»%^. IMAGE EVALUATION TEST TARGET (MT-S) :/i 1.0 1.1 23. M2.5 11£ li SB." ■ 40 2.2 2.0 l^s llpS III 1.4 1.6 ^ ^ 6" ^ ► ^ /}. v: ^ k. /A '^' 'W '/ Hiotographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, NY. MS80 (716) B73-4S03 iV ^V LO^ A \ ^ signifie "A SUIVRE", le symbole ▼ signifie "FIN". Mapa, piatea, charta, etc., may be filmed at different reduction ratioa. Those too large to be entirely included in one expoaura ara filmed beginning in the upper left hand corner, left to right and top to bottom, aa many framea aa required. The following diagrama illuatrata the method: Lea cartea, planchaa, tableaux, etc., peuvent Atre filmte A dee taux de rMuction diffArenta. Loraqua la document eat trop grand pour Atra rcproduit an un seul ciichA, il est fiimi A partir de Tangle supdrieur gauche, de gauche k droite, et de haut an baa, an pranant le nombre d'imagea niceaaaira. Lea diagrammea suivanta illuatrant la mithoda. 1 2 3 1 2 3 4 5 6 s TITLES AND DOCUMENTS ^^1 /;?' RELATIVE TO THE ^//' " -s^y SEIGNIORIAL TENURE, REQUIRED BY AN ADDRESS Vs OF THE LEGISLATIVE ASSEMBLY, 1861. c < rn I \ r > QUEBEC: PRINTED BY E. R. FRECHETTE, 13, MOUNTAIN STREET, LOWER TOWN. 1852. l^ '? ^\, LEGISLATIVE ASSEMBLY, FaiDAY, 29tii August 185L llc&ohed, That an humble adclreas be presented to His Excellency the Govenior Genera?» pi'aying he will be pleased to direct that Copies of all Octrois, Deeds of Concession or Grants made, and to be found in the Archives or Public Records of the Province, of the various Fiefs and Seigniories in ^^ Nouvdle-Fi-ance,^^ or Canada, from the earliest settlements thereof to the cession of the same in 1763, by the Crown of France to Great Britain, and also of those made since that period, be translated into English, pi-inted and distributed in both languages, with all convenient despatch, among the Members of the Legislature, and to the several Municipalities throughout the Piovince, for public information, together with all such legal opinions, official mid public docu- ments relating to the Seigniorial or Feudal Tenure, or to the commutation or abolition thereof, of wMch Jie Executive Government may be possessed, and which Kis Excel- lency may deem necessary to the proper understanding of the relative rights of Sei- gniors and Censitaires ; and to assure His Excellency that this IIou«e will make good any expense that mfiy be incuired in consequence of his compliance with the present Address. c z ■a < m 3} r > 5 Ordered, That the said Address bo presented to His Excellency by such Members of this House as are of the Honorable Council of this Pro\iuce. Attest, W. B. LINDSAY, Clk. Assy. '\ DOCUMENTS OBTAINED FROM THE ARCHIVES OF THE MARINE AND COLONIAL DEPARTMENT AT PARIS, BY MR. FARIBAULT, UPON THE OCCASION OF HIS MISSION TO EUROPE IN 1851. To bo submitted to the Council of the Regent. The Council is of opiniOh that a de- cree must be made as proposed by thn Sieur Bcgon. L. A. D. L. M. D. after the clearing to others. [5th May 1719.] SEIGNIORIES OF CANADA. Mr. Begon last year observed that in the deeds of concession which proprietors of seigniories grant to those who take lands therein, they introduce a variety of obligations ; contrary to the Custom and to the settlement of the Colony. Such are the corvees (day labor) which the seigniors exact, inde- pendently of an annual rent (rente fondle) for the common used for grazing cattle. Other seigniors have resumed the possession of such common, of the same by some of the inhabitants, for the purpo.se of selling it They further stipulate for corvees which are not mentioned by the Custom. ' They reserve to themselves the right of resuming the possession of the lands they 9 grant whenever the same shall be sold upon repaying the purchaser, which is also contrary to the Custom of Paris, to which they derogate in that respect, as is stated by them, to follow tho Custom of Normandy. He stated that he thought proper to order that this stipulation should not be observed, in the contracts where it is found, and to prohibit the insertion of the same in such contracts as may be entered into for the future. Some of the seigniors reserve to themselves, in the deeds of concession, the timber necessary for their houses and other buildings, and the wood necessary for their fuel, others reserve tho timber fit for sale. Others grant to their tenants leave to cut pine timber upon the lands which they have not yot granted, on condition that they shall pay them ten per cent upon the boards Ihuy will obtain from such timber ; by reason of whi
  • arislics Xthefuture, at 1 the choice of \e a draught t 15 Here is a letter by trhich I request him to draw it up at his leisure, because I believe that the Canada ships have now leji, so that we cannot send this declaration tUlnerl year. I return to you Mr. Raudot'a letter , with the memorandum of your observations on it. •,,'■,■■ f ■ ■ ^ , > To Mr. Daguesseau. Same date. Mr. Raudot, intendant in Canada, has written to me, sir, that that the seigniors of parishes in that country who have granted lands to settlers have subjected them to all the dues they pleased, wJiich are almost all dijerentjrom each other ; that in most of these grants there are dues which ought not to be tolerated, because they afford an opportunity of vexation, and that it would be necessary to issue a declaration,^^^ the dues and rents of these seigniors, as well for tJiepast as for the future. I have requested Mr. Deshaguais to see you and take your leisure to draw up this declaration. I send him Mr. Raudot's letter, which will inform you of what he writes on the subject. j< .'■/I i '-, ■* Letter from Mr. Raudot to the Minister t Quebec, 18th October, 1708. Mylord, I have received the three letters which you did me honor to write to me on the 6th^ 13th and 18th of June last. I had been obliged, Mylord, in order to make you under- stand what I meant when I had the honor to ask of you a declaration securing the owner- ship of the lands to those in possession of them, to insert these words : " in virtue of any title whatever ; " and for this purpose I had the honor to explain to you, by my letter of the 10th November last, tliat mauy inhabitants of this country had obtained grants of land on simple tickets ; others have nothing in their favor but possession on the verbal promise (sur la parole) of the seigniors. Others again liove last or mislaid these tickets. There are even many contracts that cannot be found. The possession, even, of a part of these lands, had been much interrupted by the forced abandonment of them in consequence of the Iroquois war. Hence it results that the prescriptions es- tablished by the Custom can hardly avail to any one, and it is for these reasons that \ think it would be necessary to insert in the declaiation which I have the honor to ask 16 of you that the land Bhould remain the property of him who had been five years in possession of it, or who held it by any title whatever. It would also be necessary, with regai'd to the seigniorial dues, to maJce them uni- form by reducing them all to the same scale ; and for this purpose, Mylord, I have the honor to send you a memorandum containing the duesichich Ihavefoutulin several deeds of concession (a), all different from each other, opposite to which / /iaw ^^aced! my opinion as to the diminutions a)id retrenchments that might he effected, and in so doing I have adhered to the earliest grants, tvhich were made in innocent times, when people did not so much seek their own advantages ; and I believe, Mylord, that the justice which is due to the inhabitants being thus maintained, His Majesty might, in his declaration, insert these words, without having regard to the charges, clauses and conditions contained in their title-deeds, that the dues shoidd only be paid according to what would be contained in the said declai'ation. As to the relrait roturier, you acknowledge, Mylord, vsdth reason, that it ought to be suppressed in all deeds of concession, and the same might be done with regard to the rctraitfeodal, because if mentioned in the Custom of Paris, it was only in consequence of its being supposed that the fiefs to which it was applied were a portion of the sei- gniory from which they were alienated, and it was intended thereby to give the seignior the right to replace his fief on the same footing as it foiinerly was ; but it is not so in this country, as the seigniors here gave the fiefs at the so ae time that they formed their seigniories, and these fiefe cannot be said to be a dismemberment of them. With respect to the relrait lignager, it seems to me that it cannot be dealt with in the same manner, as it was established by the Custom for good reasons. It appears to me, on the contrary, that it should be viewed in a favorable light, as it perpetuates property in the same families, and insures a right to those to whom nature gives it. The only reason, Mylord, for which I have proposed that the privilege of baking (/bwrs hannaux) should be suppressed was the impossibility for those who are sub- jected to it of using the banal ovens at which they are obliged to bake, on account of the distance at which all the inhabitants of the seigniories are from their seignior's house, the seigniories in this country not being settled as they arc in France, where almost all the inhabitants are collected in villages near each other, and all within reach of the banal ovens. Here the inhabitants of the seigniories, '.vhich are at least two leagues in extent along the river St. Lawrence, are all settled along the said river, so that the banal oven being in the seignior's house, which is always in the centre of the seigniory, some inhabitants would have to carry their bread a distance of a league or even two or three firom home. Besides the inconvenience to which this would subject them at all sea- sons, there is even an impossibility in vnnter, as their dough would be frozen before they reached the place where the oven was situated. It is a right, Mylord, which must be suppressed, because the inhabitants cannot derive any benefit from it and the sei- gniors have establised or wish to establish it only to oblige them to redeem Themselves from it by consenting to pay in future some heavy clear gc in considcrutiofi of the servi- (a) I have not found this meinoranduui. II 17 :e them uni- ord, I have mlin several ' have placed ', and in so times, when I'lylord, that His Majesty the charges, only be paid I t ought to be egard to the consequence )n of the sei- ! the seignior ■t is not so in they formed t of them. dealt with in It appears perpetuates •e gives it. of baking ho are sub- 1 account of seignior's mce, where fithin reach Itwo leagues so that the le seigniory, 3ven two or at all sea- Izen before /•hich must id the sei- ihcmsdves ' the servi- tude from which they vxndd be liberated. It is not so, Mylord, with the banal mills, the btmal mill being always to the advantage of the inhabitants, who have not the means of erecting mills themselves, whereas the banal oven is to their disadvantage, there being not one of them who has not an oven in his own house and as much wood as he wants to heat it. Frmn the abstract made for the King, of Messieurs Raudot and D'*Aigrem4)nt''s letters of the 4th and 7th November, 1711, That being well informed of the pretentions of the Sieur de Cabanac, he cannot help saying that they are ill founded, since he will not submit to the general regulation which has been made in the Council at Quebec concerning the honorary rights due to the seigniors. He incloses the decree {arrit) of the Superior Council of ilie Sth July, 1709, Jor these honorary rights, (here the words " and for those of the seigniors having high courts of justice " [seigneurs hauts-justiciers], are erased in the document deposited in the archives.) . Extract of a letter from the Minister to Monsieur Begon. . / 16th June, 1716. It has examine 1 what you stated on the subject of the grants made by the seigniors of parishes in Canada, and of what they exact from their grantees, according to the different Customs under which they have granted. The intention of the council is that the Custom of Paris should be followed ; that all acts done against that Custom should be declared null, unless at the time when the Custom of Paris was established in Canada, the King excepted the grants previously made according to other Customs. It is necessary that you should ascertain this and send the documents, in order that the council may put this matter completely to rights. ' / Extract of a Memorandum from the King to Messieurs de Vaudreull and Begon. 15th June, 1716. His Majesty having no title to establish any censive in the island of Montreal, it is not his intention that the Seminary of Saint Sulpicius, seigniors of that island, should be disturbed in the rights belonging to them on the grants which they have made of 18 several habitations, and the sieurs de Vaudreuil and Begon will make this decision public, so that the inhabitants of the island may have no pretext for not paying the rents due by them to the owners of these gp-ants. Extract of a Memmandumfrom. the King to the same. 26th June, 1717. Their attention to enforcing the decree of the 6th July, 1711, which reunites to the King's domain the seigniories that are not settled, and to obliging the seigniors having lands to be granted within the extent of their seigniories to grant them, is very necessary for the settlement and extension of the colony ; they should prevent these seigniors from receiving money for the wood lands which they grant, as it is not just that th'ey should sell lands on which they have spent nothing and which are given to them only for the purpose of being settled. U i ii!i I A Decree to anntil, in the Deeds and Contracts of Concession executed in Canada, clauses contrary to the Custom of Paris, and to order that it shall he observed in future. ', May, 1717. The King being informed that the Company of New-France, formed in 1628, has conceded lands in fief, especially the island of Montreal, on condition that fealty and homage would be done and dues paid to it according to the Custom of Paris ; that this Company, which held the country untill 1663, has introduced no other Custom there ; that to avoid a diversity of Customs the late King, by the 33rd article of the Edict establishing the new Company formed in 1664, under the name of the West- India Company, prohibited the introduction of any other Custom in the countries granted to that Company, and ordered the local officers to follow and conform them- selves to the Custom of the provostship of the viscounty of Paris, according to which the inhabitants of the said countries might contract ; that notvrithstanding the provi- sions of the said Edict, several of his subjects who hold lands in seigniory in New- France impose, in the contracts of concession of the lands which they grant in their manors, very burthensome clauses and servitudes, contrary to the provisions of the said Custom and prejudicial to the settlement of the colony, such as the days of husbandry service (corvees) which they stipulate or exact, besides a ground rent (renie fondere), for the common which serves as a pasture-ground for cattle ; the days of husbandry service which they again establish on account of the grants of land ; the right which they reserve to themselves of re-entering into possession of the lands which they grant, every time that they arc sold, on refunding to the purchaser the pur- i& chafle-money ; the reservation of the power to take on each grant, without paying anything for it, all the necessary wood for their houses or other works, or for their fuel ; or of having the preference of all the wood, grain, cattle or other things which the inhabitants may have to sell ; the reservation of all the pine and oak trees that may be found on each grant, without any payment, which enables them to exact such prices as they please for this timber, and is an obstacle to building, and prevents the trade in such timber which might be carried on as well with this kingdom as with the West India islands, if it were cheap ; the reservation of the fish taken by the inhabitants in front of their grants, and the obligation which they impose upon them of carrying their grain to be ground at the wind-mills which they have on their seigniories, although such mills are not banal by the Custom of Pans, and the multiplicity of mills in a colony cannot be otherwise than advantageous, particularly in seigniories of great length and in which there are no water-mills ; His Majesty being also informed that some of the said seigniors grant permission to their inhabitants to cut pine timber on the lands which thoy have not yet granted, on condition of paying them one tenth of the boards, planks and deals made out of such timber, which is uo much the more prejudicial to the settlement of the colony as, in order to preserve this tenth, they do not grant these lands ; and it being necessary to provide against all these abuses ; The report having been heard and the whole considered. His Majesty, being present in his council, on the advice of Mylord the Duke of Orleans, Regent, has ordained and does ordain that the saind 33rd article of the E«lict establishing the West India Company, of the month of May 1664, shall be executed according to its fonn and tenor ; which being done, the inhabitants of the said country of New- France shall have power to contract only according to and in conformity with the Custom of Paris ; His Majesty prohibits the introduction of any other Custom in the said country, and wills that all clauses inserted in deeds and contracts of concession or others, contrary to the provisions of the said Custom, be and remain null, as well for the past as for the future, and in consequence His Majesty has discharged and does discharge the inhabitants of the said country, towards the said seigniors, of all hus- bandry service (corvees), .for any cause whatsoever ; of the resei'vation of the right of conventional redemption (retrait conventionnclj, as also of that of taking any wood, of what kind soever, whether for building or for fuel, without payment ; of the pre- ference for anything whatsoever that they may have for sale ; of the reservation of the 11th fish to be taken by them ; of the obligation to have their corn ground at the wind-mills, and of the execution of all other clauses contrary to the provisions of the said Custom ; but the said inhabitants shall not have any claim against the said seigniors on account of anything which they may have given or paid, up to the day of publication of this decree, for sen'itudes or clauses contrary to the said Custom ; and His Majesty forbids the seigniors to grant permission to cut timber on the lands which they have not yet granted, under the reservation of one tenth of the boards, planks and deals to be made therefi'om, or under any other reservation or condition whatsoever ; and His Majesty enjoins the said seigniors to grant the said lands to such inhabitants as may apply for them, subject to the usual dues, in default whereof he permits the said inhabitants to appeal to His Majesty's governor and lieutenant-general and the intendant of the said country, according to the decree of his council of s > ^ 03 331 K 20 the 6th July, 1711 : and the pruBent decree shall bo registered in the office of the Superior Council of Quebec, read, publislicd and posted up wherever need may be, to the end that no one may be ignoi-ant of the earae, and all letters necessary to this effect shall be issued. Extract of the King^s Memorandum to Messieurs de VavdreuU and Begon, of tt^e 23rd May, 1719. His Majesty has seen the memorial of the sieur Desjord Moreau, captain in the troops, who applies for a grant of land under the title of fief and seigniory, with high, mean and low justice. His Majesty would willingly have granted him this favor ; but tlie gi'eat number of seigniories having proved but too prejudicial to the settlement of Canada, it was resolved several years ago to grant no more of them ; His Majesty has again explained this to the sieurs de Vaudreuil and Begon by his despatch of the 15th June, 1716, and his intention is not to change any thing. He will in future make grants in roture only. However, although he has directed theni to make such grants of not more than 3 arpents in front by 40 in depth, in good lands, he will nevertheless approve of their giving them a greater extent if they think proper. 1 1 Extract of the King''s Memorandum to Messieurs de Beauharnois and Hocquart, of the 25th April, 1730, om the sidyject of the contestations arising in the colony between the owners of fief s a?id the parties owing them seigniorial rents and dues. — Ordinance rendered by Mr, Begon, June list, 1723, and those subse- quently rendered Inj Mr. Dupuy, November 16th, 1727, and January 13th, 1728. On the account which I gave the King, as well of the provisions of these ordinances, which contradict each other in every thing, as of the memorials which were sent last year on the part of the seigniors of fiefs and of their tenants, His Majesty has thought necessary to make his declaration hereunto annexed, in interpretation of the 9th article of that of the 5th July, 1717. He ordains that without regard being had to the ordinances of the said sieurs Begon and Dupuy, the cens, rents, dues and other debts contracted before the registration of the declaration of the said 5th day of July, 1717, when money of France, or Toumois, or Parisis is not stipulated, shall bo paid in money of France, deducting one fourth, which is the way of reducing the currency of the coimtry to that oi France ; and that when money of France, or Toumois or Parisis is stipulated, they shall be paid in money of France without any deduction. You will please to have the same published and registered, and you will take care that it be strictly executed. ice of the i may be, iry to this 771, of the 1719. Moreau, ' fief and igly have jd but too » grant no reiiil and lange any h he has in depth, • extent if quart, of 'le colony ents and ise suhse- th, 1728. visions of lemorials tenants, lexed, in ains that puy, the claration arisis is which is lat when n money hed and 21 Letter from the Minister to Messieurs de Deauharnms and Hocquart. 24th April, 1731. I have received the letter which you wrote me on the 10th October of last year, on the subject of the granting of lands in Canada, and I have given an account of it to the King. His Majesty has learned with pain the inexecution of the decrees of the 6th July, 1711, on the subject of these lands, and the abuses that are committed in violation of the said decrees. He would have determined, for the purpose of putting an end to a disorder as prejudicial to the settlement of the colony as to the interests of the inhabitants and of commerce, to issue a decree ordering the execution of those of the 6th July, 1711, and to declare at the same time null and void all grants of land in seigniory or in roture which have .lot been confirmed and have not been improved, and to forbid your making any g: ants of land until the terrier is completed and until otherwise ordained ; but he has been pleased to wait until he has received your answer and your opinion thereon. These prohibitions have two objects : the first, to finish the work of this tenier ; the second, to come at the reservation of the forests, in order to prevent the scarcity of wood, of which you state that the grantees of the front lands already feel the want, and also to form hereafter a domain for His Majesty in the country. It will be only by examining the terrier that the extent of these forests can be well and usefully ascertained. Mr. Hocquart caimot therefore pay too much attention to this long protracted work. / pi. From the abstract of Messieurs de Beauharnois and Hocguarfs Letter of the 6th October, 1734. Messieurs de Beauharnois and Hocquart send a statement of the different grants which they have made to various individuals since 1731, aa well in fief as in censive. (The list is here annexed. The grants which have been ratified by the King are pointed out). Most of the grants in fief are situated on lake Champlain, where the settlements can only be made little by little. There are however already some settlers on those of the sieurs de Noyan, Daine and Lery. They will induce others to follow their example. ' Those in censive are situated on the Detroit and are already nearly all settled. The title-deeds which have been issued for them contain nearly ilte same clauses urith regard to reserves as tJie grants in fief, and the charges are also the sat^ as those to Co 03 which individual seigniors usually subject their vassals, with the exception of thel liberty uhich is given to the grantees on the Detroit to jmy the cens et rentes in funl to tlie receiver of the domain, until there be a current vwney established at tliat postl They have had regard, in issuing these grants, to the daims which the sieur de lal Motto Cadillac may liave to a part of the lands on tho Detroit, having maintainedl private individuals in possession of the lands which he had granted them, which tlieyl had improved and to which they had a title. The grants made by them are in favor of other settlers on the Detroit, who have I commenced clearings or continued those which had been abandoned and which had! been successively distributed to them by the commanders at the post without anj other title or formality Lands in censive on the Detroit (Straits) of Lake Erie. '„ 16th June, 1737. On the representations which have been made by the inhabitants of Fort Pontchartrain j on the Straits of Lake Erie, to Messieurs de Boishebert, captain of a company of the detachment of marines, heretofore commanding at Fort Pontchartrain aforesaid, and I Pean, knight of the military order of Saint-Louis, major of the town and government of Quebec, now commanding at the said Fort, and which have been reported to tis, stating that hitherto they hud not dared to undertake any clearings and to settle on lands at the said place, bccaiLse they had no title tliat could secure to them the owner- ship thereof; that if we were pleased to grant thom such titles, they would not only bo enabled to work without running the risk of being molested, but that considerable advantages would result from their labors, by procuring at the said place an abundance of provisions, which would cause the gamson as well as the settlers and travellers to find an easy subsistence ; to which haying regard, and seeing His Majesty's letters- patent dated at Paris in the month of April, 1716, and registered at the Superior Council on the first December following, and the decree of the King's Council of State ofthe 19th May, 1722 ; ' ' • Ws have, in His Majesty's name, given, gi-anted and conceded, and do hereby give, grant and concede, under the title o^cena el rcntea, from henceforth and for ever, unto Chauvin, an inhabitant of Fort Pontchartrain on the Straits aforesaid, residing thereat, for him, his heirs and assigns hereafter, a piece of land situated on the Straits of Lake Erie, containing two arpents in front by forty in depth, bounded on one side towards the east-north-east by the land of one Faffart de liormo, which he holds of the Sieur de la Motte Cadillac, by contract of the 10th March, 1707, bounded by a line running north-north-west and soutlf-south-east, and on the other side towards the west'South-west by the ungranted lands, in front by the Straits of Lake Eri^, and in depth by aline i mining east-north-east and west-aouth-west, adjoining also the un- iWPii 23 granted landa, to be held, enjoyed and disposed of by the said Oiauvin, his heirs and signs, under the following charges, clauses and conditions, to wit : That the said Chauvin, his heirs and asoigns uhall be bound to cairy their grain to be I'ound at the banal mill when one shall have been cstublisheil, on pain of foifeiture of [the grain and of an arbitrary fine ; to keep or cause to be kept house and homo (^feu et lieu) thereon within one year from this date, at the latest ; to open the dealings {dc- ouvrir les diserts) of the neighbors as they may require it ; to cultivate the said land ; lo allow thereon such roads as may bo judged necessary for the public use ; to make Ithe division fences (clotures mitnyennes) as may be agreed upon ; and to pay each year, to the receiver of His Majesty's domain in this coiuitry, or to the clerk of the said receiver residing at the Straits, one sou of cens for each arpent 171 front, and twenty ^us of rent for every ttventy arpents in superficies, making for the said two arpents by forty in depth four livres of rent, and moreover kiUf a rninol of wheat for the said ttvo xrpents in front : the whole payable yearly on the festival day of St. Martin ; the first yearly payment becoming due on the 11th November 1735, and so to continue from ^ear to year ; the said cens beaiing profit oflods et ventes, difaut et amende, with all other royal and seigniorial rights when the case may occur according to the Custom jf the provostship and viscounty of Paris. It will however be optional for the said Chauvin to pay the said four livres o£ rente id the sou of cens in furs at the Detroit price, mitil a current money is esta- blished. Reserving in the name of the King, on the said habitation, all the timber which is Majesty may want, for the erection of such buildings and forts as he may deter- lineupon hereafter, as well as the ownership of mines, ores and minerals if any be found within the extent of the said grant. And the said Chauvin, his heirs and assigns shall be bound to cause immediately the paid grant to be surveyed, measured and bounded in all its length and depth at his }wn expense, and to execute the clauses contained in this title and take out a patent af confirmation of the same within two years, the whole on pain of nullity of these presents. Done and given at Montreal, the 16th June, 1734. (Signed) BEAUHARNOIS and HOCQUART. (Here follows a series of grants in the same terms.) ^ / ■I I i 1? 2k Extract from a memorandum on the subject of the colony of Canada and of that which is projected in Isle-Royale (Cape-Breton.) Ist March, 1716. In 1675, the King farmed out the domain of all the colonies to Jean Oudiette for Ihe sum of three himdred and fifty thousand livres, and in this lease are stated all the ^^T 24 r dues which the farmer was to collect, and His Majesty confided to him the task of| getting a terrier made to regulate the rights of cens and lods et ventes which His Ma- jesty had resolved to establish in the said colonies, to supply evidence in all times to I came of his seigniorial and domanial rights, and to insure at the same time to private! individuals the indefeasible right of property in their estates and inheritances. His j Majesty at the same undertook to pay the governors and otliur officers of the land forces and of justice, employed in his service in these colonies. This charge was then but trifling, as there were none in Canada. Mr. de Frontenac had been appointed governor there by the West India Company : His Majesty confirmed the appoint- ment, and contented himself with adding an intendant : it was Mr. Duchesneau who I filled this office in the year 1675. ' This intendant caused to be made, at the expense of the farmer of the domain, tho terrier of Canada, and established therein the dues and lods et ventes. The intendan:s of the West Indies had not the same attention, and this order of the King lias not been hithertho executed either in Cayenne or in the West India Islands. It is a work which deserves the attention of the council uf marine. I i I EXTRACT OF THE PROCEEDINGS OF THE COMMITTEE OF THE WHOLE COIJNCIL, Ufuler tlie foUov)ing Order of Reference relative to a Cofiversion of the present Tenures in the Province of Quebec into that of Fres and Common Soccagc i Printed by Order of His Excellency the Governor in Cmincil of tlie 20ik October , 1790, for the Use of the Members of the Legislative Council. : At the Council Chamber in the Bishop's Palace^ On Wednesday, the 25th of August, 1790. PRESENT : His Excellency the Right Ho}iorable GUY LORD DORCHESTER, GOVERNOR, I'he Honorable WILLIAM SMITH, Esquire, Chief Justice, . & The Honorable ITugh Finlay, Thomas Dunn, Edward Harrison, John CoIlins, Adam Maeane, J. G. C. Delery, George Pownall, Henry Caldwell, William Grant, Francis Baby, C. De Lanaudiere, Le Cte DupRfi, Esquires. Ordered by His Lordship, that a Committee of the whole Council investigate and report a statement of the comparative advantages and disadvantages of the Tenure in Free aiid Common Soccage, and the present Tenures of the Province of a different description, with a view to the public interest, as well as that of the individuals holding under such Tenures ; that they deliberate, and incase a conversion of the present Tenures in Fief or other.vise into Soccage Tenure shall appear to be advisable, that they report upon the most eligible mode of effecting the same, without prejudice to the Rights of individuals, and the general liilerest of the Country. In doing this the Committee are to attend to the Nature and Operation of the different Clauses in the Statute of 12 Car. 2, Cap. 24", b/ which Soccage holding was made general in England, givi;ig Mr. Lanuudicie at the same time an oppor- D a:; I •■iH. -< P- 03 :?3 26 / tunity to be heard on his Petition for a conversion of the Tenure of his Estates into that of I Free and Common Soccage, which was referred to a Committee of the Council on the 14.tlif of February, 1788. And tlie Committee may call on Mr. Attorney and Solicitor Caneral for their opinion on the subject matter of the reference, if they shall conceive the same to be necessary, and take all such other means as they may think proper, for acquiring the necessary information; and further, if the Legislative interposition shall appear to be necessary, the Committee are to report such draft of a bill as the case may require. Letter of the Surveyor-General ami Deputy Surveyor-General, inclosing an Enumc' ration of Grants to tJie Amount of 7,98 5,470 .^ Acres. SURVEYOR general's OFFICE, Quebec, 25th September, 1790. « Sir, " The inclosed List of Seigniories and their contents was formed in pursuance of the Right Honorable Lord Dorchester's Commands signified to us by Letter from Mr. Secretary Motz, of the 28th August. " We have had recourse to the Public Records for the purpose ; and 'tis possible, tho' we are not aware of it, that there may be a grant or two, aud perhaps more, that have escaped our researches, and there may, for want of accurate actual surveys, be some mistake in the computation of their contents, and particularly of the Islands, from their irregular figures. " We have lately had occasion to shew the comparison between the granted and ungranted Territories, on the South side of the St. Lawrence ; but the want of surveys, and the immense extent of the Province, on the North, and in the North- West, renders such a comparison on the North side at present impossible, nor can be expected for an age to come. " All we know is, that these vast regions furnish abundant scope for settlement and cultivation, and an innumerable population, especially to the West of the Meridian of this City, tho' the Countries North and North-East of that Meridian are mountainous up to the limits of the Hudson's Bay company. " We are, Sir, your most Obedient Humble Servants, ^ (Signed) " Honorable William Smith, Emj. " « SAMUEL HOLLAND, " JOHN COLLINS, D. S. 0. 27 REPORT OF THE SOLICITOR GENERAL. TO THE HONORABLE MEMBERS OF THE COUNCIL. May it please Your Honors, Anxious to contribute all the Information in tny power to the Honorable Board of Council upon the subject of the Letter I received from His Honor the President on the 31st of August Jast, inclosing several important questions relating to the Tenures of Estates in this Country, and suggesting the idea of converting the same into Free and Common Soccage ; I submit the following Answers to those Questions for the consideration of the Board. It is fit I should inform the Honorable Board that the present dangerous state of Health of the Attorney General has defeated our intentions of making a Joint Report, and I may urge with truth that the daily avocations of my other public department have greatly impeded my deliberations on the present subject, but as expedition i; ay be wished and expected, I shall state my Answers concisely, but I hope with a degree of precision. Question 1. — " Upon what Tenures were the Lands of this Country granted by the French Crown 1 The Civil Constitution of Canada was established upon the Feudal System ; large Tracts of Land were granted by the French Crown en Fief et Seigneune ; these Estates are styled Biens Nobles ; small parcels and Town Lots were granted by an Ignoble Tenure, called Rotwe. There are some, a very few, allodial grants ; the Tenure is termed Franc Allca Noble and Franc Mleit Roturicr : a fewer still by that Tenure which is of a spiritual nature called Pure Aumone, or Frank-aim oign. Question 2. — ^Whot kind of Tenure was most prevalent and what may be stated in pro- bable conjecture for the proportion between them ? In the Country, the Tenure C7i Fief et Scigncurie were almost universal. In the Town of Quebec, several small parcels were granted upon the same Tenure; and there, as well as at Three Rivers and adjoining to the Forts of Crown Point, Detroit, &.c., small parcels or lots were granted en Rotwe. The proportion in favor of Fiefs and Seigneuries (alluding to the Royal Grants) is beyond comparison greater than all the other Tenures. Question 3. — What securities had the French Crown by the Law of the Country, or the Nature and Tenor of the grants, to compel or promote the Cultivation and improvment of the land granted 1 A power of reuniting the Ef;tate to the King's Domain, in default of Cultivation and Improvement by the Grantee, was the only, if it can bo d<;cmod any s»!curity of the Crown; and this a a:: c: "«■ *:; H r- 03 S3 > 28 ^ 1st. By the Ttnor of the grant, almost universally stipulated ; and 2th. By virtue of two Arrets of the King, of the 6th of July, 1711, His Arret of the 15th of March, 1732, and his Declaration of the 17th of July, 1743. Several Seigiieuries, and more particularly those near Lake Chainplain, were, antecedent to the Conquest, at the instance of the King's Attorney General, reunited to the King's Domain, by Ordonnances of the Governor and Intendant, for want of Cultivation and Improvement made by the Grantees, and afterwards regranted to others, and in some instances to the same Grantees. Question 4.-^ What were the legal Burdens upon the Grantee of the Crown in reser- vations, conditions, rents and services ; or what were the benefits accruing to the French Crown from the Nature of the Grant, founded in the usual reservations, or by the general laws of the country 1 The Grantee and his Heirs and Assigns, by the Tenor of his Grant and by the law]]of the country (Art. 32 and 35 of the Custom), were bound to render Fealty and Homage to the King (by his Representative) at the Castle of St. Lewis in this City ; the vassal was bound at the same time, or withiu forty days after, (Art. 8, 10 and 11), to deliver to the King's Representative an Aveu et Denonjhrement, that is to say, a particular state- ment of his Title, the extent of his Fief, its dependencies, appurtenances and prerogatives, whether he had a right to hold Courts of Justice, high, inferior or low Justice , any and which of them ; the amount of the rent of the Clerk's and Notary's Offices, Fines and other Rights; his Manor-House, the lands of his Domain, the quantity and quality of his arable, meadow, pasture and wood Lands, what Ponds and Lakes ; what Farm Houses and other Buildings he had on his Domain, the boundaries of the Farms, their revenue and to whom let, or whether he cultivated them himself, the annual amount of the cens, rents, and other dues, with the number and names of his censilaircs or terre-teiiants, or others subject to pay rent to him ; the Rights and services he owed on account of his Fief, whether he had Right of Mill ; the Lands granted en roture on his Estate ; and a particular designation of the nrrUro or rere-Ficfs ; how he became entitled to his Fief and Seigneu- rie, whether by Succession (and particularly whether in the Line direct or collateral), by purchase, gift, or how otherwise. Upon the sale or other mutation of the Fief (except in the direct line) the Fine called droit dc quint, or a fifth part of the amount of the purchase money was payable to the King, at the time of rendering fealty and homage, (Art. 25), in respect of Lands governed by the Custom of Paris, which is the general Law of the Country ; and in respect of Lands governed by the Custom of Vexin le Frangnis (for there were some few grants made subject to that Custom) a Relief, i. c. one Year's Revenue of the Fief sold (Art. 33), and not the Quint, was payable upon every mutation whatsoever. The King might use his Right of rctrait fealal, the jus retraclum, within forty days after notice given of the Sale of any Fief and Seigneurie made by his Grantee, reimbursing the Purchaser his purchase money, and the legal expences {Ityyaux couts), Art. 20 1 but this Right ceased after an Investiture of the new Vassal, These are legal Burdens, 29 A^rret of the Seigneuries, /onquest, at )rdonnances nade by the Grantees. ivn in reser- the French the general r the lawj[of Homage to vassal was deliver to cular state- rerogatives, ie, any and Fines and lality oi' his inn Houses 'evenue and xns, rents, ?, or others f his Fief, I particular d Seiffneu- lateral), by Fine called able to the s governed :t of Lands ants made (Art. 33), forty days eimbursing } but this A few old Grants made by the India Company stipulated that on every Mutation a MedaT I of half an ounce or an ounce of Gold (Ttme Maille cVOr) should be paid the Company ia lieu of the Quint, The usual Reservations and Conditions in the more ancient Grants were : 1. That the Grantee should, within a Year and a day, build an Habitation upon, and I actually inhabit the Lands {tcnirfeu et lieu) and cultivate and improve the same {deserter et mcttre en vcdeur) and cause his Ter-Tenants {Censitaires) to do the same within the same period ; (some Grants mention that the Lands are to be stocked with Cattle in two years); in default of which the King should of Right re-enter into the possession of the Lands granted — but a formal Process for the Reunion was however thought necessary, and always prosecuted by the Attorney General. 2. That the Grantee should preserve all Oak Trees growing on his Domain, and cause all Oak Trees fit for the Construction of the King's Ships to be preserved by his Sub- feudutories {Ccndtaires). 3. That the Grantee should give immediate Advice to the King or his Governor and Intendant, of the discovery of all Mines, Ores and Minerals (Mines, Miniircs ci Mine- I raux) found in the Lands granted ; with exception only to two Grants, wherein they are \ expressly given to the Grantees,. 4. That the Grantee should get the Grant ratified by the King, generally within the period of one Year. 5. That the Grantees should permit the necessary Roads to be laid out for public Utility, and cause a Clause to be inserted m their Concessions to the Ter-tenants that they should do the same. The more modern Grants contain the same Reservations and Conditions, but they also contain additional Stipulations, namely : 6. That in case the King should have occasion for any part of the Land granted for the purpose of building Forts, Batteries, riaccs of Arms, Stores, or other Public Works, he should be at liberty to take the same, together with the Trees and Timber that should be Hecessary, and also, Firewood for the supply of the Garrisons, within the extent of the Lands granted, without being held or bound to make any compensation to the Grantee. 7. That the Grantee should allow the free use of the Beaches to all Fishermen, except such part as he might stand in need of for his own Fisheries. 8. That the Grantee should concede Lands to his Subfeudatories at the accustomed Rents and Dues (cens et rentes et rcdevances accimtumes) for every Acre in front by forty in depth ; about a fourth part only of the Grants contain this Clause. 9. In many of the latest Grants the King reserves the Plight of taking Oak Timber, Masts, and Yards (nidtures), and all other Timber proper for the Construction and Equip- ment of his Ships, without making any Compensation for the sarpe — and in one Grant tlio King reserves the Red or Pitch Pine for making Tar. 4t 3r!» i Co D3 S3 > 73: K ^ 30 There were no Rents reserved to the King by the Grants made in fief and Seigncurie ; nor were'the^Grantees liable to any legal Services, except rendering Fealty and Homage to the King's Representative, and fumisshing the avcu et lUnombrcmcfit in the manner before described, but this they were bound to on pain of the same feodale of their Estates. (Art. 1.) .■ By one of the Arrets aforementioned of the 6th July, 1711, the Grantees were bound to concede Lands to their Subfeudatories for the usual cens et rentes ct rcdcvanccSj and by the Arr6t of the 15th of March, 1732, upon non-compliance on the part of the Royal Grantee, the Governor and Intendant were impowered and directed to concede the same on the part of the Crown, to the exclusion of the Grantee, and the Rents to be payable to the Receiver General. The Grantees are thereby also restricted from selling any Wood Lands (pais debout), upon pain of Nullity of the Contract of Concession, a Reunion of the Lands to the Royal Domain, and Restitution of the Purchase Money to the Subfeu- datory. The Benefits accruing to the French Crown from the Nature of the Grants en fief et seigneiirie, were casual ; under the Custom of Paris, the Revenue of g'za"^* (a third of which was usually remitted), and under the Custom of Vexin Ic Frangais, a Relief. I have mentioned the droit de rctrait feodal. By the roturc Tenure, the Grantor, whether the King directly, or his Grantee en fief mediately, stipulated a specific Sum (one Half-penny for every Acre in Front by forty Acres in Depth) payable to him by the roturc Grantee annually on a fixed Day, and at the Seigneur's Mansion House, for what is termed cc7is, evidencing thereby that he was the Seigneur ccnsier etfoncier, or immediate Seigneur of the I'otiire Grantee, marque dc la directe scigneurie : a specification indispensibly necessary to iatitle the Seigneur to be paid the lods ct rentes, upon every subsequent alienation of the Land granted, (cois parte iodset trwies), and another specific Sum (one Half-penny for every superficial Acre contained in the Grant.) for what is called rente. In the Towns of Quebec and Three-Rivers, the Reservation of the cens el rentes, for small Lots, are variable and very low, but spcrifically ascertained. Uponevery Mutation of roi?