plaintiff, oLtaiaed a rule calling on the

STUART V. BALDWIN. 21

defendant to shew cause why a case should not be prepared
setting forth the facts of this case as ascertained by the
finding of the learned Judge who tried the cause without a
jury, and why such case should not be settled and ap-
proved of by this Court, and the questions of law arising
out of such facts according to the law of the Province of
Quebec be settled by this Court ; and w^hy an order should
not bo pronounced remitting the same, together with the
case, to the Court of Queen's Bench of the Province of

Quebec, sitting in , or such other Court as to this

Court might seem proper ; and desiring the same Court to
pronounce their opinion on the questions so to be submitted
to thom.

During Hilary term, February 26, 1870, Bethune, Q. C..-
shewed cause, and Maclennmi, Q. C, supported the rule.

The following rule was made : Upon reading the rule
nisi issued in this cause in Michaelmas term last, and
the evidence taken herein by the Honourable ^r.
Justice Patterson, before whom this cause came on for
trial, without a jury, at the last sittings of Assize and Nisi
Prius at Ottawa, in and for the county of Carleton, and
upon hearing the parties ; it is ordered that this case and
the questions of the law of the Province of Quebec arising
out of the same, which have been settled and ap))roved by
the said the Honourable Mr. Justice Pattersop, and are set
forth in the schedule to this rule annexed, be remitted to
Her Majesty's Court of Queen's Bench for the Province of
Quebec, sitting at Montreal. And the said Court is hereby
respectfully requested to pronounce its opinion on the
questions contained in the said schedule upon the law of the
Province of Quebec administered in the said Court of
Queen's Bench for the Province of Quebec as applicable to
the facts set forth in the said case, the said case being
remitted pursuant to the Imperial Statute ^2 & 23 Vic, ch.
C3. And it is further ordered that this rule and the said
case and the exhibits therein referred to, certified copies,
and the questions settled as aforesaid, be transmitted forth-
59 — VOL. XLI u.c.R.

QUEEN S BENCH, EASTER TERM, 40 VIC, 1877.

with by the clerk of the Crown and Pleas to the proper
officer of Her Majesty's said Court of Queen's Bench in the
Province of Quebec.

The following answers were returned from the said Court
of Queen's Bench, to which the case and questions were
remitted :

Canada : \

Province of Quebec. j

Court of Queen's Bench,
(Appeal side.)

Montreal, Friday the twenty-second day of September, \
one thousand eight hundred and seventy-six. j

Present :

The Honourable Mr. Justice Monk,

" Mr. Justice Ramsay,

•' " Mr. Justice Sanborn,

" " Mr. Justice Tessier.

" " Mr. Justice Bel anger, ad hoc.

l^n the case transmitted from Her Majesty's Court of
Queen's Bench for Ontario for the opinion of the Court of
Queen's Bench for Lower Canada (appeal side) upon certain
questions as to the law of the Province of Quebec under
the provisions of the statute of the Parliament of Great
Britain and Ireland, 22 iS: 23 Vic. ch. G3, in a cause between :

John Stuart, Plaintiff,

and

Al^nson Hovey Baldwin, Defendant.

The Court of Our Lady the Queen now here, having
heard the plaintiff and defendant, liy their counsel, respect-
iveh^ on the interrogatories submitted, and mature deliber-
ation being had, decides and answers as follows, viz. :

First Question.

Do the powers of the will of Robert Randall authorize a
sale of lands in Quebec by the executors named in the will
or the survivors, or by the administrator cum testamento
annexo ?

Ansiver to the Fir 4 Question.

Yes, su^^ ct to modifications seated in answer to the
fifth interrogatory.

STUART V. BALDWIN.

(

Second Question.
Is the deed, made by the administrator cum testamento
annexo, to the plaintiff, valid by the law of Quebec, to sell
and convey the said land and ore in pursuance of the terms
of the said will ?

Anrn^er to the Second Question.

Yes, as explained in answer to the fifth interrogatory.

TJtird Question.

Has the defendant any title to that portion of the said
lands claimed by him, or to the ore in question taken
therefrom, sufficient to defeat the title of the representa-
tives of the testator Randall, or of the plaintiff ?

Answer to the Third Question.

No, except as explained in answer to the fifth interroo-a-
tory. '^

Fourth Question.

What effect, if any, has the judgment of the Superior
Court of the District of Ottawa, of whicli an exemplifica-
tion is a part of this case, upon the plaintiff's title, if anv
he has ? "^

A7isiver to the Fourth Question.

