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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. 
 
 . 
 

 2 
 
 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. 
 
 i^ 
 
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 
 
n 
 
! I 
 
STUART V. BALDWIN. 
 
 5 
 
 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. 
 
 
 
 LJ 
 
6 
 
 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- 
 
8 
 
 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. 
 
 9 
 
 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 
 
10 
 
 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. 
 
 11 
 
 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 
 
12 
 
 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. 
 
 13 
 
 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. 
 
 w 
 
14 
 
 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. 
 
 I 
 
 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. ' 
 
 i^ 
 
 'b 
 
 28. The defendant, when he purchased the land, knew of the 
 Ilandall title, having obtained information thereof from the 
 
16 
 
 queen's bench, EASTEtt TERM, 40 VIC, 1877. 
 
 .5 
 
 ■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. 
 
 . 
 
T 
 
 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: 
 
 i! 
 
 20 
 
 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. 
 
22 
 
 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. 
 
 S3 
 
 ( 
 
 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 , ■ < 
 
if 
 
 24i 
 
 queen's bench, EASTER TERM, 40 VIC, 1877. 
 
 i 
 
 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. 
 
 s 
 
 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. 
 
 25 
 
 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 
 
f 
 
 2G 
 
 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. 
 
 m 
 
 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 
 
28 
 
 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. 
 
 29 
 
 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. 
 
30 
 
 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. 
 
 31 
 
 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' 
 
 32 
 
 queen's bench, EASTER TERM, 40 VIC, 1877. 
 
 1 : 
 
 c 
 
 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, 
 
N 
 
 STUART V. BALDWIN. 
 
 33 
 
 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. 
 
 i 
 
T 
 
 .('! 
 
 
 31 
 
 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 
 
r 
 
 36 
 
 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. 
 
 . 
 
1 
 
 w 
 
 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. 
 
 39 
 
 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 
 
ff 
 
 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