«r Lands, the new Proprietor was bound to produce his Titles to the Seigneur, and in forty Days after exbil)iting the same, the Seigneur, in case of a Mutation by Sale, and even upon Donations inter vivos, from a Collateral Eranch or Stranger, was intitled to the Alienation Fine called droit dc lods ct vcntcs, (Art. 73), which is the twelfth Penny or a twelfth Part of the Price or Value of the Land ; a fourth of the Fine was usually remitted by the Seigneur, but without any Obligation so to do. TheKing, by Virtue of an Edict of the 20th March, 1G73, had the Right o( lods et •v/c';es upon exchanges of one inheritance for another, on Lands granted by the Crown c?i . ut,i-re. But this Right was limited to the King alone, and did not extend to his Grantees >/ ct scigneurie over their subfeudatories, except the Seigneurs of tlie Island of M outreal, to whom this Ptight was given, in lieu of the droit de justice, which they relinf[uished. , The roture. ismwii 31 These are legal burdens, but clearly ascertained. '/ The Benefits accruing to the French Crown from the nature of the Royal Grants en rotiire, were merely the ccns ct rentes, and the Casual Revenue of loels et vcnles, with the Right of Pre-emption, but this Right ceased after seisin given to the proprietor. The Rot lire Tenants in Canada, in Virtue of the King's Edict of the 4th June, 1686, and the provincial Judicial decisions given in consequence, were bound to the servitude of grinding all the Corn for the consumption of their Families at the banal Mills of their Seigneurs. The Toll is a Fourteenth Bushel ; and the Penalty for a Contravention, under the Authority of Provincial decisions, is understood to be the Payment of Double Toll. Question 5th. — ^" What were the Benefits which the Grantee of the Crown might draw from the subfeudatory ; or what were the burdens, the acknowledgements, Rents and Ser- vices, to which the occupants under the Royal Grantee were liable from the nature of the Concession or by the Law of the Country 1 This is in great part answered upon the fourth Question, in respect of the Benefits which by the Law of the Country (independant of conventional stipulations) the Grantee of the Crown might derive from his subi'cudatory ; and which in fact are the burdens that the sub- feudatories are liable to. But the Grantees, of long usage, imposed other stipulations in their contracts of Concession to the subfeudatories ; such as the Rctrait Conventionel (the Jus retractum), the payment of one or more Bushels of Wheat annually, one or more Capons, a certain number of days' labour (Corvees), &.c. But these are Conventional Burdens. Question 6th. — " Was the Estate of the Grantee of the Crown subject to partition by Marriage Contract, Testamentary Disposition, or any other mode of alienation, voluntary or judicial, and by inheritance in the Lines Direct or Collateral ; or was any Estate held impartible and unalienable, or in the nature of an English Intail 1 I conceive the Common Law of this Province, in relation to the powers to be exercised by Marriage Contract, testamentary disposition or any other mode of alienation, respecting tlie tenure en Fief ct Seigncurie, and that en Rolurc, to be indiscriminately the same. By Contract made before Marriage, tlie contracting parties miglit make such stipulations respecting both their Real and Personal Proi)erti('S as they unitedly jud-;ed fit. They might stipulate tiiat the real ai well as the personal property belonging to both, or either of them, or any designated part thereof should, or should not, enter into the conjugal partnership. But after Marriage, Inheritances descending to either of them by succession in the line direct, or Collateral, or given by Donation or otherwise In the line direct (unless the con- trary were expressed in the deed of Conveyance) to either of them, did not enter into the Commiaiautc or Partnership. Estates given collaterally, or by strangers, to either of them, after marriage, became a part of their joint property ; but by express stipulatious in the conveyance, the liberality of the Donor might be prevented from becoming a part of the common stock. Antecedently to the Quebec Act, 11th of Ills Majesty, ch. S3, a fifth part only of Estates descended by Inheritance, which ;;re termed rroprc, could be devised or other- 4t 5: 03 32 vrise disposed of (except !n cases of actual sale) to the prejudice of the Heirs direct or collateral, who in that respect might be said to have the expectant Reversion of the other | four fifths. Real as well as personal property acquired or purchased pending the CofmmunautiX which are termed ConquSts, being tlie fruits of the joint industry of the husband and wife, [ Were a part of the joint slock and partible as such. ' , '*• In case of Marriages without a previous Contract, no part of the real property of either husband or wife, before marriage, entered into the Communaute by the Municipal Law ; their personals alone did so. Estates en fief et seigneurie, are partible in the manner following : The eldest son, in the nature of a jointure (^par droit (Vaincsse et preciput), succeeds to the Mansion House (chdteau cnt manair principal), the Inner Yard (Jjasse cowr),and super- 1 ficial Acre of Land adjoining to the Mansion House, supposed to be an inclosed Garden (%in\ arpent dc terre dc I'enclos etj'ardin), if there be such ; and if there happens to be a Mill I within that Inclosure and annexed to it the llight of Bannality, the body of the Buiidingl belongs to him, but the profits of the Toll are not vested in him alone, they are divided in] proportion to the inheriting Rights of each of the Heirs (Art. 13 and 14). If it should j happen that there were but a son and one other child to inherit, the eldest son succeeded to] two thirds of the Estate, his Brother or Sister to the other third (Art. 15). If there were more Children, the eldest Son succeeded to one moiety, the otlwrj Children to an equal proportion of the other moiety (Art. 16). The droit d'ainesse did not extend to females, but successions in the direct and colla-| teral lines were divisible in equal portions. (Art. 19). In the Collateral Line, females did not succeed with males in equal degree, (Art. 23)- Upon Marriages had without a previous Contract, the Wiilow had her customary Dowcri (Ic douaire coutumicr') which was a moiety for her life of the Revenue of her Husband's! real estates possessed at the time of his marriage, and those descending to him in the linef direct pending the marriage, (Art. 24-7 ,248); descendible to the issue of the marriage, (Art.j 249); upon renouncing to their Father's succession (Art. 250); for they cannot claim toj the estate by inheritance and to the right of dower. Nul ti'cst douairicr et heriticr dm sonperc (Art. 251). Estates subject to the customary dower, stood pledged (liypothequcs) from the day ofl the marriage for the security of the Widow and Issue of the marriage, and if aliened after-j wards, they continued subject to her and their rights. Marriage Contracts, donations inter vivos, and by testamentary dispositions, andj intail, which the civilians term siibstiiution (Jidci-cammissairc) may be created (tlio'l I know no iiistanre of it in this province!, but there may be some) so far down fis tliil second degree {POrdonmuicc d^Orleans) ; tlic-y must be puhlishcd and enregistered ill the proper Court of Jublice within six moulhi after the dale, ii' inter vivos, and williiil 33 t and colla- the same period after the decease of the substitutor if it bo a testamentary disposition, and in tliat case they cannot be purged or affected by any judicial decree whatsoever, except respecting debts due by the substitutor. 7th Question. — " Were tlie subfeudatory Farms of the concessions of the Tenantry held under the Royal Grantees, devisable, descendible, alienable and partible in the like manner without limitation 1 " With exception to the partition of the roture lands among the heirs, which were partible among them in equal shares, without the droit (Tainesse or other preferable right, the answer to the sixth question applies. ... 8th Question. — " Would a conversion of the French Tenures into the Tenure of Free and Common Soccage be advantageous to the ]3roprietor holding by grant of the French Crown in Fief, Seigncuric or Roture, discriminating its effects as to the parcels that are settled, or such us are still unconcedcd and uncultivated ; and what in particular appears to you to be the instances of advantage or disadvantage to result from such conversion ? " ■ » There appears to be engrafted on the Royal Grants the fiction of Feodal Tenure, drawing after it the servile appendages of Alienation Fines, etc, quints and reliefs upon the Tenure eti fief, and loth et ventcs and the servitude of banalite upon that en roture ; and therefore a general answer to this question can give no embarassment ; nor can I hesitate saying that a conversion of those Tenures into that of Free and Common Soccage, which is not subject to those appendages, would be advantageous to the roture Grantees of the Crown. With regard to the Royal Grantees en fief et seigneurie, snch a convei"sion, if unqualified, might and I think would operate a heavy loss to most of them, by being deprived of their ceitain revenue o£ banalite, and their casual revenue oilods et ventes. The droit de Justice, accorded to them by their Grants, which tho' exercised in many scigncuries antecedent to the Conquest, but tacitly relinquished, or at least not exercised since that period, is an object frequently mentioned by the seigneurs, to whom by their grants that right was given. The haute Justice, on account of the Prisons which the seigneur haut Justicier was bound to erect and maintain, as well as of the necessary Officers of that Justice, might be considered onerous upon them, but on the other hand, they were entitled to the confiscated estates and effects of persons convicted of Felony within their seigneuries, to estrays, to estates escheating for want of heirs, to the possession of vacant inheri tances, and to judicial fines. By the Statute of the 14th of His Majesty, ch. 83, I conceive the criminal powers of the seigneurs te be abrogated, and their pretensions limited to the civil part only. A conversion of the Tenure en fief, into Free and Common Soccage, would exo nerate those e3tate3 from the alienation fines payable to the King in the manner I have a < Q3 931 •m^ i mentioned ; but as they have in view to hand down their estates to distant generations of their families, many of them consider the exemption of payment of those fines to be but of little moment ; and therefore, upon that ground, a conversion of the Tenure would be a certain disadvantage, but no certain benefit to them, respecting the parcels of their estates that are already conceded. It may not have the same effect with respect to the unconceded part of their estates ; 'tis true, the conversion of the Tenure into Free and from Common Soccage, would, by a fit law for that pui'pose, preclude them their now legal rights to alienation fines and banality, but they might dispose of that part of their estates in fee simple, for such annual quit rent as may bo agreed upon, or upon leases for lives, or term of I years, perhaps to a greater advantage than those at preser granted upon the roture Tenure ; and there is great reason to apprehend, that that part of their estates would be more rapidly settled and cultivated ; I am therefore of opinion, that in respect of I the ungranted parcels of their estates, no material disavantage, perhaps a much greater benefit would accrue to them, by a conversion of the Tenure into Free and Common Soccage. . 9th Question. — " Would such conversion of the Tenure of the estates or farms of I the subfeudatories be beneficial or detrimental to them ; and in what respects as you [ apprehend, and for what reasons V ' , The benefits that would result to the roture Grantees of the Crown, of which 1 1 have spoken in the answer to the 8th question, would equally afiect the subfeudatories I of the Royal Grantees in fief. It is however right to observe, that, by the French King's Edicts and Declaration J before mentioned, the Royal Grantee en jkf was bound to concede lands to all appli- cants for the accustomed rents and dues, and upon his non-compliance, the Governor! and Intendant were directed to do so, on the part of the Crown, and for the benefit! of the Crown ; this may be considered a great facility for the settlement of the! children (who are numerous) of the poor peasantry of this Country, to whom alone,! and in this respect only, the conversion of the Tenure may prove detrimental, froral their inability to purchase lands, though a wilderness, on account of the exorbitantl demands of the proprietor. 10th Question. — " How may the interests of the Crown and public be affected bjj such conversion ; stating the points in which it may operate to the loss or emolumeiit| of the Royal Revenue 1 " The interest of the Crown, in relation to the grants made by the French Crown] and there have been very few, and of but small parcels or lots (except that given tol Mr. Shoolbred in the District of Gaspe) since the Conquest, is but of small considera| tion in point of revenue. Alienations of fiefs and seigneuries in the Country are no frequent, but the Royal Roture Grants, in the Town of Quebec, merit some conside-l ration, not in respect to the quantum of the annual rents, but on account of the fin^ of lods et ventes, proceeding from the frequency of alienations ; they are a casualty! and cannot be precisely ascertained, any more than the revenue o£ quint. 35 j^eneratiom >se fines to the Tenure the parcels irt of their m Soccage, alienation fee simple, or term of 1 the roture tates would 1 respect of ps a much lx> Free and or farms of pects as you , of which I bfcudatories Declaration to all appli- le Governor r the benefit nent of the trhom alone, aental, from 3 exorbitant affected bj : emolument jnch Crown, ;hat given to II considera- ntry are not me conside- It of the fine e a casualty, But if the extensive tracts of the ungranted lands of the Crown were divided into distinct seigncuries, and grants made of the lands therein to the peasantry upon the Roture Tenure, the revenue deducible to the Crown thereby, might, and would in the course of a series of years, be very productive, and continue to increase. At the flame time I am of opinion, that the settlement of the waste lands might, under that Tenure, be checked and greatly impeded, to the detriment of the population, agri- culture and commerce of the province, a great part of the benefits of which would center in the Mother Country. ^ 71 I n 11th Question. — " By what mode may such conversion of the Tenure be created? If the Prerogative is competent for it, what clause may be necessary in the Royal Patents or Grants, and if a law is wanted to effect the design, what paragraphs ought it to contain for the interest of the proprietors whether seigneur or censitaire, lord or tenant, or most eligible as well for individuals as the Crown and the public ? taking at the same time into consideration the Statute of 12 Car. 2, ch. 24 t " The existing Tenures being apart of the municipal laws of the Country, I think a law will be necessary to declare their conversion. I shall, with all the expedition that my now pressing avocations in the Council Office Department vnli admit, set about preparing such clauses as, to me, may appear expedient for the intended law. I submit this Report, as a work done with some degree of precipitation, proceeding from the motive of accelerating the important object under the consideration of this Honorable jBoard ; requesting your indulgence till a future day, to submit the necessary paragraphs to be inserted in the Act. I have the honor to be with great respect, Gentlemen, Your most obedient and most humble Servant, (Signed) J. WILLIAMS, Solr. General. Quebec, 5th Oct 1790. ANSWERS BY CHARLES DE LANAUDIERE, ESQUIRE, To some of the Questions proposed by the Honorable Committee of the ivhole Council, Answer to the 1st Question. — In fief and seigneiirie, some in fiefs of dignity, with the right of high, middle and inferior justice, and some in fief without the right of justice. Town lots, and some small tracts in the Country, en ccnsive or roture, so that, generally, there is no other Tenure in Canada thanjffe/" and roture, governed according to the Custom of Paris, and the Vezin le Fra?igais, surrounded by that of Paris. 5* i r- 03 331 h li 36 2tlly. — Tho fiof't) mnanteil by the Company uf the Associates of Now France, that is to 8s'.y, before 1063, (at which time that Company surrendered their rights to thu King) were ])rincipally granted according to tho Custom of Vexin Ic Fran^ais. Pos- terior that period, tho King gi'anted none but according r.o tho Custom of Paris. All relevant from tho Castle of St. Lewis at Quebec, the place designated in the title deeds of concession, for rendering fealty and homage to His Majesty, and other rights and dues according to those Customs. With exc(!ption to the house-lots in the Towns of Quebec antl Three Rivers, there are only a few Royal grants en censivc in Canada, except at Detroit, were all the grants are issued by His Majesty in rotiirc, as well in tho Town as in the Country. The Royal gr;ints of the French Government are there- fore principally in fief and seigniory, high, middle and inferior justice. 3rdly. — By th(! King's Order of the 20th of May 1G7G, (the first Royal Reguhttion relating to lands, found eiircgistered by the Superior Councilor Parliament of Quebec) the King's Governor and Intendaiit ought not to grant lands '\\\ fief or in roture, to the inhabitants of Canada, but upon condition that tlic^ giants in fief should be represented to tho King within a year from their date, to be confinned or ratified by His Miijesty, upon pain of nullity ; and upon condition, that the grantees should cause the lands to be cleared and improved witliin tho subsequent six years. In 1711, the 6th of July, the King ordered by his arret, (also enregistered in tho Superior Council of Quebec) that the seigniors of the Colony who had no domain cleared, nor inhabitants placed upon their seigniories, should put them into culture within one year, on pain f)f being reunited to the King's. Domain, upon the judgments which the Governor and Intendant should render, at the prosecution of the Attorney General. That the Seigniors should make grants to the inhabitants d titrc de redevancc, that is to say, in roture or for ccns ct rentes, without exacting from them any money in the nature of a sale ; and in default of doing so, the iiiliabitants were permitted to | make a demand upo!i the Seignior by sonimat ion, anUm rase of refusal, to address themselves to the Govcmor and ^ntc-udant, ujion whom it was incumbent to make tho concessions to the inhabitants, subject to the same rights with other lands conceded in the seigniory, payable to His Majesty, and not to the Seignio''. Another ari'et of His Majesty oftlio same day, ordering all inhabitants or coisilaires of the Seigniors to put their lands in cultivation, and to inhabit thc.ni witliin a year and a day, upon pain of I being reunited to the Seignior's domain, by judgment of the Intendant. Another arret of His Majesty of tho ir>ffi 3'ai»h 1732, enregistered at Quebec, men- tioning the foregoing arrStf of the Gtli of .Tr!y 1711, and restriiining the Seigniors and other proprietors from selling any woodbinds (^n?i Iio?s dehoift) upon pain of nullity, restitution of the purchase money, and reunion to the domain of His Majesty, or (jf the Seigniors. The 17th .July 1743, a declaration of His Majesty (enregistered), authorising tho Governor and Intendant to make grants of lands, to proceed to reunite to His Majesty's domain the lands granted that should be found liable tf» be so, for want of cultui-e, and prtisciibing the mode of proceeding in that rt^spert, attributing to them the cognisanco of all matters relative to grants, to the exclusion of all other judges. 37 tered in the no domain into culture 3 judgments le Attomey ? redevancc, m\y money ermittcd to | to address to make the conceded in an'ct of His iiiors to put pon pain of \ lobec, men- igniors and of" nullity, y, or of the 07'ising the s Majesty's ulture, and cognisance All the titles or brevets of concession of lands contain clausca obligatoiy of cultiva- tion. It does not appear that either thoso clauses, or the arrils quoted, were over ri- gorously executed, being coasidered comminatory, rather than penal. 4th & .'5th. — The legal and customary charges of grants in fief, are fealty and homage, the avcu cL denomhrcment, or land-roll, the rctrait feodal and Itgnagei; the quint, the relief, the right oi franc fief, of amortissemnU and nouveaux acquits ; these charges draw afler them the fidelity and military service of all possessors of fiefs and rere-fiofs, under whatsoever title, as well personally as by pecuniary contribution ; the feodal seizure, forfeiture, or confiscatic n for services and rights not paid and rendered, or of felony, denial, reproach or scni.lal of the Seignior, or of an illegal dismembennent «)f the fief, and other usual charges, duties and feodal restraints, as the case might require. The ordinary modem resen-ations in grants en fief, are 1° Fealty and homage ; 2** The accustomed rights and dues according to the Custom ; 3^^ The preservation of oak timber fit for the coustiuction of His Majesty's ships ; 4° To give the King advice of mines, ores and minerals found ; 5° That appeals iioin the seigniorial coiuts should be made to tho provostsliip of Quebec ; 6** To build a habitation, and to inhabit it (tcfiir feu etlicu) flods et ventes of one twelfth on the sale of lands held in roture ; the lands in rohure ordinarily paying also cens et rentes, the cens being one sol, or an English half pence, for a front of one acre or 180 French feet, and the rent, another sd for every acre of the concession, with a bushel of wheat for every forty acres, or two fat capons of the value of twenty soZs. " That the French Crown did not exact its whole dues, but remitted a third both o( the quint and lods et ventes. > 4t --I •^: r- 03 :^3 " That the seigiiiorioH wore parcelled out into farms, and these conveyed by tlu^ seioniors under like charffos of ccns ct rentes, and subject to lods ct ventes, except where a largo parcel was granted in arriere-Jirf, on the subsequent transfers whereof a quii't became due to tlie seignior, without ecus ct rentes. " That all the giantees as well of the Crown as of the seigniors, had permanent estates, under an hahenduvi to them, their heirs and assigns. " That according to the Receiver-General's accounts, the territorial revenue for ^ the thirteen years from 1st May 1775 to 1st Mny 1788 (comprehending airears), was, in actual receipt at the Treasury, not equal to ten thousand pounds sterling. " The lods ct ventes being but ^^1351 9 5J «♦ 'Ihe quints 3148 1 4^ " The balance of Royal rents from all the King's own seigniories, Sorel excepted 1554 7 5§ 9053 18 3^ " From Sorel 216 19 11 c£9270 18 2i <' Which, together with certain duties of customs fixed l)y Act of Parliament, is by the Royal gi'ace given to tlie Province towards the support of its Government. " That in exploring the causes of the tardy progression of the population of tho Colony under the Government of France, there seems to be little or no ground for ascribing it to the non-coni[;liance of the soignaors with the conditions for cultivation expressed in their jjatents or grants ; the instances of prosecutions for taking an advan- tage of those conditions, and reuniting their seigniories to the Royal domain, being i fare — and tho seigniorial rcnsitaircs so mucli more numerous than the King's, that the former, or the inhabitants of tho seigniories, at all times did, and do now, constitute i the main body of the landholders of the Ct)untry. «' That the feudal system, if that was amongst tho causes of the non settlement I and proportionable debility of the French Colony, operating to a discouragement of the Royal grants, as well us the grants of the subject, there can bo no just giound for holding the grantees to a rigorous performance of the conditions of their grants. " That it was among tho main causes of that low condition, in which Canada was \ found at the British Con(i[uest, is deducible from the probability, that many thousands \ of families had found their account in emigrating from the exuberant population of I the Kingdom of France, if the Government hail given their lands hei-e upon easy | tennfi, and especially in the fertile regions and moderate climates, on the banks of; the rivers and lakes in the South and South West. " That the discouragement of that system to the settlement of the old French i grants, mu^t in future greatly increase ; the population of the Province depending now \ upon the introduction of British subjects, who are k.^own to be all averse to any but 41 English Tenures ; and the Canadian sei^-rniors of course be left without a hope o. multiplying their censitaires, except from the predilection of the descendants of the French planters to usages no longer prompted by the motives of interest, nor recom- I mended by example. " That the grant of the waste lands of the Crown in free and common soccage, is [essential to the growth, strength, defence and safety of the province. " That unless the old French seigniories can be settled upon tenns as advantageous [to the husbandman as the lands of the Crown, their land market must be at a stand, to the detriment of the proprietors, until the cultivation of the waste lands of the Crown, is damped by their remoteness fi-om all water carnage and the conveniences I and benefits of commerce. " That with the advantage of a vicinity to the navigablij waters and a conversion I of the Tenures, the seigniories will probably be the first to be fully cultivated, and Iwith an increase of profit to the proprietors, under that ample dominion, which they Iwill then enjoy over their lands, for settling them upon such terms as themselves may Iconcert, to form a populous tenantry, and l;iy a foundation, in 2'»'opc>'fU> for that per- jpetuity of their names and families, which a wise and well balanced Government will [be inclined to encourage and support. " That the King's roturier tenants cannot fail to wish for a convtnsion and discharge ■from the cens, renle and lods et vcntes, and all the otiier feudal burdens connected with Ithe Tenure under which they now hold. " That the motives of interest will naturally make it tlio desire also of every sci- V^niorial censitaire to stand upon the same free foundation of exem2)tion witii the jotlier landholders of the colony ; but as this commutation f!)r a discharge of the rents laud dues to the landlords nuist necessarily depend upon private conventions between Itbcm and their tenants, and involving considerations mit of the conici)ii>lation of any but the parties reciprocally interested, their cases cannot be the oljocts of special and particular legislative provision ; jierhaps the surest means of securing to the tenant a Ifair compact, will be to hold the lord to his dues to the Crown, until he haa discharged Biis tenants from all the feudal incumbrances in his own favour. 5 4t <2 Q3 331 " That the Prerogative is competent to put fhe waste lauds of the Crown under a 5occage Tenure. But the legislative interposition is necessary to make that Tenure tniversal, • " That if this is to be the work, not of Parliament, but of the Colony Lo:>islature, khe Royal instructions given for the greater security of the property of the subject, will require an Act with a probationary or suspending clause, until His Majesty's appro- bation can be obtained. '«• " That an absolute and universal commutation of the ancient Tenures, /,//«' for a better, would bo a measure of : "1 r- 331 K 44 " Because the alterations proposed by the resolutions oi any other conversion of] tenure tending to give the Seignior a more absolute and unconditional possession of I the fief would not only be a sacrifice of the King's rights, but would defeat ilie wise [ intentions and beneficent effects of the arrets of 1711 and 1732, and the declaration of 1743, by which the Seignior is obliged to grant to such pertons as will apply for them^ for the pui-jiose ofimpi'ovement, lands in concession subject only to the accustomed and stipulated rents and dues, and upon hisnon compliance the Governor is authorised on the part of the Crown and for the benefit thereof, to the exclusion of the Seignior for ever, to concede or grant the lands so applied fin-. By the same laws the Seigniors are forbid under pain of nullity and a reunion to the Crown of the land attempted to be sold to sell any pait of their unimprovfu lands or en Lois dehout, dispositions of law highly favorable to the improvement of the Colony and which secure to the childron of the censitaires or others the means of settlement and of employing their industry in culti- vation on fixed and moderate terms, whereas if the conversion of the seigniories into free and common soccagc should take place, the children of the present inhabitants of | the Country and all others desirous to settle thereon would be left intirely subject to the arbitrary exacti* n^s of the Seigniors to their infinite prejudice and the manifest detri- ment of the C()i improvement. '• Because it u]>pebi's that the services or burthens to which the censitaires under concessions fior-i Seigniors are subject, are few, clearly understood and ascertained and are by no mean-i OIK ns < '' ^ pressivo." J. WILLIAMS, C. C. nversion oi { jssesaion of| at iiie wise i jlaration off y for them, itomed and j •ised on the 3r for ever, i are forbid > be sold to law highly dron of the :ry in culti- riiories into labitants of I bject to the lifest detri- zires under rtained and ■/> SEIGNIORIAL TENURE. REPORT OF THE COMMISSIONERS Appointed to inquire into the state of the haws and other circumstances connected with the Seigniorial Tenure, ns it obtains in that ])art of the Province of Canada here- tofore Lower- Co nada, laid htforc the Lcaislative Asscmhly, by Message from Hit Excellency the Governor-General, on the ith October, 1843. To His Excellency the Right Honorable Sir Charles Bagot, G, C. B., one of Her Majesty's Most Honorable Privy Council, Govenior General of Biitish North America, and Captain General and Governor in Chief in and over the Provinces of Canada. Nova Scotia, etc., etc. Mav it Plrase Your Excellency, We, the Commissioners appointed by Your Excellency, to inquire into the Feudal and Seigniorial Tenure of lands, in that part of the Province of Canada called Lower Canada, in pursuance of an Address of the Honorable the House of Assembly, of the 7th September 1841, have the honor to represent to Your Excellency : That, in pursuance of the Commission appointing us Joint Commissioners for the pm-poses therein set forth, and of the instructions accompanying it, we have, with all possible diligence, and to the extent of the powers reposed in us, preceded in the investigation of the subjects submitted for our inquiry. Before proceeding to submit to Your Excellency the result of our examination of the important subjects which have engaged our attention, we beg to refer Your Excellency to a preliminary Report, dated the 28th day of September last, in which we had the honor to inform Your Excellency that, ovsdng to the limited powers con- feiTed on us, it was wholly out of our power to report upon many of the subjects pointed out in our Commission, as we possessed no means to compel the attendance of persons, and the productions of papers essentially requisite for enabling us to lay before Your Excellency correct information touching many of the subjects of our investigation, and, in fact, that full and satisfactory information, on some parts of the subject, which the Honorable the House of Assembly had a desire to obtain, m expressed in our Commission. ' I 03 2 331 46 Since that period, we have been honored by a communication from the Honorable Mr. Secretary Daly, by the command of Your Excellency, informing us that the powers adverted to in our preliminary Report can only be conferred by Parliament, and requiring us to transmit to Your Excellency the result of our investigations under the limited powers conferred on us. We therefore respectfully beg leave to submit for Your Excellency's consideration, this our Report, containing our views on the momentous subjects proposed for inquiry, and exhibiting the nature and extent of such information on those topics as we have been enabled to procure. The several matters, submitted for enquiry by our Commission, may, for the sake of perspicuity and more easy elucidation, be arranged under the following heads : 1st. — To make the necessary examination and search into all Public Records and Notarial Acts, from thr, time of the settlement of the Country, and to establish, for several distinct periods, the true conditions on which grants of land in seigniory have been made by the Crown, and on which lands have been conceded en arriere-Jief ou en ccnsive (ruture), and to collect all other requisite information connected with the said subject, and to inquire into the laws which have from time to time governed and now govern the said Tenures. 2nd. — To inquire generally into the present working of the sy.stem, by proper investigations into every section of Lower Canada, in a number of seigniories indiffe- rently chosen, for the purpose of ascertaining, as far as possible, the present rents, dues, reservations and charges of any kind. 3rd. — The probable quantity of unconceded seigniorial lands in the Province, and their quality and value, and also the quantity of land conceded but not improved. The value of seigniorial mills in the Province. The annual average value oflods et ventes paid or accruing thereon. Lastly. — To consult the seigniors and ccnsitaircs respectively, upon the most proper and equitable means of effecting by Law a commutation of the seigniorial and feudal Tenures, (such commutation being founded upon a due regard to the rights and inte- rests of all parties), and also of the most proper means of eflecting an arbitration in cafitiS where it may be required. Upon the first subject : — Having had the advantage of consulting a great number of grants of seigniories in this province, as well from the Conipoifme de la Nmrelh- France, as from the Crown, from the earliest period down to the Ccmquest of the Colony, we have found that, although the settlement of Canada under the French Crown was, as to the tenure of land, established upon the feudal system, and, although military service, necessarily for the purposes of defence, did exist in the colony, yet this obligation wa« not an .1 47 lonorable that the irliameiit, DUB under lideration, r inquiry, i we have r the sake leads : cords and iblish, for liory have ■re-Jief ou I with the emed and )y proper es indiffe- ent rents, ince, and oved. )st proper :nd feudal and inte- itration in fniones in le Crown, und that, tenure of ecessarily /as not an express condition in those grants, nor was the seignior invested with many of the odious and offensive rights and privileges which characterize the feudal lord in Europe. The colonists have emigrated from that part of the Mother Country, in which the customary law prevailed, where the principle, as to land, of nulle terre sans seigneur was recognized, it was natural that a like tenure should be introduced to regulate the rights and obligations of those who should become possessed of the soil, modiHed, however, by reason of the different circumstances which marked, and the opposite spirit and sentiments which animated, the establishment of the feudal relations in France and in this Country, in the one, the motives being the love of conquest and military glory ; in the other, the pacific diffusion of civilization and of the light of the Gospel. It will thus appear, that many of the earliest grants were made to Religious Bodies, and were avowedly bestowed on them for the purpose of reclaiming the natives from barbarism and converting them to Christianity. Under this tenure the superior lords and immediate grantees of the Crovm, exer- cised some sovereign powers within the limits of their seigniories. They held the power o£ haute, moyenne et basse justice, and all the privileges apper- taining thereto, which comprised the holding of Courts of Justice, yielding certain emoluments, the right to all confiscated or forfeited estates, the right of all property escheating jyro defectu kceredum, or from other causes, and to all waifs, estrays and treasure trove. The exclusive rights of trading with the Indians, and of fishing and hunting within the limits of the fief, was also expressly conferred on the grantee. In this way, large tracts of land were granted by the Crown, or by the Compagnie de la Nouvclle- France while it held this Country en Jief et seigneurie, upon the condition of the performance of certain services and obligations which we shall now proceed to consider, With but very few exceptions, these feudal grants were made subject to the provi- sions of the Custom of Paris, and imposed on the grantee the obligation of performing fealty and homage to the King, or his representative at the Castle of St. Louis, in Quebec, — of making his aveu et denomhrement, that is to say, to render a true state- ment of his title, the extent of his fief, setting forth its dependencies and preroga- tives, — whether he had a right to hold Courts of Justice, of the amount of fees inci- dental to his jurisdiction, of the fines and other rights to which he was entitled ; of his manor house, the lands of his domain, the quantity and quality of his arable, meadow, pasture and wood-lands, the revenue of his domain, and the improvements and buildings on his domain, the annual amount of the cens et rentes and other dues* with the number and names of his censitaires or others subjected to pay rent to him, and the extent of the concessions, the rights and services he owed on account of his fief, whether he had the right of compelling suit at his mill, and a particular designa- tion of tho arriere-Jiefs or subinfeudations ; how he became possessed of hia fief or ri -V, 0:) a3 93! 48 •eigniory, whether by succession in the direct or collateral line ; by purchase, gift, or otherwise. The only pecuniary right tine under the Custom of Paris, by the vassal to the Crown, is the quint, which is the fifth part of the price of sale of the fief or seigniory accruing upon every mutation of ownership of the fief, by sale or contrad equivalent to sale (but not in case of suc(x>Hsion and donation in the direct line), and payable lo the Crown by the purchaser on his rendeiing fealty and homage. In all cases of collateral inheritance, or of legacy or donation to collateral relations or strangers, the Custom of Paris gave to the (^rown one year'-s revenue {relief) of the fief; but this right has not been claimed or enforced in this colony. It is however to be observed regarding lands governed by the Custom of Vcxin le Francnis, under which Custom some few granti were made at a remote period, and one year's gi'oss revenue of the estate was payable instead of the qui/if, and thus under every change of ownership witiiuut any exception. It was competent to the Crown to exorcise tlio i i;?;]!t of pi'o-cmption, rrtraif, or jus retractus, within forty days alter notice of the sale, upon reimbursing to the purchaser the price and all the costs and charges. These may be considered to be the legal and inherent conditions of the grants of most of the fiefs and seigniories. But there were some few seigniories, grnutetl by the India Company and the Com- pagnie de la Nouvelle-Francc, under less onerous conditions tlian those ari-^itig from Custom of Paris, such as \hv payment of a medal of lialf an ounce or one ounce of gold, une maille d'or, to tin; Company in lieu of the quint. The fief of Beauport was granted on this condition in tlie year 1075. In addition to the grants in fief and scignitiry above mentioned, ii may be observed that there are two instances of grants en franc alcu nohie, mad(} l)y the French Crown to the Order of the Jesuits, viz: Charlebourg in the District of Quebec, and another in Three-Rivers. The above obligations may be considered to bo inherent in every grant from the J Crown, and imposed upon all feudatoiies under the Custom of Paris. But, independently of these legal burthens the grants from the Crown appear, for S the most part, to have contained the foUuwing specific reservations and conditions : Ist. — The obligation to do fealty and homage. 2nd. — Payment of the usual rights and dues according to the Custom. 3rd. — The preservation of all oak timber for the construction of His Majesty's ships. I 4th. — To make known to the King the discovery of all mines, ores and minerals. 49 Cth. — That appeals from the seigniorial Courts should be made to the provostship of Quebec. 6th. — To build a habitation on the land and to dwell there, tenirj'eu et lieu, and to cause his suh-feudataires and tenants to do the same. 7th. — To clear and settle the land or cause it to be cleared and settled without delay. 8th. — To suffer all roads necessary for public utility to be made. 9th. — To concede to tenants, a tkre dc rederanccs, lands of not less extent than one arpent in front by thirty or forty in depth, and to insert similar clauses in their con- cessions to their suh-feudcUc -cs and tenants. 10th. — To permit the beaches to be free for all fishermen, with exception of such part as the seignior should have occasion to use for his own fishery. 11th. — To suffer the occupation, by the Crown, of all land necessary for the con- struction of forts, batteries and public works for the use of the King, together with the right of taking all the timber necessary for the construction thereof, and firewood for the ganison, and this without entitling the grantee to any indemnity. In some of the grants from the Crown of more recent date, that is after the year 1711, it was made a stipulation that the seigniors should concede to their tenants at the accustomed rents and dues, cens et rentfs et rcdevanccs accoummes. These conditions, charges and resei-vations are contained in almost all the grants from the Crown, s(jmn of them boing essential to the seigniorial Tenure itself, and others rendered expedient for promoting the speedy settlement of the Country and advancing its prosperity. Apart from those regulated by the Custom of Paris, partially brought into force on the first settlement of the Country, and universally adopted after the surrender by the Company of New France of its rights to the Crown, the other above mentioned condi- tions and obligations were more clearly defined, reiterated and enforced by the Edicts and Ordinances of the French Kings promulgated from time to time, according to the exigencies of the Colony. The latter remarks we would particularly apply to all grants and concessions made by the French Ciovni after the sun-ender to it, by the Company r-X X'^w France, of all its rights and territory, and the erection of the Conseil Superieur at Quebec, under the Edict of 1663, which grants were all made according to the Custom of Paris. The obligations to grant out the land to applicants, in suitable parcels, is a per- I manent feature of all the grunts by the Crown after 1CG3, and in conjunction witli contemporaneous legislative measures hereafter mentioned, evinces how anxiously and perseveringly the French government pursued its policy of rapidly extending the [settlement of the Colony, and of diffusing its population over a large surface. 0:) I ^^ D3 2 M 60 It was incumbent on tlio seignior to parcel out hin ef to Hettlers, reserving a mera rcdifus or rent ; ho was bound to commence and effect the settlement of his territory within a certain limited period, in default of which his estate escheated to the Crown. The views and intentions of the French govcniment in this respect may be gathered from two Edicts or Declarations of the King, the first of which is dated in March 1663, immediately alter the surrender of the Compagnie de la Nou- Vol. 1 p. '21. ' i'cli<^-Fi'(inc(', of its rights to the Crown, by which all grants whereon no settlement had been made, were cancelled and revoke ; and the Edicts (fc 0^ll.,^ second ill June 1675, by which all grants of too great an extent of ' I land were revoked, and the intendant Diichesncau was ordered to make new grants of less extent, to such persons as would undertake to s on them. Edits fit On] . Vol. 1, p. 74. Those Edicts were followed by dio declaration of the King of Frnnce, dated in Apiil 1676, gi'anting power to Messieurs De- Frontenac and Duchesneau, to concede Lands for settlement, upon the express condi- tion that such concessions should bo laid before the King for confirmation within a year from their dates, and that the Lands should be in fact settled and brought under cultivation within the period of six years, otherwise the said grants and concessions should be null and void. Flilicts & Old. Vo The Arrest of the 6th July 1711, the general instructions given ' ^' ' to CJoveniors o'l the Colony t.) hasten its settlement, and the more specific and strino^ent obligation, imposed in subsequent giants of fiefs, to settle and concede hereafter rel'erred to, manifest a continuance of the same policv the Crown of France. From these Edicts, An-ests and Ordinances, it appears obvious that, although the granting (jf Lands by the Crown, under the Feudal and Seigniorial Tenure, may in the first instance be considered to have been attended with the creation or introduction of the rights, immunities and advantages incident to that Tenure as it existed in France, yet, by means of those Legislative measures, made while that system of proprietary relations was developing in the Colony, and of the terms of the Grants themselves, the respective rights and obligations of the Seignior and Vassal underwent much mo- dification, and express enactments defined the exact nature and extent of the rights of the Grantees of the Crown, and the obligations by them assumed upon their investure wdth their several possessions. In truth, the modifications so affected, restored the Tenure, as between the lord and Vassal, to the condition in which appears to have existed at an early age in the parent country, when the protective Colonial policy of the Roman Empire, under nearly similar relations, was adopted by the Frank. Conquerors, and incorporated in their I system of law. (*) (») Sec Code Thcodoso, lib. V. tit. 4, Const. .3. Code Justinian, lib. XI, tit. 48. I. 5, i20, 23. tit: 4"J. 1. 1. Siivigny on Roman Colonies in his Law .lournal, vol. 6, p. 27:?, 320. Guizot, Histoiro i\f\ la Civilization en France, vol. HI. p. 388 to 402. vol. IV, p. 2. 22. Hcnrion de Paneey.— Diiscrti'l lions F<^odalr», v. cen»- ? VI. vol 1. p. 270. 1 iie9< treat of Hcignior Genei the Seig essential grantees accoiitmi Append 103. pent in fi This i search, o gnior shf Thecc been poi or were i were mai upon whi prominet the legal interpret It app Crown b( when the violated t lands, a \ an abuse Uie settle: In our ' might be certain n power of concessioi This re mutation j valent to i This al I conaequer concessiot »1 iig a mcra 1 territory le Crown. 5 gathered in March h la Nou- n whereon ) ; and the I extent of ordered to I 8 on le King of fieurs Du- ress condi- m within a ight under concessions tions given d the more ) settle and licv the though the i may in the oduction of i in France, proprietary iselves, the much mo- he rights of ir investure ;he lord and : 1 the pare lit I nder nearly i ted in their \ 5, 20, 23. tit i ut, Histoirc d' ley.