The Judgment of the Superior Court of the District of
Ottawa, of which an exemplification is a part of this case,
has no effect on the plaintiff's title, if any he has.

Fifth Question.

Could the plaintiff have maintained an action or actions
in the Courts of the Province of Quebec, against the defen-
dant herein, for the said land and the said ore, or either of
them, before the same was removed from the Province of
Quebec ; and could the plaintiff, in such action or actions,
have recovered the said land and the said ore, from the
defendant herein ?

Ansicer to the Fifth Question.

By the law of the Province of Quebec, the plaintiff could
maintain an action for both the land and the ore, or for
either of them, before the ore was removed from the Pro-
vince of Quebec, but such an action for the ore would be an
incident to the petitory action to vindicate the title to the
land. I , ■ <

24i

queen's bench, EASTER TERM, 40 VIC, 1877.

If the title wore maintained the plaintiff would recover
the ore dedudis impensls, in accordance with articles 415
416, 417, 418, and 419, of the Civil Code of Lower Canada'

If any action were instituted to recover the ore before or
otherwise than by a petitory action to vindicate the title to
the ownership of the land, it should be suspended until the
title to the land is established. In regard to the suit pend-
ing in the District of Ottawa in the Province of Quebec,
which would appear to bi- a possessory action, such posses-
sory action while it is pending would prevent the plaintiff
Stuart from instituting before a competent Court a petitory
action according to article 948 of the Code of Civil Proce-
dure of Lower Canada.

(True copy.)

[L.S.] (Signed) L. W. Maubary,

Clerk of Appeals.

Upon the return of the case, and the answers of the
Court of the Queen's Bench of the Province of '~,jebec
to the questions submitted accompanying the ca.se, the
learned Judge, who tried the cause, then gave his verdict
on the 22nd November, 187G, for the plaintiff, and he
a.ssessed the damages for the plaintiff at So.

During Michaelmas term, November 28, 1876, Bethane,
Q. C, obtained a rule calling on the plaintiff to show cause
why the verdict for him obtained herein should not be set
aside, and a verdict entered for the defendant, pursuant to
the LaAV Reform Act and the Administration of Justice
Act, on the ground that the plaintiff is not entitled to re-
cover ; and on the further ground, that upon the answers to
the questions submitted to the Court of Queen's Bench for
the Province of Quebec the plaintiff is not entitled to re-
cover ; and on the further ground, that Edwin Smith had
no power to convey the land in the Province of Quebec
under the statute of the Province of Ontario, it not appear-
ing that in his application and affidavit he stated the value
or probable value of the lands devolving as including this
lot ; and it appears that the value of the lands in Quebec
is $12,500, and the penalty of the bond filed is 35,000. And

\ \

STUART V, BALDWIN.

on the further ground, that the ore in question was .severed
before the exercise of the power of sale by Smith, and a
right of action to recover the ore was vested in the heirs
at law of Randall the testator, which could not be trans-
ferred by Smith to the plaintiff, so that if the lands were
in Ontario the right of action could not be transferred; and
that under chapter 91 of the Consol. Stat. L. C. the plain-
tiff could not maintain this action in Quebec.

Madennan, Q.C., shewed cause. The will gives power
only to the executors to sell. The effect of that devise in
equity is, to convert the realty into personalty, which is '
made subject to the power. The 33 Vic, ch. 18, sec. 1, 0.,
enables the administrator with the will annexed to execute
any power of sale which the executors could have executed
if they had been living. The 36 Vic. c. 20, 0., does not apply,
because the letters of administration here were issued before
the passing of that Act. The Judge who tried the cause
was of opinion the efiect of the answers of the Court of
Quebec was, that the plaintiff was entitled to a verdict.
The Court of Quebec has decided that the action there
brought by Stuart against Baldwin, and decided against
Stuart, has no effect whatever upon or against Stuart's title.
It was contended that Edwin Smith, the administrator
with the will annexed, had no power to sell, because it was
not stated in his application for administration what the
value or probable value of the land was over which the
powers of the will were to be exercised. It was contended
the application and affidavit should have been produced at
the trial to shew that the same were in accordance with the
statute. It was not necessary to do that, because even if the
administration can be impeached by some process taken for
that purpose it is good so long as it stands. The Consol.
Stat. L. C. ch. 91 enables a foreign administrator to act in
Quebec : Irwin v. Bank of Montreal, 38 U. C. R. 375.
The 33 Vic, ch. 18, sec. 2, O., requires a bond to be given by
the administrator before he can sell. That was done, and
it wa8 proved. But it is said the bond is not sufficient, for
it is taken only for the sum of $5000, while the land was

QUEEN S BENCH, EASTER TERM, 40 VIC, 1877.

! i
I ^

of the value of and was sold to the plaintiff for $12,500.
The administrator could not tell when he gave the bond for
what price he might be able to sell the land : Consol. Stat.
U. C. ch. 16, sees. 63, 64 ; Imperial Act, 20 & 21 Vic. ch. 77,
sees. 81, 82 ; Re Porvis, 34 L. J. Pr. & Mat. 55 ; Be Gent, 1
Sw. & Tr. 54.

It is said the ore in question was severed by the defendant
from the land before the plaintiff bought the land. The
Court of Ontario has decided tliat the plaintiff is entitled
by the law of Quebec to recover such ore, although severed.
In addition to that, the administrator had power to sell
and did expressly sell the ore, w^hether severed or not
severed.

It is said that the title to the ore w^asand is in Randall's
heirs, but it must be remembered that the ore lay in Quebec
at the time the plaintiff got his conveyance, and by the law
of Quebec that ore although severed passed to the plaintiff.
Bethunc, Q.C., supported the rule. The defendant had
the ore in Quebec, the plaintiff seized it in Ontario, and he
must prove his title to it when and where he took it.
The Court of Quebec say the plaintiff cannot try any
possessory action there until his title has been established
in a petitory action, nor while he has any possessory action
pending. If that be so, this action cannot be brought but
upon the same terms and conditions on which the suit
could be maintained in Quebec. The Court of Quebec
assumed the possessory action was brought before the pre-
sent suit. If that fact is in doubt the case should bo asfain
remitted to the Court of Quebec. The plaintiff is prosecut-
ing his claim under the laws of Ontario, and he must shew a
title to the ore sufficient according to that law. The ore
belonged to the heirs at law of Randall at the lime of the
plaintiff's purchase, and the action should have been brought
in their name. The plaintiff as purchaser from the adminis-
trator with the will annexed cannot sue for it. It is
important, too, that the administration was not granted
conformably to the statute, because the application for it
and the affidavit required in obtaining it were not suffi-
cient, and that affects the validity of the grant.

STUART V. BALDWIN.

June 30, 1877. Wilson, J.— The title of the plaintiff
to the ore in question has been disputed.

He claims under the will of Robert Randall, who was
the patentee of the Crown.

The will was made on the 2nd March, 1829. By it the
testator devised as follows:— "I hereby authorize my said
executors, or the majority of them, or the survivor or the
survivors of them, to sell and convey by deed or otherwise
all my estate, real and personal, for such considerations,
upon such terms, and in such manner as they may judge
best. * * * And the moneys which they may receive
on account of debts due to me, or on account of sale or sales
of my said personal or real property, after deducting there-
from so much as shall be necessary to pay debts, I hereby
give and bequeath in the following manner, that is to say,
to Maria Stark, £150 ; to Bellage, of Montreal, shoi)-keeper,
£200. The remainder of my estate, if any, I wish divided
into ten equal parts and disposed of in the following man-
ner, that is to say," two-tenths to his daughter, LevinaOulp
and her four sons ; three-tenths to Frederick Smith and his
six children ; two-tenths to liis nephew G. G. Wilson, and
his sisters ; one-tenth to his nephew Randall Wallace ; and
the remaining two-tenths to five persons therein named,
two of them being executors of the will.

By a codicil the testator afterwards devised to his
daughter, Mrs. Gulp, and Maria Smith, therein named, "all
the property owned by me in the said township of Humber-
stone after my expenses are paid ; the said property with
all my accounts coming to me from the canal company to
be divided equally between the two above named legatees;
and all the rest of my property, subject to the will being
previously made to this one, to remain as it is."

There is nothing else in the will material in this case
to be considered.

It appears that of the four executors named in the will
one of them left the Province before the death of the
testator, and never returned to it, and is no doubt lon^r
since dead; one of them renounced, and afterwards left the

queen's bench, EASTER TERM, 40 VIC, 1877-

11 i I

1 1 il

Province, and is since dead; and two proved the will; one
of these two died in 1834, and the other died in ISGl ; and
that administration with the will annexed was granted on
the 2()th May, 1873, to Edwin Smith, a devisee named in
the will of the testator, and he it was who conveyed the
land in question to the plaintiff.