— Diiscrit' 1 iiese provisions we shall have occasion to use more at length when wn oomo to treat of that branch of the subject which more particularly concerns the duty of tho seignior to concede lands within hi.s fief. Generally speaking, the conditions contained in the grants from the I'rown, whereby the Seigniors ai'o required to concede lands to ap])licauls, are not marked l)y any essential difference ; but there are a few which contain an express declaration that tho grantees should concede ut the usual and accustomed rates, ecus et rentes et redcvanees accoutunies, and in one particular instance, namely, that of the Royal gi'unt to the Semi- nary of Montreal of the Singniory of the Lake of Two Mountains, jQjP^'^" ' ' ^ ' dated 17th October, 1717, the rate at which every concession shall bo made is prescribed, viz. — twenty soKs and a capon for each ax- pent in front by forty aipcnts in depth, and six deiiiers (a farthing). This is the only instance which has ("Mu.e to our knowledge, after a moht diligent search, of specification in the Royal <" ranis of the rate of cc/is et rentes at which tho sei- gnior shall be bound to concede his lands. The conditions upon which grants from the Crown were usually made have thus been pointed out, at least as to such as were expressly contained in the Royal grants, or were imposed by the Custom of Paris, undt;r the influence of which those grant were made ; but, in order the more justly to appreciate the spii-it of the essential terms upon which seigniors were bound to concede their hinds to applicants, constituting a prominent object of our inquiry, it becomes necessary to consider somewhat at large, the legal enactments touching this obligation to <5oncede, and the judicial decisions interpretative of them. It appears to us sufficiently obvious that, between tho year 1663, when the French Crown became re-invested with full sovereignty over this country, and the year 1711 when the Edict hereafter mentioned was promulgated, some of the Seigniors had violated the trust reposed in them, by exacting, from the applicants for uncultivated lands, a price, in addition to the usual rent, as consideration for concessions en roture ; an abuse repugnant to the views and intentions of Goveniraeat, and calculated to retrad the settlement of the Country. In our estimation, the Royal grants involved a trust to re-grant such of the land as might be in an uncultivated state, en hoit de bout, in parcels, to actual settlers, upon certain moderate rents, that is, A sim.2^le titrc de redcvance, without its being in the power of the Seignior to demand any money whatever, in the way of capital, for the concession. This rent, redevaiice, cens et icMes, carried with it the right oflods et rentes, being a mutation fine levied by the Seignior upon every sale of the land or transfer of it equi- j valent to sale, of one-twelfth of the price or consideration of such conveyance. This alienation fine is incidental to the Seigniorial Tenure of land, and is the legal consequence of a recognitive rent, called cens, being stipulated or reserved in the Deed concession, and was intended to be a source of revenue to the Seignior. en r- Q3 :i3 331 K 17 6$i The right ofbanaliti de moulin, or paying smt to the Lord's mill, is Hot incidental to the Seigniorial Tenure under the Custom of Paris, but, in the circumstances of a coun< try under process of colonization by emigrants imable to bear the expense of erecting mills for their own accommodation, there arose a necessity to provide some means to obviate the evils flowing from this cause, by imposing on the Seignior the obligation to build mills, for which they should have the con-esponding right of compelling the tenants to carry theii grain to be ground there, yielding a certain proportion as toll or multure. EdicU&Ord.vol. 1, p. 266. This was effected by the arrfit of 4th June 1686, declaring it to he a right of the Seignior in the realty, and inseparably attached to his fief and seigniory. It was, however, provided that this right should be forfeited by the Seignior, if a banal mill should not be built within one year after the passing of the said ordinance, and any censitair. or other person, on complying with its requirements, was authorized to exercise this privilege. Under the Custom of Paiis, this right was purely conventional, and could only be claimed by the Seignior under a title. Although in France the right o£bannlite extended to mills, ovens and other matters, it was only exercised in this colony with respect to mills for grinding corn. According to the principles of the common law, and the arrets rendered concerning that matter, this right was restricted to the grinding of the com consumed wnithin the Seigniory and did not comprise corn ground fi>r exportation, or for use without the limits of the Seigniory. Edicts&OiJ.vol. 2, p. 131. The arret of the 20th June 1667, provided that the toll or droit de moiiture should be fixed at one-fourteenth of the com ground at the mills, which was an increase of the rate that obtained under the Custom of Paris. "■ ''.■•■ '•■',■ '■'.'■. In all other respects, the law was lefl as it existed under the jurisdiction of the par- liament of Paris. It was however usual to stipulate the right of 6awa//«e' in deeds of concession ; but that stipulation did not affect the arrSt of the 4th of June 1686, in respect of the obliga- tion of the Seignior to build mills, which was frequently enforced. Upon this point there are many judgments of the intendants vesting the right of banalite in censitaires when the Seignior had neglected to build the mill, or had failed to keep one already built in repair and fit for the wants and uses of the inhabitants. Bdicta Tol. 9. St Ord. Among others on this subject may bo mentioned the ordinance of the 22nd July 1730, the IStli February 1731, the 10th March 1734, the 13th February 174G, the Ist October 1742, and the 12th Fe- 63 bfutiry 1746, and an ordinance passed by the ConseU Supmeur, on the lat July, 1675. This was the law of the country at the time of the conquest, and which is still in force and effect under the provisions of the 14th George the Third, hereafter cited. These may be considered to be in truth the only claims ef the Seignior upon his tenant, sanctioned merely by the law regulating the tenure in this colony, considered apart from special conditions, charges and resei*vations pro^aded for in the original grants of the Seigniory and in the deeds of concession to the tenant. The conditions, charges and reservations expressed in the deeds of concession en rolure, with the exception of the reditus or cens et rentes, the right oflods et ventes and banalite, are therefore purely conventional and may be considered obligatory on the tenant, unless they are repugnant to some edict, arrSt, or ordinance. What conditions, charges and reservations may be deemed questionable, on the score of l<:gality, will be a matter of discussion in a subsequent part of this section. With regard to such conditions and reservations in the deeds of concession to cejisi- taires, as secure certain advantages to the public, in accordance with the corresponding clauses in the Royal grants to the Seigniors, no observation appears requisite ; they are obviously legitimate and binding on all parties. By many of the Royal grants of Seigniories, although not in all cases, it is made imperative on the Seigniors to parcel out their fiefs in grants d litre de redevance, ac- cording to the Custom of Paris. These redevances, in the parts where that custom prevailed, consisted, — 1** Of the cens or reditus of one half penny, or one penny, recognitive of the Lord's Seigniorial right, dominium directum, and was so essential that, without it, no mutation fines could accrue on changes in the owiiorship of the land ; 2° Of a moderate rent not essential to the tenure, which was variously payable in money, grain, poultry or other products. . From the period of the earliest concessions, which have come into our hands, made in 1652 by the Jesuits, who held by grants from the Company of pendk B. No. 128. ' Now France, down to the year 1663, the date of the surrender by the Company of its rights to the Crown, the rate ofcens et rentes in the province was nearly uniform. In the Seigniories where the King was the immediate Seignior, the rates were fixed at one sol, argent tournois, or one halfpenny, for every superficial arpent, and a capon or ten pence, at the option of the Seignior, for every arpent in front, and one ^l of cens, equal to about six shilling? and four penc? halfpenny, for a frontage of three arpents^, by a depth of thirty arpents, making ninety arponts in superficies. 52 as 52 54 This rnle would appear to have beeh much followed during the aforesaid period, and there is ample evidence to shew that, in the district of Quebec particularly, those were the usual and established terais ; for we do not find an instance of excess over this rate, while, in some cases, a lower rent was agreed upon.j After the cession of the Company of New France of its rights to the Crown, a number of grants were made by the Crown, chiefly to persons who had served in the King's army and navy, in some of which the concessions are stated to be made in considera- tion of the services rendered by the grantees. • ; In these Seigniories, comprising, with the exception of the Island of Montreal, and one or two others, the most valuable possessions in the district of Montreal, the rents reserved were nearly uniform, being at the rate of about one penny for every super- ficial arpent, that is to say, from one to two sols for every arpent in superficies, and one capon of the value often pence, or a half bushel of wheat instead, making, valuing tiie wheat at that time at two livres a bushel, about one penny for every arpent of the concession. Generally speaking, it may be assumed that, upon a grant of ninety superficial ar- pents, the runts in the district of Montreal exceeded those in Quebec and Tree Rivers by about one-fifth. This rate prevailed until about the year 1711, when it is observable that some changes had take:i place in the conditions and reservations, rendering them more bur- thensome to the tenants. These additional charges consisted of reservations of wood growing on land conceded,, and the establishment oi'corvees. ' ' ^ , Between the year 1711, the year in which the Royal edict enjoining on the Sei- gniors to concede d litre de redcvance was promulgated, and the year 1732, there is no perceptible or material alteration in the rate of cens et rentes, even in the concessions made by the prf)prietors of Seigniories granted by the pwdix^B^No!"l28!' Crown after the passing of the said edict of the sixth July 1711, i the rates of ccws ct rentes then general in the colony being in most instances followed. Nor from 1732 to the year 1759, was the rent materially augmented, except in a few ■eas«8 ; and the rate throughout the district of Montreal may be taken on an average to have been about one penny for every superficial arpent. It is true that, in many Seigniories in the district of Montreal, the rents where rather higher than in thd district of Quebec ; but the ditference was, in fact, not considerable^ and may have been agreed to in consideration of the superior quality of the soil and its prodilctionB in grain, and may be ascribed partly to the practice of stipulating the payment of the reditua in grain, the fluctuating value of which was more lucrative to ^e Seignior than its being rendered iii money or capons at a fixed value. I 1^ 55 lid period, arly, those xcess over , a number the King's considera- ntreal, and , the rents ery super- ficies, and ig, valuing ent of the erficial ar- ree Rivers that some more bur- conceded^ 1 the Sei- r22, there en in the ted by the ruly 1711, ig in most it in a few iverage to are ratlier siderable soil and lating the icrative to The rent in the district of Montreal was generally one sol and one quart of w^eit for every superficial arpent, or one half bushel of wheat for every twenty superficia arpents, although in the Seigniories belonging to religious bodies capons were generally- stipulated instead of the money rent. The value of such rent may be taken on an average to be about seven shillings and six' pence for every ninety arpents, estimating the wheat in all these cases at one shilling and eight pence per bushel, the value set upon it in early judicial decisions. , . > . , „ , The appreciation of wheat, however, underwent a chansre : for Edicts and Ord. -xiiiin iij.i^i ■ j i i • ,•* vol. 2. p. 81. *" '''^'y 1742, we nnd that by a judgment rendered against the censi- taires of Argentenay, they were condemned to pay to the miller of that Seigniory, for the wheat not ground at the banal mill, at the rate of three livres, equal to two shillings and six pence, a bushel. In some instances, the rent was payable in so many minots of wheat for the whole toucession, in others a pint or quart or pot for each arpent in front by the depth of the land ; while it was often agi'eed that so much grain should be rendered foi every superficial arpent. Notwithstanding these different modes in which the wheat rent was made payable^ it is a remarkable fact, that on a just calculation, the result will be found the same, and the highest rate of concession in the district of Montreal, previous to the conquest; will be found not to exceed one penny for every superficial arpent, valuing the wheat at one shilling and eight pence per bushel. Edicts and Ord. vol. 2, p. 25-8, 280. In corroboration of this opinion, we refer to the ordinances of the eighth of May and the sixteenth of November, 1727, the first ren- de.ed on tha application of the Sieur Levrard, Seignior of Saint Pierre, and the other c: the application of the Sieur Rigouville. wherein the usual and accustomed rates of concession in the whole colony are incidentally mentioned. But whatever inconsiderable diversity may have existed in this particular between the seigniories themselves, for there did exist a trifling variance, yet, vdth the excep- tion of three or four cases, there was no difference in the rates of concession in any one seigniory. The terms, as established by the old concession deeds, continued, without any change whatever, to be the guide and rule on all subsequent grants. In those three or four excepted seigniories only does there appear, before the year 1759, any departure from the usual rates of concession, and the absence of this cliange in all the other seignioiies must lead to the conviction that, notwithstanding the trifling diflercnce in the rates of concession throughout the seigniories, a unifonn, rate, founded on the early concessions, was adhered to in each, and attests the vigi- lance of that branch of die government to which was cpnfided the execution of th* laws, iind tlie accomplishment of the Royal intentions regai'ding the tenures. 1 1 i ;• r- Q3 :t3 k 5G ' The usages in respect of the rates of concession thus determined and established, continued to be the guide in many of the seigniories long after the conquest in 1759. Soon after the conquest, a relaxation of these rules and a disregard of the legal obligations of the seignior, and in some instances of the censitaire, is perceptible, which may in some degree be ascribed to the proclamation of the King in 1763, 1 whereby it was declared that, from thenceforward, the laws of England should be the rule of decision with regard to the civil rights of the inhabitants. Many of the seignioi's, believing that the laws, customs and usages in force in the colony piior to the conquest, had been superseded by the English law, considered themselves no longer bound by the old regulations respecting the tenure of their estates, and the granting of the uncleared lands in the seigniories ; so that, in many instances, they departed from the established rules and usages, and exacted higher quit-rents, cens et rentes, than would have been pennitted by the French government before the conquest. , s , The eensitaircs themselves, equally anxious to elude the laws binding upon them, and enacted to promote the settlement of the country, forbear to seek grants of wild land from the seigniors, who were disposed to exact more onerous terms than of old ; and, in defiance of the laws which expressly prohibited the subdivision of farms beyond certain limits and dimensions, parcelled out their possessions into portions of I ten, twenty or thirty ai-pents, whereby the population, instead of diffusing itself in the extension of the scttlcraents, became crowded within a smaller space, contrary to the wise policy of the ancient goverament. These abuses, which under the French government would have been immediately checked by the interposition of the intendant's authority, wei-e, amid the confusion attendant on the establishment of a new order of things, and the changes supposed to have been introduced by the promulgation of a new system of laws, suffered to prevail ; and, although, by the Act of 1774, their ancient laws, usages and customs were restored and secured to the inhabitants, becoming thenceforth the settled rules of decision in all civil matters, the wiso and beneficent intentions of the old govern- I ment in respect of the tenure of lands (a point of the gi'eatest importance to the wel- i fare and settlement of a country) were wholly frustrated, and the seigniors for ever f afterwards continued at liberty to exact rents and to impose conditions at their abso- lute discretion. With the limited information we have acquired, it would be difficult to point out, with much accuracy, the various epochs at which fresh progress was made in infringe- ment of the laws in this respect. Having in our possession comparatively few concession deeds, no general and posi- 1 tive rule can be laid down applicable to the who\e Province ; but it is sufficiently ?| manifest, from those deeds which we have had an opportunity of (;onsulting, that a | change took place almost' immediately after the conquest in some seigniories, and that in others a change occurred about the year 1785, and again in 1800. 51 M rovemment From the last mentioned period down to the present time, the rates of concession have been progressively augmented in many parts, until, from about one penny per Soo Tablns, An- superficial arpent, which was the original rate, the cens et rentes pctiJix B, N° 128, have swollen to three pence, and from that rate to six pence, and even eight pence, per superficial arpent. So, also, by means of clauses and stipulations inserted in the deeds of concession, to which nothing parallel can be found before the conquest, the seigniors, since that event, have diminished the value and extent of the rights and estates of the censitaires in the lands granted to them, imposing many burthensome conditions, reserving wood and timber for private uses, as well as all mill-sites, not me- '•ly for the lawrful exer- cise of the bancdite, but for the establishment of all kinds of mills and manufactories. In France, and particularly under the Custom of Paris, the cens and other annual rents and dues were regulated by no express law, but there was a usage as to the amount of the cens strictly so called ; (*) and indeed, from the earliest times, fixed- ness of the rate of this rent (^fiziti) would appear to have been a ruling principle (§). Ti <^ seignior was at liberty to stipulate such rents and dues on the alienation of his land as he thought proper ; but, although the stipulated additional rents and dues were not contrary to any law, and were clothed with the same lien or privilege as attached to the cens, they were not recognized as being founded upon the common law, nor considered essential to the seignioiial tenure, but were the creatures of posi- tive contract and title. Thus, although these charges were generally called seigniorial rights, and as such were secured by the usual privileges in favour of the seignior for their recovery, yet the law established certain important distinctions between them. These rights were therefore divided by feudists into two classes : — Ist. — The natural or ordinary right, which the particular custom regulated in the absence of express stipulation. • • 2d. — Extraordinary rights, foreign to the common law, which were the subject matter of especial covenant. In the first category were the cens, the essential characteristic mark of the direct seigniory, established by the common law, and which the local custom indicated as the natural charge upon the land ; and the lods et vcntes or mutation fines, and a certain pecuniary penalty due by the tenant neglecting to exhibit his title of acquisi- tion to the seignior. The other class consisted of numerous burthens and serrices, such as the gros cens, or additional rent, the right of rctractus, pre-emption ; neither emanating from tho common law, but purely conventional. (*) Soo liciiriou dn Puusoy — Dissertations Foodales — Oons., } IX, vol. 1, p. 275-C. ($) Soe QOta antu, page 3. ^ ^ CD Q3 931 TV >' 68 These rights, arising from contract only, became extinguished upon the judicial sale of the land, vmless they were presei-ved by a legal demand on tlie seignior's part. They were considered in the light of extraordinary incumbrances upon the land, and, as they were not classed among the charges legally due, a vendor was bound to declare them in order to absolve himself from the obligation of warranty with regard to them, which otherwise he would have incmied. This was the state of the law under the influence of the Custom of Paris when it came to prevail generally in this colony luider the edict of 1663. To treat properly the subject of the peculiar regulations which exist in this colony with regard to the seigniorial tenure, it is necessary to revert to the earliest settlement of the courtry by the Company of New-France, '" By a charter granted to tliis Company, in 1627, by Louis XIII, the most extensive powers for the purpose of effecting a settlement of the country were given, and the Company were authorized to make grants of land to such persons, in such quantities and upon such terms, as they might think proper for attaining that impartial object. This Company having introduced the tenure which prevailed in Paris, where it was fonned, granted lands to be held c« Jirf et seigneurie, on terms and conditions calculated to promote settlements. . . k The grants were made, for the most part, under the Custom of Paris, although some few were made under the Custon of /e Vcxin Frangais ; an.'^ after the surrender j to the French Crown by the Company of New France, iu . . of all its rights and! territories, all grants of land in lief and seigniory were maue subject to the provisioml of the Custom of Paris. In 1663, the Conscil Sujfcrieur was erected by an Edict of the French King, anditl was therein declared that the colony of New France should be governed by the law! and custom of the Parliament of Paris; atid powers were granted to the said Conseil to| make laws for the good government of the colony. In looking to the original grant to the Company of New France, and the Act on Cession of its rights to the Crown, it is apparent that the great object of the Frencfel Government was tlie settlement of the country. The Company of New France, vrith limited means, although possessed of indefinitel powers, had made little progress towai'da that object, at the time of the suiTenderol its rights. Almost all their grants were merely nominal, no actual settlement having been made] The first act of the Crown, on obtaining the cession of the colony, was to revoke i ; grants in that predicament. The Edict promulgated by the Ki\'qonthe 21st of March 1663, declared that grants should be null and void on which no settlement should be made six months afld King, fl 59 I / llie passing thereof, and granleJ full power to the governor and intendant of the colony to distribute anew the various seigniories, on condition, however, of actual settlement. An Arret of the 4th June 1672, reduced the concessions already made in the colony to one half their extent, and the lands were distributed again among such persons as would undertake settlements within the period of four years, and in default thereof the said concessions were to bo reunited to the domain, ordering at the same time the Intendant Talon to mike an exact return to His Majesty of all concessions made in the colony, of their quality and extent, in tha number of arpents, or other standard mea- surement used in the colony, the number of inhabitants, &c., &c. This arret was followed by another of similar import, dated 4th June 1675 ; and by the ViTrC't of the 15th April 1676, full power and authority were given to tho governor and intendant of the Colony to make all concessions, upon the condition however of having the said concessions ratified. To this may be added, on the same Pt-bjcct, the arret of the 9th of May 1679, again diminishing by one fourth the extent of the concessions already made upon which no settlement had been made. These Arrets and Edicts ai'e cited more for the purpose of shewing the intentions of the King in making the vaiious gi'ants and concessions, than as establishing any law on the subject ; but they ai'e Important In their beaiing on the Edicts promulgoted sub- sequently to this peilod by His Most Christian Majesty, in relation lo the tenure and the conditions on which gi'ants of land in seigniories should be made. Aware of the prevalent belief that there existed an Edict fixing the rate of ccMcer.sIon generally at a certain specific amount, we conceived it our duty to make strict search among the Archives of the Province and the Records of the Prcmnclal Tribunals under the Frcrch Government, and a thorough investigation of the whole matter en- ables us to state our finn conviction that no Royal Edict, or other Icglslativo measure! creating an obligation to concede lands en roturc throughout the colony at any given rate, either lu money, produce or commodities, was ever Issued or enacted. We have, however, arrived at^the conclusion, from consideration of the Edicts, de- clarations and decisions hereafter r: fonvd to, that something nearly equivalent or ap- proaching to such a regulation became established before the Conquest. The before mentioned jEdict of the 6th .fuly 1711, is tlie first legislative Act of the King, made to regulate the concession of lantls en cTmiro, and to fix the conditions under which it should be imperative on the seignior to concede them. By this Edict it was declared that there were many seigniories in Xow France in which no settlement had been made, and In which even the oiiginal grfintces had made no progi'ess towards the cultivatlf)n and settlement of the ju'operty, and that many seigniors had, under various pretexts, refused to concede lands to persons offering to perform acts of settlement, with the intention of making sales of the said land, at the same time that they imposed on the grantees the same dues (les tnemes droits dc rede' Hi r- Q3 § 331 K 60 vance J aa were imposod usually in concessions ; which was wholly contrary to the in- tentions of His Majesty and the very conditions of the original grants to the seigniors themselves, by which they were permitted only to make concessions in consideration of rents ("d litre de redevanccj ; and with the view of avoiding such abuses for the future, it was ordered that all seigniors, within a year after the promulgation of the said Edict, should make settlements and concessions in the said seigniories, in default of which they should be reunited to the Domain of the Crown, and that all seignior, having lands to concede within their seigniories, should be bound to concede to all persons demanding concessions d titre de rcdevance, on payment of a rent only, and without exacting any money for the same; and that on refusal of the seigniors so to concede, it should be in the power of the Intend ant, on application for that purpose, to make concessions, on the same conditions as were imposed on the other concessions in the seigniories faiix mimes droits imposes sur les autres terres concedecs dans Ics ditcs seigneu- riesj, which righto and dues should be paid into the hands of the Receiver General of His Majesty's Domain, without its being in the power of the seignior to demand any dues whatever from them. . . ^ This Edict was followed by another of the same date, declaring all concessions made to censitaircs, on which no actual settlement had been made, to be null and void, and that, on the certificate of the curate and eaptain of the cote, to that effect, they should be deprived of the concessions. ; The intentions of His Most Christian Majesty, manifested by the said Edict of 6th July, was to compel the grantees of the Crown to concede lands on their seigniories at a mere rent, without exacting any bontis or capital, and that the concessions should be made at the rates adready fixed in the seigniories by former concessions. Upon this point, no reasonable doubt can be entertained, as full power was granted to the Intendant to make the concessions at the rate already established, in the event of the refusal on the part of the seignior to make them. This Edict would seem to have determined the principle on which concessions should be made, and, although no rate is in terms mentioned in it, the previous concessions made in the seigniory were declared to be the standard for the future. That the standard was nearly uniform throughout the colony, will pendix B. No. 128. appear by reference to the concessions made by the Seigniors up to the promulgation of the edict, the rate in no instance exceeding two sols per superficial arpent, and in a great many being only one sol. In fact, upon the subject of the rate of concession, no difficulty appears to have existed in the colony, as a usual and accustomed rate was by universal consent ac- knowledged to be settled ; but the great grantees of the Crown endeavoured[to violate the conditions of those grants, and, by exacting sums of money for making a concession to effect sales of their land, contrary to the known laws of the tenure and the very conditions of the gprants themselves. . i 61 This abusive practice of the Seigniors was, in truth, the oiigin of the edict of 1711. In addition to the evidence to be drawn from the edict, and the very motives of its promulgation, there is ample evidence to be found in the decisions of the intendanta, both before 'and after the passing of the edict, that upon the subject of rates no diffe- rence of opinion existed. The first judgment on record on this subject, is a judgment of the intendant Mr. Raudot, of the 15th June, 1708, by which it was ordered that the seignior of Becan- cour should concede certain lands to an inhabitant of the name of tracw of the" edicts Perraiilt, upon the same clauses and conditions, auz mimes clauses &c.. p- 2fi. et conditions, as were contained in the deeds of other censitaires, and that in default thereof the judgment should be held as his title. ' This judgment was followed, after the edict of 6th July 1711, by several judgments rendered by the intendant on the same subject, namely, the judgments of the 15th February 1716, the JiSth June 1721, the 20th September 1721, the voL*2,T 45l1i0?5i; l^th October 1721, the 21st February 1731, the 20th July 1733, the 71,75', 82. '. ' ' 23rd January 1738, and the 23rd February 1748. To these may be added, judgment of the intendant Begon, of the 11th March 1723, rendered against the Seignior of St. Pierre, and an ordinance of the vol 2' p'268 272. ' intendant Dupuy, in the case of the same Seignior (Levrard) ren- dered on the 8th May 1727. The whole of these judgments were founded on the edicts of the 6th July 1711, and most clearly demonstrated not only that an accustomed rate of concession was esta- blished by universal practice in the colony, but that the Seigniors were bound to concede at that accustomed rate to all persons soliciting concessions : the power to make these concessions, in the event of refusal on the part of the Seignior, being vested in the intendant. ^ 4l ' Edicts and Ord vol. 2, p. 33. That this authority was acted upon by the intendants, is manifest from the arrSt of the 29th of May 1713, only two years after the passing of the edict of 1711, by which the Seignior Duchesnay was prohibited from making any concessions, in the bourg du Fargy de Beauport, at a higher rate than that of one sol for each arpent, and a capon, to which redevance all concessions made by his predecessor at a higher rate in the Seigniory were re- duced. ^ ^ Q3 931 I ; This arrSt may be adduced as evidence of the operation of the edict of 1711, and of its prohibitory character, vdth reference to the rates of concession in the Sei- gniories. Edicts (111(1 Ord. Tol. I, p. 486. In confirmation of this law of 1711, the arr^t of the Council of State of the 15th March 1732, was passed. n 62 This arret is important, not only on account of the positive nature of its enactmenli;, hut as explaining and confirming the dispositions of the edicts of 1711. By this arret, after recital of the edict of 1711, whereby the King had declared that, in some of the Seigniories which had been conceded by him, no settlement or habitations had been made, and that if, at the expiration of ono year from the date of the promulgation of that edict, they continued in tliat unsettled state, they should bo re-united to the domain of the Crtiwn, and tliat the said Seigniors had been ordered to concede uj)on a mere rent {d fitrc de rcdrvanrc) and without demanding any .sum of money whatever for tlic conccHsion, and had grtintcd permission to the inhabitants, in case of refusal on the part of the Seignior to concede, to apply to the governor, lieute- nant-governor aud intendant, to obtain the sr.id concessions, uj)on the tenns and con- ditions, (aifx memcs droils imposes sur Ics autrcs tares concedees) and that the dues accruing therefrom should be paid into the hands of the receiver general of the King's domain, to the loss of the Seignior in that respect. And the recital of another edict of the same date, whereby the King had declared that the inhabitants, who had ol)tained concessions, should be held to occupy and inhabit the same (y tenir fcii ct lieu), and in default theret)f that the lands should be re-united to the domain of the Seignior upon the judgment of the intendants. His Ma- jesty being infonncd that notwitlistaiuling those edicts, the Seignions had reserved in their domain large tracts of country which they sold en hns dcboiit in lieu of conced- ing only upon a reditiia or rent {a a lieu dc Ics conccder dwiilcmcai d titrc de rcdcvancc) I and that the inhabitants who had so obtained sales of the wild lands, had again sold them to othei's, thereby making a trafic of the land, contraiy to the well being of the colony, and it being necessary to apply a remedy to abuses so prejudicial in their effects, did order that, within ten years- afler the publication of that arret, all proprie- tors of land held c/t. sciixncuric, and not yet cleared, should be boimd to make settle- ments and place Inhahitants thereto reside, and that, if after the expiration of the said I term, such had not been done, that the said lands should be re-vmitcd to the domain in virtue of the said arret, and without any further order. And His Majesty did also most! expressly prohibit and forbid any Seigniors or other propriet(»rs to sell any wild land I whatever, dc nc vcndre aiicuuc tcirc cit hnis dcbnit, on pain of nullity of the contract, and the restitution of the price thereof, and that tlui said lands so sold should be re-unitcd to the domain of the Crown ; and further ordained expressly that the sai \ two edicts oil 1711 should bo carried into efllct according to their tenor. IW?, arret therefore is a full confirmntion of the edicts of 1711, being even more stringent in its dispositions ; and if anything were wanting to ascertain the principle upon which concessions of land cii censive were required to be made, the deficiencies may be supplied from this soiu'ce. So far from the estate of the Seignior in the fief granted to him by the Crown beingi absolute, free and unconditional, for the sole purpose of his own profit, it may be saidj that the land was held incumbered with a species of trust, to promote the speedvi ■ settlement of the property. — Ho was bound to concede upon a mere rcditus, orj The 63 actmenlD, 1 declared iilemenl or le (late of should be a ordered my ;uim of ibituuts, in lor, lieute- is and ccm- t the dues the King's d declared iccupy aiul s should be ■s, His Ma- reserved in of conccd- rcdcvuncc) again sold eing of the ial in their all proprie- nake settle- of the said c domain in id also most ly wild landj ontract, and] jc re-unitcd wo edicts of I even more he principle deficiencies! Irown being I muy be saidj the speedy I I rcditus, ori rent, without its being in hia power to extend the obligation of the censitaire beyond that rent. In the event of refasal, the power to concede upon the rate imposed in the other con- cessions was given to the governor, lieutenant-governor and intendant, and as a penalty for not conceding, he forfeited his land to the Crown. To hold that these were not the true conditions upon which lands en censive were required to be made, would be to convert an estate subject to a trust into an absolute freehold ; to deny that the Seignior was bound to concede at the usual and accustomed rates established in his Seigniory by the old concessions prior to 6th July 1711, would be to frustrate the very ends for which the edicts and arrets had been made. We can recognize no difference between demanding, for the concession, a sum of money in the nature of a price, and the stipulation of that price in the shape of rent chargeable on the land ; in tnith, they are identical in their results. In both instances there would be a violation by the Seignior of the original condi- tions of his gi'unt, because it would tend to impose more onerous charges than the law of the tenure allowed. In looking to the latter part of the edict of 1711 (which may be said to remove all doubts concerning the rate of concession of land in the same Seigniories) we find that it enables any inhabitant, upon refusal of a Seignior to concede lands, to apply to the intendant, who was specially ordered to make the grant upon the same terms and con- ditions as were imposed upon the other lands in the same Seigniory, (aux mimes droits imposes sur Irs metres terres de la scigneurie), thereby most plainly shewing that the rate of concession first established in a Seigniory was to be a guide for all future concessions in the same Seigniory, from which no Seignior could depart without a violation of the law. It may be contended that the edict applies only to cases wherein the seignior refuses absolutely to concede his lands for an annual rent, whereupon the dues would become payable to the Crown ; and that it cannot Le extended to the case where the seignior is willing to grant A litre dc rcdevance, although at an increased rate. The answer to this nhjoction, we conceive, is obvious. The end which the edict had in vicAv, in prohibiting the seignior from selling hfs wood-lands, and exacthig sums of money in the nature of prices of sales, was the rapid settlement of the country, by placing within the reach of every man the means of obtaining land, subject only to a small annual rent ; and it may be asked whether a departure by the seignior from the established rule of concession in his seigniory, by which it would be in his power to raise his dues without limit, would not defeat the object of the legislature ; he might, indeed, style his grant a concession d litre de re- devance, but it ivould differ from a contract of sale only in name. Co 03 f; I 61 It therefore follows, that a willingness on the part of the seignior to concede hia laiids.'but upon terms and conditions more onerous than those already established iu his seigniory, would have be.'cn considered as an absolute refusal to grant, which would have justified any applicant, under the law of 1711, in demanding, from the intondant, a concession of land upon payment of the same dues as were imposed on the other lands of the seigniory. In confirmation of this view of the subject, it may be again stated that, if it were in the power of the seignior to raise his dues, his situation wfnild be better than that of 1 the sovereign, who was bound by the edict to exact no higher dues than those already established, in the seigniory, in those cased where the revenues escheated to the Ci'owij on the refusal of the seignior to concede. In conclusion, it is only necessary to advert to the wording of the edict (aux mSmes droits imposes sur les autres terrcs dans Ics ditcs scigneurics,) to be convinced that it pufficicntly implies an uniform late of concession in the same seigniory, no difference of rates being mentioned by which the grants made by the intendant for the benefit of I the Crown should be distinguished. If any inhabitant had, atthr time this edict was enacted, a right to obtain a grant of land upon the same terms an any ccnsituirc within the same seigniory, it is the un- doubted privilege of any of the Queen's subjects to obtain the same grant at this day, I the edict of 1711 being still the law of the land. But controvertible evidence of the meaning and operation of this edict of 1711, and of the arret of 1732, and of the intentions of His Most Christian Majesty in promul-, gating them, may be gathered from the declaration issued by the ▼01.1*^^.533. ' King (Louis the XV) on the 17th July, 1743, concerning conce8-| sions in tlie colonies. This declaration states tliat authority had been granted to the governors and inten- dants of the colonies in America to make gi'ants of land, for the purpose of promoting the settlement of the colonics, and to re-unite them to the domain of the Crovvm in default of settlement, and that full judicial power had been given to them, to the exclu.sion of the ordinaiy judges of the land; to determine upon all contestations which might arise among gi'antecs and their as' igns, as well in relation to the validity anJ the execution of concessions, as to the" • position, extent and limits ; but that no cer- tain rules had been established as to the form of proceeding, either witli w 'fft to the re-uniting to the domain, for want of settlement, or to the c< tsc .f proceeding on the contestations arising in relation thereto, nor as to the c< appeals from the ordinances and judgments of the governors an< points, so that different rules and usages obtained in difi'erent col same colony. be pursuer^ ifii adants upon t s and ven in the I That for the purpose of removing all doubts and uncertainty upon subjects so inter- esting, and to secure the repose and tranquillity of families, he had determined to make! certain fixed and invariable rules to guide in all the 'Colonies, as well as to the formsl . C5 of proceeding to otfect a re-iinion lo the clomain of concessihna vvlien the caee mlghj require it, aa to all discussiona arising thereupon^ and the course of bringing appeals from the judgments therein rendered. In the first article of this declaration it is directed, that the governors, lieutenant- governor, and intendahts of the colonies, or the officers representing them in their absence, should continue to make concessions to tho inhabitants who might be entitled to obtain them for settlement, and should grant titles to them on tho ordinary and accustomed clauses and conditions {clauses et conditions onUnaircs ct accow- tumees.) This article of tho declaration is cited as bearing more particularly on the subject of concession, and as shewing that an oidinary and accustomed rent was then (1743) re- cognized and acted upon. . It is true that the whole of the declaration may be viewed more as an arrit dc ri- g/ewewi in reference to the course of proceeding before the governors ajid intendanta and in appeals therefrom, thti ii as a declaration in which any legal enactment in res- pect of the tenure itself is set forth ; yet the terms of the first article cited above, and the express authority and order given to thd governors and intendanta to make conces- sions upon tho accustomed and ordinary rent, in applications made to them founded on a refiisal of the seignior to concede, in our humble opinion, remove all doubts upon the subject, and characterize tho arrit of 1732 as prohibitory in their operations, and fixing unalterably the receiprocal obligations and rights of the seignior and cen- iitairCi We may therefore he permitted to inquire what law it was the intention of the Crown to introduce by the edict of 1663, with reference to the tenure of land, {Ics lois ct ordonnances de notre royaume et y proceder autant qu'il se pourra en la Jb?me etmo' nicre qui sc pratique dans les ressorts de notre cour du parlement dc Paris ;) was it tho common rule under the parlianlent of Paris in relation to the tenure (en ccnsive) and the usual and ordinary quit-rent, cens, or was it the Intention to give unlimited power, and to permit the seignior to impose such charges on the land upon its alienation, as he thought proper ? Upon this point, we think that no reasonahlo doutit can be entertained. The rule followed by the Crown in its own censivcs, mvA tho rates of concession down to the conquest of this country, afford the most conclusive proof of the intention in this respect ; for whatever latitude may have existed, under the Custom of Paris, in the imposition of seigniorial charges and dues, beyond those incidental to the tenure under the common law rule, (*) it is clear that under the operation of the edict of 1711, and the arret of 1732, certain fixed and unalterable rules were established in the colony to regulate tlio concession of land, from which tho seignior could not depai 'i Co 931 (*) Sec Ilcurion do Panscy— -DisscrUitions reoJulo?, v. Ccus. ubi supra. 66 The fixedness of the rate of rent, as a ruling principle, is manifested in a striking manner by the remarkable fact, that it required the express authority of the King to enable the seigniors of Montreal to raise the established rent under Na 103/'^*'" '* peculiar circumstances. These rules were manifestly imposed from the necessity of the case, for if the juris- prudence of the parliament of Paris in this respect had been allowed to become the law of the colony, the intention of the Crown in the settlement of the country would have been altogether frustrated. In expressing our opinion on this branch of the subject, which we feel to be one of a delicate nature, and involving interests of great magnitude, we have calmly and dispas- sionately considered the matter as a ^.urely legal question, irrespectively of cases oi" indivi- 1 dual hardships, or of what may be deemed vested rights founded on long and uninterrupted possession, or the obligation of contracts. tn\ ■ / r • ii T',e Courts of Justice, in later days, swayed, no doubt, by these considerations, have,! for the most part, disallowed the principle of a usual and accustomed rate. See ApT)',n(lix B, Nos. 111,^112, 114, 115, 116. By their judgments they have maintained that the seignior had the right of conceding upon such terms and for such rents as he might agree upon with his tenants, and have refused to give relief to the censitaircs from such conventional burthens. They have departed not only from the strict letter of the law regulating the tenure under the French Government, but from the true spirit and policy of that law, and the | conditions of the original grants. And however unfounded the pretension of the seignior might have been considered in tlie Court of the intendant, he has in the Courts of a later erection invariably been successful! in all his contests with his tenants, with the exception of a single I instance, which occurred in the Court of King's Bench at Montreal in I 1828. See Appendix B, No. 113. Being of opinion that the Edict of 1711 is still the law of the land, it remains to be| inquired whether there resides in any tribunal the authority competent to enforce it. By the Act of 1774, commonly called the Quebec Act, the inhabitants of this colony! were confirmed in all the laws, customs and usages relative to their civil rights ; and it wasl enacted that in all matters of controversy relative to property and civil rights, resort shoiildl be had to the laws of Canada, as the rule for the decision of the same, and that all caiisiJ thereafter instituted in any Courts of Justice to be ai)pointcd within and for the said Pro- vince by His Majesty, his hoirs and successors, should, with respect to such property aniil rights, be determined agreeably to the said laws and customs of Canada, until they should! be varied or altered by any Ordinances that should from time to time be passed in tlie| Province by the governor, lieutenant-governor, or commander in chief for the time beingi by and with the advice and consent of the Legislative Council of the same to be appointed! in maimer thereinafter mentioaed. [1 a striking he King to rent under if the juris, become the ntry would be one of a and dispas- les OjT indivi- ininterrupted sitions, hare, nior had the as he might reUef to the r the tenure law, and the iiaered in the en successful of a single , Montreal In etnains to be :e it. of this colony 5 ; and it was resort should hat all causes the said Pro property and :il they shoiilil passed in tlie le time being, » be appointcii 67 This Act therefore guaranteed to the Canadians Iheir civil rights, and, of necessity, the tenure and the laws regulating the same were fully and unreservedly maintained. That such was the intention of His Majesty's government, is apparent on reference to the instructions conveyed to general Carleton, transmitted to him immediately after the passing of the act above quoted. The article 38th of the instructions is in the following terms : " By our commission to you under our great seal of Great Britain, you are authorized and empowered, with the advice and consent of our Council, to settle and agree Avith the inhabitants of our said Province of Quebec for such lands, tenements and hereditaments as are now or shall hereafter be in our power to dispose of. « It is, therefore, our will and pleasure, that all lands which are now or hereafter may be subject to our disposal, be granted in fief or seigniory, in like manner as was practised antecedent to the conquest of the said Province, omitting however, in any grant that shall be passed of such lands, the reservation of any judicial powers -t privileges whatsoever. " And it is our further will and pleasure that all grants in fief or seigniory, to be passed by you as aforesaid, be made subject to our Royal ratification or disallowance, and a due registry thereof within a limited time, in like manner as was practised in regard to grants and concessions held in fief and seigniory under the French government. " From these passages it appears unquestionably that the laws in force at the time of the conquest in 1759 were preserved in all their force ; and that, in relation to the tenures of land in the Province, the law of 1711, and the custom which prevailed in the colony prior to the conquest, respecting grants en censive, remained to all intents and purposes the law of the land. ' " We proceed now to consider whether the judicial authority, which was vested by the King of France in the intendants to enforce the Edict of 1711, can be exercised by any tribunal now in existence in this Province. ^ Under the Ordinance creating the Court of Common Pleas in this Province, passed in the 17th year of His Majesty George the Third, we think the judicial power of the inten- dant was transferred to that Court. It was the Court erected under that Act to decide controversies respecting the property and civil rights of the colonists ; and, although the legislative powers vested in the inten- dant could not, consistently with the principles of the new government, be delegated to that Court, yet all the jurisdiction of that officer, exercisable for the protection of the civil rights of the subject, was transferred to the new tribunal ; and by the S-i'th (reorge 3rd, esta- blishing the Court of King's Bench in this Province, and repealing the 17th George 3rd^ the judicial powers of the inteudant are expressly given to that Court, to be exercised in the most full and ample manner. Soo Appeudix B, No. 102. Under these circumstances, therefore, we consider that the Court of King's Bench now estatablished has full power and authority to enforce the Kdicts of 1711, with the Arrfit of 173'2, and to carry out the jurisprudence established before the conquest. St 68 Having reviewed the lavrs of the seigniorial tenure as thej existed under the French government, and as they continue to exist in the Province of Lower Canada after the conquest, it becomes our duty to advert to the alterations which these laws have undergone by legislative enactments. The first provision affecting the law of tenures in this Province, is to be found in the Imperial Statute of 3rd George IV, chapter 119, intituled, " An Act to regulate the Trade of the Provinces of Lower and Upper Canada, and for other purposes relating to the said Provinces. " The chief part of this law concerns the revenue, but the thirty-first and thirty-second !«ections affect the seigniorial tenure of land. The defects of this Act were however soon perceived, for, as it was limited in its pro- visions to commutations between the Crown and the seignior, or between the Crown and its grantees en roturc, the censitaires in many of the seigniories were left wholly unpro- tected, and were doomed to live under a tenure which they might consider of a most burthensome and odious character, while the Act gave to the seigniors an absolute and unconditional property in the ungranted portions of their fiefs, in direct violation of the wise and beneficent intentions of the Edicts of 1711, and the ArrSt of 1732, and the Declaration of 174i3, by which, as we have already shown, the seigniors are bound to grant lands to such persons as apply for them, subject only to the accustomed rents and dues. To remedy the defects of this Act, and to provide for a commutation between the seignior and censitaire, another Act was passed by the Imperial Parliament, in the sixth year of His late Majesty George the Fourth, intituled, " An Act to provide for the extinction of feudal and seigniorial rights and burthens on land held d titre de fief et d ritre de cens, in the Province of Lower Canada, and for the gradual conversion of those tenures into the tenure^of free and common soccage, and for other purposes relating to the said Province." Under this act, the most 'objectionable part of the act 3 George IV, whereby the seig- nior is clothed with an absolute and uncontrolled property in the wild lands of his seigniory, not only stands unrepealed, but is confirmed. On the legitimacy of these enactments, it is not our province to comment ; but we are gratified to find the views we entertain, regarding the vesting in the seigniors of an absolute freehold estate in those unconceded lands, are supported by the authority of an address of the honorable House of Assembly of Lower Canada to His Excellency the Governor j in Chief, presented in the session ot 1824. < < ' "'. ■ , , . The concluding part of that address is in the following terms : — " That the unconceded | lands held by the seigniors cnfi^f'm this Province are held by them subject to be rcgranted to any applicant engaging to settle thereon, subject only to the accustomed dues and condi- tions, and that it iR on grants of those lands that the cultivators of the soil in this Province I depend for the settlcnsent of their children, the said cultivators and their children havipg a legal right to obtain such grants. 69 le French after the undergone und in the gulate the relating to rty-second in its pro- Crown and oily unpro- ■ of a most solute and tion of the 2, and the e bound to rents and itween the in the sixth ide for the le fief et i on of those ating to the by the seig- is seigniory, but we are an absolute an address J Governor unconceded )e rcgranted i and condi- 1 his Province dren havipg « That any arrangement made under the said act 3 George IV, between His Majesty and the holders of such waste lands in fief and seigniory, would be to deprive a third party of an equal right which is beneficial to the individual, advantageous to the community, and gua- ranteed by the capitulation of the colony, and by the act of the fourteenth year of the reign of His late Majesty. « That this House conceiving that it is a duty incumbent on it, in so far as may depend upon this House, to protect every right of its constituents, humbly represent the matter to your Excellency, and pray that, in any conditions which may be imposed on any seignior surrendering lands under the said act, to obtain a grant thereof in free and common soccage, such conditions may be imposed on such seignior, in conformity to the said act, as may pre- serve entire the right of the subject to a grant of the said waste lands, at the usual rede- vances or dues and conditions." ?'*:>■ .v'f We come now to the second branch of the subject of our investigation, namely, as to the present working of the feudal and seigniorial tenure in this Province. In stating our views on this branch of the enquiry, we must necessarily proceed on the assumption that the exorbitant pretensions of the seigniors, at the present day, are just and founded in law as now administered. Taking this for granted, it cannot be denied that this system of tenure is in many respects vicious and is productive of extreme injury. The dues and services exacted, without considering the more common abuses, are op- pressive to the land owner, not only from their variety, but from their nature. The pecuniary dues of the censitaire are, in many instances, more than he can liquidate ; while the reservations to which he was forced to submit by his lord, deprive him of the free use of his land as proprietor. He is, in many instances, subjected to fines for neglect of certain services, in some cases of mere form, by which his condition is fettered. Instead of being able to add to his resources by developing such advantages as his soil or its natural position may present In the free exercise of mechanical skill, he is bound to the land for the mere purpose of cultivation, and is dependent on its return for a precarious sub- sistence. Thus, if he be possessed of a mill-site, or a spot of land favorable to the construction and operation of machinery, he is prohibited from using it. The reservations contained in his deed of concession deprive him of the advantage of it, except at a heavy cost. If his crop fail him, he may be kept in a state of indigence, although able and willing to better his con- dition by mechanical pursuits. He is thus kept in a perpetual slate of feebleness and depen- dence. He can never escape from the tie that binds him and his progeny forever to the soil — as a cultivator he is born, as a cultivator he is doomed to live and die. By these means, all progressive improvement in the country is checked ; its resources for advancement iu the arts of civilized life are in the hands of the seigniors, and they may alone ; I I ?! r- !l i! ti \' I > 1 : •n 70 reap the advantage. But even in the limited sphere of action allowed to the censitaire under this tennre, he is controlled. The odiouo claim of lods et ventes or the mutation fine of one-twelfth, eight and one quarter per cent on the price of his farm, which he is bound to pay on every mutation of property by sale, or act equivalent to sale, not only diminishes the value of his property, but checks the spirit of enterprize. This fine is levied on his improvements, thereby taxing his industry to an unlimited extent. The right to lods et ventes is unquestionably legal ; but its injurious operation is not the less felt. Although principally oppressive in towns and villages, it paralises the whole country by its influence, for, by affecting property in the towns and populous villages, the seats of wealth and intelligence, its baneful operation is extended in every direction. The demoralising effect of this right is unquestionable ; because, to avoid its payment, the censitaires frequently resort to frauds, often involving in their consequences the crime of perjury. This is an event, at any rate in the District of Montreal, of no unfreqnent oc- currence, and as the value of property becomes augmented, too likely to be continued. In addition to these, are the rights of pre-emption, retrait, and corvee, or days labour, impeding in some degree the improvement of the country ; the retrait, when misapplied, pre- venting the free conveyance or transfer of property, and the corvee being odious and humi- liuting to the man. This right of pre-emption may be rendered most oppressive. It not only gives rise to great abuses in respect of the tenant, by frustrating and interfering with his most cherished plans of amelioration, but it opens the door to exactions on the part of the seignior, against which it is wholly out of f he power of the tenant to protect himself, by enabling the seignior to demand any sum he pleases for relinquishment of his right, under the name of a mutation fine. This is no unfounded charge, for there exists evidence of such abuse in some cases. ' The right of corvee is hateful in the eyes of the censitaires, and it is a badge of servi- tude. In many instances these cnn'ecs,9i the execution of titres-nouvcls, have been illegally su- peradded to the contents of the original deeds of concession. We cannot overlook a stratagem of which some seigniors, as we are informed, have avail- ed themselves to elude the law prohibiting the sale, by the snignior, of uncleared lands on their concession for rent and an additional bonus. The mode of proceeding to attain this object is by making a fictitious concession to an agent or friend, who forthwith sells the land and pays the price to the seignior. Besides the burthens above mentioned, there are in many seigniories the prohibitions to build mills, the riglit of appropriating six arpents for the erection of any mill by the seignior, 71 and this without indemnity for the land, but paying for improvements only, should there be any ; the right of taking all timber, such as pine, oak and saw logs, all stone, sand and mate- rials necessary for building, and this without indemnity ; the right of changing the course of all streams or rivers for manufacturing purposes, and the right of ferry over rivers. It is even made the subject of covenant, in some early concessions, that the tenant shall have the privilege of using any wood on his land which he may require for his own use. These reservations are past comment ; no system can be devised better calculated to keep a man in perpetual subjection. Under it, all the generous emotious of his nature are stifled. Thus he gradually becomes impoverished ; lie toils through existence without the hope of relief, and transmits to his posterity a worthless inheritance. Under the operation of such a tenure, his right of property may become a mere delusion ;'as a moral being, he is degrad- ed, and his position is one of perpetual dependence. Let us now consider the means which the laws afford to the seignior for the recovery of his rights, and the practical consequences of the exercise of such legal remedies. To secure these rights, the law awards to the seignior an especial privilege. He is en- titled to claim, on the estate of his vassal, a preference over all persons. He can recover arrears of cens et rentes for twenty-nine years. These arrears are not only secured by a priviledged lien on the land on which they accrued, in preference to all other persons, even to the vendor of the soil, but operates as an incumbrance on all the other possessions of the grantee from the date of his concession deed. For the recovery of his lods et ventes he is equally preferred, and it frequently happens that for arrears of that right, he sweeps away the whole of the money arising from the sale of the farm. The tenant is also subject to an action at law for each of the rights and services due under his concession. Although the amount of such dues in money may be trifling, they have hitherto been deemed recoverable in the highest courts of the province. - , • . As the dues are cliargetl upon the land itself, a judgment must be there obtained to enable the Beignif)r to bring it to sale, and obtain payment. Thus the tenant is liable to heavy costs for the recovery of a sum which, but for the nature of the debt, would have been the subject matter of a suit in a couit of inferior jurisdiction. An instance of the miscliievous tendency of the law in reference to the compulsory observance of seigniorial services, may be found in the case of the censitaire of the seigniory of Beauhamois. The proprietor of the seigniory obtained Letters Patent for the foundation of a land- roll (Icttrcs tie terrier J, that is, the right of compelling the censitaires to take new titles, which consist of an acknowledgement of re-itcration of the terms and conditions of the original grants. ■ Those censitaires who neglected to take such titles, for wliich also they were bound to pay a fee to the notary, wore prosc('Utod, n^id judgments were rendered against them, condemning them to accept new titles, -ind to pay five pounds damages and •costs, for baring neglected to confoim to the requirements of the law. The costs, on 1 ! ! I as 12 an average, amounted to about ten founds, theret)y entailing an expense which, ift Bome instances, would lead to the sale of the tenant's property. See Appendix B NO 123. The files of the Court of King's Bench for the District of Montreal fearfully illustrate the practical working of the system ; for it wilj there be found that, out of the whole number of actions brought in that Court during the last thre years, about one-fifth part were instituted by seigniors for the recovery of rights and services due under the tennre^ Appendix B. 124. N° The result, appearing from oflacial returns and infonnation, is that, during the same period, somewhat more than oiie-tifth of the judicial sales were made at the instance of seigniors to enforce their judgments. Such is the operation of a tenure declared by its apologists to be of surpassing ex- cellence, and suitable to the wants and condition of the inhi:bitant3 of this province: but this is not the view entertained by the inhabitants themselves, who are desirous of a change although they differ in opinion respecting the nature of such change. They declare that their burthens are intolerable, and that unless the Legislature come to their relief, inevitable niin awaits them. Profoundly impressed with the importance of this subject, and its ultimate effect on the prosperity of this province and the welfare of its inhabtiants, we feel that the time has arrived when a change or modification of the law in respect of the tenure of land can no longer with safety be withheld. It has even been asserted, by persons fi-ora various sections of the district of Montreal, that the feudal exactions, and the neglect of the government to enforce the ancient laws of the province in relation to the tenure, conduced in no small degree to the outbreaks in 1837 and 1838, The principal ai'gument used by the advocates of the feudal tenure is that, if the feudal property were converted into free tenure, facilities would be afforded to land speculators to become proprietors of large tracts of land in the seigniories, to the great inconvenience and, in some cases, to the ruin of its inhabitants. This argument is not only ill founded, but wholly inapplicable, for, under the pre- Bent system, in some seigniories, the real land speculators are the seigniors themselves. The lands are brought to sale for payment of t'.e high rents, and the seignior, free from all competition, buys the finest farms for sums scarcely adequate to the payment of the arrears, and makes a traffic of the land by .selling iigaiu ibr largo sums, or by conceding on conditions infinitely more onerous, thereby securing to himself a mono- j)oly ultimately ruinous to his ccnsifaires. The operation of the tenure in this respect is an abuse and a departure from its trie spirit, and one likely to be continued from the very nature of the burthens imposed on the tenant. ■ n In sub clare tha A subj lightly ti tical infoi not be tei intereste( The CO tionable r sideratior to be affe( Vievnn [lity, calle I would be bat regan since its fi subject be It cannf |cf this com It is no litis the r( [growth an Howevt (rable unde pity is no U eral impro Situatec jawrence, bounded on Mesof an , higher sts ^ral advam In the oq prosperity Iminently nan ; in th ystem of a I comparisc A result Mer such i. 73 In submitting owe views upon a scheme of commutation, we feel compelled to de- clare that wo do so with great hesitation and diffidence. A subject of such vast importance to the welfare of the community ought not to be lightly treated, nor should any scheme be propoiJied without possessing all that statis- tical information reklive to the seigniories without which its justice and feasibility can- uot be tested, and without a full knowledge of the views and opinions of those most interested in so great a change. The conversion of a tenure ought not to be recommended without the most unques- tionable necessity, nor should the change be determined upon except upon due con- sideration of the necessary consequences to the rights and privileges of those destined to be affected by it. Viewing a conversion of tenure in the abstract, of as a mere measure of public uti- I Kty, called for by the advancement of a country in intelligence and civilisation, it I would be less difficult to ^ve the general outlines of a plan calculated to effect it ; but regarding the tenure as one imder which the inhabitants of this country have lived since its first settlement, as one intimately blended with their laws and customs, the subject becomes intricate and demands the maturest examination. It cannot be denied that sound policy, for the ultimate well-being of the inhabitants Icf this community, requires that the feudal tenure should be abolished. It is no longer suited to the spirit of the age nor the actual wants of the population ; lit is the relic of a barbarous age, and, in its practical operations, antagonist to the I growth and permanency of free institutions. However advantageous it might have been in the infancy of the colony, and favo- Irable under wholesome restrictions to the rapid settlement of the wilderness, its neces- pityisno longer felt; and in a more advanced community, it operates as a bar to gen- eral improvement and the prosperity of the people. Situated as is this country, with a belt of land on either bank of the River Saint iawrence, and along its tributary streams, held under the seigniorial tenure, but sur- l-ounded on all sides by a population wholly opposed to it, and holding their lands under rules of an adverse character, calculated to create and to cherish opinions in unison with .higher state of civilisation, it is manifest that the force of circumstances and the gen- kral advancement of the country most sooner or later lead to this change. In the one case, we should see a population rapidly advancing to a high state of brosperity in agricultural and mechanical pursuits, holding their lands under a tenure Iminently adapted to foster the principles of freedom and develope the energies of the aan ; in the other case, a population struggling under the artificial and antiquated ^8tem of a by-gone age, with no ultimate hope of relief, and rendered discontented by I comparison with their more fortunate neighbours. A result so certain to arrive, it should be the wise policy of a government to prevent. [Tnder such circumstances, the conversion of a tenure is no longer a matter ofexpe- '•! i ii St 03 ffi I! 74 diency, it is one of necessity, and is the only measure by which one portion of the po. pulation can be rescued from certain degradation. Were the"tenure free, they would feel that they are no longer bound to the soil, they would experience the promptings of a generous emulation, and the necessary result would be the emancipation of a people, and their advancement in all the arts of civilized life. Assuming therefore that the conversion of the teniure would be expedient, it may be inquired whether such a change is wished for by the entire population of the province. Upon the very limited information possessed by us, we cannot found a general opinion as to that point. The subject, although of the greatest importance to the whole community, has not throughout the country, received that degree of attention which it merits. We are possessed of scattered opinions from various sections of the province, but it wotild be improper to take these few communications as the general sense of the whole population. We think that the inhabitants of French origin have no great wish to change the I tenure of their lands, if it weie to be attended by the introduction of any alteration of I the laws affecting their rights, although extremely desirous to be relieved from sei- 1 gniorial burthens. They are anxious to be exonerated from the burthens pressing I most heavily on them, but in few instances do they express a willingness to pay any I equivalent, I The great majority of the English population are in favor of a conunutation, and, in I some instances, seem disposed to give a fair indemnity to the seignior. I Modifications, of the seigniorial tenure requisite to meet the views of the majority I of the French Canadian population we think impraticable, without a great stretchl of power. ^ . I The seignior must receive a compensation for his rights, and this compensation cani only be given by means of a commutation. ,, , . I If the lods et ventcs, banalitc, and excessive rents be taken away without indemnity,! it would be a measure fraught with manifest injustice ; for these rights, to a certain I extent, are incidental to the very tenure, and in that degree are guaranteed by law. Ill the tenure be allowed to continue, these rights must also subsist as an essential part oil it, and the evils arising from it, the removal of which is so loudly called for, must alsol remain unabated. I A commutation, therefore, is the only resource left, and this commutation should bel based on strictly just principles. I Before proceeding to discuss the various plans submitted to us in the course of ouJ inquiry, it is proper to determine the exact position of the seignior towards his cem-^ taire, and the nature of his claims, and to distinguish those rights for which he is intitleJ to an indemnity, from those which are in their nature honorary or conventional, and which ought to be, without any hesitation, utterly abolished. I 76 I of the po. they would promptings ipation of a t, it may be le province, jral opinion ty, has not I a. We are ut it would F the whole change the Iteration of| ed from sei- ns pressing! to pay any tion, and, in he majority rreat stretclii ensation can I It indemnity,! to a certain I d by law. Ifl sntial part o(l )r, must alsol on should bel course of ou rds his ccnsi-l 1 he is intitlcJ entional, an^ The clainu, for whose suirender the seignior is intitled to an indemnity, are, iirat, ihe rent or cens et rentes, comprising the corvics when stipulated ; secondly, the lods ct venteSk These two rights are those upon whicli tlie principle of commutation will cbicfly turn. Reserving the right of hanalite for future discussion, we have to observe, that for all the other rights and claims of the seignior, such as rctrait and resei-vations of every description, except such as are made in the interests of the Crown, tlie seignior is not, in our estimation, entitled to any pecuniary indemnity, and they ought to be for ever abolished ; because the right ofretrait is only admitted as the means of obviating frauds on the seignior, and not as a profitable right, and the reservations vol.*'lI. p!*45 46 50, ^'^^ ^^^ "''''^* P^*^ ^^^ unauthorized by law and repugnant to the and 100. principles of the tenure as introduced into this province. On the firtibject of the rate ofcens et rentes, W3 have already expressed our opinion, and it will rest with the legislature itself to determine that question as it may affect the quantum of indemnity. The various schemes of commutation which have been proposed to us may be classed under three general heads, which will be discussed in their order. The authors of the first scheme conceive that all the rights of the seignior should be extinguished on payment of a capital sum, of which the cens et rentes will be the inte- rest at the rate of six per centum par annum, and of one lods et ventes, in lull and entire extinguishment of the rights under the tenure, such mutation fine being computed on the value of the farm, less the capital of the rent, by ex]}erts or arbitrators, one of whom should be chosen by the seignior, and a second by the censitairc, and by an umpire, who in all cases should be a commissioner appointed by government : that the commutation should be voluntary on the part of the censitairc, and compulsory on the seignior. This scheme is recommended by men of all opinions, and by many whose knowledge and experience are entitled to the greatest respect. It is contended by some of those who enunciate this scheme that one lods et ve?ites so calculated will be an adequate remuneration to the seignior for the surrender of all his rights, apart from the ceris et rentes. The principle, upon which the calculation is based, is that, on an average, every pro- perty in a seigniory changes hands once in not less than twenty years, and that, perhaps, the average may be lower. If then the seignior obtains his mutation fine once in twenty years, the same fine once paid and invested at simple interest, will double itself in fourteen years. It is therefore considered more than an equivalent for the lods et ventes alone, and that the overplus woidd pay for the surrender of all the other rights. This may be considered to be a very equitable scheme, and one which would secure to the seignior, making a judicious investment, a full indemnity for his rights. The 03 76 capital sum thus obtained might either be paid to the seignior or be converted into a rente constituee, with its privileges clearly defined by law, chargeable on the land and redeemable at the will of the censitaire, in sums of not less than five or ten pounds The advocates of this scheme consider that the seignior is not entitled to any further indemnity. In reference to this plan of commutation, we deem it our duty to point out those ob- jections which naturally present themselves, and which might be worthy of considera- tion in framing any bill founded upon this scheme. It is proposed that the commutation shall be voluntary on the part of the censitaire, but compulsory on the seignior. On behalf of the seignior, it may be urged that, if it be optional for the censitaire to commute and not compulsory, such commutation may be forced upon him at all times, on the demand of any one censitaire. By this means, he would be compelled to take his indemnity in small sums, and possibly at remote periods of time. The benefit, therefore, which it is expected he would derive from an investment of his capital to produce a rental equivalent to his rights, would be impaired, while he would be obliged to maintain the same system of expense in agency, &c., for the reco- very of his rents, until it should please the censitaires to commute. This objection is not without reason, but it may be observed that, until the commu- tation takes place, the seignior is still in possession of all his rights, and that, if a limited time were fixed after which it should not be competent for the censitaire to commute upon the same favpurable but upon more onerous terms, this evil or inconvenience would be mitigated or removed ; for this limitation of time would excite the atten- tion of the censitaire to the interest which he would clearly have to effect a com- mutation. But moreover, this objection we deem of no weight when compared to the manifest injustice and hardships which would result to the censitaire, if he were compelled at once to redeem rights which he might not have the means to extinguish. ^ . The censitaires being the more numerous class, in whose well-being that of the commu- nity is more immediately concerned, their interests ought in this particular to preponderate over those of the seignior. On the part of the censitaite it may be urged, that if the scheme should make it com- pulsory on him to commute immediately, he would be burthened, if unable to pay the capital of the indemnity, with the payment of a yearly rent, in the shape of interest beyond the usual cens et rentes, and that, until he chose to sell his land, no mutation fine would accrue, and he vrould have no more to pay than his usual rent. This argument of the censitaire, arising out of purely personal considerations, is merged in the general interests of the commuuity ; and, if it be beneficial to him to effect his liberation from seigniorial burthens, the disadvantage arising from the payment of the yearly interest of a small indemnity, is more than compensated by the enfranchisement of his lands and himself upon favorable terms. It will be observed that in this scheme, no time is specified within which the commutation should take place, and the plan would seem defective in this respect. I 77 The indemnity should ia our opinion be liable, after the eipiration of a ctrtaiu tiine, to ft tmall annual increase ; for the basis of calculation being that all properties change bands once in every twenty years, it should not be in the power of the cendtaire to await until the twentieth year to effect his commutation. J I > Upon the conversion of the seigniorial tenure in France in 1790, the rate of indemnity for the right of lods et ventes was fixed at one twenty-fourth part, or one half a mutation fine, and two years was the period allowed for the commutation on this principle ; but it was provided that, if the redemption was made at any time after the two years, and that a sale of the same property should be effected by a voluntary contract within two years after such redemption, another half of the mutation fine would accrue to the seignior notwith- standing the commutation. A limitation of time as an expedient, as well for protecting the interests of the seignior, as for inducing a speedy enfranchisement, was adopted in the Ordinance respecting the commutation of seigniorial rights in the seigniory of the Island of Montreal. We think that some rule of this description should be followed. •.'>' The second general scheme to which we now refer, is that proposed by the censitaires of the seigniory of De L6ry, Foucault and Lacolle, as set forth in the answers of the Rev. Mr. Townsend transmitted to us. The scheme by them suggested, is to the following effect : 1st. That the censitaire should pay to the seignior a capital sum, of which the rents, that he is legally entitled to demand by his charter, should be the legal interest, with the privilege of paying the capital m sums of not less than two pounds ; 2nd. That he should pay in the same manner a capital sum, of which the annual value of lods et ventes should be the legal interest, which amount should be established by a reference to the seignior's books, and by an average on the receipts arising from that right, for a period of five or ten years. That interest should be allowed to the censitaires on all sums which should be found on such rent day to be over and above the seigniortal dues. That the seignior's present rights should remain intact until the whole amount of the commutation should be paid, upon which final payment the feudal tenure should cease to exist, and the censitaire should obtain a deed m free and common soccage of his land. It is also considered that the Crown should surrender its rights of quint and relief, and that a corresponding diminution should be made in the value of the lods et ventes. By this plan, it is proposed, that all the other rights of the seignior, such as the right of banaliti, retrait, and all reservations should be abolished. This scheme is recommended by the censitaires of Foucault and Noyan, and they expressly deny the right of their seignior to any indemnity for the banaliti, because no banal mill has been built in those seigniories, with the exception of an old mill in Foucault, erected long ago by Mr. Caldwell, but which is altogether insufficient, whereby the cen- sitaires are compelled to go a distance of ten, twenty, and thirty miles, to get their com ground. 6^ 78 This violation of the obligation to build proper mills for the uses of the c^nsUaires, they consider, entitles them to some indemnity fiom the seignior. But they say that in other scig^nioi ies where baual mills have been erected, if it should be considered proper to grunt an indciiiiuty for that right, a like rule might be applied, and a capital taken of the clear yearly rental of the mills, after deduction of all expenses and charges, and of the interest of the capital invested in the mill. The principle of the scheme is that it should bo volimtary for the ccn$itaire to commute, and compulsory on the seignior ; and it is recommended that some definite rules should be established by law, as the basis of commutation, which should be applicable to all rural seigniories, leaving the minor details to be settled by the circumstances of each case. This scheme does not state any particular period within which the commutation should take place, nor does it state in what way the capital sums thus reckoned should be levied in the seigniory ; but it is presumed to be their intention that the capital be divided and apportioned among the farms according to their value, to be ascertained by appraisement. With regard to this scheme, we deem it our duty to declare that, however just the principle may be upon which it is based, that is in giving to the seignior the capital of which the yearly rent is the interest, it is defective on the ground of its being voluntary. If the time for commutation be unlimited, great uncertainty would prevail in ascertainin;r the just value of the various rights, particularly the lo(U et ventes, which is fluctuating in its results, and dependent upon circumstances for increase or diminution. Therefore a certain period should be fixed by law as the time for the valuation of these rights throughout all the seigniories, and that estimate should be taken as the rule for all future commutations ; unless it should be deemed preferable to fix some period by law within which the cetisilaire should be bound to commute. This scheme we cannot but consider as one of great liberality on the part of the censi- taires, and deserving of serious consideration, for it secures to the seignior the full value of his property ; but correct statistical information would be requisite to determine whether or not the apportionment of the capital would not, when the rents are very high, create an incumbrance altogether disproportioned to the value of the farms. In investi- gating this scheme, much will depend upon obtaining accurate information of the annual value of these rights, and, from some details with which we have been furnished, we are inclined to think that it will be calclulated, in the old seigniories, to produce a fair and equitable basis of commutation. On this head, we may be permitted to refer, for illustration, to the seigniories of W. P. Christie, Esquire, by whose censitaires the plan is suggested. Appendix B, No 121. From a statement exhibited by that gentleman, of the annual rental of his seigniories in cens el rentes and lods et ventes, it will appear that the proportion which his reirtal in cens et rentes bears to his rental in lods et ventes, is as four or fire to one. Then, if the lands are charged with an annual cens et rentes of four 79 js of W. P. pence per acre, the additional churge created by adding the lab et ventes will be about one penny. A capital, therefore, of which those two sums would be the interest, that is, of five pence, would be the fiiU amount, upon a recognition of the rights of the seignior in their fullest extent, which he would be entitlee to demand from the censitaires for their surrender ; for this sum would of necessity produce the full amount of his income in both particulars. Thus the commutation would be given upon a payment of a capital of which five pence per acre would be the interest, a sum very littlo more than the present annual Ai)i)onf le va'uc o' 13 a seignio- just equiva- shed on the I hat or*-. of commuta- nodifications, jportionmentl arted in somel net to the scif m of the qui? ibrace all tliJ vious that tli(j [bo exaniinej contrive tlii in the scs.ertie3, it would be levying the indemnity on many properties which had not contributed to the revenue, and would in all probability meet with opposition. Besides, in some seigniories the revenue is greatly augmented by the act of the soig- nior. Thus, by reference to the statement of the sherifl'of Montreal, it will be xbund that the sales of property, for the recovery of seigniorial dues, are as one to live of th^ whole sales in the whole district, a proportion, we think, affording conclusive evidence as to the working of the seigniorial tenure. It would be manifestly unjust to adopt a xevenue thus augmented as the basis of an average to be apportioned over the whole seigniory. It may be added that the sales by the sheriif occur principally in those seig- niories were the rents are exorbitant ; for in the old seigniories, where the rents are low, the mutations are operated by the ordinary transfers oFproperty. The scheme of Mr. Townsend, which is moreover objectionable as requiring the ex- pensive process of an immediate valuation of all the seigniories in the province, may be considered as better adapted to the old seigniories, where the rates of ccns et rentes are unitbrm and low ; but, whether or not it should be preferred to the graduated scale of Chief Justice Reid modified as above, would depend upon an accurate knowledge, which we do not possess, of the actual revenue of the seigniories derived from the right oilods et ventes. It is evident that no great law reform can be devised without the occurrence of individual cases of hardship, and that scheme must be considered the most ^^eligible which contains the best general rule. As we have before stated, the graduated scale of Chief Justice Reid would apply well to the old and highly improved seigniories ; but, in reference to the new seignio- ries, we have to consiucr wliat the charges are for which the seignior is entitled to an indemiiitv from his censitaires. We must hero confess that we have been much embarrassed in our endeavours to discover a scheme of commutation by which the interests and feelings of all parties might bo reconciled, and more especially as regards the quantum of the annual rent, cens et rentes, which, in such cases, ought to be allowed to those seigniors who have either infringed the conditions of their charter, or raised the rent above the legal rate. We have already given our opinion respecting the legal rate of cens et rentes ; but wo are bound, in justice, to report the arguments used by both seigniors and cemituiaret upon this important tubject. % pis r- >^ S6 On behalf of tho seigniors, it is alleged that they have in their favor a long and unin- terrupted possession of the right of (-onccding at any rate to which the ccnsitairc will accede, evidenced by contracts, and sanctioned by the decisions of the courts of law; that, relying on this usage and the judgments of the courts, they have invested their capital in the purchase of seigniories, and have in good faith mortgaged those posses- sions to creditors, and secured on them the lights of their wives and children; that the value of landed property and its produce, when seigniories were first gi'anted, was much lower than ut the pi'esent day, and that it would be unjust to force them to grant their lands at the same rent as was imposed under the French Government, when money was of greater value and every thing comparatively cheaper. On behalf of the ccnsif aires, we are told that, if the standard of rents imposed by some seigniors be illegal, they ought not to be compelled to pay them an indemnity for v/hat is not their duo, and for what never can be considered as a vested right ; and that the seigniors ought to be satisfied with what they have already received ; that whatever may be the .good faith of those seigniors or others who have invested their capital in the pui'chase of seigniories, or taken mortgages on them, their case is not favorable, and that they stand in the position of a creditor who, having secured an /hould it be I deemed proper to maintain the seignioiiai rents as established by contract, and to i^iard the cci>$it at the same time, it would supply the indemnity to those seigniors whose peculiar interests might be unprovided for in a general scheme of commutation. In our views, concerning the suri'ender of this right, we have the good fortune to be borne out, not only by the authority of the committee of the House of Commons in 1828, which recommended that this right should not be suffered to stand in the way of commutation, but we are supported by the almost unanimous opinion of the inhabitants of this province. Having brought to a termination our report touching those branches of enquiry which we have been provided with the means of examining and considering, it remains for us to observe with regret, that we have, from the want of the power of compelling the production of evidence, been unable to acquire the desired information on the other objects submitted for our investigation. The matters which we have thus been forced to leave untouched, are the following ; Ist. — The conditions on which lands have been conceded by sub-infeudation (en arriere-fief). 2ndly. — The probable quantity of unconceded seigniorial lands in the province, and their quality and value, and also tlie quantity of lands conceded but not improved. 3raly. — The value of the seigniorial mills in the province. 4thly. — The annual average otlods et ventes paid or accruing in the seigniories. Ill 91 It is very obvious that on all these subjecta wo coukl expect to obtain any accurate knowledge but from one source, namely, the statements of the proprietors of the seig- niories and of their agents. Accordingly, in addition to the questions proposed to them by the first Board of Commissionners, we addressed letters to the proprietors of seigniories, soliciting them to impart to us information on these various points, either personally or by letter ; but our just expectation of receiving such valuable intelligence has been disappointed, and but very few of the proprietors have deemed it advisable to respond to our solicitations. Those communications with which we have been favored, are not so full or particular as they could, with no unreasonable degree of labour, have been rendered. All which is humbly submitted by Youi* Excellency's most obedient servants, , A. BUCHANAN, . J. A. TASCHEREAU, .lAMES SMITH. Montreal, 29th March 1843. r- as IMAGE EVALUATION TEST TARGET (MT-3) Zk ^ 4 ..v^^* Ja 1.0 I.I 1.25 Hi KS |2.S ■^ 1^ 12.2 110 Hill 2.0 1^ 1.4 III 1.6 ^. V] vW /"y V /A Photographic Sciences Corporation \ iV lO' \\ ^ ;\ k J 33 WEST MAIN STREET WEBSTER, NY. MSQO (716) S73-4»03 ^z^ ^ '•^ ^^ ^ 1 ^ ci^ l> . \ EXTRACT OF APPENDIX B. MO 102 (. lO'J. !'. 304 << 105. << 106. << 107. (1 108. « 109.- << 110.- <. 111.