It was objected that the grant to Edwin Smith was in-
valid because in his petition (which is not now with the
exhibits), and in the affidavit accompanying it for ad-
ministration, he stated the value or the probable value of
the lands devolving — according to the 33 Vic. ch. 18, sec.
1, 0. — at only 85,000; and because the penalty of the bond
he then gave is only in the sum of So.OOO, while the
value of the lands in Quebec was shewn to have been
$12,500.

These objections do. not affect the validity of the ad-
ministration as long as it stands. They may be cause
sufficient for the surrogate to cite the administrator to shew
cause why the administration should not be recalled, or to
give better and greater security, but they cannot avoid
every act which persons dealing with the administrator
under the authority of these letters have done and have
been induced to do by virtue of the administration.

There are many cases on that point referred to in the
case of Irtvin v. The Bank of Montreal, 38 U. 0. R. 375,
387, 388; see also 36 Vic. ch. 20, sec. 45, O.

There is no evidence that the affidavit was not honestly
made, and the value of the property therein not truly
stated at the time.

And I presume the Surrogate would have authority, in
the case of mistake as to the value of the estate, or of a
very gi'eat rise in its value, to require the administrator to
give more security to insure and effect the purposes of the
grant, without in any way affecting or avoiding the force
of the administration then existing.

The plaintiff's counsel argued that the administrator,
with the will annexed, had full authority under the 33
Vic. ch. 18, sec. 1, O., to sell iie land in question to the plain-

STUART V. BALDWIN.

tiff, and that the 36 Vic. ch. 20 did not apply, because the
grant of administration was made before the passing of
that last Act.

The rule of the defendant does not contain that ground
of exception to the verdict ; and I have no note of his
counsel having argued it as if it were in the rule.

It may be better to consider that subject, because if it
be that the statute confers no authority to sell, the case of
the plaintiff at once fails.

In the first place it is clear that under the power in the
will contained, and by the other provisions of the wnll, the
executors have a clear authority to sell and convey the real
estate, and to deal with the proceeds of it as with ordinary
personalt3^

Then the 33 Vic. ch. 18, sec. 2, 0., enacts, " Whenever, after
the passing of this Act, there shall be in any will or codicil
thereto of any deceased person, whether such will be made
or such person shall have died before or after the passing
of this Act, any power to any executor or executors in such
will to sell, dispose of, appoint, mortgage, encumber, or
lease any real estate, or any estate or interest therein
whether such power be express or arise by implication, and
whenever from any cause letters of administration with
such will annexed shall have been by a Court of compe-
tent jurisdiction in Ontario committed to any person, and
such person has given, or shall hereafter give, the additional
security in the next preceding clause mentioned * *
such person shall and may exercise every such power, and
sell, dispose of, appoint, mortgage, encumber, or lease such,
real estate, and any estate or interest therein, in as full
large and ample a manner, and with the same legal effect
for all purposes as the said executor or executors might
have done."

The 36 Vic. ch. 20, O. repeals the above Act, but sec. 40
of it is precisely like the clause above stated. It was passed
on the 29th of March, 1873, and before the administration
was granted to Edwin Smith.

Under the above Act there appears to be no doubt that
60 — VOL. XLI u.c.R.

queen's bench, EASTER TERM, 40 VIC, 1877.

|: :i

the administrator with the will annexed had full power
to make the sale to the plaintiff.

Then arises the question, whether the deed which the
administrator made on the 31st of May, 1873, to the plain-
tiff, passed to him the ore in question, which was severed
from the land before that day ?

It is a conveyance not only of the land but of all "wood,
timber, iron and other ores, and other property respective!}''
of any and every nature and kind soever, which may have
been severed or detaclied from the freehold of the said
lands * * by any person or persons whomsoever, at
any time or times, before the execution and delivery of
these presents, and as well all those portions of the same
respectively which shall or may be still remaining on the
said lands * * as such other portions thereof which
shall have been removed therefrom ; and wheresoever the
sanu! respectively shall now or happen hereafter to be
found, and all rights of action in respect thereof, or of the
value thereof, or for trespass to and for the mesne profits
of the said lands."

It Avas not contended that the devise conferred more
than a power upon the executors to sell the lands and all
the other property of the testator. It was not argued that
any estate or interest in the land passed to the executors.
That, no doubt, is the meaning, effect and operation of the
will.