- '. - *.. NO 107. ^ I Judgment of the Cour Royale, relating to the Isle Botichard, on the 25th June, 1745. (Translation.) Between Mrs. Louise Catherine Robineau, widow of the late Francois Degordy, in his I life time Esquire, Chevalier of the Royal Military Order of St. Louis, Major of Three iRivers, seignior of the Isle Bouchard, partly in her own right and partly as tutrix to the [minor children of herself and her said late husband, plaintiff, for the purposes seth forth in Iher declaration, served by the bailiff Compare, on the 3rd day of February last, on the one (part ; and Michel Colin dit Lalibert^, habicant, of the said Isle Bouchard, defendant, on i 1 100 the other part. Having before us the said declaration, concluding that the said defendant be held to exhibit the title deeds by virtue vrhereof he possesses one hundred and twenty arpents of land in the said seigniory of the Isle Bouchard, bounded in front by the Villebon Channel, and in the rear by the River St. Lawrence, on one side by Pierre Larose, Esquire, and on the other by Jean-Baptiste Edeline, and to pay the value of two days of corvie at forty sols a day, and such sum as the Court shall direct for the exercise of the right of fishing since he has been in possession of the said land, and the sum of six livres as the value of a net which the said plaintiff lent him, and also the cens et rentes and seigniorial dues, according to the ancient deeds of concession, of the other habitants of the said seigniory ; and to continue to pay the said rights and dues in future, to pass a titre-nouvel or acknowledgement of the same before notaries, and to deliver a copy thereof in due form to the said plaintiff ; aud having also before us our order of reference to experts made on the 12th of February last, and the certificate of the service thereof on (he said defendant by the said Compari, on the 17th of the same month, with a summons to comply therewith, and the petition fyled ; the said defendant praying, that inasmch as the said plaintiff is not entitled to the said days of corvk, because she has sold the common for which the same are due : she may be ordered to permit him to enjoy the said land as he hath heretofore enjoyed the same, on his passing (as he offers to do) a title in her favor, according to the Custom of Paris followed in this country, and to which he is willing to submit, declaring also that he has, three weeks ago, returned to the plaintiff the net which she demands, and praying costs, and our order thereupon made on the 19th day of the said month, and directed to be served on the parties and inserted in the record of the cause pending between them, to the end that reference may be thereunto bad in the decision of the said cause, (the said petition and order having been served on the said plaintiff by the bailiff Davesne), and th.t exhibits produced by the parties on the 25th day of March last, according to their respective lists, dated the 12th February and the 17th of March last, which they respectively caused to be served on each other on the 17th of February and the 20th of March aforesaid, and the act produced in the office of the Clerk of this Court by the said plaintifl', and bearing date the 19th of February last, and served on the defendant on the 10th of March last : and more especially on the part of the said defendant, a judgment rendered by Mr. Hocquart, then intendant in this country, on the 8th day of July, one thousand seven hundred and thirty, in d cause between the said plaintiff and Marguerite Benoit, widow of the late Jean-Baptiste Edeline, on behalf and in her quality of mother and natural tutrix to Jean-Baptiste Edeline, her minor son, whereby, on the claim made (among other things) by the said widow Edeline, to be discharged from the said days of corvee, the action was dismissed, and an acquittance granted by the said plaintiff to the said defendant on the 11th of November, one thousand seven hundred and forty-three, for the cetis et rentes on his laud in her seigniory for the said year one thousand seven hundred and forty-three ; and on the part of the said plaintiff a deed of concession made by the said late Sieur Degordy to Jacques Foisy, of eighty-six arpents of land, or thereabouts, in the said seigniory of the Isle Bouchard, before Mtre. Baimbault, notary, on the 14th of December, one thousand seven hundred and nine, on the conditions and subject to the clauses and charges therein set forth ; and a judgment rendered on the 3rd of June, one thousand seven hundred and fourteen, by Mr. Begon, then intendant in this country, whereby the habitants of the seigniory of the Isle Bouchard are eondenued to render to the said Sieur Degordy the days of corvee mentioned in their 101 respective deeds of concession, and whereby the time at which the said days ought to be given are regulated, and the other exhibits produced by the parties, and the conclusions taken by the attorney-general on the 14th of the present month. And having duly considered the whole, we have condemned the said defendant to pay to the said plaintiff the sura of three livres for two days of corvee for the year now last past, together with four livres ten sols, one sol of cens and six capons for one year's cetis et rentes, due on the 1 1th of November last, the whole lawful currency of France ; and to render and pay the said cens et rentes and corvies yearly ; and we condemn him also to return the nets lent him by the said plaintiff or to pay her the value thereof, to be esti- mated by appraisers to be agreed upon by the parties ; and also to account for and deliver to her the eleventh part of all fish which he hath taken during the last year, or shall hereafter take ; and to execute in favor of the said plaintiff a new title and acknowledge- ment of the dues aforesaid, before a notary, and to furnish her with a copy thereof within fifteen days ; and in default of the said defendant so to do, this, our judgment, shall avail to the said plaintiff as a title. And we condemn the said defendant to pay the costs taxed at sixteen livres and fifteen sols, the coibt on this judgment not included. And we command, etc. Done at Montreal, the twenty-fifth day of June one thousand seven hundred and forty-five. Signed, Guiton, Monrcpas. On one side is written, to us; six livres ; to the attorney general, iour livres ; to the prothonotary, four livres. (Signed) DAURfe DE BLENZY. We certify that the above is a correct copy of a judgment of the same date in the registers of the Caur Roy ale at Montreal, in our custody. (Signed) MONK & MORROGH, Prothonotary. Montreal, 15th Aigust, 1842. r— r— NO 108. Concession hy Sieur de la Valtrie to Frt. Lapointe. (Translation.) 15th June 1780. Before the undersigned Notary Public for the Province of Quebec, District of Mont- real, residing at Terrebonne, and the witnesses hereinafter named, personally appeared Pierre Morganne, Esquire, Sieur de la Valtrie, seignior thereof, and of Terrebonne, Mascouche and other places ; i'i Li:.i I ! I I 102 Who hath by these presents granted and conceded henceforth and for ever, d titre fie cw and on condition of the payment of seigniorial and irredeemable ground rent, with warranty against all trmibles and hindrances whatsoever, unto Fran9ois Gaudard dit Lapointe, farmer, residing at Mascoiiche de Terrebonne, hereunto present and accepting the same, to be holden by the tenure aforesaid, for himself, his heirs and legal representatives for ever, a certain lot of land of two arpents and ten feet in front by forty arpents in depth, lying and being on the north side of the River Ste. Marie, in the said seigniory, bounded in front by the said river, and in depth by the lands on Le Bras, on one side to the north-east by the lands of Joseph Chaimiont, and on the other to the soulh-west by those of Gabriel Forget ; The said grantee being, before the passing hereof, in possession of the said lot which lieth within and is holden of tho said seigniory, and is hereby charged with the pay- ment to the seignior thereof of two soh ioumoin for each superfieial arpent, and five «oli of cens for the whole lot, according to the usage and \ custom followed in this country, payable yeirly, commencing at Martinmas, the 11th day of November next, and so continuing yearly for ever, the same being for ceru ann seigniorial irredeemable ground rent, the said cens carrying with it the right of lods et ventes, defaut, seizure and fine, when and so oflen as the same shall accrue, with the right to the said seignior of taking the land hereby conceded in case of the sale or mutation equivalent to sale, of the whole or of any part thereof (even in preference to the relations by blood), on re- imbursing to the purchaser the price he may have paid, with his lawful charges and disbursements, the proprietor of the said land being subject also to the obligation t' carry his grain to be ground at the mills of the said seigniory, without the right of causing it to be ground elsewhere, on pain of the forfeiture of such grain and fiiio, and also on pain of paying to the miller of the seignior the toll on the grain he shall have so carried t > be ground elsewhere. To be the said land held, enjoyed and disposed of by the said grantee, his heirs and legal representatives henceforth and for ever, as to them shall seem meet, but without power to him or them to convey the same or any part thereof to any conununity or party holding in mortmain, or to impose cens upon cens. The said land being conceded subject to the charges aforesaid, and also on condition that the proprietor shall allow thereon all roads, bridges and other like things which the said seignior shall deem necessary for public utility, and shall keep the same pass- able ; and that the said seignior, inn heirs and legal representatives shall have the right of taking from off the said land such timber as may be required for his mills, or for any church, parsonage house, principal manor-house, or other work of public utility, or for his private use, without paying any price or indemnity for the same; And that the said grantee shall not build any grist mill or saw mill without the per- mission in writing of the said seignior, who hereby reserves for himself all rivers and wdter courses on which such roillB can be constructed. And the said grantee shaH be bound to reside and to perform the duties of actual settlement on the land hereby conceded, and to clear the same for his use as such clear- Ill 103 ance shall become necessary, and to pay the tithes to the cure ; all which the said grantee promises and binds himself, his heirs and legal representatives to do and per- form, and to pay the seigniorial cena et rentes, at the place appointed for that purpose, yearly at Martinmas aforesaid, the 11th day of November next, and so to continue as long a& he shall hold and possess the said land or any part thereof. And the said seignior hereby expressly reserves for himself all mines and minerals which may hereafter be found on the land hereby concedod, and also the right of taking out of all quarries and other places such stone as he may require for mill stones or for bmlding, and of disposing of the same in such a manner as to him, his heirs and legal representatives shall deem expedient. And the said grantee binds himself to improve the said land and to keep it in ^uch state that the said cens et rentes may easily be levied annually from off the same. And for the due performance of all the foregoing clauses and conditions the said grantee hereby hypothecates all his property moveable or immoveable, present or fiiture, nor shall the general and the sp cial obligation in any wise derogate from or impair the one or the other. And if the said grantee, his hc./d or legal ropi-esentatives, shall fail to comply with the clauses and conditions hereinbefore .dtcen, it shall be lawful for the said seignior to re-enter of full right upon the lanl hereby conceded, without being boimd to any previous suit or legal proceeding whatever, these presents remaining nevertheless in force and virtue ; and the said grantee shall moreover cause the said land to be mea Bured and bounded throughout its whole length and breadth by a uwom surveyor, and shall, at his own cost and charge, furnish a copy of the proces-verbal of the survey and of these presents to the said seignior. For thus, &c. ; promising, &c. ; obliging, &;c. ; renoimcing, Sec. Done and passed at Terrebonne, in the forenoon of the 15th day of June, in the year 1780, in presence of CI aude Romant, merchant, and Pierre Le Fort, bailiff, wit- nesses, who have signed with the said seignior on the original remainding of record in my office, the said grantee having declared himself unable to write or sign his name, being thei-eunto requested, these presents being first and duly read over. ■ •*■■ • 331 (Signed) DUSAULT, N. P. l\ 104 NO 109. Concessiofi by Sieur de la Valtric to Andre Gautkier. (Translation.) 9th July, 1782. Before the undersigned notary public for the isle Jesus, Terrebonne and other places, in the district of Montreal and province of Quebec, residing at the village of Terrebonne, and the witnesses hereinafter named, and by order of Pierre Marganne, Esquire, Sieur de la Valtiie, seignior of Terrebonne aforesaid, Mascouche and other jjlaces ; - • Who hath by these presents granted and conceded henceforth and for ever d titre de cens, on condition of paying the cens and the seigniorial and irredeemable ground rents hereinafter mentioned, with warranty against all claims and hindrances whatso- ever, unto Andre Gauthier, farmer, residing at La Grosse Chaussee, Mascouche de Terrebonne, hereunto present and accepting the same on the said tenure and terms for himself, his heirs and legal repi-esentatives for ever, a certain lot of land of three ar- pents in front by forty in depth, lying at La Grosse Chaussee aforesaid, and bounded in front by the lands of Antoine Frajour dit Bonneterre, and in the rear by those of Bazil Huot and Francois Payet dit St. Amour, on one side to the north east by the lands of Leonard Peltier, and on the other side to the south west by those of the said Payet; the said land hereby conceded being within and holden of the seigniory afore- said and hereby charged with the payment to tho srignior of two sols tournois for each superficial ai-pent, and five sols of cens for the whole land so conceded, according to the ancient custom followed in this country, the same being payable on the fifteenth day of January next, and on the same day in each year thereafter, the said cens carrj'- ing with it the seigniorial rights of lod'i et rentes, difant, seizure and fine whenever the same shall accrue, and also the right of pre-emption in favor of the seignior in the case of the sale or ulienation equivalent to sale, of the whole or of any portion of the lot hereby conceded, even in preference to the relatives by blood, on his re-imbur- sing to the piu-chaser the price by him paid, with his lawful costs and disbursements ; subject also to the oblic[ation on the part of the grnntee to grind his grain at the mills of the said seigniory, without tlie riglit of causing them to be ground elsewhere, on pain of forfeiture of such grain and fine, and of paying the toll on all grain which he shall have caused to be ground elsewhere. The said land hereby conceded to be enjoyed and disposed of by the said grantee his heirs and legnl representatives henceforth and for ever, as to them shall seem meet, by virtue of these presents ; but nevertheless without power to sell or convn^ the same or any part thereof to any community or party holding in mortmain, or to impose cent upon cem. navseiLtt'f 105 1782. and other village of tfarganne, and other ver d titre •le ground es whatso- icouche de I terms for »f three ar- d bounded y those of jast by the of the said iory afbre- mrnois for according e fifteenth '.ens carry- whenever »eignior in portion of re-imbur- irsements ; he mills of on pain of shall have id grantee 3em meet, the same ipoae cens The said land being conceded subject to the charges aforesaid, and also on condition of allowing thereon all roads, bridges and other like things of public utility which the said seignior shall deem necessary, and of keeping the same passable ; and the seignior, his heirs and legal representatives shall also have the right of taking from off the said land such timber as shall be required for his mills or for churches or personage-houses, or for his principal manor house, for the public utility or for his or their private use and without paying an indemnity therefor ; nor shall the said grantee build any grist- mill or saw-mill without permission in writing, the said seignior reseiTing for himsolf all rivers and water courses adapted for the construction of any such mills. And the said grantee shall be bound to reside and to perform the duties of actual settlement on the said land, and to clear the same so as to afford air and light to his neighbours as need shall be, and to pay tithes to the cure ; all which conditions the said grantee for himself, his heirs and legal representatives hereby promises to perform and to pay the said seigniorial cens et rentes, at the place to be appointed by him for that purpose, on the fifteenth day of January in each year, so long as he or they shall remain in possession of the said land or of any part thereof. And the said seignior hereby expressly reserves for himself, hi? heirs and legal re- presentatives, all mines and minerals which may hereafter be discovered on the said land, and also the right of taking at his pleasure from quarries and other places all such stone as may be required either for mill-stones or for building ; and the said grantee binds himself to improve the said lot and to keep it in such a state as that the cens et rentes may easily be collected yearly upon the same ; and for the due execution of the foregoing clauses and conditions, the said grantee hereby hypothecates all his property moveable and immoveable, present and future, in such manner that the goncral hypo- thec shall not derogate from or impaii* the special ; and if the said grantee, his heirs or legal representatives shall fail to perform tlio clauses and conditions aforesaid, it shall be lawful for the said seignior to-enter of full right upon the land hereby conceded without any previous suit, legal form or proceeding whatsoever, these presents remain- ing nevertheless in full force and effect ; and the said grantee shall cause the said land to be measured and bounded throughout its length and breadth by a sworn surveyor, and at his own cost to furnish a copy of the proces-verbal of such survey and of these presents to the said seignior. For thus, &c., promissing, &c., obliging, &c., renouncing, &c. Done and passed at TeiTebonne in the afternocm of the 9th day of July, in »ho year one thousand seven hundred and eighty-two, in presence of Pierre Le Fort, who hath signed, and Germain Gariepy, who with the said grantee have declared themselves unable to write their names, but have made their ordinary marks ; the original of these presents remaining of record in the office of the undersigned, being firfit duly read over. Hi r— • (Signed DUSAULT, N. P. 106 NO 110. Troceedings and judgment in the Court of King's Bench, Quebec^ in case Ducltcs- (Translation.) nay rs. Hamilton et al. NO 1. PROVINCE OP LOWER CANADA, i J IN THE KING'S BENCH. DISTRICT OF QUEBEC. } Michel-Louis JucHEREAU DucHESNAY, - Plaintiff, vs. " '• ■ William Hamilton and Martin Kelly, Defendants. To the Honorable the Justices of His Majesty's Court of King's Bench for the District of Quebec ; Michel-Louis Juchereau Duchesnay, of the city of Quebec, esquire, seignior of Fos- sambault and Gaudarville, complaining of William Hamilton and Martin Kelly, traders, residing in tlie said city of Quebec, by this his declaration humbly re- presents : That the said defendants are in possession of and hold a certain lot of land and ha- bitation situate in the parish of Ste. Catherine, in the said seigniory of Fossambault, in the fifth concession of the said seigniory, the said lot being three ai*pent8 in front by thirty-four arpents or thereabouts in depth, and bounded in front towards the south by the River Jacques Cartier, and in the rear towards the north by the lands of the seventh concession, on one side towards the east by the lot commonly known as number twenty- six, and on the other side towards the west by the lot commonly known as number twenty-four ; which said lot of land and habitation the said defendants acquired from one John Walsh, in the course of the year now last past. That the said lot of land and habitation is charged in favor of the said plaintiff with four pence currency, as seigniorial cens ct rentes on each Huj)erficial arpent, and is sub- ject to the right of conventional rctrait and to divers other seigniorial and conventional rights, as the neighbouring lands likewise are. That the said 'Itjfendants refuse not only to pay to the said j)laintiff the said cens (t rentes, of which they owe him three years aiToars, but also to pass in his favor an ac- knowledgment t)f the said cens et rentes and other seigniorial and conventional rights I with which the said land is chai'ged in his favor. ' se Duclics- laintifi*, LLY, efendants. ;ench for the Tiior of Fo8- artin Kelly, humbly re- land and ha- sambault, in J in front by the south by f the seventh aber twenty- n as number ;quired from plaintiff with t, and is sub- convonticaal I I said ecus (I favor un ac- itional i-igbts 107 All which allegations the said plaintiff avers to be true and well founded in fact and ia law, and offers to justify, prove and maintain when and in such manner as this ho- norable court shall be pleased to direct. Wherefore the said plaintiff prays that a writ may issue out of this honorable court to compel the said defendants to be and appear before this honorable couit on Monday the second day of October next, to answer the demand of the said plaintiff in this de- claration contained ; — and that for the causes aforesaid and by the judgment of this honorable court the said William Hamilton and Maitin Kelly, and each of them, may be condemned to pass in favor of the said plaintiff, as seignior of the said seigniory of Fosssambault, their declaration in due form and before a notary, to be agreed upon by the parties, or in defatilt, to be appointed by the court, such declaration containing : Ist. A specification of the title by virtue whereof the said defendants have become proprietors of the said lot of land and habitation ; 2nd. A description of the said lot of land by its present metes and bounds, and an exact statement of its measure and content ; 3rd. A statement of the cens et rentes and other obligations and dues, seigniorial or conventional, with which the said land is charged in favor of the said plaintiff, as sei- gnior of the said seigniory of Fossambault, mentioning also the time and place when and where the said obligations and dues are to be paid and perfonned ; — and that the said defendants may be also condemned to pay to the said plaintiff the airears of the said cens et rentes and other seigniorial dues, with ten pounds currency for damages and costs. (Signed) VALLIERES DE ST REAL. 12th September, 1826. Pbovince of Lower Canada, District of Quebec. No. 1376. NO- 2. ■■ IN THE KING'S BENCH. Michel Louis Jucuisreau Duciiesnay, Plaintiff, vs. William Hamilton, Defendant. And the said William Hamilton, for answer to the demand contained in the declaration of the said Michel Louis Juchercau Duchesnay, in this cause fyled, not confessing or acknow- ledging the truth of any of the matters and things in the said declaration set forth and al- r-- Xia T^ 108 leged, except thai the said William Hamilton is the proprietor or possessor of the lot of land therein mentioned, by this his perpetual peremptory exception in law, saith, that the said plain- tiff cannot by law at any time hare and maintain any action against the said defendant for and by reason of any of the matters and things set forth and alleged in the said declara- tion, because at the time when the said defendant acquired the said lot of land from one John Walsh, by an instrument under private signature, bearing date the 3rd day of Februa- ry, one thousand eight hundred and twenty-five, (which said instrument was thereafter ra- tified and confirmed by the said plaintii!', by another instrument under private signature, bearing date the 12th day of February in the said year) the amount of the eens which the said defendant was to pay to the seignior within whose censive the said land lay, was not stipulated nor mentioned, either by the plaintiff or the said John Walsh, to the said defen- dant. Because the said William Hamilton has never refused to pass a title, declaration and acknowledgment of the cens et rentes and other seigniorial charges due to the seigniors of the place in which the said land is situate, at the rate of one sol, tournois currency, for each superficial arpent, which is the rate at which a great number of the lands situate in the same seigniory with the land in question have been conceded ; which said title and declaration the said defendant hath often, before the commencement of this action, offered to the seignior of whom the said land isholden, on the conditions aforesaid. Because, by the law in force in this Province, the seignior is bound to concede his lands at the ordinary rate at which lands have been conceded in his seigniory. All which allegations the said William Hamilton avers to be true and well founded in fact and in law, and the same will verify, prove and maintaun when and in such manner as this honorable court shall be pleased to direct. Wherefore the said William Hamilton humbly prays that, for the reasons aforesaid, the action of the said Michel Louis Juchereau Ducheanay may by the judgment of this honor- able court be dismissed with costs. This 9th day of October, 1826. (Signed) N. AMIOT, Attorney for defendant. ■ • f .( .' •'^ 1 I ' • J ." / t M * - , 109 ot of land said plain- endant for d declara- I from one f Februa- reafter ra- signature, which the jf was not said defen- :iration and seigniors of y, for each n the same aration the seignior of his lands at ided in fact iner as this tresaid, the this honor- lant. NO- 3. Province of Loweb Canada, District of Quebec. No. 1376. m THE KING'S BENCH. M. L. J. DUCHESNAT, Plaintiff. vs. .1' William Hamilton & Martin Kelly, Defendants. Michel Landry, one of the sworn bailiffs of His Majesty's Court of King's Bench of and for the district of Quebec, hereby certifies on his oath of office, that on the 28th day of February instant, before eight o'clock in the evening, at Quebec, he personally served the original judgment hereunto annexed on William Hamilton, one of the defendants in this cause, by then and there delivering to him a true copy thereof, and then and there exhibit- ing to him the original of the said judgment. Quebec, 28th February, 1827. (Signed) M. LANDRY, B. K. B. Province op Lower Canada, ) [ IN THE KING'S BENCH. District of Quebec. j The 12th day of February, 1827. NO- 1376. Michel Louis Juchercau Duchesnay, Esquire, of the city of Quebec, in the county of Quebec, in the district of Quebec, seignior of Fossambault and Gaudarville, Plaintiff ; vs. William Hamilton and Martin Kelly, of the city of Quebec, in the county and district of Quebec aforesaid, traders, Defendants. The court having before it the written and oral evidence fyled of ;'ecord in this cause, and having heard the parties finally upon the merits of the present action, and on the whole ma- turely deliberated, considering that the plaintiff hath discontinued his action as against Mar- I:' .-I, J if no tin Kelly, one of the defendants, condemns William Hamilton, the other of the defendants, to execute and pass in favor of the said plaintifl' a declaration in due form before a notary, to be agreed upon by the parties, at the office of the Prothonolary of this court, within fif- teen days from the service of the present judgment, or in default, after the expiration of the said period, to be named by the court, which declaration shall contain : — 1st. A specifica- tion of the title by virtue whereof the said defendant hath become proprietor of the lot of land and habitation designated in the declaration fyled in this cause ; — 2ndly. A descrip- tion of the said lot of land by its present metes and boundaries, and also an exact statement of its measures and contents ; — 3rdly. An acknowledgment of the cens et rentes and other seigniorial and conventional obligations and dues wherewith the said land is charged in favor of the said plaintiff as seignior of Fossambault, mentioning also the time and place when and where the said obligations and dues are to be performed and rendered ; and the court also condemns the said William Hamilton to pay to the said plaintiff the arrears of the said censet rentes, at the rate of four pence currency, per annum, for each superficial ar- pent of the said land and habitation, and also the arrears of all other seigniorial dues witii which the said land is charged ; and the court also condemns the said defendant to pay to the plaintiff the sum of five shillings currency, for damages, and the costs of the present action. (Signed) PERRAULT &. BURROUGHS, r. B. R. NO 111. Proceedings and Judgment in the Court of King's BencJi, Montreal, in the case of Sir J. Johnson vs. Hutchins. PROVINCE OF LOWER CANADA. IN THE KING'S BENCH. Sir John Johnson, PlaintifT; vs. .John S. Hutchins, Defendant. An action brought by the plaintiff, as seignior of the seigniory of Argenteuil, against the defendant for lods ct ventes on two certain lots of land situate in the said seigniory, namely: " two lots of land on the north side of North River, containing one hundred superficial acres each, bounded in Iront by the said North River, iu the rear by un- granted lands, on the eaat side by Phineas Hutchiiw, tind ou the west Hide by the ru- priweRt«tiT«s of Dudley Stone." ttt To this action tho defendant pleaded that, on the 3rd December 1796, by a certain deed of sale or instrument in writing duly made and executed before Lukin and De- lisle, Public Notaries, and bearing date the same day and year, Patrick Murray, Esquire, the then seignior of the seigniory of Argenteuil, did give, grant and concede to one Jedediah Lane, Junior, his heirs and assigns, the above described lots of land, and that the said Patiick Mun-ay did, in and by the said deed of sale or instrument in writing, resign, give up, quit and release to the said Jedediah Lane, his heirs and as- signs for ever, all the right and pretension which he might have, as to eny mutation or alienation fine, under the description otlocls et ventes, retrait or otherwise, and also the toll commonly called hanalite, and in general every other right and pretension as seignior over his terre-tenant, except the quit rent therein reser\'ed, to have and to hold the above granted and described premises, with the appuitenanras, rights and privileges, unto the said Jedediah Lane, his heirs and assigns, for their own proper use, benefit and behoof forever, and the said grant or conveyance of the said tracts or parcels of lands, mentioned or described in the said deed of sale or instrument, was made in consideration of the sum of fifteen hundred Spanish silver dollars, which the said Jedediah Lane paid to the said Patrick Murray before the execution of the said deed of sale, and also for and in consideration of an annual quit rent of one halfpenny for every forty acres of land contained in the said deed of sale, which tlie said Jedediah Lane, for himself, his heirs and assigns, did, in and by the said deed of sale, covenant, promise and agree to pay to the said Patrick Murray, on the 11th day of November of every year, at the manor or seigniorial house of the Seigniory of Argenteuil. ,.. ^ And the said defendant avered that the said two lots or tracts of land, mentioned in the declaration of tho said plaintiff, had been regularly transfeired, conveyed t.nd made over to him the said defendant, and that he the said defendant held the same under and by virtue of the said deed of sale or instrument in writing from the said Patrick Murray to the said Jedediah Lane, with all the privileges and exemptions therein men- tioned, contained and set forth ; and that the same was not liable to the payment of any lods et ventes or cens et rentes, or any rent whatever, other ^than the said quit rent of one half penny for every forty acres of land ; and lastly that he the defendant had always been ready and willing to pay to the said plaintiff the said quit rent of one half penny for every forty acres of land on the said two lots of land mentioned and described in the declaration of the said plaintiff, and had repeatedly offered and tendered the same to the said plaintiff. S3 The plaintiff replied that the said instrument mentioned in the said plea of the said defendant was null and void, the said Patiick Murray, Esquire, as seignior as afore- said, having no power and being wholly incompetent by law to make and enter into the said deed of sale ; that he the said Patrick MuiTay, as the seignior as aforesaid, could not dispose of, or divest himself of any part of the said seigniory of Argenteuil, in an uncultivated state (en bois debout), for any sum or sums of money, being bound by the laws of the country to gi-ant and concede the same for an annual ground rent (d titre de cens et rentes scigncuriales), and for the ordinary and usual seigniorial rights, profits and issues ; that he could not, by any act, deed or instrument in writing, change the tenure of the said seigniory or any part or parcel thereof, or resign, give 112 up, quit and release his pretensions as seignior of the said seigniory of Argenteuil, to any mutation or alienation fine, under the description oi'lods et i3eutes,retrait or other- wise, or to the toll commonly called banalite, or to any other right or pretensions as seignior as aforesaid, contrary to the positive law of the land. That even admitting that the said pretended acts, deeds or instruments in writing were legal, valid and binding in law (which the said plaintiff did not admit, but, on the contrary, wholly denied), he the said plaintiif ought to have and maintain his action and demand aforesaid, because he said that, on the 19th day of March 1807, the said seigniory of Argenteuil was seized and taken in execution by the sheriff of the district of Montieal, under and by virtue of a writ of execution issued out of the Court of King's Bench at Montreal, at the suit of the said plaintiff against the lands and tene- ments of the said Patrick Munay, Esquire, James Murray, Esquire, and Elizabeth Smith, jointly and severally, as belonging to the said James Murray, including all and every the tracts and parcels of land mentioned and described in the said plea of the said defendant ; which said seigniory was afterwards, on the 2 Ist November 1807, by the said sheriff sold and adjudged to him the said jilaintiff. And the said plaintiff, without admitting the legality of the said acts, deeds or in- struments in wrriting, or of either of them, averred that the said seigniory of Argen- teuil having been sold (decretee) by the said sheriff, including all and every the tracts and parcels of land mentioned and described in the said acts, deeds or instruments in writing, and in the said plea of the said defendant, with the right ofcens et rentes, lods et ventes, retrait, reversions and all other seigniorial rights and dues whatsoever, in, upon and out of all and singular the lands, tenements and hereditaments therein granted, sold or conceded, \vithout exception or reserve, had cleared and done away (purge) every right, claim, demand, mortgage or exemption which the said defendant, or any other person, might or could have claimed, under and by virtue of the said a5ts, deeds or instruments in writing, and particularly the said deed of sale or instrument in writing ofthe said Patrick Murray, Esquire, to the said Jedediah Lane, Junior. Monday, the 20th day of April 1818. Presimt : The Honorable C'hief Justice Monk, " Mr. Justice Rf.id. No. '/ Sir John Johnson, Plaintiff', John S. Hutrins, " Defendant. The Court having finally heard the parties by their counsel upon the evidence and titles produced, and in consequence ofthe interlocutory ofthe 18th October 1816, it 113 is considered that the aaid plaintiff do recover from the defendant the cent et rentes, at the rate of three bushels of wheat and five shillings in money for every ninety super- ficial acres, due upon the lot of land held by the defendant, as his property, in the seig- niory of Argcnteuil, and described in the title exhibited by the said defendant, as making altogether " one hundred and ninety-six acres, two quarters and twenty-six rod.^, superficial measure, bounded in front by the North River, and in the rear by un- conceded lands," to wit : The sum of forty pounds eight shillings for arrears of the said cens ct rentes, on th« said lots of land, from the 21st day of November 1807, the day of the sale and adjudi- cation of the seigniory of Argenteuil to the plaintiff by the sherifl', and also that the plaintiff do recover from the said defendant the sum of thiee shillings and twopence half a penny, the fine imposed by law for the non-exhibition of his titles to the said plaintiff as his seigfnior, the whole with costs. (True copy) (Signed) MONK & MORROGH. Prothy, NO- 112. Judgment Court of Appeals, Sir J. Johnson vs. Hutchim. Province of- \ Lower Canada. ) COURT OF APPEALS. The 20tii Januarv, 1821. John S. Hutchins, Appellant ; and Sir John Johnson, Baronet, • Respondent. The. parties by their counsel having been heard, it is by this court considered and adjudged that the judgment of the court of KiQ|^'s Bench for the district of Montreal in this cause, of the twentieth day of April in the year one thousand eight hundred and eighteen, be and the same is hereby reversed in so far as the same relates to the rente therein mentioned, at the rate of three bushels of wheat and five shillings in money for every ninety superficial acres of land, and thereupon, by this court, it is further considered and adjudged, that the annual quit rent of one half penny for every forty acres of land contained in the deed or instrument of writing, made and executed before Lukin and Delisle, public notaries, on the third day of December, in the year of our Lord one thousand seven hundred and nin ety-six, A3 114 hy and between Patrick Murray, then seignior of the seigniory of Argentcuil, and Jedediali Lane, junior, was and is by law cens, and as such, a recognition that the said land was and la held en roture of the seignior of the said seigniory of Argenteuil for the time being, ac- cording to law ; and in consequence thereof, it is, by the consideration of this court, adjud- ged that the appellant in this action do pay to the respondent therein one shilling, being the cens no due upon the lot of land held by the said appellant and in the declaration in this cause fyled described, and thereon accrued between the twenty-first day of [November, one thousand eight hundred and seven, and the sixteenth day of January, one thousand eight hundred and thirteen, with the further sum of four pounds two shillings and six pence, being the amount of lods et ventes due and owing to the said respondent by the said appellant's ac- quisition of the said lot of land by deed passed before Lukin and Desautel, notaries public, on the third day of June, one thousand eight hundred and thirteen, with costs as well of thiii court as of the court below, reserving to the said respondent all other his lawful recourse for any other iods et ventes or other seigniorial rights which may legally be due and owing by the said appellant to the said respondent for or by reason of his said acquisition of the said lot of land, or be legally due or owing or charged upon the said lot of land in any way wltat- cver. And if is ordered that the record be remitted to the court below* By the court, (True copy of a copy,) , , , (Signed) MONK & MORROGII, Frothy. NO- 113. Judgment of the Court of King's Bench, Montreal, vt the case of McCallum va. Grey. Province or Lower Canada, ) [ COURT OF KING'S BENCH, District of Monreal. ) Friday, the eighteenth day of April, one thousand eight hundred and twenty-eight. Present : The honorable Chief Justice Reid, <« « Mr. Justice Foucher, « " Mr. Justice Uniacke. James McCallum, of the city of Quebec, in the district ol Quebec, in the Province of Lower Canada, Esquire, , I PlaintiiT; vs. William GrBY, of the seigniory of St. James, heretofore part of the Township of Sherrington, in the district of Mont- « real, yeoman, Defendant ; and Janet McCallum, of the city of Quebec, widow of the late James McCallum, deceased, and others, PlaintilV, by Reprise (tinstancc. The Court having heard the parties by their counsel, examined the proceedings and tlie evidence by them respectively adduced, and it appearing to this court that the defendant, I Jededialt was and la being, ac- urt, adjud- being the tion in this ember, one usand eight ence, being lellant's ae- ries public, ivell of t\m ecourse for ,d owing by 1 of the said ' way wliat- 'rothy. 7allum vs. jr-eigbt. 10 district ol .quire, intitf ; !s, heretofore rict of Monl- ; and w of the late I tancc. dings and tlie | Ihc defeudast, 115 William Grey, had been by the late James McCallum, heretofore plaintiff* in this cause, loli- cited and induced to occupy and possess the lots of land in question, and to cultivate and im* prove the same, under a promise on the part of the said late James McCallum, that he would give and grant to the said William Grey, and to his heirs, a good and sufficient title and deed of conveyance of the said lot of land, but that the terms and conditions upon which said title and deed of conveyance was to be made and given had not been proposed by the said late James McCallum, nor any stipulation had by and between the parties in re- gard thereof ; and it further appearing that the said AVilliara Grey did, in good faith and under such assurance on the part of the said late James McCallum, enter upon and take possession of the said lots of land, and hath from and since the year one thousand eight hundred and nineteen, with the knowledge and consent of the said late James McCallum, held and occupied the same, and hath made considerable improvements thereon ; and con-> sidering that, by the la>"s, usages and custom of this Province, and in order to facilitate and encourage the settling antl o.learing the waste lands held in ^f^ and seigniory therein, every subject of His Majesty is 'utitled to demand and obtain, from every or any seignior holding waste and ungranted Inntts in his seigniory, a lot or concession of a portion of said waste and ungranted lands, to be by every such subject, his heirs and assigns, held and possessed as his and their own proper estate, for ever, upon the condition of cultivating and improving^ the same, and of paying and allowing to every such seignior the reasonable, usual and ordi- nary rents, dues, profits and acknowledgments, which, by the feudal tenure in force in this Province, are paid, made and allowed to such seigniors by their tenants or censitaires, for all such and similar lots of land ; the said James McCallum, therefore, as seignior of the said seigniory of St. James, could not, nor can the plaintiffs by Reprise d'instance his legal representatives, maintain the present action to eject and put out the said William Grey from the possession and occupation so by him had and obtained of the said lots of land, but that the said William Grey, under and by virtue of the consent and promise aforesaid of the said late James McCallum, and by the possession and occupation aforesaid of him the said William Grey, so had and held, he the said William Grey, did acquire, and now hath a right to retain and possess the said lots of land in the said seigniory of St. James, and to have and obtain from the said phinlifls by Reprise d''i}ista7Ke, or other legal representatives of the said late James McCallum, a goodand sufficient title and deed of conveyance of the said lot of land to him the said William Grey, his heirs and assigns, on condition of p^iying and allowing to the said plaintiffs by Reprise d'instance, or legal representatives of the said late James McCallum, being seigniors and proprietors of the said seigniory of St. James, the reasonable, usual and ordinary rent.*, dues, profits and acknowledgments, which, by law, the said plaintiffs by Reprise d'in' stance, or other the legal representatives of the said late James McCallum, as seignior* and proprietors as aforesaid, are or may be entitled to claim, demand and have, as the legal consideration for the said lots of land ; and it is therefore considered and adjudged that the present action be dismissed with costs to the said William Grey, saving to the said plain- tiffs by Reprise d'i,nstanee their further recourse as they may be adtistd. (True copy.) (Signed) xMONK 5t MORROGII, P. K. 'B. 116 I , ' Procefdingt and Judgment* in the Kvtg^a Bench, Montrtal, in case Guichard vh. Junet. \ DISTRMT i OF MONTKKi rKKAf,. ) A. KING'S BENCH. Juno Term 182S. Henuibttb (iuichai/d 5f ai., Plaintifis, f*. JoUN .loNES, Defendant. Henrictte GuicliautI, of the city of Quebec, in the county and diatiict of Quehor, •widow of the late houoiiiblo Thomas Dunn, deceased, in his lifetime of the city of Quebec, Esciuire, a member of His Majesty's Legislative and Executive Councils for the Province of Lower ( •anada, and one of the judges of His Mnjesty's Court of King's Bench for the district of (.^ueber, in the said province, as commune en hivns with the said late Thomus Dunn, and Thomas Dunn and William Dunn, of tlie said city of Quebec, Esquires, twt) of the sons of the said Thomas Dunn, issue of his marriage with the said Hemiettc Guichaud, two of the universal legatees of the said late Thomas Dunn, under and by virtue of his last will and testament and codicils thereto subjoined; And Margueret Bell, of Quebec aforesaid, widow of the late Robert Dunn, ck- ceased, in his lifetime of Quebec aforesaid, Esijuire, tutrix in due foiTn of law ap- pointed to Mary, Heiuietta, Margaret and Ann Catherine, her minor daughters, issue of the marriage between her and the said late Robert Dunn, and lieiresses at law of the said late Robert Dunn, the said late Robert Dunn being together with the saiJ ThomfeS Dunn and "William Dunn, universal legatees of the said late Thomas Dunn, under and by virtue of the last will and testament aforesaid, complain of John Jones of the city of Montreal, in the district of Montreal, Esquire. For that whereas theretofore, to wit: on the 31st day of August, which was in tli8 year 1796, at Missiskoui Bay, in the said district of Montreal, in and by a certain deed of sale aTid concession, bearing date the day and year aforesaid, at Missiskoui i^av aforesaid, by and between the said late Thomas Dunn, of the one part, and one Brewer Dodge (by the name and description of Brewer Dodge, residing on the said seignior)' of St. Armand), of the other part, the said late Thomas Dunn, for and in consideration ofthe sum of twenty pounds current money of the said province, did give, grant and eoncedeto the said Brewer Dodge, present and accepting thereof for himself and to hi? heirs or ansigns all that half lot or parcel of land lying within the said seigniory of t?t. 117 d VH. Jwut. ias. ii)tiilrt. fend ant. «)i' Quebec, the city of Councils for rt of King's ■ns with the said city of lis marriage ate Thomas u subjoined; Dunn, dc- 1 of law ap- ghtcrs, issue ;Hes at luw of /ith the said lomas Dunn, John Jouej, ch was in tlie L certain deed ssiskoui Bay I one Brewer aid seigniorj' consideration ve, grant and self and to Im I igniory oftft. Armand, and noithward to the line of forty-five degrees uf north latitude marked forty- one E, the west end uf the said lot on a plan exhibited to the suid Brewer Dodge, pre- vious tu th(! execution of the said deed, the said lot, ])iecc or parcel of land containing one hun<]red and five superficial acres. And the said Bi ewer Dodge, in consideration of the gi'ant aforesaid, and other the covennnts in the said deed of sale seth forth and contained, did, in and by the said deed of sale, covenant, ])romise, grant and agree to and with the said late Thomas Dunn, his lunrs, executors, administrators and assigns, in consideration of the gi-ant above mentioned, that he the said Brewer Dodge, his heirs and assigns, should well and truly pay or cause to be paid to the said late Thomas Dunn, his heirs, cxeqntors, adminis- tratovri and a.ssigns, the said principal sum of twenty poundiJ, on or Infore the Istilay of Miiy 1801, with interest thereon from the Ist day of May 1799, at the rate of six per cent per annum each year. And the said Brewer Dodge, for himself, his heirs, executors, administrators and assigns did, in and l)y the said doed of sale, covcniant, promise and agree to and with tlio said late Tlntnias Dunn, his iieirs and assigns, that he the said Jirewer Dodge, his heirs and assirrji;, should and would, yearly and every year, well and truly payor cause to be paid to the said late Thomas Dnnn, liis heirs and assigns, the sum of one shilling lawful money of this province, for quit rent for the snid granted piece or parcel of land, the first payment thereof to bo made out the 1st day of May 1800, and so to continue annuiilly for ever ; and for the better securing the payment of the said princi- pal sum of twenty pounds and interests as afoiesaid, together with the said quit rent unto the said Thomas Dunn, his heirs and assigns in manner aforesaid, the said Brewer Dodge did, in and by the said dec'd of sale, specially charge the said tract, piece or parcel of land hereinbefore mentioned, together with all the buildings and improve- ments to be made thereon thereafter. I. . : , And the said Lite Thomas Dunn for himself, his heirs and assigns, for the consider- ation above mentioned, and other the considerations in the said deed stipulated on the part of the said Brewer Dodge, did, in and by the said deed, resign, give up, quit and release to tlie said Bre\>'er Dodge, his heirs and assigns for ever, all the rights and pn;tension which ho the said late Thomas Dunn had or might have as seignior of the fief and seigniory of St. Armand, to any mutation or alienation fine under the des- 'cription of /orZAWv; ?v.'w/f'.? or otherwise, and also to the toll commonly called banalite, and in general every other riglit and pretension as seignior over his tcrre tenant, except the said quit rent of one shilling per annum. All which in and by the said deed or instrument in writing, executed under tho hands and serds of the said parties thereto, and afterwards deposited of record by the said parties m the ofTico of Chabf)illez, Public Notary, to have equal force as if the said deed had been passed by him, whereof the said plaintiffs bring here into court a nota- rial copy, reference being thereunto had, will more fully appear. And the said plaintiffs further say that the said Brewer Dodge did not on or before the said 1st day of May 1804, pay or cause to be paid to the said late Thomas Dunn, m lie then living, the said sum of twenty pounds and interest as aforesaid, nor any part thereof, nor did, on or after the said Ist day of May 1800, pay to the said Thomas Dunn interest each and every year, as aforesaid ; but to pay the same or cause the same to be paid to the said late Thomas Dunn in his lifetime, or to the said plaintiffs in their said capacities, since his decease, as well the said Brewer Dodge, as his heirs, exe- cutors and assigns have, and each of them hath vi^holly refused and neglected, and the said sum of twenty pounds with interest for the same, from the Ist day of May 1799, remain wholly unpaid to the said plaintiflls in their said qualities and capacities. And the said plaintiffs further say that the said Brewer Dodge did not, on or before the Ist day of May 1800, nor did nor hath, on the 1st day of May of each successive year since that day and year, paid the said yearly sum of one shilling for quit rent, in the said deed mentioned, to the said Dunn in his lifetime, nor, since his decease, to the said plaintiff's in their said capacities, but the said quit rent, yearly for euch and eveiy year since the said first day of May 1799, amounting in the whole to the sum of one po und nine shillings, remains wholly unpaid to the said plaintiiis in their said capacities. And the said plaintiff further say, that the said John Jones doth now hold ard pos- eess as proprietor thereof the said tract, piece or parcel of land, in and by the said deedof sale sold, granted and conveyed to the said Brewer Dodge, by the said lato Thomas Dunn, and by law and by the said deed of sale specially charged and hypothe- Y cated towards and in favor of the said late Thomas Dunn, his heirs and assigns, jur tlie payment of the said sum of twenty pounds and interest as oforesaid, togetl'sr with the said annual quit rent, that is to say, the west half of lot number foity-one E. in the said 'Seigniory- of Saint Armand, bounded as follows, to wit : ea&i by the easterly half of the ^ fiaid lot forty-one E., north by. lands in the possession of one (Jeovge Banies and the ''•aid John Joaes, west by lot number thirty E. in the said seigniory, in the possession of the said plaintiffs, on south by lot number forty E. in the possession of the said plaintiffs, whereby and by reason of all which said several premises and by law the said John Jones had become and now is liable to pay unto the said plaintiffs in their said qualities and capacities, the said sum of twenty pounds, with interest for the same from the first day of May, one thousand seven hundred and ninety-nine, until paid, together •'vith the said quit rent from the said first day of May, one thousand ■seven himdred and ninety-nine, amounting to the sum of one pound nine shillings, mentioned in the said deed of sale hereinbefore in part recited, unless he choose rather to quit and deliver up the said last mentioned and described tract, piece or parcel of land and premises to be sold in due form of law for the payment of the said &um of money and interest, yet the said John Jones hath hitherto (although thereunto ofttn requested) always refused and still refuses to pay the said sums of money with the saiJ interest and cost, or to quit and deliver up the said tract, piece or parcel of land and premises last above described to be sold as aforesaid. Wherefore, the said plaintiffs, in their said qualities and capacities, pray that the said John Jones, by the piocess of this honorable court, be compelled to be and appear in the court, here on monday, the second day of June, to answer premises, and that for the causes aforesaid, by the judgment of this honorable court, the said tract, piece or parrel of land and premises hereinbefore last des- cribed, possessed by the said Jc>h!i Jones as aforonaid, may be declared to bf 119 lit r any part d Thomas e the same iffs in their leirs, exe- i, and the May 1799, ;ies. 1 or before succosbive uit rent, in Base, to the I every year one pound icities. Id ard pos- by the said he said latn nd hypothe- igns, Tor the 3r with the 1. in the said y half of the nes and the e possession ssion of the uses and hy plaintiffd in ;crest for the y-nine, until nc thousand ine shillings, dioose rather or parcel of 1 said &um of eunto ofltn with the said •1 of land ami 3S, pray that 'ompelled to to answer lis honorable fore last dcs- clarc'd to b liable and hypothecated (hypotheque) for the payment of the said sums of money and interest, and that the said John Jones, may then and there be adjudged and con* demned, as dete7iteur, of the said piece or parcel of land and premises last above des- cribed, to pay to the said plaintiffs, in their said qualities and capacities, the said sum of twenty pounds with interest as aforesaid from the first day of May, one thousand seven hundred and ninety nine, together with the said quit rent from the said first day of May, one thoiLsand seven hundred and ninety nine, amounting to the sum of one pound nine shillings, till paid, unless he the said John Jones choose rather to quit and deliver up (delaisser) the said last mentioned tract, piece or parcel of land and pre- mises to be sold in due form of law, in the possession of the curator who shall be ap- pointed to the delaissement, to the highest and best bidder, to the end that out of the price or purchase money and the proceeds of the sale of the said last mentioned piece or parcel of land and premises they the said plaintiSd, in their said qualities and capa- cities, may be paid and satisfied the said principal sum and interest and costs of this suit, or part thereof according to the sufficiency of the price, purchase money or pro- ceeds ; and further that in deiault of the said John Jones quitting and deliTerrng up the said piece or parcel of land and premises, laat above described ^vithin three days, from the day of the judgment in this behalf to be made and rendered in this cause, he tho said John Jones shall be held to be liable for the said sum of twenty pounds, with interest for the same from the first day of May, one thousand seven hundred and ninety nine, till paid, together with the said quit rent, amounting to the sum of one potmd nine shillings and costs of suit, and that execution do thereupon accordingly issue against the said John Jones for the same ; the whole with costs. Montreal, 12th May, 1828. (Signed) True copy, (Signed) :j ;')vi ■.. .,<,\v ■': B. OGDEN & BUCHANAN, Fot Plaintifll. •■ MONK & MORROOH, "' - Frothy. ,!■ i.n.i . ■ ■ >■■ '■' •:. ■ '^ '.-■"' '■:■■ '•'. >. •- -,..■■' -I' ;■/;• •< . rv ; !•> ^; '■";'< r :. MONTREAL.--m THE KING'S BENCH. HsNRIBTtB GUICIIAUD et ol., VS. Plaintifft j John Jones, Defendant. And the 3ai(i defendant by protesUtion hot admitting, but on the contrary, denying 'ill and every tho allegations, matters and things in th«} declaration of tJze said pUiutiff^ "tajj: \^' 120 in this cause fyled contained, to be true in manner and form as the same are therein stated and set forth, by the undersigned his attorney comes and defends, &c., and says that the said declaration of the said plaintiffs and the matters therein contained in manner and form as the same are therein stated and set forth, aio not sufficient in law for the said plaintiffs to have and maintain their aforesaid action thereof against him the said defendant, and that he the said defendant is not under any necessity, nor bound by law to answer the same, and this he is ready to verify. Wherefore, the said defendant prays judgment, and that the said plaintiffs may bfc barred from having and maintaining their aforesaid action against him, and that the name may be dismissed with costs. • • And the said defendant not waiving but on the contrary reserving to himself all benefit and advantage to be derived from the domunur or defense au fonds en droit above pleaded to the action and declaration of the said plaintiffs for plea nevertheless or peremptory exception to the said action and declaration says : that by reason of any matter or thing iu the said declaration alleged the said plaintiffs ought not to havo or maintain their aforesaid action against him, because he says : That by the laws in forc^n in this province of Lo\v>n- Cannda before and on the thirty first day of August, one thousand seven hundred i.nd ninety-six, and which laws are Btill in foice in the said province, as well the said late Thomas Dunn, in the declaration of the said plaintiffs mentioned, as all other poisons holding or possessing lands in seigniory and lordship, d litre dc fief ct sei^ncuric within the said province were and are bound to grant and conc(;de the waste and unconceded lands, (Jerrcs oi hois dchnut et non cnncedces) within th^ limits of their respective seigniories for and in considera- tion an annual quit rent a litre da redcvaiice only without exacting or receiving for or by reason of such grant.-i or concessions any sum or sums of money whatsoever : And that as well the said late Ths. Dunn, as all other proprietors of land in fief and seigniory within the said province, were and are by the laws then and still in force in the said province, expressly ()recluded find prohilnted from selling any waste and uncon- ceded lands, (tores en bois debout et rwn concedees), within the limits of their respective seigniories, or gi'anting or conceding the same on any tenns or conditions other than of quit rent, simple rcdevance, under penalty of the absolute nullity of the contract or contracts of sale, grant or concession of such lands and of the restitution of the price stipulated and also of the lands so sold bring re-united (reunis dc ji/ein drait) to l\ie domain of His Majesty subject to the payment by the person or persons so acquiring or holding the same, his or their successors, assigns or other representatives in the pos- session and occupation of the said lands as projirictors into the hands of Hif Majesty's receiver general of his domain or other proper ofticer for the time being, of the annual " quit rents " " redevancc''^ only which miglit or should be stipulated and convenantcd on the occasion of such sales, grants or concessions. And the said defendant doth aver 1 that at the time of the execution of the act or deed of the thirty-first day of August, one thousand seven hundred and ninety-six, in the declaration of the said plaintifl's mentioned, the said late Thomas Dunn was the seignior and proprietor in possession of the fief and seigniory of Saint Armand, in the di.strict of Montreal, and that the loi 121 J therein and says iained in nt in law ainst him ssity, nor fs may bt I that the limself all ds en droit jverthcless reason of lot to havo d in fief and in force in and uncon- ir respective other than contract or of the price drait) to the acquiring or in the pos- lin Majesty's if the annual convenantd int doth aver ly of August, said plaintifl's in possession 1 that the lol | or parcel of land in the said act or deed, and also in the said declaration mentioned and described was then part and parcel of the waste and unconceded lands {terres en bois debout et iMtt concedees), of the said seigniory of Saint Amand. That the said late Thomas Dunn hath nevertheless in and by the said act or deed, of the thirty-first day of August one thousand seven hundred and ninety-six, in the said declaration mentioned and therein partly recited and set forth, in addition to the quit rent {redevance) of two shillings of lawfiil money of this province, therein convenanted to be paid to the said Thomas Dunn, his heirs and assigns, hath burdened and subjected the said grant or concession therein contained with and to the payment of the sum of twenty pounds lawful money aforesaid as and for the consideration of the said grant or concession and hath thereby in effect taken upon himself, to sell and dispose of the said lot or parcel of land, and to exact fi*om the said Brewer Dodge in the said act or deed named, bis heirs, executors, administrators and assigns the said sum of twenty pounds, as, and for the consideration of the grant and concession therein contained. By means of all which premises and iuasmuch as the said act or deed of the thirty- first day of August one thousand seven hundred and ninety-six, comprehends a sale of the lot or parcel of land tlierein mentioned, and described for and in consideration of the sum of twenty pounds therein mentioned, the said act or deed is and ought to be held and considered as null and void and of no effect in so far as the same comprehends a sale of the said lot or parcel of land. And the said plaintiffs cannot by law demand or receive from the said defendant, or any other person or persons whomsoever, the said sum of twenty pounds or any part thereof or of the interest thereon, as pretended by them, or have or maintain any action whatever for the recovery of the same, founded upon the said act or deed, of the thirty-first day of August one thousand seven hundred and ninety-six. And the said defendant further saith that by the operation of the law in that behalf, the said lot or parcel of land is and ought to be held and considered as re-united (reunis) to the domain of His Majesty, subject to the payment by the said defendant and all other persons hereafter holding or possessing the same as pro| rietors into the hands of His Majesty's Receiver General of his domain, or other proper officer for the time being of the quit rent, redevance, covenanted and stipu- lated in and by the said act or deed of the thirty-first day of August one thousand seven huodred and ninety-six, and this the said defendant is ready to verif). Wherefore, the said defendant prays judgment of the said plaintiffs, ought to have or maintain their aforesaid action against him, and that the same may be dismissed ; and further that the aforesaid act or deed of the thirty-first day of August one thousand seven hundred and ninety-six, in so far as the sanic comprehends a sale of the lot or parcel of land therein mentioned and described, may be adjudged and declared to be null and void and of no eftbct, the whole with costs. (Signed) 16th June, 18'28. (True copy) (Signed) W. WALKER, For defendant. MONK St MORROair, Prothv. 122 MONTREAL.— IN THE KING'S BENCH. April Term, 1830. NO 891. Henriettc Guichaud tj* a/., Vx, John Jonks, Plaintiffs, Defendant. The plaintiffs, by the undersigned, their attornies, hereby make the following admissions, and consent that the same be filed in the said cause, as forming full and sufficient proof of the facts hereinafter expressed. - Firstly. — That the seigniory of Saint-Armand, in the declaration of the said plaintiffs in this cause mentioned, was granted and conceded under seigniorial tenure, d titrc dc fief et seigneune, by the most Christian King, whilst the Province of Lower Canada was subject to his authority, and previously to the conquest of the said Province by Great Britain. Secondly. — That by virtue of the said original grant or conoession, the said fief and seigniory of Saint-Armand, from the conquest of the said Province, and until and after the day of the date of the deed specially mentioned and declared on, in the declaration of the said plaintiffs in this cause filed, was and continues to be held by seigniorial tenure, A litre defief et seigneiirie, of our Lord the King, according to the laws, usages and customs in force in the said Province before and at the time of the conquest thereof as aforesaid. Thirdly. — That on the day of the date of the said deed in the declaration of the said plaintiffs recited and set forth, the late honorable Thomas Dunn therein, and also in the said declaration named, was seig^nior, proprietor, and in possession of the said fief a seigniory of Saint-Armand. Fourthly. — That the tract of land mentioned and described as well in the said deed as in the declaration of the said plaintiffs in this cause fyled, was at the time of the execution thereof waste, uncultivated and unconceded lands, terres en hois debout et non concedm, of the said y^/° and seigniory of St.-Armand. (Signed) (True copy) (Signed) OGDEN & BUCHANAN, For plaintiffs. MONK & MORROGH, Prothonotary. Montreal, I at .Tanuavy, 1830 Itis t recover describee pounds day of IS choose 123 !nure, d litre COURT OF KING'S BENCH. Friday, the l8th day of February, 1831. Present : The Honorable Jamf.s Reid, Chief Justice, '■* " Mr. Justice Pyke, " ** Mr. Justice Rolland. Henkiette Guicuaud «^ al., I'laintifli, vs. ^iW John Jones, Defendant. The Court having heard the parties by their counsel, and examined the evidf^^-poi record in the said cause, and having deliberated thereon, it is adjudged that the lot, piece, or parcel of land mentioned and described in the declaration in this cause, in manner fol- lowing, to wit : All thai half lot or parcel of land lying within the seigniory of St. Armand, and north- ward to the line of 45 degi-ees of north latitude, marked 41-E ; the west end of the said lot on a plan exhibited to one Brewer Dodge, the first grantee thereof — the said lot, piece or parcel of land containing one hundred and five superficial acres, and bounded as follows, to wit: east, by the easterl} half of the said lot 41-E ; north, by the lands in the pos- session of one (George Barnes and the said Defendant ; west, by lot number 30-E, in the said seigniory, possessed by the plaintitfs ; and south, by lot number 40-E, also in possession of the said plaintitfs, — be, and the same is hereby declared, charged and hypo- thecated for the payment of the sum of twenty pounds, current money of this Province, being the price of a certain sale, duly executed by and between the said late Thomas Dunn and one Brewer Dodge, before witnes'.es, the thirty-first day of August one thousand seven hundred and ninety-six, at Missiskoui Bay, with interest accrued or to grow due on the said sum, from the first diiy of l\Iay one thousand seven hundred and ninety- nine, till paid, at the rate of six per cent per annum, together with the annual quit rent of one shilling, accrued or to grow due from the first day of INTay one thousand seven hundred and ninety-nine, to the first day of May one thousand eight hundred and twenty-eight, amounting to the further sum of one poujid.and nine shillings, current money aforesaid. It is therefore considered that the saiil plaintilTs, in their said quaKties and capacities, do recover from the said defendant as (Utentcur of the said Ipt, piece or parcel of land above described, the said two sums of money amounting together to the siun of twenty-one pounds nine shillings, with interest on the said sum of twenty pounds, from the said first day of May 1799, till perfect payment aiid costs of ?uit.s, unless he, the said djCfendanti choose rather, to qjiit afld c^cliyeryp, a)?j>pdo;i (delais^cr) \hc said lot, piece NO- 115. Proceedings and Judgment in King's Bench, in case honorable J. R, Rolland, vs. Jean Baptistc Molleur, the elder. • A. .1 District of ) [ COURT OF KING'S BENCH. Montreal. ) ; ;, Honorable J. R. Rolland, Plaintiff: vs. Jkan Baptiste Molleur, the elder, ' Defendant. The honorable Jean Roch RoUand, of Montreal, in the District of Montreal, Esquire, one of the justices of this honorable court, and seignior, proprietor and possessor of the seigniory of Monnoir, in tht district of Montreal, plaintiff, complains of Jean Baptiste Mol- leur, the elder, of St. Luc, in the district of Montreal, yeoman, defendant. For that whereas the said plaintiff is now, and for the last ten years and upwards, has been possessed as proprietor and possessor of the said seign*?ry of Monnoir. And whereas by a certain act of sale and concession in the french language, made and executed before Boudreau, and his colleague, notaries public, on the thirty-first day of De- cember, one thousand eight hundred and thirty-two, the said plaintiffs acting by Joseph Trefll6 Franchdre, Esquire, his duly authorized agent, sold, conceded and transferred to the said defendant, thereto present and accepting, and in the said deed describod as a yeo- man and tavern-keeper, a certain farm situate within the said seigniory of Monn jir, con- 125 shall be appointed t of the proceeds of ies may be paid the , iheieof, according id defendant's aban- ice upon him of the d defendant, for the MORROGH, Prothonotary. I. Rolland, vs. Jean AND, Plaintiff ; ,EUR, the elder, Defendant. jf Montreal, Esquire, and possessor of the of JeanBaptisteMol- kdant. ears and upwards, lias lonnoir. language, made and thirty-first day of De- lintiffs acting by Joseph | led and transferred to ed described as a yeo- ;niory of Modl jir, con- taining Ave arpents in front by thirty arpents in depth more or less, bounded io front by the Queen's high-road, in rear by Francois Hebert and Charles Menardi joining on one side to the seigniorial line, and on the other side to Alphonse Morris, without any buildings, being the numbers one hundred and thirty-one and one hundred and thirty-two, in the third concession of the said seigniory ; also another farm si- tuated in the said seigniory of Monnoir, containing about five arpents in front by about thirty in depth, more or less, bounded in front by the Queen's high road, in rear by Julien Allard, Fiedalue, Pierre Cladu, Jean Mathe Vincelet, joining on one side to the seigniorial line and on the other side to Jean Baptiste Paquet, being the numbers one hundred and forty -six and one hundred and forty-seven, in the fourth conces- sion of the said seigniory, which said sale and concession was so made subject to the clau- ses and conditions therein set forth, and amongst other things, for and in consideration, and the said land so conceded was by the said deed of concession charged to and in favor of the domain of the said seigniory of Monnoir, with an annual seigniorial rent of two sols ancient currency de cens, and eighteen livres, -jaid ancient currency, and three bushels of good merchantable wheat for each and every ninety arpents, and so in proportion as a perpetual unredeemable seigniorial ground rent, due and payable on the first day of March of each and every year, the first payment whereof to accrue and become due on the first day of March, one thousand eight hundred and thirty-four ; and the said plaintiff doih aver that the said cens et renteSy which accrued and became due on the said lots of land for the years one thousand eight hundred and thirty-five, one thousand eight hundred and thirty-six, one thousand eight hundred and thirty-seven, and one thousand eight hundred and thirty-eight, are wholly in arrenr and unpaid, and with four livres ancient currency, balance due on the cens el rentes for the year one thousand eight hundred and thirty-four, amount to the sum of twenty-four pounds, currency, (the said wheat rent being therein included and valued at the first value of wlieat at the times and place when the same became due.) And the said plaintiff doth aver, that the defendant, although thereto often reqnested, hath hitherto wholly neglected and refused to pay and satisfy the said sum of money to plaintiff. Wherefore, the plaintiff brings suit and prays that the said defendant may be adjuged and condemned to pay and satisfy to the plaintiff the said sum of twenty-four pounds, currency, with interest and costs of suit. (Signed) MONDELET & MEREDITH, Attorney for Plaintiff. (True copy.) (Signed) MONK & MOEROGH, Prothy. Montreal, 15th September, 1838. ^^3 ■^33, iV: 126 B. MO^TKKA L.— KJN(.;\S BHNCII. October, 1838. The honorable .1. 11. Roli-and, Flaintiff; * '^ vs. - , Jkan Bapiistk MoLLEUii, the elder. ' Defendant. The defendant, without admitting the facts as alledgpcl in the plaintiff's declaration, and averring that he paid to the plaintiB'on the ninth day of IMarch, 1835, fifty -six livres, old currency, and delivered to him on the tenth day of the same month ten minots of wheat, saith, for peremptory exception to the present action, that the same is unfounded and cannot be maintained for divers reasons to be hereafter set forth in fit time and place, among which reasons the said defendant now sets forth the following: — At the time of the passing of the deed mentioned in the declaration fyled in this cause, the said plaintiff was and had been for a long time seignior in possession of the said seigniory of Monnoir, in the censive whereof the lands mentioned in the declaration are holden. The said two lots of land before and at the time of the passing of the said deed nere wild lands, forming part of the domain of the said seigniory, and had never been conceded before that time, to be holden by the payment of ecus et rentes or other seigniorial dues, either by the plaintiff or by his predecessors, proprietors and possessors of the said seigniory. • By the law of the land, and by the original grant of the said seigniory of Monnoir, the said plaintifH' was bound to concede the said two lots of land to such inhabitant or inhabitants of the country as should demand them on condition of paying the soignior;il dues, and wiih- out exacting any sum of money in consideration of such concession ; and the rate of con and other seigniorial dues at which the said plaintiff was bound to concede the said lands, was to be the same as that at which lands were first conceded in this country, (which is the only rate that can he legally recogniijed in this Province,) or, at least, at the rate at which lands were conceded en ccndve by the seigniors of this Province before the year 1711, or at least at the rate at which lands were first conceded in the said seigniory of Monnoir by the predecessors of the said plaintiff. The said defendant having applied to the said plain- tiff or to his authorized agents for the purpose of obtaining a concession of the said two Ids of land, which then formed part of the domain of the said seigniory, and having demanded that the same should be conceded to him according to the law of the land, they were in fact conceded to him en censive to be holden by the payment of certain seigniorial dues, as appears by the said deed, but an exorbitant and illegal rate exceeding the rate legally eslab- 127 J8. int. ' ration, and livres, old s of wheat, and cannot nong which s cause, the seigniory of ;n. deed were m conceded aiorial dues, id seigniory. [onnoir, the r inhabitants ), and wiih- ate of cats said lands, which is the itc at which •nr 1711, or Monnoir by le said plain- said two lots ig demanded they were in >rial dues, as egally estab- lished, and consequently subject to be reduced to the said legal rate, to which the defendant appealed and still appeah. The rate of cens and seigniorial dues, usually called seigniorial cens et rentes, at which, by law and by the very terms of the original grant of the said seigniory, the said plaintiff was bound to concede the said two lola of land to tho said defendant who had demanded them as aforesaid, ought to be and is one sol for cens and one franc, old currency, in money, and one minot of wheat for an annual, perpetual and irre- deemable seigniorial ground rent, and no more, for each ninety ai^pents of land con- ceded. The defendant is therefore by law entitled to demand that the rate at which the said two lots of land were conceded to him by the deed aforesaid, be reduced, in confonnity to the law of the land, to one so/ for 6rrt,v, and one y/*a«6', old currency, in money, and one minot of wheat for an annual, pei-petual and iiTedeemable seigniorial gi-ound rent for each ninety arpents of land contained in the said two lots so conceded to the said defendant by tho said plaintiff, and this as well with regard to the past as for the futurt", the excess of the said rent, as mentioned in the said deed, being illegal and not being lawfully exigible from tVie said defendant. The said plaintiff was in like manner bound by the law of the land to concede the said two lots of land to the defendant without exacting from him any sum of money in consideration of such concession, and was expressly forbidden to sell the same in any shape or under any pretext whatsoever, on pain of the nullity of such sale, and also on pain of restoring to the said defendant the sums of money which he has illegally exacted from him as a consideration for the said lands and for the sale thereof. And whereas the said deed produced in this cause by the plaintiff himself and on which his action is founded, and which includes the contract of concession en censive of the said two lots of land made, as aforesaid, to the said defendant by the said plaintiff in his quBlity of seignior of the said segniory, also illegally includes a contract of sale of the said two lots of land unlawfully made by the said plaintiff to the said defendant, in contemplation of the said concession, for tho sum of two thousand five hundred livres, old currency, which has been paid to the said plaintiff without being lawfully due to him, as appeal's by the said deed, the said defendant is bylaw entitled to plead the nullity of the said contract of sale to all legal intents and purposes, which nullity he pleads accordingly, and therefore prays that so much of the said deed as relates to the said sale, so illegally made by the said plaintiff, may be declared null and void and of no effect ; and that, at the same time, the right of the said defendant against the said plaintiff to compel the restitution of the said sum of two thousand five hundred livres, old currency, with the interest and accessories thereof, may be saved to him for all in- tents ond purposes of law. , > Wherefore, the said defi^idant prays that for the reasons and considerations afore- said, it may, by the judgment of the court, be adjudged and declared : 1st. — That so much of the said deed as rolrtes to the said contract of concession en icnsive ol the said two Ids of land, made as aforesaid to the said defendant by the said TP* 12S plaintift', shall be maintained, but that the rate of the cctu and of the said seigniorial, perpetual and irredeemable ground rent, mentioned in the said deed, shall be reduced to one sol o(cem and one/ranc, old cun-ency, in money, and one minot of wheat, yearly, for each ninety ai-pcnts of land in the said two lota, and this as well with regard to the past as for the future, the excess of the said rent, as mentioned in the said deed, being illegal and not being by law exigible by the said plaintiff; saving to the said defendant his recourse against the said plaintiff fot what he may have heretofore overpaid on ac- count of the said cens and ground rent. 2ndly . — That so much of the said deed as relates to the contract of sale of the said two lots, so illegally made as aforesaid by the said plaintiff to the said defendant, in contemplation of the concession of the said and, for the said sum of two thousand five hundred livres, old currency, shall, as shall also the said sale itself, be held to be null and void and of no effect to all intents and purposes of law, saving to the said defend- ant such recourse as he may have against the said plaintiff to compel the restitution of the said sum of two thousand five hundred livres, old currency, with the interest and accessories thereof. The whole with costs ngainst the said plaintiff. . ,,: • , Montreal, 4th October 1838. ' (Signed) LAFONTAINE & BERTHELOT, Attorney for Defendant. And without waiving the peremptory exception by him pleaded as aforesaid, but on on the contrary saving to himself the full benefit thereof, the said defendant, for defense au Jbnds en Jait to the pTe»ent action, saith that all the allegations contained in the declaration of the said plaintiff are untrue and unfounded in fact. Wherefore the said defcridant prays that the said action may be dismissed ivith costs. Montreal, 4th October 1838, (Signed) ) t LAFONTAINE & BERTHELOT, Attorney for Defendant. 'm And the said Jean Baptisto Molleiir, the defendant in the demand in chief, becoming incidental plaintiff against the said Jean Roch Rolland, the plaintiff in the said demand in chief, and now the incidental defendant, saith : That at the time of the passing of the said deed bearing date the Slst day of Decem- ber 1832, mentioned in the declaration of the said plaintiff in chief, and passed before igniorial, I reduced t, yearly, ird to the ed, being lefendant lid on ac- if the said mdant, in iisand five to be null d defend- titution of crest and LOT, fendant. id, but on for defense ined in the with costs. LOT, jfendant. ', becoming lid demand of Decem- ssed before 129 Mtre. Boudrcault and his colleague, Notaries Public, the said Jean Roch Holland was, and had then for a long time been, seignior in possession of the said seigniory of Mon- noir in the censive whereof the said two lots of land, desciibed in the declaration in the demand in chief, are holden. That the said two lots of land before and at the time of the passing of the said deed were wild lands, forming pait of the domain of the said seigniory, and had never be- fore that time been conceded to be holden by the payment of seigniorial cens ct rente*, either by the said Jean Roch Rolland, or by any of the preceding proprietors and pos- sessors of the said seigniory. That by the law of the land and by the very terms of the original grant of the said seigniory ef Monnoir, the said Jean Roch Rolland was bound tc concede the Kuid two lots of land to such inhabitant or inhnbilanta of the country as should dcmuiul the fame, to be holden by the payment of seigniorial dues, and without exacting any sum of money in consideration of such concession; and that the rate of ce«.? and seigniorial dues at which the said Jean Roch Rolland was so l)ound to concede the said lots of land, was to be the same as that at which lands wore first conceded en censirc in this country, which is the only rate recognized as legal in the province, or, at least, at the rate at which lands were conceded en eemivc by the seigniors of the province before the year 1711, or at least, at the rate at which the fii-ot concessions were made in the said seig- niory of Monuoir, by those who preceded the said Jean Roch Rolland as the seigniors thuoof. That the said incidental paintiff applied to the said incidontul defendant, or to his duly authorized agents, for the purpose of obtaining a concession of the said two lots of land which then formed, as aforesaid, part of tlie domain of the said seigniory, and having demanded that they should be conceded to him in conformity to the law of the land, they were in fact conceded to liim en censlve, to be holden by the payment of certain seigniorial dues by Joseph Treffle Franchere, the agent thereunto duly autho- rized and appointed by the said incidental defendant, as appears by the declaration of the said incidental defendant, and also by the deed aforesaid, but an exorbitant and illegal rate exceeding the legal rate of the country and consequently subject to be re- duced to the said legal rate, to which the said incidental plaintiff appealed and still appeals. That the rate ofcens and seigniorial dues, commonly called seignioiial cen^ et rentes, at which, by law and by the very terms of the original grant of the said seigniory, the said incidental defendant was bound to concede the said two lots of land to the said incidental plaintiff who had demanded them as aforesaid, was and is one 50i? for cens and one Jranc, old currency, in money, and one mi/tot of wheat for an annual seignio- rial, perpetual and irredeemable ground rent, and no more, for each ninety arpents of land conceded. That the said incidental plaintiff is therefore entitled by law to demand that the rate at which the said two lots of land were conceded to him be reduced, according to the law of the land, to one sol for cens, and one franc old cuirency, and a minot of wheat fgr R W: 1^3 ;:.:::^3 ;;a3, 130 ail annual, seigniorial porpetunl and irrodeomablo ground rent for each ninety arpontn of land in the two lots of land so conceded to the said incidental plaintiiT, nnd this as well with regard to the post as for the future, the excess of the suid cens and of tlio said rent as stipulattul in th(5 said deed being illegal and not being lawfully exigible by the said incidental dcKuKhint. That the said int^idental plaintiff is therefore by law entitled to demand and recover from the said incidontfil dcfendiint the excess whic^h he has so paid him on the said ccns and the said seigniorial nuit for the year one thousand eight hundred and thirty- four, the said excess forming the sum of four pounds and ten pence of the present currency. That the said incidental defendant was in like manner bound by the law of the land to concede the said two lots of land to the said incidental plaintiff without exacting from him any sum of money in consideration of the concession thereof, and that he was expressly forbidilen to sell them to the said incidental plaintiff or to any other paity, in any shape or undqr any jjrot- \t whatsoever, on pain of the nullity of such sale, nnd and also on pain of making restitution to the said incidental plaintiff of the sums of money he has so illegally exacted from him as a consideration for the said lands and for the sale thereof; and that, whereas the said deed, bearing date the thirty-first day of December, one thousand eight lunidred and thirty-two, produced in this cause by the said incidental defendant himself and upon which hi- said action is founded, and which includes the contract of concession en, censive of the said two lots of land as aforesaid, to the incidental plaintiff, by the incidental defendant in his quality of seignior of the said seigniory, illegally includes at the ,,ame time a contract of sale o{ the said two lands, ludawfully made by the said incidental defendant to the said incidental plaintifl", in contemplation of the said concession lor the sum of two thousand five hundred livres, old currency, which has been paid to the said incidental defendant, without cause, and without being duo to him, a,s appears by the said deed, the said incidental plaintiff is by law entitled and has a right to plead the nullity of the said contract of sale to all legal intents and purposes, which nullity he hereby pleads, and is also en- titled to claim frem the said incidental defendant restitution of the said sum of two thousand five hundred livres, old currency, with the interest and accessories thereof, and therefore ^o demand that so much of the said deed as relates to the said sale so illegally made to him bv *he said incidental defendant in contemplation of the said concession be declared null .nd void and of no effect, and that the said incidental de- fendant may be held r.?!d condemned to restore "nd pay to him the said sum of two thousand five hundred ILcres, old currency, equal to the sum of one hundred and four pounds, three shillings and four pence of the present currency, with interest thereon from the said thirty-first day of December, one thousand eight hundred and thirty- two. ■ . -, ., Wherefore the said incidental plaintiff, for the reasons and considerations aforesaid, Istly. — That by the judgment of the court it may be declared and adjudged, that so much of the said deed as relates to the contract of concession en censive of the said two »ty arponts niid tliiH as and of the 3xigible by ind recover in tho smd and thirty- tho present of til c land ut exacting that he was jlher party, ch sale, and the sums of inds and for -first day ol' ause by the , and which IS aforesaid, gnior of the he said two ital plaintiff, ive hundred int, without d incidental I contractor is also en- sum of two )ries thereof, said sale so of the said ncidcntal de- sum of two red and four jrest thereon and thirty- jns aforesaid, • 131 lots of land, made as aforesaid to tho st.id incidental plaintiff by the said incidental defendant, may bo maintained, but that tho rate of the cens and of tho said sei- gniorial perpetual and irredeemable ground rent, stipulated in tho said deed, may reduced to one so^ for cens, and one franc old currency, and ono minot of wheat yearly for each ninety arpents contained in tho said two lands, and this as well with regard to the past as for tho future, the excess of the said cens and rent as sti- pulated in tho said deed being illegal, and not being lawfully exigible by tho said inci- dental defendant. 2ndly.— That, the said incidental defendant may accordingly by tho same judgment bo condenitK d to restore and pay to tho said incidental plaintiff tho said sum of four pounds and ten pence of the ])rerient currency, as tho excess of the said cens of tho said seigniorial rent for the year ended on the first day of March, one thousand eight hun- dred and thirty-four, which tho said incidental plaiiiliff over paid him as aforesaid, with interest thereon from tho tenth day of March, ono thousand eight hundred and thirty-five. 3rdly. — That by the same judgment it maybe declared and adjudged, that so much of the said deed as relates (as aforesaid) to the contract of sale of tlie said two lots of land, so illegally made by the said incldcnlal defendant to the said incidental plaintift' in contemplation of the said concession, for the said simiof two thousand five hundn ) livrcs, old currency, equal to tho said sum of one hundred and four pounds, thre« shillings and four pence, of the present currency, shall, as shall also the said sale itself, hv held and taken to be null and void and of no eifect, to all intents and pui-poses ol law whatsoever. 4thly. — And therefore that by the same judgment, the said incidental defendant may be condemned to pay and satisfy to the said incidental plaintiff the said sum of one hundred and four potnids, tlu'ee shillings and four pence, present currency, which has been, without cause and without its being due, illegally exacted and received by tho said incidental defendant, from the said incidental plaintiff in couhideration of the said concession, with the legal interest on the said sum, from the 31st tiny of Decem- ber 1832, until perfect payment fendant. tho whole with costs against the said incidental de- o (Signed) (True copy) (Signed) Montreal, 4th October, 1836. LAFONTAINE & BERTHELOT, Attorney for Incidental Plantiff. MONK & MORROGH, P. K. B. t !;i.. idged, that so fthe said two 132 DISTRICT «JF J [ COURT OF KING'S BENCH. MONTREAL. } ' . '. " . Honorable J. R. Rolland, Plaintiff; John Bte. Molleur, the Elder, r ■■ ■ ' ' E. Contra, ' . ' Defendants. And the said plaintiff protesting that all and every the allegations in his declaration in this cause fyled contained are true and founded in fact and sufficient in law to enable him the said plaintiff to have and maintain the conclusions by him in his said declaration taken, for answer to the plea by the defendant in this cause firstly pleaded, and by him styled '' cxcej)tion jmemptoire ^^ saith that all the allegations in the said plea or " exception jiereniptoirc " contained are false and untrue and unfounded in fact, and arc more over m sufficient in law^ to prevent the said plaintiff from having and maintaining his said a tion in ' manner and form ashy him brought, or to enable the said defendant to liav > and maintain the conclusions by him in his said pleading, " exccptmi pcremptalre, " k iken, Wherofore the said plaintiff prays that the said pleading styled by the defendant '• exception peremjitni re, " may be hence dismissed with costs, and further prays as in and by his declaration in this cause he hath already prayed. (Signed) Montreal, 31st October, 1838. MONDELET & MEREDITH, Attorney for Plaintiff. \ And the said plaintiff without waiver of any thing in the preceding pleading con- tained, but on the contrary reserving to himself all the benefit and advantage thereof, and by and under the protestation aforesaid for further answer to the said pleading by the defendant in this cause fyled and by him styled, *'■ exception peremptoire^'* that on or about the twelfth day of March, which was in the year of our Lord, one thousand eight hundred and eighteen, by a certain deed of concesDiou in the french language, 133 itiff; er. eclaration in law to in his Baid y pleaded, n the said ed in fact, laving and to enable 1 pleading, defendant prays as in rn. Plaintiff. 3ading con- tge thereof, pleading by -•e," that on le thousand ii language, made and executed before Soupras and his colleague, notaries public, the honorable Sir John Johnson, Esquire, of Monti-eal, then being and in the said deed of concession described as being seignior of the seigniory of Monnoir, to wit, of the seigniory of Monnoir mentioned in the plaintiff's declaration in this cause fyled, conceded d titre (le cens ct rentes foncUrcs ct non rachctahlcs, and subject to the seigniorial charges and conditions in the said deed of concession set forth, to John Johnson, his son, thereto present and accepting a certain piece of land within the ccnsive of the said seigniory of Monnoir, known as the lots numbers one hundred and thirty-one and one hundred and thirty-two, in the second division of the said seigniory of Monnoir, containing six arpents more or less in front, by thirty arpents more or less in depth, and in the said deed of concession particularly described; the said two lots of land being the same identical lots of land as those designated in the plaintiff's declaration in this cause fyled under the numbers one liundred and thirty-one and one hundred and thirty-two, in the third concession of the said seigniory, which piece of land was by the said deed of concession charged with an annual seigniorial rent, cens ct rentes annuelles jyerpetuelles et non rachclables, of one minot of good merchantable wheat and six livres ancient currency in cash, for and in proportion of each thirty superficial arpents, payable on the first day of March of each and every year, under and by virtue of which deed of concession the said John Johnson enjoyed and picu/-i(iic.