It is an absolute direction to sell, and not a mere discre-
tionary right, which the executors may or may not exercise
at their pleasure. It is therefore a conversion of the )"ealty
into personalty. It is a trust to sell

On the death of the testator, -jk Jer the trust to sell under
the power, the legal title vested in his heir at law. He
would be the person to bring ejectment or to defend the
legal estate at law.

He would, however, b3 a trustee for the executors.

Where the testator h&d given power to his executors to
sell, and after the makin ; of his will he contracted to sell
the lands to a purchaser, who required the heir-at-law of

STUART V. BALDWIN.

testator to join in the conveyance, the Court, under the
Trustee Act of 1850, made an order vesting the estate
which was in .he heir in the executors: lie Badcocl's
Trusts, 2 W. R. 386. So whore it was doulited whether
there was sufficient legal power of sale implied in the exe-
cutors, or a suflicient charge of debts to enable him to con-
vey tho legal estate to a purchaser, the Court, ander the
Trustee Act of 1850, made a vesting order of die heir's
estate : Hooper v. Strutton, 12 W. R. 3G7.

By holding that the executors who have i)ower to sell
lands have a legal power to convey "the difficulty is
obviated of getting a reluctant heir to join in the sale ; the
testator having disinherited his heir could never mean him
to act as trustee": In arguendo, Ikntham v. Wiltshire,

4 Madd. 44, 47.

Upon the severance of trees or ores from the land the
owner of tho land had the right to treat the articles severed
as goods and chattels against the wrongdoer, and to sue
for or in respect of them as such : Farrant v. Thompson,

5 B. & Al. 826.

The plaintiff has got all the rights, powers, and interests
w^hich the donee of the power, the administrator with the
will annexed had. The administrator had in strict law no
right, by any legal title in himself, to take or to sell the
ores which were severed from the land. If he had done so
after his own appointment and before the execution of the
power, it would have been done strictly by him as cestui
que trust, or perhaps more- correctly by reason of the rela-
tionship which was between him as cestui que trust and
his trustee — or, in other words, by reason of the connection
between him as agent and his principal the heir-at-law, or
the person having the legal estate, and who in equity was
trustee of the land and ores. And when he executed the
power he passed the land to the purchaser who took directly
under the will from Robert Randall, the donor of the
power. ' ' --:. ■ 'f--' - . - :^^^ r :■

But at that time the ores in question had been severed
from the freehold, and were then goods and chattels, which

I J'

queen's bench, EASTER TERM, 40 VIC, 1877.

1 :

41
1

the heir-at-law could at law sue for and recover, and if he
died after such severance the title at law to such ores
would have passed to his personal representative as part
of his own and not as part of his ancestor the testator's
estate, and would not have descended to his heir. Yet the
heir, notwithstanding such severance, would have had only
a fiduciary interest in the ores so severed ; the beneficial
interest in them would still have remained in and with the
donee of the poAver.

If the heir at law sued for such severance he would have
sued because the ores remained vested in him as part of the
inheritance : Poinfret v. Ricroft, 1 W^ns. Saund. 322 d., n.
5, ed. of 1871, p. 557, 566, n. 5. ; Co. Litt. 57 a.

The donee of the power could have sued at law any one
for or in respect of these ores in the name of the heir, and
he could have sued any one in respect of them in equity in
his own name. So he could in the execution of the power
sell ar)d convey to the purchaser of the land the interest
which he had as such donee of the power in the ores.

Substantially, as between the donee of the power and
the heir, the ores, notwithstanding the severance, remained
after such severance just as they were before thcii removal
from the soil.

I am of opinion the conveyance by the administrator did
not by the mere power of his own appointment, except in
equity, pass the legal title to the ores so severed. If it did
not pass the ores as part of Robert Randall's estate, it may
be assumed that the donee of the power as cestui qi:", trust
had authority from the heir or person having the legal
estate as trustee to deal with such ores as his agent, in such
manner as he pleased, and so to take possession of them,
or to soil and assign them to the plaintifi'.

That presumption has been made in many such cases,
and as against a merely formal objection it may very rea-
sonably be raised in favour of tne substantial right.