<\2}C''pit/tc//cs, anuudlcs et non rachc tables, two ^nhiotsani a quarter of good merchantable wheat, and one hundred and two so/s ancient currency, for each and every ninety acres, and so in propirtion, payable on the first of INIarch of each and every year, and that on the first day of March, of the year one thousand eight hundred and twenty- one, the arrears of cans et rc/ftc-i ixaA other seigniorial dues accrued and owing on the said lots of land numbers one lunidrcd and forry-six and one hundred and forty-sevti , amounted to the sum of sixty-one pounds five shillings and six pence currency, and the said sir John Johnson, in order to recover the said sum of money so due on the :;.ai(l lots of land, he bein^ then seignior in possession of the said seifrniory of Monnoir, instituted an action reti\rnable and returned into this honorable court on the second day of V;>''i!, one thousand eight hund- red and twenty-one. being number five hundred and seventy-oi;i;ht, ^*hcroin the said .''ir John Johnson, in the declaration in the last mentioned cause fyled was desoribed, as sir John Johnson of the city and district of ^Montreal, Baronet, seignior, proprietor and possf^ssor of the seigniory of Monnoir, in the district of ^lontreal, was jdaintifl', and William Radenhnrst, of the said rity of iNTontroa!, gentleman, was defendant, the said William Radenhurst being then propi-ietor and jiossessor, rh'tciiteur ("-tiid rt anicesaioniudre of the said lots of land numbers one hundred and forty-six, and one hundred and foity- seven, and such proceedings were aftrrwards had in the said cause that by the judgment therein rendered on the nineteenth day of April, one thousand eight hundred and twenty one, by this honorable court, it was declared: that the court having heard the plaintiff, to wit, the said sir Jolin Johnson by his counsel, the defendant, to wit, the said William rvadcnhurst, in person, and having seen t!.e offer ami consent of the said William Radenhuvst, whereby he agieed to quit, abandon and give up to the said sir John Johnson, the lots of land in the said judgment described and mentioned and all his right and interest therein, that the same mighf he re-united to the domain of the said seigniory of tiir 135 tervices, ai other deed uthority of um of four said honor- l, sold and lumber one ect to such rtue of the CR ,ntM7C, of the said B defendant ay of June, le plaintifTs ne hundred onceded by seiiiniorv of s in the said ;niorial ront, mnots and a icy, for each :h and every and twenty- oil the said 1 , amounted said sir John nd, he bein^ I returnable 1 eight hund- said sir John I, as sir Jolm md possf'ssor md William said William rchantablo wheat, and six livres [ancient currency per annum, for each thirty arpents of land in supoi fifiiis, and so in pro- Iportion, payable on the first day of March in each and every )o;ir, under and by virtue of Iwhich deed of concession, the said John Johnson enjoyed and possessed the said lots Inmnbers one hundred and thirty-one and one hundred and thii-ty-two from the day of the Idate of the said deed of concession until the period that the same was sold as hereinafter linentioned by sheriff's sale. And the said incidental defendant doth aver that, on or about the 16th day of July 1831, the honorable Lewia Gugy being then plicril!' of the district of Montreal, by s I, * «* ilck :i3 virtue of a certain writ of execution issued fl'um ttiia honorable dourt, in a suit wherein the said incidental defendant in this cause as seignior of the said seigniory of Monnoir, was therein plaintiff, and the said John Johnson was defendant, the said honorable Lewis Gugy did seize and take in execution the said lots of land, numbers 131 and 132, and the aaid honorable Lewis Gugy havii-j^ complied with all and every the formalities, matters' and things in that behalf by law required, on or about the 23rd day of Janu- ary 1S32, put up the said lots of land to sale in the usual manner, and the said inci- dental defendant then and there became the purchaser thereof, as the highest and best bidder, that is to say, of the lot number 131, at and for the price or sum of five pounds currency, and of the said lot number 132, at and for the price and sum of four pounds five shillings currency, the saia incidental defendant then and there expressly declaring, as appears by the deeds of sale hereinafter in part recited, that he did not intend to re- unite the said lots of land to the said seigniory of Monnoir of which he was then seig- nior, proprietor and possessor, but to hold the same en roture. And by a certain deed of sale made by the said LoAvis Gugy in his said capacity, on he 7th day of February 1832, the said Lewis Gugy, by virtue of the said writ of execu- .' >•• and of his said office, and for and in consideration of the said sum of five poun'.ls cur- ii iii y to him paid before the execution of the said deed, and the receipt whereof was thereby acknowledged, bargained, sold and conveyed to the said honorable Jean Rocb '^ollarj'l *^o said lot number 131, with all and every the appurtenances, to be held by toe sal.' Jein Roch Rolland, his heirs and assigns forever, subject to such rents, duties and services as the said lot number 131 was subject to. •• And by a certain other deed, of sale made and executed by the said honorable Lewis Gugy, acting by the authority of his office and of the writ aforesaid, and for and in con- sideration of the said sum of four ponndsi five shillings curroiicy, before the execution of the said deed, paid to the said honorable Lewis Gugy, and the receipt whereof was thereby acknowledged, bargained, sold and conveyed to the said incidental defendant for himself, his heirs and assigns, the said lot number 132, with all and every the ap- purtenances, under and .subject to such rents, duties and services as the said lot was subject to, and under and by virtue of said deeds of sale, the said incidental defendant enjoyed and possessed the said two lots of land en roture. and not as re-united to the ■aid seigniory of Monnoir, from the day of the date of the adjudication thereof to him as aforesaid, to the period at which he transferred the same to the incidental plaintiff, as set forth in the declaration of the plaintiff in this cause fyled respecting the original demand. And the said incidental defendant doth aver that, on or about the 17th day of June 1797, the lots of land designated in the declaration in this cause fyled in the original demand as lots numbers 146 and 147, in the fourth concession of the said seigniory of Monnoir, were conceded by the said Sir John Johnson, the then seignior, proprietor and possessor of the said seigniory of Monnoir, subject to the duties, charges and ser- vitudes in the deed of concession thereof set forth, and more particularly subject to an annual seigniorial cenn et renten seigneuriales, perpetuelles, annuelles et non racket ahh I of two minots and a quarter of good merchantable wheat, and one hundred and two 139 [lit wherein DfMonnoir. honorable 31 and 132, formalities, ay of Janu- le said inci- est and best five pounds four pounds y declaring, ntend to re- 18 then seig- Rapacity, on rit of execu- pounds cur- wheroof was e Jean Roch ;o be held by rents, duties )rable Lewis ir and in con- the execution whereof was ;al defendant every the ap- ! said lot was ital dcfenJant -united to the hereof to him ;ntal plaintiff, ig the original hday of June in the original id seigniory of ior, proprietor larges and ser- y subject to an non rachetnhh ndred and two id» ancient currency, for each and every ninety acres, and so in proportion, payablu on the Ist day of March of each and every year; And that, on the Ist day of March 1821, the arrears oi cens et rentes and other seig- niorial dues accrued and owing on the said lots of land nunribers 146 and 147, amounted to the sum of fifty-one pounds five shillings and six pence currency, and the said Sir John Johnson, in order to recover the said sum of money so due on tlie said lots of land, he being then seignior in possession of the said seigniory of Monnoiv, instituted an action returnable and returned into this honorable court, on the 2nd day of April 1821, being number 578, wherein the said Sir John Johnson, in the declaration in the last mentioned cause fyled, was described as Sir John Johnson, of the city of Montreal, in the district of Montreal, bai'onet, seignior, proprietor and possessor of the said seig- niory of Monnoir, in the district of JNIoutreal, was plaintiff, and William Radenhurst, of the said city of Montreal, gentleman, was defendant, the said William Radenhurst then being proprietor and possessor detnitcur wcAwe^ of the said lots of land numbers 146 and 147, and such proceedings were afterwards had in the said cause ; That, by the judgment therein rendered, on the 19th day of April 1821, by this lionorable court, it was declared that the court having heard the plaintiff", to wit : the said Sir John John Johnson, by his couniiel ; the defendant, to wit : the said William Radenhurst in person ; ami having seen the ofter and consent of the said William Radenhurst, whereby he agreed to quit, abandon and give up to the said Sir John Johnson the lots of land in the said judgment described and mentioned, and all his interest and right therein, that the sum might be re-united to the domain of the said seigniory of the said Sir John Johnson, on condition that he the said Sir John Johnson should and would acquit the said William Radenhurst from the payment of the sum of sixty-one pounds five shillings and six pence currency, claimed by the said Sir John Johnson in the said action as due to him for seigniorial rights on the said lots of land, as stated and set forth in and by the declaration of the said Sir John Johnson, and also from the costs of the said action. And the said Sir John Johnson having accepted the offer so made by the said Wil- liam Radenhurst, and prayed for the judgment of this honorable court rendered in the said cause, considered and adjudged that the said lots of land numbers 146 and 147, containing the said lots of land the quantity of about 180 arpents more or less in su- perficies, which said two faims or lots of land, ashy the said judgment set forth, was subject to annual rent or ccns et rentes of four and a half minots of wheat and ten livrea four sols ancient currency, should be and the same thereby were re-united to the said seigniory of Monnoir. And the said Sir John Johnson, plaintiff in the said action, was thereby authorized to enter upon, hold, use, occupy and possess and dispose of the said lots of land and of every part thereof, as his own freehold and proper estate, and the said William Ra- denhurst was thereby discharged and acquitted from the demand aforesaid of the said Sir John Johnson, and from all costs incurred by reason thereof, and under and by virtue of the said judgment the said Sir .Tohn Jonhson entered upon, possessed and enjoyad the two last mentioned lots of land as his own freehold and proper estate under ici ^3 FW- k 140 the said judgment, whilst ho continued to be possessed as proprietor of the said seig- niory of Monnoir, that is to say, until the 9th day of September 182o, when the said incidental dufundant became possessed thereof as having acquired the seigniory. And the said incidental defendant possessed and enjoyed the same as proprietor thereof, that is to say, for a period of six years and upwards before the time of the sale thereof by him to the incidental plaintiff) as mentioned in the declaration in the origi- nal demand in this cause fyled. And the incidental defendant doth aver that the costs incurred by the said Sir John Johnson, in the said cause number 578, against the said William Radenhurst, and from which the said William lladcnhurst was exonerated and discharged, as aforesaid, amounted to the sum of fifteen jjounds currency. And the said incidental defendant doth also aver that the amount of 6»)• 142 o M'i' ' $ r ( Translation.) DISTRICT OF MONTREAL. NO 2276. IN THE KING'S BENCH. I\IoNDAY, the 15th day of June, 1840. Present : The Honorable Mr. Justice Pvke, Mr. Justice CiALC. " ' The Honorable Jean R. Rolland, Plaintiff, vs. Jean-Baptiste Moi.leuk, and Defendant, t // The said Jean-Baptiste Molleur, Incidental Plaintiff, vs. The said Honorable Jean R. Rolland, Incidental Defendant. The Court after having heard the parties hy their advocates, as well upon the demand in chief as upon the incidental demand, and examineil the record, exhibits, evidence and admissions of the said parties, and having maturely deliberated thereon, rendering judgment in the Brst place on the demand in chief, condemns the defendant to pay to the plaintiff the sum of twenty-four pounds current money of the province of Lower Canada, for four years cens et rentes due on the lots of land mentioned and described in the declaration in this cause, from the first day of March one thousand eight hundred and thirty-five, to the first day of March one thousand eight hundred and thirty-eight, and the balance due on the cens et rentes for the year one thousand eight hundred and thirt-four ; with interest on the said sum of twenty-four pounds, from the twenty-fifth day of September one thousand eight hundred and thirty-eight, the day of the service of the writ of summons in this cause, until actual payment, and costs. And the Court rendering judgment upon the incidental demand fyled by the said Jcan- Bte. Molleur, ia this cause, bath dismissed and dismisseth the same, with costs. (True copy) / , > (Signed) MONK & MORROGH, Prothy. 143 1840. lintifT, fendant, \ ;n, BiiDtifl, LAND, ifendant. he demand idence and g judgment plaintiff the ■ four years ition in this to the first due on the irest on the usand eight :ause, until said Jean- No 116. Proceedings and Judgment in the King^s BennJi, Montreal, in the case of Hamilton 5f al, vs. Lamouretix, and reasons for such judgment given by the Honorable Mr. Justice Pyke. A. MONTREAL.— KING'S BENCH. October Term, 1840. George Bvuton Hamilton 8^ al.. Plaintiffs, : - ' Vt. , .: Michel Lamourevx, Defendant. Prothjr. George Burton Hamilton, formerly of London, in the county of Middlesex, and now of Clichusford, in the county of Essex, in England, clerk ; William Henry King, of London aforesaid, esquire, and Edme Henry, ofLaprairie, in the district of Montreal, esquire, executors of the last will and testament, and universal fiduciary legatees of of the late Napier Christie Burton, in his lifetime of London aforesaid, a general in Her Majesty's Foi'ces, plaintiff:!; Complain of Michel Lamoureux, of the parish Ste. Marguerite de Blairfindie, in the district of Montreal, yeoman, defendant : For that, whereas the said late Napier Christie Burton was, at the time of his de- cease hereafter mentioned, and for thirty-five years immediately preceding his decease, seignior, proprietor and possessor of the seigniories of Bleury, Sabrevois, Noyan, De Lery, LacoUe and Repentigny, in the district of Montreal ; And, whereas the said late late Napier Christie Burton departed this life on or about the 1 St day of January 1835, having, previously to his decease, made and exe- cuted his last will and testament, according to the forms of the laws of England, on the 20th day of December 1834, wdth a codicil thereto annexed, dated the 23rd day of December 1840, to wit, at London aforesaid, where the said testator had his do- micile for many years previously to his deatl- , L ;■• which last will and testament and codicil the said late Napier Christie Burton, after providing for his funeral expend os, the payment of his debts and of divers particular legacies, did give and bequeath, ^rrong other things in the said will specified, all things and monies due to him in his own right, and all things and sums of money due to him as personal representative and heir at law of his late father general Gabriel Christie, esquire, or othenvise, unto the said plaintiffs, the executors of said will, and the survivor of them, and the executors of such survivor, upon the trusts in the said will contained ; • . .HI* Jl :** 313 •m i: r c. 3 144 And tho said late Napier Cliristie Hurton, in nnci by his said last will and tpstanrjont, and by the said codicil thrroto annexed, gnve and bctiueathed all his eHtatcs and H bring here into court a copy to form part of these presents. And the said • aintiffs, in their said capacities, say that the said plaintiffs, have taken upon themselves the burden of tho executio'i of the said will and testament and codicil, and have taken possession of all the e.'tates and property of the said late Napier Christie Burton, in pursuance of and for the pui-poses set forth in the said will and testament, and thereof are now in possession. And the said plaintifTs, in their snid cayjacities, further aver that the trusts in tlu; said will moi'tioned have not yet been fully a(C()ni])lislitMl, and that they have not yet been able to fulfil the duties which were imposed upon thoni by the said will and by the laws of England, where the said will was made and the said testator had his domicile, the powers granted to the said plaintifls, or (^xecutors of the said will, continue in lull force until all the said trusts are accomplished and the said duties fulfilled. And whereas the said lat(> general Gabriel (!hristir% on tli 17th day of September 1796 and for many years previously and subsequently then vas possessed as seig- nior, proprietor and possessor of the seigniory of De Lery, ... . district of Montreal. And the said plaintiffs, in their said capacity, aver that the said late Gabriel Christie, by « certain deed of concession in the French language, made and executed before Delisle and his colleague, Notaries Public, on the ]7tli of Hepteniber 1796, granted and conceded d litre dc ccm e rentes scigneuriahs, fanciires et non rachetahles to Jean Baptiste Bigonesse dit Beaucaire, of St. Joseph deCharnbly, thereto present and ac- cepting, a lot of land situate in the said seigniory of De Lery. containing two arpents in front by twenty-eight in depth, making half of lot number 36, of the south side of the said seigniory, containing fifly-six arpents of land in superficies, bounded in front, to the north-east, by the diagonal lino of ilivision b(>tween the barony of Longueuil and the said seigniory, in dej)th to the south-west by the second concession, to the south- east by number 35, and to the north-west by the other half of the said lot number 36, to the north-west to the depth of the said concession, to tho south-east by the little River Montreal ; ■■.. ■ ■< ■ '• '■ ■:■■ :": ■" • \ ■. ■- .. , And by the said deed of concxjssion the said half lot of land was and is charged, to and in favour of the domatne of the said seigniory of De Lery, with an annual seignior- ial rente of nineteen livrcs twelve soh tovrvoin, and also with one sol tournois of cens for every arpent in front upon the whole depth of the said piece of land so conceded, the whole as an annual seigniorial rent, ccns ct rentes setgneuriales, payable on the 11th 145 ostnmpnt, iml Hi'ijr- [■8 and 118- [ last will I niul II])- teHtiiniciit e«I in tlio ;o law, of a copy to plaintiffs, testament said late said will ists in t!io vo not yet md by the domicilo, lue in lull iepternlier 3(1 as seig- Montreal. 1 Christie, ed before 3, granted t',v to Jean lit and ac- vo arpents ith side of :d in front, Tiieuil and the south- umber 36, the little larged, to seignior- of cens for leded, the the 11th day of Nov. of each and every year, the first payment whereof to become duo on the I lih day of November then next ; and it was, in audby the said seig[niorial deed of concession, agreed that the said seigniorial rent, cens et rentes, sliould not be afli ■ J by any depre- ciation in the currency of the country, as u fully set foith in tho said deed of conces- sion, und the said half lot of land was further charged with the droit dc to. tv, as ex- plained in the said concession deed, with the right on the part of the ; iyuior to exact one Spanish dollar in lieu of the said droit dccorncc each and every year, the .said droit (fe corjvfe or Spanish dollar, at the option of the seignior, to be for each one hundred and twelve arpents conceded, and so in proportion; und the said Jetui Jiaplisto Bigo- nesse dit Beaucaire took possession of the said lot of land, and the said h;\lf lot of land is now, and since the date of the said conclusion deed, has been charged with the said annual seigniorial rent, cens et rentes, and said droit dc corvie, with the right of option touching the said droit de corvee on the part of the seigniur of the said seigniory afore- said. And by the said .'opd of concession, the said Jean Baptiste Bigonesse dit Beaucaire bound and obligi d hinitiolf to pay the said annual seigniorial cms et icntes with the said droit de corvee to the seignior of the said seigniory and to his heirs und assigns in the manner and at the periods aforesaid. And the said defendant is now and for more than one year has been possessed as proprietor of the said half lot of land, which is now bounded (m one side by Theodore Bechard or representatives, and on the other side by Louis Luberge or representatives. And the said plaintiffs, in their said capacity, aver that, on the 11th day of Novem- ber 1834, twenty-nine years' an'ears of the said cens et rentes and of the said droit df corvee had become due and payable on the said half lot of land so possessed by the de- fendant for the twenty-nine years next preceeding that time, amounting to one pound one shilling and one penny per annum, in all to the sum of thirty pounds eleven shil- lings and five pence ; the said droit de corvee being therein included, and the said plain- tiffs, in their said capacities, claiming in money that part of the aaid droit dc corvee which is payable by the defendant as holder of the said half lot of land containing fifly- six superficial arpents ; and the said plaintiffs, in their said capacities, have a right to demand and have the said sum of thirty pounds eleven shillings and five pence cur- rency from the said defendant, as proprietor and possessor, detenteur actuel, of the said piece of land and piemises herein mentioned, unless the said defendunt had leather and do abandon and deliver up (delaisser en justice) the said piece of land and premises uo possessed by him, to be sold as heroafler mentioned. And the said defendant, although oflen requested to pay the last mentioned ^um of money, hath at all times neglected and refused so to do. Wherefore, the said plaintiffs, in their said capacities, bring suit and pray tha" the said piece of land herein described, possessed by the defendant, may, by the judg- ment of this honorable court, bo declared charged, affected, hypothecated and mort- gaged to and iu favour of the said plaiutifTs, in their said capacities, for and with the payment of the said sum of thirty pounds eleven shillings and five pence currency, with '«k :J3 w r r 146 interest and costs of suit, and that the deteiiaant, as proprietor and possessor, detenteur actuel, of the last mentioned piece of land and premises, be adjudged and condemned to pay the said sum of thirty pounds eleven shillings and five pence currency, with inte- rest and costs of suit, to the said plaintiffs, in their said capacities, unless the said defen- dant had rather and do, within fifteen days from the service upon him of the judgment to be rendered in this cause, abandon and deliver up (delaisser en justice) the said last mentioned piece of land and premises, in order that it may be sold in du j course of law, and that from the proceeds of the sale thereof, the said plaintiffs, in their said capa- cities, be paid and satisfied the said sum of thirty pounds eleven shillings and five pence currency, with interest and cost of suit, to the payment of which costs the plaintiffs, in their said capacities, pray the defendant be personally condemned, should he contest this action, the said plaintifis hereby reserving their recourse for the recovery of the arrears of lods et ventts due upon the said last mentioned piece of land, the defendant and his predecessors having at all times neglected to exhibit their title deed to the said iate Napier Christie Burton- and to the plaintiff. , (True copy) Montreal, 17th July 1840. (Signed) (Signed) W. C. MEREDITH, Attorney for Plaintifis. MONK & MORROGH, Prothy. PROVINCE 0» LOWER CANADA .1 KING'S BENCH, MONTREAL. Vacation after February T&rm, 1841. George Burton Hamilton Sf al.j Plaintifis ; "''''"■■'■' •'■ vt. Michel Lamoureux, Defendant. And the said defendant, for plea to the said action, not admiting the allegations in the said plaintift's declaration in the said cause fyled to be true, by this his defense aufonds en droit saith that the allegations, matters and things in the said declaration contained are insufficient in law to entitle the said plaintifis to have and maintain their said action according to the eonclusions of their said declaration. Wherefore he prays taat the said action may hence be dismissed with costs. (Signed) Montreal, 1st March, 1841. DAY & JOHNSON, For defendant. 147 detenteur lemned to with inte- »aid defen- I judgment le said last course of said capa- five pence aintiffs, in he contest irery of the defendant to the said Plaintifis. an. Frothy. m, 1841. •al.f lintifis ; fendant. IS in the said )fids en droit re insufficient rding to the SON, >f«odant. And the said defendant, iivithout waiver of any matter or thing by htm in the said caus* heretofore pleaded, not admitting any of the allegations in the said declaration contained to be true, for further plea to the said action, fortwith saith that the said lot of land in the said declaraHon mentioned and described, at the time of the original concession thereof by the then seignior and possessor of the said seigniory, was wild and uncultivated land, terre en hois debotit, and by the laws then and still in force in fhis Province, ond by the grant and concession of the said seigniory of DeLery, the then seignior and proprietor of the said seigniory of DeL6ry was bound and obliged to concede the said lands to any person or per- sons inhabitants of the said province, (habitants du pays) who should require and demand the same, upon rent d litre de redevance, and without exacting or receiving any st-n of mo- ney for and in consideration of such concession, the said seignior and possessor of the said seigniory of De L6ry being so obliged to concede the said lands at a rate of rent, taux de ceus et de redevances seigneitriaux, equal to and not exceeding the rate (taux) at and for which wild lands {terrcs en bois debout), first conceded by the seigniors (concedees en cen- sive) in this country, were so conceded and which then was and still continues to be the only rate (taux) of rent (cens et redevances) known, recognized or allowed by the laws of this province. And the said defendant saith that the rate and siun of one pound one shilling and one penny currency, per annum, for ccns ct rentes, with which the said plaintiffs allege the said lot of land to be charged to and in favor of the domain of the said seigniory, far exceeds the said lawful rate of rent (tatix de cens et dc redevances) at which the said land ought by law to have been conceded as aforesaid. And the said defendant furtlier saitli that the charge and impoi*ition of the said last mentioned sum for annual seigniorial rent (cens ct rentes), upon the concession of the said lot of land then being wild and uncultivated (terre en bois debouf), was wrongful and illegal, and null and void, and the same ougl;t to be reduced to tlie said rate (taux) at and for which wild lands (terrcs en bois drhout), fii'st conceded by the seigniors (concedees en eensive) in this '•ountry, were so conceded. And the said defendant saith that, long before the institution of the present action, and before the decease of the said late Napier Christie Burton, there were paid by the said defendant and his predecessors, to him the said Napier Christie Burton, and to his agents acting in that behalf, divers suras of money for cens et rentes, far exceeding any sum which he the said Napier Christie Burton, at the time of his decease, was or could be by law, and according to the said last mentioned rate, entitled to have and receive, by means whereof all right, demand and claim of the said Napier Christie Burton, and the said plaintiffs or his representatives, to have or receive any sum of money for arrears oi cen^ et rentes accrued to the said domain of the said seigniory, have become and were and are wholly satisfied, discharged and extinguished, all which he is ready to verify, when and where this honorable court shall direct. Wherefore, the said defendant prnys judgment upon his plea in this behalf, that this honorable court will adjudge and declare the imposition and charge of the sum of one pound one shillings and one penny currency, per annum, for ceris et rentes upon the said lot of land, to be wrongful and illegal and null and void, and will reduce the same to ,V1 f'3 145 the said rate (taux) at and for which the wild lands (tenet en hois deboutj first con- ceded by the seigniors (concedees en censivej, were so conceded ; and will further ad- judge and declare that the monies so paid as aforesaid have satisfied, di-scharged and extinguished all right, demand and claim of the said plaintifis for arrears of cena et rentes upon the said lot of land, and further prays that the said action may be hence dismissed with costs. (Signed) DAY & JOHNSON, For Defendant. Montreal, 1st March 1841. r C r And the said defendant without waiver of any matter or thing by him in the said cause heretofore pleaded, not admitting any of the allegations in the said declaration contained to be true, for further plea to the said action, fortwith saith : that the said lot of land in the said declaration mentioned and described, at the time of the original concnssion thoreof by the then peignior and possessor of the said seigniory of De Lery, was wilfl and uncultivated land Ctcrrr en bois dchout), and by the laws dien and still in force in thi.s province, and by the title of the grant and concession of the said seigniory of Dc Lcry, the then seitrnior and possessor of the said seigniory of De Lery was bound and obliged to concede the said land to any person or pei-sons, inhabitant"? of the said ■pTo\'\nce (huhitants dv pays), who should it quire and demand the same, uponrra^ed titre de redcranci; and without exacting or receiving any sum of money for and in con- sideiation of such concession, the said seignior and possessor of the said seigniory be- ing so obliged to concede the said Itiiid at a rate of rent (taux de cms et de rederances scigiiieimraux), ecjual to and not exceeding the rate (taux) at and for which the wild lands (tcrres en hms dchovl), first conceded in the said seignioiy, were Cf needed, and which then was and still continues to be the only rate (taux) of rent (cenn et rcdrvancc), with, to or for which the said land, in the said declaration mentioned, could or can by law be charged, affected or liable. And the said defendant saith, that the rate and snm of 1 pound 1 shilling and 1 penny currency per annum for cens ct rentes, with which the said plaintifls allege the said lot of land to he charged to, and in favor of the domain of the said seigniory, far exceeds the said lawful rate of rente, taux de cens et redevances, at which the said land ought by law to have been conceded as a>oresaid. And the said defendant further « lONTKEAL. ) c. COURT OF KING'S BENCH. Geoecb B. Hamilton 8f al., Flaintifis, V9. Michel Lamoureux, Defendant. And the said plaintiils protesting that the allegations in their declaration in this cause iyled, contained, are true, for replication to the defense aujonds en droit fyled in this cause by the defendant, say that the allcgatious in their said declaration contained are sufficient in law to entitle the said pluintifFs to have and maintain their said action according to the conclusions of their said declaration. Wherefore, the said plaintiffs pray that the said defense au fonds en droit be hence dismissed with costs, and further pray as in and by their said declaration they have already prayed. (Sign'^'IN W. C. MEREDITH, i/iilt^tw Attorney for Plaintiff. Montreal, 2nd March 1841. And the said plaintiffs protesting as aforesaid for general answer to the pleadings by the said defendant in this cause secondly, thirdly and fourtlily plcuded, i^ay that the alle- gations, matters and things in the said pleadings respectively c(»ntaiue(l are false, un- true and unfounded in fact, and are moi-eover insufficient in law to enable him the said defendant to have and maintain the conclusions by him in his said pleading, secondly, thirdly and fourthly pleaded taken, or to prevent the said ])laintiffs from having and maintaining the conclusions by them in their said declaration taken. Wherefore, the said plaintiffs pray that the said pleadings, by the said defendant in this cause secondly, thirdly and fourthly pleaded, be hence dismissed with costs ; and farther pray r« in and by their said declaration they already prayed. (Signed) W. C. MEREDITH, Attorney fur Flaintifii). Montreal, 2nd March 1841. 153 tiSr And the said plaintiffii, protesting as aforesaid, for general answer to the plea by the said defendant, fifthly pleaded in this cause, saith that the allegations, matters and things in the said plea contained, are false, untrue and unfounded in fact. Wherefore, the said plaintiffs pray that the said, by the said defendant in this cause fifthly pleaded, be hence dismissed with costs, and further pray as in and by their said declaration they have already prayed. (Signed) Montreal, 2nd March 1841. W. C. MEREDITH, Attorney for Plaintiffs. If i! ndant. tion in this oit fyled in 1 contained said action nt be hence they have TH, Plaintiffi. pleadings by that the alle- are false, un- him the said ng, secondly, 1 having and '. defendant in th costs ; and 3ITH, ►r Plaintiflfl. And the said plaintiffs, protesting as aforesaid, for general answer to the plea by the said defendant in this cause sixthly pleaded, say that the allegations, matters and things in the said plea contained, are insufEcient in law to enable the said defendant to have or maintain the conclusions by him in his said plea in this cause sixthly pleaded, taken, or to prevent the said plaintiffs from having and maintaining the conclusions by them in their said declaration taken. Wherefore, the said plaintiffs pray that the said plea, by the said defendant sixthly pleaded, be hence dismissed with costs, and further pray as in and by their said de- claration they have already prayed. (Signed) W. C. MEREDITH, Attorney for Plaintiffi. Montreal, 3nd March 1841. And the said plaintiffs, protesting as aforesaid, for replication to the plea by the said defendant in this cause lastly pleaded, say that the said defendant is indebted in manner and form as complained against him by the said plaintiffs in their said declaration. Wherefore, the said plaintiffs persist in the conclusions by them in their said decla- ration taken. (Signed) W. C. MEREDITH, Attorney for Plaintiffi. Montreal, 2nd March 1841. (True copy) (Signed) MONK & MORROGH, Prothy. II: iSi Mm 11:3 I HI- c 154 DISTRICT i OF > MONTREAL. ) NO 910. COURT OF KING'S BENCH. Wednesday the 2nd day of February 1842. Groroe B. Hamilton 8f al., Flaintifikr vg. Michel Lamoureux, Defendant. The honorable Mr. Justice Pyke, on rendering the judgment in this cause expressed the opinion of the court in maner following : This is an hypothecary action brought by the plaintiffs as executors of the last will of the late general Burton, and also as his universal fiduciary legatees to recover from the defendant, twenty-nine years of arrears of cens et rentes due upon a half lot of land containing fifty-six arpents in superficies in the seigniory of De Leiy, now and for one year and upwards owned and possessed by the defendant, which arrears accrued be- fore the death of General Burton, who, at that period 1st January 1825, aiid for thirty- five years preceding, was the proprietor and possessor of that seigniory. And it is alleged, in the declaration, that the land in question was, on the 17th Sep- tember 1796, by notarial deed, conceded by the late general Christie, the then pro- prietor of the seigniory and predecessor of general Burton, to one J. B. Bigonesse dit Beauvais, subject to an annual rent of nineteen livres ten sols tournois, and also one sol taurnois for every arpent in front, the same not to be aftected by any depreciation in the currency of the country, and also as a droit de corvee, and in lieu thereof a Spa- nish dollar for each one hundred and twelve arpents conceded and so in proportion, the whole payable on the llth of November of every year; and it is avered that, on the 11th November 1834, there had accrued and were due twenty-nine years of the said annual rent, which, at oCl Is. Id. per year, amounted to the sum of <^30 lis. 5d.; and alleging that the plaintiffs have, in their said capacities, a right to demand that sum from the defendant, as the proprietor, possessor and detenteur actucl of the said land, unless he should prefer to abandon the same (delaisser en justice), and concluding hypothecarily against the defendant in the usual terms. Plea 1st. — Defense au Jbnds en droit. Plea 2nd. — By exception that, at the time of the concession of the land in question, it was forest land, and that, at that period and since, by the law then and still in force, and by the grant of the seigniory, the seignior was bound to grant the same upon rent ^ titre de redcvance, without exacting any money for such concession, and obliged to 155 concede to the inhabitants at a rate of rent not exceeding that which wild lands first conceded in this country, were so conceded, and wliich then was and still continues to be the only rate of rent known or allowed by the laws of this province. That the rate, in this instance, far exceeds the lawful rent at which the land ought to have been conceded, and that the rent so stipulated in the deed of concession was wrongful and illegal, and null and void, and ought to bo reduced to the rate at which wild lands first conceded in this country, were so conceded And that, before the action and the decease of the said general Burton, the defend- ant and his predecessors had paid to him divers sums for cens et rentes far exceeding any sum lo which the seignior was by the law of the land entitled, whereby all right or claim of general Burton, for any aiTears of rent, have become and are satisfied and extinguished, all which he was ready to verify, &c. And coricluding that the rent demanded be declared wrongful and illegal, null and void, and be reduced to the rate at which wild lands, first conceded by the seigniors, wore so conceded, and fiirther declared that the monies so paid by the defendant, have satisfied and extinguished all right or claim of the plaintiffs for arrears of rent upon the said land, and the plaintiffs' action dismissed with costs. The second exception, for the most part, is the same as the first, but with this va- riance that, by law and by his title, the seignior was bound to concede at the same rate at which wild lands, first conceded in the said seigniory of De Lery, were so conceded, and that the rent demanded far exceeds that which by law could be so charged, and ought to be reduced accordingly ; there is the same alteration of payment, and con- cluding as in the first exception, in so far as regards the variance noticed. The third exception varies from the two preceding in this : that it is alleged that the rent demanded exceeds that at which by law it ought to have been conceded, and* that it ought to be reduced to the rate at which wild lands first conceded in this pro- vince, were so conceded, or at the rate ut which they were conceded before the year 1711, or at the rate at which such lands were first conceded in De Lery, by the then seignior thereof, payment as again alleged, and the conclusion the same as in the pre- ceding exceptions, except in so far as regards the variance in the rate of rent. The fourth exception is an allegation of payment of all lawfuipcew* et rentes, which defendant was bound to pay, or which by law the land could be holden or liable to pay to the seignior. The fifth exception is tliat the plaintiffs cannot maintain this action as they have not, since the death of general Burton on tlic 1st January 1835, nor are they now possessed of the said seigniory as proprietors thereof; but that the same has been and is possessed by one Wm. Plenderleath Chriatie, in his own right solely as seignior and prop- "nor thereof. ^iffl! Is l2 *<.)» :3' Conclusion — That action be dismissed. The last yjlca is, not indebted. mi t' '\:\ n r 3: r .5 P h 156 The answer and reply to these pleas are general. The parties by consent reserved the hearing en droit upon these preceedings until the final hearing of the case, and they have since gone to examination and been heard finally. Now as to the defense au fonds en droit, little has been or indeed could be offered in support of it ; the original deed of concession upon which this hypothecary action is based primd facie is a valid contract, voluntarily entered into between two parties, though like every other act, liable to be set aside, upon any legal and sufficient ground, not appearing upon the face of it, and which must therefore be specially pleaded and set forth ; it is sufficient therefore, that a right of action appears upon the face of the declaration, and the demand substantially set forth, to compel the defendant to answer thereto, and there- fore the action cannot be under a defense au fonds en droit dismissed, which it could only be where the allegations of the demand are in law insufficient to support the conclusions thereof ; we must therefore conclude, that it has been used not from any expectation of success, but to serve should it be found upon sub-consideration capable of being supported, and it is evident that the defendant felt he could not rely thereon as in the subsequent picas of exception, every thing is embodied that the defendant has been able to urge as the real grounds of defence against the action. Now the second, third and fourth pleas are exceptions of a very peculiar description, and the law invoked therein, would seem to be either unknown or to be of so doubtful a description, as not to admit of its being stated with any certainty, the object of the whole is not to set aside the deed of concession itself but to reduce the rate of rent therein stipulated to the rate of which it is alleged by law, the land should have been conceded, and at which the seignior was bound to concede ; the law however is so variously stated in these exceptions, and in a manner so contradictory the one to the other, that it is evident tha the defendant has been groping in the dark and scarcely knowing where to turn, in order to find something upon which to resist the plaintiff's claim for rent as stipulated in the ori- ginal deed of concession, and it is evident that by invoking laws so much at variance the one with the other, the defendant must have been aware that in truth there was no certain or precise law upon the subject, and that he had not been able to discover any. In the first exception it is alleged, that by law, the seignior could not claim a higher ront than that at which wild lands were first conceded in the seigniories of this country. In the second, that by law, the seignior was bound *o concede at the same rate at which wild lands were first conceded in the seigniory of De ^&ry, in which the land is situated. The third, is that, by law, he is bound to concede at the rate at which wild lands were first conceded in this province, or at the rate at which they were conceded before the year 1711, or at which they were first conceded in the seigniory of De L6ry. But to crown the whole, and in order that the Court should remain in the state of darkness and uncertainty in which the defendant appears himself to have been, what the rate of rent was originally in this country, what it was in the seigniory ot De L6ry, or what it was in Canada previous to 1711, the defendant has not taken upoii himself to state, ■0 that it is impossible from any thing set forth in these pleas that the Court can discover, 157 It roRorved e, and they )e offered in tion is based though Hke ol appearing forth ; it is aration, and and there- it could only e conclusions xpectation of ng supported, sequent pieas e as the real description, so doubtful a of the whole f rent therein een conceded, ously stated in at it is evident turn, in order ted in the ori- it variance the was no certain y- claim a higher is country. e rate at which and is situated. vild lands were before the year in the state of been, what the )t De L6ry, or himself to state, irt can discover, , whether the reduction claimed can be awarded or not ; there is therefore nothing stated with that certainty which is essential to every pleading to enable the Court at snce to say, if these facts are proved, the conclusions taken are correct. But the trouble is, that the defendant found that the rates of rent were so various that it negatived the idea at once of any fixed rate established by law, and therefore he thought it most prudent to trust to chance, and what he might be enabled to adduce in evidence, and leave the Court to say or find out what reduction of rent should be made, and thus exercise an arbitrary control and power over a rent which the censitaire had by a solemn act stipulated and agreed to pay, it would require something more than what has been cited of the law of Canada upon the subject, to justify us in setting aside such a solemn agreement, entered into voluntarily by the censitaire^ and that in accordance with the common law of France and common sense also, " que toujours le cens a ete pi-oportionne au veritable produit de la chose accensee^* ('), the censitaire paying secundum facultate honorum, and what more reasonable — is the censitaire alone to benefit from the increase in the value of lands, and the seignior to be excluded from that benefit, or is it right to suppose that in the decrease in the value of money that persons now applying for concessions should have them at the same low rate as the ancient censitaire, for, it so, the modern censitaire would have the advantage in paying much less than those for whose benefit any restriction of the rent was originally intended, as one livre in those days was of as much value to the possessor as three in these days. This, however, is an equitable view of the question, but where is the law which authorizes us thus to interfere, we see none, the custom which now prevails of stipulating higher rents than those which were formerly taken in the first settlement of the country, has tacitly sanctioned it, and the Courts of Justice enforced it ; nor has there a judgment been cited in which the Courts of this Province have interfered between the seignior and his censit.dre to set aside the stipulated rent agreed between them, it is not pretended that the censitaire ever claimed the land at a lower rent, be obtained the land that required, at it is to be presumed from bis acquiescence and engage- ment that he recognized the right to the rent stipulated, and that he paid no more than other applicants for land at that period. We must therefore leave these rents to be regulated by the agreement of the parties, which once concluded must be binding, and enforced as all other obligations and jmder- taking ; we can make no arbitrary regulations upon the subject, and if any abuse hereafter may be found to exist in matters regarding the feudal tenure as modified and now existing in Canada, it is for the legislature and not the Courts to apply the remedy. Besides, the same question as that raised in this cause was so solemnly determined in in the cause of and again recently in the case of Rolland against Molleur, in which my brother. Gale, who delivered the judgment of the Court, particularly adverted to the different authorities, again resorted to in this cause, and in a manner so fully and satisfuctorily, that renders any further observations, or rather a repe- tition of those of Mr. Justice Gale, unnecessary ; we adhere to the principle of those decisions, until the superior tribunal has convinced us that we are in error, and afforded a better principle whereon to determine. 1 ':3 3 'J ;3^ '■if- (*) IUnri.