The tenant under a lease fronr, the cestui que ti^ust may
be considered as the tenant of tl e trustee, the act of the
cestui que trust being deemed to be the act of the trustee,

STUART V. BALDWIN.

the former being held for the purpose to be the agent of
the latter : Vallance v. Savage, 7 Bing. 595,

In Pope V. Biggs, 9 B. & C. 245, a tenant of the mort-
gagor made after the mortgage executed is bound to pay
rent to the mortgagee after notice given to the tenant by
the mortgagee to do so, although, as Tindal, C. J., said in
the case just referred to of Vallance v. Savage, 7 Bing., at
p. GOO, " their interests are adverse." See Keech v. Hall,
Doug. 21 ; See also Trent v. Hunt, 9 Ex. 14, which is very
highly approved of by all the Judges in Snell v. Finch, 13
C. B. N. S. G51, pp. 651, 656, 659.

In this case too, as the ores so severed became goods and
chattels, a title to them might pass M'ithout any deed or
writing from the heir to the donee of the power ; and in
presuming that they may have passed, or in holding that
under the circumstances they may and should be considered
as having become the legal as they were the equitable pro-
perty of the donee of the power, we are doing, in my
opinion, no violence to any real opposing right or interest,
and are not dispensing with a deed where a deed as the
means of conveyance would be necessary to confer and
to transfer a title.

I am of opinion then that a title to the ores so severed,
as part of the estate of Robert Randall, may upon the facts,
be presumed to have passed to the plaintiff by the conveyance
of the administrator with the will annexed, or as joart oi the
personal property of the heir or person having the legal estate
to the land, by rr; son of the beneficial ownership which the
donee of the poM or had, and the implied power he may be
presumed to have had, in the absence of all evidence to the
contrary, to take, sell, and deal with the ores as the agent
of the trustee ■ )r person having the mere legal estate.

And it must be remembered throughout that the defen-
dant bought with a knowledge of the Randi'^1 title, a.id
from persons who were the children of one Samuel Pink,
who occupied a part of lot 13, and who exercised a species
of control under authority of person^ acting ^or the Randall
estate.

.('!

QUEEN S BENCH, EASTER TERM, 40 VIC, 1877.

So far the case has been considered as if the hinds were
situate in Ontario, and as if the ores at the time the
power was executed were in this Province. At that time
the ores were severed, but still they were in the Province
of Quebec where the lands were situated, and as I under-
stand the opinion of the Court of Queen's Bench transmitted
to us, these ores were the property of the plaintiff under
the deed on which he relied. It appears then, however the
law may be if ^ho ores had been in Ontario at the date of
the deed; that the plaintiff acquired a title to them in the
Province of Quebec where they were then situated; and
either title is sufficient for the purpose of the action.

There remains still the matter to be considered upon
which the opinion of the Court of Queen's Bench at Mon-
treal, in the Province of Quebec, w^as taken under the
Imperial Statute 22 & 23 Vic, ch. 63. As to cases sent for
opinions under that Act see Topham v. Portland, 32 L. J.,
Ch. 257; Wilson v. Moore, 12 W. K. 1137.

That Court has decided upon the case which was trans-
mitted to them for their opinion, that the will of Robert
Randall authorized a sale of the lands in question, which
arc situate in Quebec, by the executors or the survivor of
them, or by the administrator with the will annexed : that
the deed to the plaintiff is a valid deed by the law of
Quebec to sell and convey the lands and ores under the
will, and that the defendant has no title to the land or ores
sufficient to defeat the plaintiff's title.

These answers are all subject to the special circumstances
stated in the fifth answer.

The fourth answer is, that the judgment recovered by
the now defendant as plaintiff" in a suit brought by him
agains*^^ the now plaintiff" as defendant has no eff'ect on the
title of the now plaintiff", if he has any.

The now defendant declared in effect in that action that
the lands in question belonged to him, and that the now
plaintiff" had troubled him by a suit in respect of the land,
and by seizing the ore taken by the now defendant from
the land, and by damaging and prejudicing the now defen-
dfint's title to the said land.

STUAET V. BALDWIN. 35

And he prayed that by the judgment of tli^ Court he
should be declared to have been, during all the time therein
mentioned, and to be still duly seised and possessed of the
land as proprietor thereof; and that he be maintained
therein and the enjoyment thereof; and that the now
plaintiff should bo ordered, adjud^^ed, and condemned not
to trouble or disturb the now defendant in his possession
in the future ; and to pay the now defendant his damages,
laid at 310,000, with interest and costs of suit.

The now plaintiff appears, as defendant, to have de-
murred to the declaration, as I may call it, and to have
stated specially his cause of demurrer, and also to have
pleaded in fact to the declaration setting up title to the
land.

The now defendant demurred to the plea, setting out the
causes of demurrer, and upon these demurrers the Court dis-
missed the now plaintiff's defense en droit (demurrer) as
unfounded in law, and maintainea the defenses en droit
(demurrers) to the now plaintifi"s plea, with costs. And
upon such pleadings the Court of Queen's Bench, to whom
this matter was referred, has declared that such judgment
has no efiect on the now plaintiff's title, if he has a title.

Upon that finding, which wo must adopt as our guide
upon a matter specially and peculiarly within the know-
ledge and jurisdiction of the Court, the question of title is
still open and controvertible between these parties.

By the fifth answer of the Court, which is the governing
one, and is explanatory of the other answers they have given,
they have declared the plaintiff could, by the law of the
T'tz/ince of Quebec, maintain an action for both the land
and the ore, or for either of them, before the ore was re-
moved fro' 1 that Province. But the action for the ore
would be one incident to the petitory action to vindicate
the title to the land.

If the title w^ere maintained, the plaintiff would recover
the ore, dcdiictis impcnsls, in accordance with articles 415,
416, 417, 418, and 419, of the Civil Code of Lower Canada.

And if an action were instituted to recover the ore before

queen's bench, EASTER TERM, 40 VIC, 1877.

or otherwise than by a petitory action to vindicate the
title to ownerehip of the land, it should be — perhaps it was
meant it would be — suspended until the title to the land
was established.

That answer establishes that the plaintiff, by the law of
the Province of Quebec, where the land is situated, could,
while the ore was in that Province, have maintained an
action for both the land and the oi-e, or for either of them.

If the action were brought for the ore alone before or
otherwise than by a petitor}-^ action to vindicate the title
to ownershijj of the land, it would be stayed until the title
to the land was est:.i>l' >hed.

That is, as I unci .'■■—' it, if it were necessary to estab-
lish the title, but not v. vise. If, for instance, the {)lain-
titf were in possession, and a mere trespass had been
committii'd, the act or fact of trespass alone might be in
controversy without any claim being made to the land by
the defendant, or without the title of the ])laintiff to the
land being disputed.

If the title to the land is in contention, then the ore may
be sued for separatel}- from any claim of title being put
forward to the land by the plaintiff, or a petitor^^ action
may be brought. In the former case the proceedings for
the ore will on such separate action be stayed by the Court
until the title to the land be fii-st settled by a petitory
action. That is an action I believe somewhat like an eject-
ment in which the title to the land is in question. If the
plaintiff succeed in it, and if he had before brought an
action for the ore, he would be at liberty then to continue
it. But he may, instead of prosecuting separately for tho'
ore, recover as an mcident in the petitory suit compensa-
tion for the ore which had been taken from the land by
the defendant.

Such incidental claim is, I believe, in the nature of our
claim for mesne profits, but it is .adjudicated upon in the
petitory action if the plaintiff desire it . or it may be sued
for in a separate action, as by our law h r me»ne profits he
would be obliged to do, if the plaintiff elect to do so.

We_are in effect trying the title to the land, because we

STUART V. BALDWIN. 37

cannot determine with respect to the ownership of the ore
until we have determined who is the owner of the soil
from wliieh the ore was taken.

In the Province of Quebec the Court would not try the
title to the ore until the title to the ownership of the
land, in such a case as is presented to us here, between
those parties was first established.

And it is insisted on by the defendant that we should not
adjudicate with respect to the ore, until the title to the
realty has been tried and determined in the Courts of
Quebec, where that question should only be tried.

This is not a real action, or one in which the venue is
local. If it were so we could not in Ontario decide upon a
matter which wa; by its locality confined alone to Quebec.

In Boulson v. Matthews, 4 T. R. 503, it was held that
trespass could not be maintained for breaking and entering
a house in Canada.

In that case Buller, J., said, p. 504 : "We may try actions
here which are in their nature transitory, though arising
out of a transaction abroad, but not such as are in their
nature local."

In Whitaker v. Forbes, L. R. 1 C. P. D. 51, it was
determined that an action of debt could not be bi'ought in
England under the law which existed, as to venue, before
the late Judicature Act, for arrears of a rent charge due
upon land in Australia.

It is every day's business of the Courts to try questions
of foreign law. In actions on bills of exchange and other
contracts, in questions of descent and marriage, and every
other matter which is the subject of judicial enquiry. And
it may arise in many forms. Here, in an action as to the
proprietorship of the ore, we have to determine the preli-
minary question, as to the proprietorship of the land from
which it was taken.

We could not entertain an action for breaking and enter-
ing into these lands, but we can entertain an action for the
ore which by its severance has becoxne chattels, to try who
is the owner of it.

KB queen's bench, EASTER TERM, 40 VIC, 1877.

An action for assault and battery could be tried here,
although the defendant pleaded he committed the alleged
trespass in defence of his possession of a house situate in a
foreign country, and issue was joined upon the title.

I presume also an action for damages for not completing
a purchase of land situate in a foreign country upon a good
title being shewn, on an averment', that a good title was
shewn, could be tried here, although the Court would have
to try whether a good title to the land by the law of that
foreign country had been shewn.

This action for the ore being maintainable in some
form in Quebec can be maintained here. That it is main-
able there only as incidental to an action which tries the
right to the realty, or after that right has been determined,
is of no consequence, for we are in this action for the ore
trying the question of title to the land as governing the
right and proprietorship to the ore — not directly but as
incidental, although essential, to the decision upon the per-
sonalty.

In Scott V. Seymour, 1 H. & C. 210, in Ex. Ch., an assault
and imprisonment took place in a foreign country. The
plaintiff sued in England for them. Pleas were pleaded.

Wightman, J., said in his judgment, p. 233 : — " We are
all of opinion that the second and third pleas in thir, case
are bad, and afford no answer to the action. They admit
the right to compensation in damages by such trespasses,
but they state that by the Neapolitan law they cannot be
recovered until certain penal proceedings have been com-
menced and determined there. This is an objection to pro-
cedure merely, which must be determined by the lex fori,
and not by the lex loci"

Blackburn, J., said, p. 237 : — "If, indeed, the plea had
averred that by the law of JNaples no damages are recover-
able for an assault however violent, that would have raised
a question upon which I have at present not made up my
mind. I doubt whether it would be a good bar."

I am of opinion this action is well brought htre, although
it could not in the same circumstances be brought in the

STUAIIT V. BALDWIN.

Province of Quebec, in the like fonu, or in the like order of
time in which it is brought here. The case of The Buenos
Ayres and Ensenada Port R. W. Co. v. The Northern R. W.
Co. of Buenos Ayrcs, L. R. 2 Q. B. 210, D., has some rela-
tion to this part of the case.

I may say that tlie articles 415 an 419 in the Code Civile,
rcfei-red to by the Court of the Province of Quebec, will
have full effect given to them in that Province, when the
plaintiff takes ])roceedings to recover the possession of the
land, or to disturb the defendant in his occupation. They
have no application at present in the action before ns.

Something was said of the defendant being a bona jide
possessor, and therefore not liable to account for the
profits of the land during the term of his occupancy, ac-
cording to the law of Quebec. >

We have not that properly before us. If it were intended
that matter should have been considered, it should have
been specially referred to the Court of Quebec with the
other questions.

So far as we can see what it is in our law, it being an
equitable rule only, I may refer to Dormer v. Fortescue,
3 Atk. 124, where it is said, " Where a man shall be said to
be bond Jide possessed is where the person possessing is
ignorant of .ill the facts and circumstances relating to his
adversary's title, which could not be here as Fortescue had
all the deeds and the very settlement on which the title
depends." See also Hicks v. Sallitt, 3 DeG. M. & G. 782,
813, 18 Jur. 915, and The Lord Advocate v. Drysdale,
L. R. 2 Sc. App. 368.

According to article 412 of the Code Civile " A possessor
is in good faith when he possesses in virtue of a title the
defects of which as well as the happening of the resolutory
cause which puts an end to it are unknown to him. Such
good faith ceases only from the moment that these ui T??,t8
or the resolutory cause are made known to him by proceed-
ings at law." See also article 411.

I very much doubt whether the defendant could e ^ablish
an occupancy in good faith according either to the Code

U:
It

I: '

I! I-

40 queen's bench, easteh term, 40 vie, jstt.

Civile or to the doctrines of the Court of Equity, whichever
rule of law he might luivc claimed to avail himself of in
this action. But he has made no such claim.

I may also refer on the subject of foreign law, when and
to what extent it is applied to the rights of litigants:
Shaw V. Gould, L. R. 3 H. L. 56 ; The ffalley, L. R. 2 P. C.
193 : Ex parte Afelhourn, L. R. 6 Ch. G4.

I think, upon the whole, the rule should be discharffed.

Harrison, C. J., and Morrison, J., concurred.

Ride discharged.

lUi

11' pi