— Thoorio cU>» matiorc* fpoilalei ot ccntH^llej. Vol. 5 ; sco from \t%^* 91 to l?l. ■I,- ■.i : iv ■m- c St 168 Tho fourth exception is, payment of all rent, which the plaintifTs could legallj claim, but under this no payment lias been proved. As the fifth exception, we cannot think the defendant was serious in making it : that the plaintifls in their qualities of executors and universal legatees never were in possession of the seigniory. No, they were not, they do not pretend they were, but the testator, geueral Burton, was, whom they represent, and they now sue, as legally and rightfully they may, for a Jeht which accrued and became due to the testator, while seignior, in possession of the seigniory of De L6ry. The proof on tho part of the plaintiflfH is complete as regards the quality of the plaintiffs and the jxwse.Hsion of tlie seigniory by gcncrul Burton, and of the land in question by the defendant and of its original concowsion and stipulated rent, as well by documentary evidence as by admissions. The rests of the evidence which is verbal, accompanied by certain ancient title-deeds of concession, amounts to no more than this, that the rate of ens ct n-ntes is as vaiious as there ai'e seigniory in Canada, and that it would be difficult to point out any two in which the rate is the same, nor search any fixed rate, as in the same seigniory the rates have varied at different periods, though always upon the increase, and tjiere can be little doubt that the rents in the seigniories were originally of a less nominal value than ot present. The policy of the French Government, in order to forward the original settlement of this colony is obvious, and may account for many of the decisions of the courts under that government ; but throughout vv'e can discover no precise law to autoiize us to re- duce the rent stipulated in ii xdemii contract between the seignior and his ccnsit(im\ made in good fail li and wJiid) has now subsisted years; and the policy of the ancient government havitig been att.iiued, it must now yield to a poli(!y ocpially beneficial to the public welfare and profiperity, and ifwe vvcie to consider the ancient decisions as now of any weight, we should be much nt a loss which to adopt, as they are as various upon the subject as tlic rates in different seigniories mriy now be and generally have al- ways been, and indeed were we now arbilrniily to adojit any rule wilh regard to the rate o^ccns ct rentes in the seigniories, it is almost impossible to lonceive the injury, nay, the injustice which must follow in the decreased value of the seigniories of this country, and the loss which would accrue to the now propiietors thereof who have piu'chased their seignioiies at very high prices in good faith iind in the confidence that the rents establislie'. would be enforced, and they be allowed to benefit in common with their ccnsitair 's in the natural rise in the value of real property from the advanced and advancing state of improvement of the countiy and the ase of population and wealth it has acquired, besides the rate of rem ■ ated, is that which one half, if not more, of the censitaires of l)c Lei-y now Having no law, therefore, to authorize us i., make ♦'. ■ reduction claimed, we must, as well upon the common law rule in Fiance as upo the general principles of law in regard to all contracts, enforce the stipulations of the original deeils of concession of the land in question, and if the re/i^fitaires feel themselves aggrieved and nj) . cssed, let them apply to the Legislature which ;ilone can afford the relief sought for, should the «vil complained of be each as to justify such relief. l&Wj claim, 159 that the )ssession of le testator, htfully they 1 possession lity of the the land in as well by 1 is verbal, e than this, and that it search any Dds, though ! seigniories settlement ourts under ■ize us to re- ds ccnsit(iire\ 'the ancient beneficial to , decisions as re as vaiious nlly have al- i-egard to the '0 the injury, liories of this of who have nfidence that in common the advanced )pulation and one half, if led, we must, pies of law in concession of ip.iosscd, let ar, should the (Translation.) PBOTINCE OF CANADA. i '11^ i IN THE KING'S BENCH. Wednesday, the 2nd day of January 1842. present : The Honorable Mr. Justice Pyke, •' " RoLLAND, No. 910. The Court, after having heard the parties by their advocates, and having before it the admission of the defendant and the retract of the plaintiffs, and having examined the re- cord and evidence, and on the whole maturely deliberated, adjudges the immoveable property mentioned and described as follows in the declaration of the plaintiffs, that is to say : " The one half of the lot No. 36, on the south side of the seigniory of De Ldry, con- taining fifty-six arpents of land in superficies, bounded in front to the north east by the diagonal line of division between the burony of Longueuil and the said seigniory, in depth to the south-west by the second concession, on one side by the lands of Theodore Bechard or his representatives, and on the other side by those of Louis Laberge or his representatives; " to be charged and hypothecated for the payment of the sum of twenty-five pounds six shillings, Halifax currency, with interest on the said sum from the 2l8t day of July 1840, the day of the service of the wait of summons, — the said sum being due for twenty-four years ofcens et rentes and right oi corvee, due on the 11th day of November 1834, upon and on account of the said immoveable property; And therefore condemns the defendant, as the possessor and holder of the said im- moveable property, to pay to the, plaintiffs, in their said quality, the sum of twenty- five pounds six shillings, currency aforesaid, with the interest thereon until actual payment, and the costs of this action, unless, in so far as relates to the said sum and Gale. <*- Georce Burton Hamilton If al, \ 1st Plaintiffs, am ■mm Michel Lamovreux, Defendant. i > :z. 1 160 m n Pi ' 1- the interest thereon, the defendant shall choose rather to abandon the said immoveable property in due form, to be sold by decret to the highest and last bidder, in the usual course of law, through the curator to be appointed to such abandonment, and to the end that out of the proceeds of such sale the said plaintiffi, in their said quality, may bo paid the sum due to them as aforesaid, principal, interest and costs, — of which the defendant shall declare his option within fifteen days after the service of this judgment, failing which, then after the expiration of the said time and by virtue of this judgment, and without any other being requisite, the defendant shall be personally bound to pay the said sum with the interest, coiJts and other accessories ; And by reason of their contestation of the plaintiffs' demand by the said defendant, the Court condemns him personnally to pay tlie costs on the said demand ; saving also to the said plaintiffs their right to recovei any lods et rentes which may be due on the said immoveable property. * ' * , (True copy) (Signed) MONK & MORROGH, Frothy. NO 117. Arritt and Declarations concerning G'^ants in this Colony. " EDICT OP THE KINO OP FRANCE,*' 21st March 1663, RBVOKING GRANTS OP LANDS NOT CLEARED. The King having caused to be laid before him, in his council, his edict of the present month, whereby His Majesty, in consequence of the grant and surrender by the persons interested in the Company of New France, resumed all the rights which had been granted to them by the deceased King, in consequence of the treaty of the 29th April 1627, and His Mnjesty having been informed that one of the cliiof causes of the said country not having become as populous as might be desired, and even that several settlements have been destroyed by the Iroquois, is to be found in the grants of large quantities of land which have been given to all persons inhabiting the said country, who not having ever had nor having the power of clearing the same, and having eslab- lished their residence in the midst of the said lands, have by that means been placed at a great distance from each other, and even from obtaining succour from the officers and soldiers of the garrison of Quebec and other places in the said country, and thus it even happens that, in a very great extent of country, what little land tliere is in the environs of the dwellings of the grantees being cleared, what remains can never be- como so; which requiring a remedy, 161 His Majesty, being in his council, hath ordained and doth ordain that, within six months from the date of the publication of this arret in the said country, all persons BO being inhabitants thereof shall cause the lands designed in their grants to be cleared, in default whereof, at the expiration of that time, His Majesty doth ordain thpt all lands remaining uncleared shall be distributed by new gi'ants in His Majesty's name, either to the former or to the new inhabitants thereof, His said Majesty revoking and annulling all grants of the said lands not as yet cleared by those of the said company. His Majesty doth enjoin and command the Sieurs de Mezy, GoveiTior, tlie Bishop of Petree axidRobert, Intendant to the said countiy, to see to the punctual execution of this arret, even to make a distribution of the said uncleared lands, and to gi-ant tliem in the name of His Majesty. Given in the Council of State, in presence of the King, on the 21st day of March 1663. Arret of the King (ith Juno \Qil5) for 7-educing the Concessions which are too extensive, ami for making a Census. The King having been infomied that all the subjects who have gone from Old to New France, have obtained grants of a very great quantity of land along the rivers in the said coimtry, which they have been unable to clear by reason of their too gvei^t ex- tent, which is an inconvenience to the other inhabltanis of the said country, and even prevents other Frenchmen from going thither to settle, which is entirely contrary to the intentions of His Majesty as to the said country and to the attention he has been pleased to bestow, for eight or ten years, on the exteiisiou ol" the colonics which are settled therein, inasmuch as a part only of the lands bordering on the livers is cultivated, the rest not being so, nor admitting of becoming so, by reason of the too great extent of the said grants and a want of means in the pro})rietors thereof; wliich requiring a remedy, His Majesty, in his council, liatl) ordained and doth ordain that, by the Sieur Du- chcsneau, councillor in his councils and intendant of justice, police a^ul finance in the eaid coimtry, tliure shall be made an accurate statement of the quality of the lands yed iu cultivating and chjaring the siinio, in coiitiequeuce of wliich •statement one half of the lands which were grunted bclbro the last ten years, and v.'hicli r.vo not cleared and cultivnted as arable or as niealow land, shidl be .struck out of the grant.j and given to oUch persons as shall come fbrv/iU'd to ( ultiv.ite and ''U'ar tl'cm. Hi' Majesty or 'iiinetli thivt such ordin: nc.^s us shull be made by the said Sieur Du- cbcsneau, bhall be executed according to their foiia and tenor as being .jupreme and ot '5 ::J 162 C ultimate resort as decrees of a superior tribunal. His Majesty to that end attributing to him plenary jurisdiction and cognizance. . '. - .^ 4 His Majesty thas further ordaineth that the said Sieur Duchesneau do give provision- ally gi-ants of the lands which shall so have been struck off to new settlers, on condition however that they do completely clear the same within the four next ensuing years, in default whereof, at the expiration of the said time, the said grants shall be and remain null. ■ i His Majesty enjoineth the Sieur Comte de Frontenac, governor and lieutenant gen- eral of His Majesty in the said coimtry, also the officers of the sovereign council there- in, to see to the execution of this arret, which shall be executed, any opposition or hinderance whatever notwithstanding. Given in the King's Council of State, holden in the camp of Luthing near Namur, on the 4th day of June 1675. (Signed) COLBERT. n ::i: a 5th Mat, 1716. Arret of the King's Council of State for the re-union of the lands granted hy the gen- tlemen of the Seminary of St. Sulptce. The King in his council having before him the petition of the Ecclesiastics of the Semi- nary of St. Sulpicc of Paris, seigniors of the Isle of Montreal, the land or CUe St. Sul- ptce, in Canada, their appurtenances and dependencies, in which petition they have set forth that, as seigniors of the said Isle, they have made several grants of inheritances upon the charges, renders and dues stated in the said gi-ants ; that several proprietors of the said con- ceded settlements having left them uncultivated and abandoned, the superiors have beeu obliged, for the preservation of their rights, to have recourse to the Intendant of New- France, in orf'.er to obtain permission to resume the same, which hath been granted them by divers ordinances of the 22nd of June, 1706, 2r)th May, 1707, 26th May, 1708, and 5th July, 1710, after having laid before the said Intendant certificates in proper form of the abandonment of the said concessions ; that the late King having been informed of the ne gligence of the proprietors of the said concessions, and that the same would prove mate- rially detrimental to the settlement of the colony, ordained by arrH rendered on the 6th of July, 1711, that within one year from the date of the publication of the arrSt, the inhabi- tants of New-France, not residing upon the lands which have been granted them, should be held to cause the same to be actually settled and brought under cultivation, in default •vlieie- ot, at the expiration of the said term, it is ordained that upon certificates of the curates aid captains of the C6tcs, shewing that the inhabitants have been one year without making uctual settlement upon the said lands, and have not brought them under cultivation, they be divestd of the property, and the same bo rc-united to the domains of the seigniors, according to such ordinances as shall be rendered by the sieur Begon, Intendant of the said country of New- 163 tributihg to e proviaion- on condition ng years, in and remain utenant gen- ouncil there- )ppo8ition or near Namur, ERT. 1716. id hy the gen- J of the Semi- VUe St. Sul- have set forth ances upon the f the said Con- ors have beeu adant of New- granted them [ay, 1708, and >er form of the ed of the ne Id prove mate- d on the (ith of St, the inbabi- hcm, shoiikl be I default -vlierc- the curates ami it making uctiial hey be divestod ccorcling- to such ountry of New- Fraace. That ia execution of the ^aid arrSt, published in the town of Montreal, on the twenty-ninth day of January, one thousand seven hundred and thirteen, the petitioners have prayed the sieur Begon to be admitted to resume more than forty-eight settlements, which appear by the certificates of the curates and captains of the Cdtes to be abandonned and un- cultivated, at the foot of which petition the said Intendant hath ordaiiied that the parties shall be summoned. But inasmuch as many of the proprietors of these inheritances are deceased without heirs, that others have been absent many years, and that to compel them to comply with the formalities of procceeding respecting all abandoned and uncultivated con- cessions would be to render it impossible for them to procure re-union to their seigniories; the aforesaid Ecclesiastics of the Seminary of Saint Sulpice have most humbly prayed His Majesty to make known his intentions respecting the arrSt of the sixth of July, one thousand seven hundred and eleven and to determine what are the cases in which they may resume the abandonned and uncultivated concessions without other formality than that of presenting the certificates required by the said arrSt. And His Majesty taking into consideration that if the said Ecclesiastics were compelled to have recourse to the Intendant of the said country, respecting the said uncultivated or abandonned concessions, they would become exposed to lenghtened proceedings by their remoteness from the city of Quebec, where the said Inten- dant resides, whose stay at Montreal is not long enough for the discussion of such matters, moreover in case of appeal from his ordinances, the parties interested therein are held to in- stitute them in France. For all which His Majesty being willing to provide, having heard the report and having taken into consideration, His Majesty in council, by the advice of the duke of Orleans, Regent, hath ordained and doth ordain, that upon the demands of the Ecclesiastics of the Seminary of St. Sulpice, for the reunion to their seigniory of the con- cessions by them made, they shall proceed before the royal judges of Montreal, and hy ap- peal to the superior council of Quebec for their decree in the premises. Provided, neverthe- less, that the said officers shall not take cognizance of ordinances heretofore rendered by the Intendant of the said country, with respect to which proceedings shall obtain in the usual manner, and according to the terms of the ordinances, in cases wherein the proprietors of tlie said concessions or their assigiis seek a remedy against them. His Majesty doth never- theless ordain, that the said ordinances shall be put in execution according to their form and teaor provisionally, until it be otlierwise ordained. Given in the King's Council of state, in His Majesty's presence, on the fifth day of May, 1716. (Signed) PHELIPPEAUX, with paraph. 15th March, 1732. Arret of the Council of State, enjoining the seigniors to cause actual settlements to be ttwde on tJicir seigniories, and prohibiting their selling uncleared lands. Extract from the registers of the Council of State. The King having caused to be laid before him in his coimcil the arret therein rendered on the sixth day of July, 1711, mporting that such inhabitants of New-France as having ob- "-•*t "I iut3 "3 ii-r C n p.. r- 164 tained grants of land in seigniory, had not therein any cleared domain nor inhabitants settled, should be held to bring them into cultivation and to settle inhabitants thereon, within one year from the publication of the arret aforesaid, after which period they should remain re-united to His Majesty's domain, and that the said seigniors should also be held to concede to such inhabitants as shoiiid deniiinJ the same, for rent, and without exacting any sum of money, that otherwise such inhabitants sliouKl be permitted, in case of refusal after one application, to apply to the governor, lioutcnant-geiioral and Inlenilant of the said country for grants of them, with the same dues as are imposed upon other conceded lands, which dues should be paid to the receiver of His Majc^'ty's domain, without any power to the seigniors to claim anything upon the lands so granted. Also another arret of the same sixth day of July 1711, importing that the grantees of lands r/i »(:y^2irc should be held to actual settlement thereon, and to bring them into cultivation v.iilun one year from the date of the publication, on pain of reunion to the domain of the seigniors upon the ordinance of the intendant. His Majesty having also been informed, that contrary to the exigencies of both those arrets, certain seigniors have reserved to thcm.ielvcs cxtonsivo domains within their estates ; that they sell tracts of wood land instead of merely conceding them for rents, and that some inhabitants having obtained grants IVom the seigniors have sold them to others, who suc- cessively sold them again, w'uereb/ a tratlrtc, adverse to the good of the colony, is effected ; and it being necessary to remedy such pernicious abuses. His Majesty in council hath or- dained and doth or Jain, that within two years from th'; date of the publication of this arret, all proprietors of land in seigniory, as yet uncleared, shall he held to bring them into cultiva- tion and settle inhabitans theioon, otlitrwise after the expiration of that time, the said lands shall be re-united to His Majesty's domain, by virtue of this arretf without a necessity for any other. His Majasty doth mo.it expressly prohibit all seigniors and other proprietors from selling any wood land on pain of nullity of the deeds of sale and restitution of the price of the lands sold, which lands shall in like maniier become re-united to His Majest'y domain- and further, both the arrets a''oresaid, of the sixth July, 171 1, shall be put in execution ac- cording to their form a-id tenor, and this shall be enrolled in the office of the superior coun- cil of (Quebec, and read and published wherever it shall be necessary. Given before His Majesty, in his Councd of State, holden at Versailles, the fifteenth day of March, 1732. (Signed) PHELIPPEAUX, with paraph. Dcdaratwn of t)ic Ki7ip concerning grants in the colonies, llih July, 1743, Louis, by tho graco of God, King of France and Navarro. To all to whom those presents sholl come, greeliug. Wc have, after the example of tho Kings our ancestors, authorized the governors and intondants of our colonies in America, not only themselves to grant the landa which or to twc gra mil our sha 165 mts settled, in one year in re-united ;de to such I of money, application, )r grants of s should be ofo to claim day of July ^ settlement publication, endant. His those arritSy estjxtes ; that 1 that some rs, who suc- , is effected ; mcil hath or- of this arrity into cultiva- he said lands necessity for r proprietors n of the price jest'y domain; execution ac- iuperior coun- n before His irch, 17S2. AUX, ) paraph. ly, 1743. the governors bo landa which we cause to be distributed to such of our subjects as are willing to settle thereon, bat also to proceed to re-unite to our domain such granted lands as are liable to re-union, by nf)t having been broixglit into cultivation ; and they have also cognizance, to the exclusion of the oriliauvy judges, of all differences ai'ising between the grantees or their assigns, as well as with respect to the validity and execution of the grants, as to their situation, extent and limits ; l>ut we ace informed that, up to this time, there hath been scarcely any thing certain, either with rcspod to the f(n-m of proceeding, in cases of the re-iinit)n of gi-ants, or of x\h^ trial and adjudication of suits between the grantees or their assigns, or with respect to the method to be adopted for obtaining relief against the ordinances rendered by tlie governors and intendants on this matter, so that not only have different customs been introduced in the several colonies, but also in one and the same colony there have been frequent vai'iations in this respect : In order to put an end to that ytate of uncertainty, upon matters of such interest to the security and tranquillity of families, we have resolved on establishing by express law fixed and invariable rules to be observed throughout our colonies, both as to form of proceeding to the re-union to our domain of the concessions which ai'e liable to be thereunto re" united, and to the proceedings on the question they may occasion, also to the modes of recourse to bo pursued by those who may dc -m themselves aggrieved by the judgment advice which may be rendered : For those causes and others,u8 there unto moving, with the of our council, and of our certain knowledge, full power and I'oyal authority, we have declared and ordained, and by these presents under our sign manual do declare and ordain, and our will and pleasure is as followeth : Art. 1. — The governors or lieutenant governors and the intendants of our colonies, or in default of them, or in their absence fi'om the colonies, the officers representing them, shall continue jointly to make grants of land to ihe inhabitants who apply for them, in order to bring them into cultivation, and shall give them titles on the usual and accustomed terms and conditions. 2. — They shall in like manner proceed to re-unite to our domain the .'ands which are liable to be re-united thereto, and this shall be at the diligence of our attomies, in the ordinary jurisdiction within the limits of whose cognisance the said lands shall be situated. 3. — They shall not grant lands that have once been conceded, although liable to re-union, until after their re-union shall have been adjudged, on pain of nullity of the new concessions, without prejudice nevertheless to the re-union which may always be sued for against the first grantees. 4. — Our governors and lieuten;int governors, and intendants, or in default of them, or in their absence from the colonies, the officers representing them, shall also continue to have cognisance, to the exclusion of all other judges, of all differences arising be- tween the grantees and their assigns, as well as to the validity and execution of the grants, as on the subject of their situations, extent and limits ; and in case of their being minors wlirt are parties to tlu> said diffiuences, such differences shall bo communicated to our attornies in the ordiiraiy jurisdictions within which the governors and intendants shall reside, in order tliat they may take their conclusions, in the same manner as if 1 ':3 166 C C n 2i: r- 3:: the said differences were instituted in the said jurisdictions. It is not nevertheless intended to include in this article differences arising on family partitions, of which the judges of our ordinary juiisdictions shall continue to have cognizance. 5. — We declare to be null and of none effect all grants which shiiU not be made by the governor and iutondant jointly, or by the officers respectively representing them, as also all re-unions which shall not be pronounced, and all judgments which shall not bo rendered in common by them or their representatives. Nevertheless we empower either of them in case of the decease of the other, or of his absence fi'om the colony, and a defect of officers capable of representing such as may be dead or absent, to make the grants alone, and even proceed to the re-unions to our domain, and to the adjudication of suits between the grantees, calling nevertheless upon such officers of the superior councils or jurisdictions as he shall think fit. And he shall be held to make mention as well on the concessions and re-unions, as in the judgments upon private suits, of the necessity in which he may have been so to proceed, on pain of nullity. 6. — Incases in which the governors and intendants shall be of different opinions, on applications made to them for grants of land, it is our pleasure that they do supend the issuing of grants until they receive our orders, upon the statements they shall make to us of their motives ; and in cases of a division of opinion between them, whether as to judgments of re-union, or upon differences between proprietors of grants, they shall call in the senior member of the superior council, or in case of absence or lawful impediment, two councillors next following hhn in the order of the list, the whole without pi'ejudite to the prejionderance of the vote of the governors in matters concerning our service, in which it is to obtain. 7. — In matters in which it shall happen that local visitations, and nominations, and reports of experts or inquests are ordered, the enactments in that behalf of the twenty- first and twenty-second titles of the ordinance of one thousand six hundred and sixty- seven, shall be observed on pain of nullity. 8. — The parties may have their remedy by appeal to our council from judgments rendered by the governors and intendants upon the said private differences and upon re-unions to our domain. The said appeals may bo instituted by mere "acts," and the petitions which shall be presented accordingly, shall together with the paper writings of the parties be tiansmitted to the secretaiy of slate for the marine de- partment, inorder that upon his report thereon, in our council, we may do therein aa shall be meet. Wherefore, we enjoin our beloved and fiiithful the members of our Superior Council of Canada, that they do cuuse tliese presents to be read, pubhshed and enrolled, and that the contents thereof they do keep, observe and execute according to their form and tenor, any Edict, Declaration, Arrit, Ordinance, or other thing to the contrary thereof notwith- standing, all such being hereby derogated from. For such is our pleasure. Id witness whereof, we have caused our seal to be hereunto set. f V mere there and \Wc that gove rcjir( sion mnv lion not secul said 167 vertheless which the 5 made by ting them, I shall not I empower be colony, absent, to and to the officera of lU be held lents upon on pain of pinions, on do supend they shall een them, 8 of grants, absence or he list, the in matters lations, and he twenty- l and sixty- judgments 1 and upon •acts," and the paper marine dc- ) therein aa r Council of and that the i tenor, any >of notwith- Given at Versailles, this 17th day of July, in the year of Our Lord 1743, and of oar Eeiga the 28th. (Signed) (Signed) LOUIS. PHELIPPEAUX. 1st Octobep, 1747. Declaration of the King in interpretation of that of Vlth July, 1743, concerning grants of land in the colonies. Louis, by the grace of God, King of France and Navarre. To all to whom these presents shall come, greeting. By our declaration of the 17th day of July, 1743, we have regulated the form of pro- ceeding whether as to concessions of lands in our French colonies or as to the reuniting to our domain of such conceded lands as are liable to be reunited thereunto, or as to the trial and adjudication of differences arising between the grantees or their assigns ; and by the 8th article of the same declaration, we have ordained that the parties may have their recourse by appeal to our Council against the judgments which shall be rendered by the governors and intendants of the said colonies, on all those matters of which the cognizance devolves upon them to the exclusion of all other judges, that the said appeals may be instituted by mere actes, and that the petitions which shall be presented accordingly, shall be transmitted together with the paper writings of the parties to our Secretary of State for the Marine Department, in order that upon his report to our Council we may do that which shall be meet. But, upon the last article, it hall) been represented unto us, that by reason of the distant situation of places, it would be expedient, for the sako of justice, to lender provisionally executory the judgment pronounced by the said governors and intendants, and that such new provision would prevent many appeals which are instituted by the parties merely in order to maintain their unjust possession. For these causes and others, us thereunto moving, with the advice of our Council, and of our certain knowledge, full power and Royal authority, we have, in interpretation of our declaration of the 17th of July, 1743, declared and ordained, and do declare and ordain, and it is our will and pleasure that the judgments which shall be rendered in consequence of our declartion by the governors, our lieutenants general, and the intrndants in our colonies, or by the officers representing them, upon the siiid matters, of which tliey have the cognizance to the exclu- sion of all other judges, shall be provisionally executory, notwithstanding any appeal which may be instituted and without prejudice thereto. We nevertheless leave It at the discre- tion of the said governois and intendnnts, in the cases in which they shall deem it proper, not to direct the provisional execution of their judgments unless upon good and sufficient security being entered into by th'^ party in whose favor they shall have been rendered. Our said declaration shall moreover be put iu execution according to the foim and tenor thereof. :;2» '1 "3 J 168 Wherefore, we enjoin our beloved and fiiitlil'ul the members of our Superior Council of Quebec, that they do cause these presents to be read, published and enrolled, and the contents of the same observed and put in execution according to their form and Icnor, any Edict, Declaration, Arret, Ordinance, Kegiilation and oliior thiUj^s to tlie contrary not- withstanding, all which we have derogated from and do liercby derogate from. In witness whereof, we have caused our seal to be hereunto affixed. ; . Given at Versailles, this 1st day of October, in the year of Our Lord 1747, and of our Reign the 33rd. (Signed) (Signed) LOUIS. PHELIITEAUX. C C n 3^ i: Arrtt enjoining communication to the trustee (^sT/ndic) for the ' nluibitants, of the ArrH coticerniiig the rc-union (f the uncleared lands, before rendering judgment. The governor and bishop having laid before the Council the Arret of the King's Council of State of the 21st of iMarch, 1663, enjoining that within six months from the publi- cation thereof all the inhabitants shall cause to br> cleared all the lands contained in their concessions, in default whereof all those which shall remain uncleared shall be distributed by new grants in His Majesty's name. His Majesty annulling and revoking all grants of tiie said lands, not yet cleared, made by the persons heretofore interested in the Company of New-France, whereby it is ciijoined them to see to the punctual execution of the said Arret, and even to make a distribution of the said uncleared lands and to make grants thereof in His Majesty's name, tlicy demand that, the said Arret be put in execution in every respect, according to its form and tenor ; and that in so doing, all the lands which are not at present cleared and brought under cultivation, be declared re-united to the King's domain, to be disponed ol in His Majesty's name, by new grants in favor of persons demanding them as aforesaid ; the said governor and bishop declaring that they do not in any ^voy pretend to influence (intvrcsser) the people inhabiting this country, nor to compel llicm to quit their houses and settlements, consenting (hat these do remain in the state in which they are, but that with respect tu those of which grants are to be made, they will take care that the King's instructions he therein ibllov.eJ, and thp.t they be reduced into haniiits and boroughs (bourgs et Imirgadcs), as far as can be done, as also that it be forbidden to all pretended seigniors to disjiose by grant of any v.ai^le lands on p"\in cf nullily : the ivin;^"s attorney being heard, who hatli [irayed tiiat a'l the tracts of wood l:uid be re-united tu the King's domain, the Council, beTore adjudication, hath ordained that the saiu Arre'. ohall be communicated to the trusfee for ;he settlers, at the diligence of the King's attorney general, in order to such decree upon his answer as shall be meet. Council of :d, and the lenor, any )utrary not- aod of our iAUX. of the ArrH pnent. ng's Council iin the publi- liuod ill their )e distributed grants of the Company of 11 of the said make grants 1 execution in 3 lauds which niteil to the or of persons ilo not iu any compel them state iu wliich ley will take I into lianilets .' forljii^'liHi to . : t he Ivinjii's ■united to liie i/ret oliall be orncy geueial. 169 . ' NO 118. Impei-ial Act 3rd George IV, cap. 119. Section 31st. — And whereas doubts have been entertained whether the tenure of lands within the said Provinces of Upper and Lower-Canada holden in Jief and seigniory can legally be changed ; and whereas it may materially tend to the improvement of such lands, and to the general advantage of the said Provinces, that such tenures may henceforth be changed in manner hereinafter mentioned ; be it therefore further enacted and declared, that if any person or persons holding any lands in the said Provinces of Lower and Upper- Canada, or either of them, in fief and seigniory, and having legal power and authority to alienate the same, shall, at any time from and after the commencement of this Act, surrender the same into the hands of His Majesty, his heirs or successors, and shall, by petition to His Majesty or to the governor, lieutenant governor or person administering the government of the Province iu which the lands so holden shall be situated, set forth that he, she or they, is or are desirous of holding the same in free and common soccage, such governor, lieutenant governor, or jiersou administering the government of such Province as aforesaid, in pursuance of Jiis Majesty's instructions transmitted through his principal Secretary of State for colonial alTairs, and by and with the advice and cousent of the Executive Council of such Province, shall cause a fresh grant to be made to such person or persons of such lauds to be holden in free and common soccage, in like manner as lands are now holden in free and common soccage in that part of Great-Britain called England ; subject nevertheless to payment to His Majesty, by such grantee or grantees, of such sum or sums of money as and for a commutation for the fines and other dues which would have been payable to His Majesty under the original tenures, and to such conditions as to His Majesty, or to the said governor, lieutenant governor, or person administering the govern- ment as aforesaid, shall seem just and reasonable ; provided always, that on any such fresh grant being made as aforesaid, no allotment or appropriation of lands for the support and maintenance of a protestant clergy shall be necessary ; but every such fresh grant shall be vahd and effectual without any specification of lands for the purpose aforesaid ; any law or statute to the contrary thereof in any wise notwithstanding. 32. — And be it further enacted, that it shall and may be lawful for his Majesty, his heirs and successors, to commute with any person holding lands at ccns et rente in any censive or fief of His Majesty within either of the said Provinces, and such person may obtain a release from His Majesty of all feudal rights arising by reason of such tenure, and receive a grant from His Majesty, his heirs or successors, in free and common soccage, upon payment to Hi" Majesty of such sum of money as His I\Taj(>sty, his heirs or successors, may deem to be just and reasonable, by reason of the release and grant aforesaid, and all sueh turns of money as shall be paid upon any commutations made by virtue of this Act, shall be applied towards the administration of justice, and the support of the civil government of the said Province. ■i' "I :;i 170 C n u. a: 1^ NO 119. " Act of the Imperial Parliament, 6th George IV, Cap. 59." Section 1. — Whereas, in and by an act passed in the third year of His Majesty's reign (3 Geo. 4, C. 1 19,) intituled, " An Act to regulate the trade of the Provinces of Lower and Upper Canada, and for other purposes relating to the said Provinces," certain provisions were made for a change of the tenure of lands held in Jief and sei- grniory, and also for the change of the tenure of lands held at cens et rentes, in the cen- sive of His Majesty, in the provinces of Upper and Lower Canada; and whereas the said provisions, in so far as they relate to the change of tenure of lands in Jief a,nd sei- gniory, cannot, in the said province of Lower Canada, receive execution where such lands or part thereof have, under grants of the seigniors, become the property of per- sons who hold the same a titre da fief in arricrc-fiefor d, titre de cens, and further pro- vision in this behalf is necessary : Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this pre- sent parliament assembled, and by the authority of the same, that whenever any per- son or persons, holding of His Majesty as proprietor, or proprietors, any ytf/" or sei- grniory in the said jirovince of Lower Canada, and having legally the power of aliena- ting the same, in which ficf or seigniory lands have been gi'anted and are held a titre dejief, in arritrc-Jiif, or: d titre dc cens, shall, by petition to the King, through the governor, lieutenant governor, or person adrainistciing the government of the said province, apply far a commutation of and release from tlie droit de quint, the droit dc relief, or other feudal burdens duo to Ills jNIajcsty on sucli Jirf or seigniory, and shall suiTeiider into tlie hands of His Majesty, his heirs or successors, all such parts and parcels of such^t/or seigni(n-y as shall remain and bo in his possession ungi-anted, and shall not be held as aforesaid a titre defitf, in arriHrc-fvf, or a titre de cens, it shall and may be lawful f(n- His Majesty, or for such governor, lieutenant governor, or person administering the govennnent as aforrsaid, in pursuance of His Majesty's instructions transmitted through oi'.a of his principal secretaries of state, by and with the advice of ■ the executive council of the said province, to commute the droit de quint, tlie droit dc relief, and all other feudal rights and burdt>ns due to His Majesty upon or in reaped of such fcf or seigniory, for such sum of money or considemtion, and upon such terms and conditions, as to His Majesty, or to such governor, lieutenant governor, or person administering the government as aforesaid, in pursuance of such instructions, and by and with such advice as aforesaid, .shall appear meet and expedient ; and thereupon to release the person or persons so apylying, his, her, and their heir", and assigns, and all and every the lands -comprised in such firf or seigniory, from the .'aid droit de quint, droit de relief, and all other feudal burdens due or to grow due thcreu])on to His Ma- jesty, liis heirs or successors, of whatsover nature or kind, for ever, and to cause a fresh grant to be made to the person or p arsons so applying, of all such parts and parcels of &\xc\\ fief or seigniory as shall as aforesaid remain and be in his, her, or their possession ungranted, and which shall not be held a titre defief, in arriercficf, as aforesaid, or d titre de cens, to be thenceforward holden in free and common soccage, in like manner by hi hell orth of hi said said, or ot and case; taire, so h£ orpt indei dera be a and bein 171 13 Majesty's Provinces of Provinces," fief and sei- , in the ccn- whereas the fief and sei- where such perty of per- further pro- and with the in this pre- krer any per- ^y fuf OT sei- i^er of aliena- held a titre ', through the it of the said t, the droit de ory, and shall xch purts and ngi'antod, and IS, it shall and nor, or person ■'s instructions 1 the advice of U, tlie droit dc 1 or in reaped (»n such terms •nor, or person ictions, and by and tlicrcupon id assigns, and droit de quint, ion to His Ma- o cause a fresh and parcels of heir possession aforesaid, or d in like manner as lands are now holden in free and common soccago in that part of Great BritEiin called England, without its being necessary for the validity of such gi-ant, that any allotment or appropriation of lands for the support and mainten"nce of a protestant clergy nhould be therein made ; any law or statute to the contrary thereof notwith- standing. '• ■ . 2. — Provided always, and be it further enacted, that such fresh grant as aforesaid shall bo made nothing in this act contained shall extend or bo consti'ued to extend to take away, diminish, alter or in any manner or way aftcct the feudal, stjigniorial or other rights of the seignior or person in whose favor such giant shall be made, upon and in respect of all and every the lands held of him a c a: Gross rrtiirns of iho Seigniory of Argrntiiiil for ono ycur, pniling 24th July 183!) Amount of iirniirs of rent 2119 Amount of do. of lodn H vrntrs 13.')4 Total arrears to 5th Juno 1839 3092 10 11 2- 4 4 I -3473 6 S Cash rent of ihf SpijTuioiy for the yrnr ending 11 ih Novombrr 1838 18fi 8 11 Wheat rout of (U). samo period, 1318 ()-20 buKliols at 78. 6d 494 7 3 Vahie oi' 1 year's rent duo 1 llh November 1838 — — 680 16 S Gross returns of St. Andrew's riiist Mill for tiie year ending 9th J.iiy 1839 fi39 19 Gross returns of Chute Grist Mill for the snme period '^18 3 Gross returns of Chute Oat Mill do 534 3 Do. do. of Barley Mill do 101 7 Do. do. ofChute S.iw'Mill do 60 Chute Carding and P'ulliiig Mill rented ftr 50 Total gross returns of the Mills for one year — — 7 3i »i 7 -1603 14 3 Riviere Rougo Saw Mill now rebuilding Whole number of the tenants on the Seigniory 414 Entire poptilalion of ditto 2,770 Number of acres of hind conceded and paying rent 53,587ji Number of acres of nneoncedeii land 3,600 Do. of Col. Johnson's private projjerty 1,539 c. c. St. Andrews, 7tb August 1839. (Signed) C. MACDONNELL, Agont. No. 121. An abstract shewing the quantity of Land unoccupied though conceded ; the annual value of the cens et rentes and the lals et rentes for the last seven years, with the number of mutations during that period in the following Seigniories, the property of William P. Christie, Esquire. Seigniories. Qiiuntily of Land unoccupied tlioufjh couccdi'd. Number of muta- tions. Amount of lods ct vcntcs in the last seven years. Annual vahie of ccM et rentes. Repentigny Lacolle Do L6i V 3400 2000 600 5000 1000 5 65 208 195 93 94 £ 8. d. 82 14 1 378 2 G 1428 2 6 1034 6 7 605 17 3 603 14 1 £ 8. d. 41 1 10 785 17 5 fse 18 3 Bleury fiabruvois ... 593 4 3 702 2 1 Noyan 667 1 4 }y Culonei £ 8. d7 3092 10 11 ■3473 6 S - 680 16 2 -1603 14 3 Agont- the annual rs, with the he property ual value OT» et rentci of £ 41 8. 1 (I. 10 785 17 5 1256 18 3 593 4 3 702 2 1 667 1 4 173 No. 122. Statement of Expenditure by the Seigniory of Bcauhamois for public objects sinco Ist January 1822, inclusive. Produced by E. G. Wakefield, Esquire. " £ «. d. £ 8. d. Bridges 120f) 4 9 Roads 2048 18 yuays , 319 10 9 iJteamboats 50 U ScEVEYB — Land Siirvoy 2246 15 1 St. Lawroucu Canal 592 17 Rail Road 41 6 10 Bouudury Line, by desire of Govornnient 86 2 8 2967 I 7 Mills— Flour Mills Uattneul f;:S:""-v:::::::;::":::::::::::::::::::::::::::::-> ''''* ' » Barloy Saw Church Establishment — Uuildiuf^s 1783 2 4 AUowaiico to Clergy 1000 2783 2 4 S' aooL Establishments — Buildings 272 7 Allowance to School Masters 800 1072 7 Taverns and Housos for public nccommodation 1780 4 Etablishment of Fishery at Buisson Point ,345 8 5 Water Courses to drain Censitaires' Lands 658 5 8 Barracks for maintenance of Troops 200 Eatablishmcnt of Villages 440 15 9 AGRICULTURAL ENCOURAOEMKNT AND IMPROVEMENTS. Farm Buildings for a Model Fai-m 1000 Extra cost of superior Stock, Seeil, Animals, and Scicatifio Implements.. 300 GBATCITOUS USE GIVEN TO CENSITAIRES. S Annual gratuitous distribution of young Stock 700 Expense of carrying on Model Farm beyond Rotunis........ 2800 Annual Contribution to County Agi-icultural Society 300 5100 £43166 4 4 Interest on the above outlays at a very moderate computation 6833 15 8 £50000 Beauhamois, Ist August, 1842. It may be well to remark that, independently of the above expenditure, the Seignior gavn up th« two and a-half first years of rent, in all concessions sin^e 1822, equal to one shilling and three pence 80,000 arpeuto jESSOa It '1 1 c 174 Annual Revenue and Cost of Management since ist January 1822 to Slst December 1841. Yoari. Gross E evenue. Cost of Management Years. Gross Rcvcmip. C-istnfManagemeTit £ s. d. £ H. d. £ 8. <( £ 8- a. 1822 514 G 503 13 3 1835 3748 14 5 723 10 1 1823 731 11 11 542 18 10 1836 3662 4 8 834 3 1824 917 7 569 3 3 1837 3062 15 10 1479 5 5 1825 1589 10 10 506 12 1838 3567 12 9 1488 9 5 1826 2617 1 4 589 2 4 1839 8467 3 ■ ■♦ i 1 1587 16 1827 1427 10 10 542 4 o 1840 5978 10 11 21.57 16 1828 1529 1 1 555 13 4 1841 6736 7 8 2727 14 4 1829 1830 1545 1825 7 12 7 699 687 1 ({ 7 2 6 £59644 17 1 £18967 11 6 1831 2357 3091 2810 16 17 1 10 10 o 673 614 635 13 16 12 4 li 3 Less 18967 11 6 1832 1833 Net Revenue £40677 5 7 1834 2855 4 4 849 2 7 1 ^^^^ No. 123. Statement shewing the number of actions instituted in the Superior Tenns of the Court of King's l>o:\ch for the District of Montreal, during the years 1840, 1841 and 1842, and distinguishing therein the proportion of seigniorial actions from other actions. hr 3> a: Tonns. Sciffiiiorial Suits. A ^ I Total Actions !j,,,„„,„.,o{^ otlior tlKUv^^^.,j,,,^,^ i^. '^ jstitutcd. 1 ! Torins. Soisrniorial Suite. Actions otlior tban Seijniiorial. Total Njiniber nf Actioiis iii- stitutod. 1840. Fobruury April.... ...... 79 32 47 216 701 350 38!) 699 780 382 43i; 1812. February April ■funo....... . . 172 66 26 58 408 231 326 682 580 2.97 Jtuic ...... 352 Octobor 915 Dctobor 1 740 Total.... 374 2,13!) 2,513 TotJil 322 1,647 l.f)6.^ J841. February- April. ...••«... 146 j 646 113 273 49 331 103 .590 7.92 38(i 380 693 1 ■ - 1 1 Juuo October Total.... 411 1,8'.0 1 2,251 V December — bfanageme7it 8" (1. 3 10 1 4 3 9 5 5 )8 9 5 (7 16 )7 16 !7 14 4 57 11 6 % reniis of the 1840, 1841 LCtions from Totnl » Number of an al. Actions ill- stitiitccl. 580 297 ;J.V2 740 1,9G;} 175 •y^.,; ' ■■■■,■ No. 124. -"■- ^y. . ^ v-^ Statement of the number of Executions issued and lodged in the Sheriff's Office of Montreal from tlie 6th October 1839 to 5'ch Octobei 1842 — 3,440 ; of these are issued at the instance of the following Seigniors, as follows : — Joseph Ainsse, Esquire, Seignior of Viirennes Frttiipois Languedoc, Esquire, Seignior of St. George Janvier D. Lacroix, Esquire, Seignior of Ste. Thorese de Blainville Marguerite Baby, veuve Sclby, Soignioress of Lasallc Lambert Dunioul, Esquii-e, Seignior of St. Eustache The Hon. T. Pothior, Seignior of Fief La Gauchetiere Catherine .Jordan, veuve Clamo, Seignioress of Mille-Lsles The Gent. Seminary of Montreal, Scignior.s of Montreal and Lac des Deux Moutagnes The Hon. F. X. Mailhot, Seignior of Vorcheres William Yule, Esquire, Seignior of Ohambly JameB Cuthbe • t, Junior, Seignior of Lauoraye et Dautraye The Hon. C. Grant, Seignior of Longueuil Pierre L. Panct, Seignior of Daillebotit The Hon. J. Paugmaa, Seignior of Mascouche de Lachenaye .lohn Boston, Esq., Seignior of Thwait and St. James Aim6 Massne, E<^\., Seignior of St. Aime The Hon. B. Joliotte, Seignior of St. Paul Dame Duchesiiay, veuve St. Ours, Seignioress of St. Ours G. B. Hamilton cf el., Soiguinors of De Lery cf al The Hon. Jo.seiili Mnssnii, Seignior of Terrebonne . The Hon. .1. R. RoUniid, Seitininr of M(ii!, 1811 10 5th April SOib Dt .ember, 1?' II 225 4 5 " " " 1811 5 6 4 lOthJuno, 181:: 155 1 9 £7385 9 31 rrir^ 176 '*;; c a:' cr rr a: 19th June 1812 7th July, 7th July 10th November nth Nov. 1813 2iul April, 10th Oct. 1814 10th October, " 1816 10th April, 11th April 10th October, 11 tt 11 Ii " Oct. 1819 11 11 11th April, " April 10th Octol)cr, " Oct. 1820 lOlh April, " April 10th October, " Oct. 1821 ICth March, 16th March 10th October, 11th Oct. 1822 KRh April, nth April 10th October, 25th Nov. 1823 10th Aj)ril, 11th Oct. 1824 10th A])ril, 11th April lOth October, 11 11 <« ti 11 11 lOth Oct. 1828 " April, Uth April " October, 11th Oct. 1829 " April, 11th April " October, " Oct. 1830 " April, " April 1831 " October, 10th Oct. " " April, 11th April " October, " Oct. 1832 " April, " 1833 ti it 10th April " October, 10th Oct. 1834 " April, 10th April " October, 16 8 12 3 2i 6 8 6 8 15 19 a 16 13 4 10 10 13 4 Total.... £31778 7 !)| Memo. — Annual average for 38 yeari £836 5 5^ — Errors excepted- (Signed) F. W. PRIMROSE, I. G. Q. D. Qtiabee, 16th Auguat 1842. 35 9 H G6 13 4 03 2 3 97 8 11 37 3 4 39 8 84 80 5 10 05 C 114 04 27 16 1 94 3 9 53 7 57 6 4 81 13 4 73 6 8 74 13 4 74 16 9 87 14 2 (87 10 5 95 5 46 13 4 10 L68 1 10| L47 10 )07 19 9 35 33 o 8i :n 3 4 iM 13 4 no 3 4 m 11 o 480 16 8 455 12 2^ 03 3 i;tt 6 8 59 6 8 249 15 1)23 19 8 191 16 XM 13 4 873 10 10 25 13 4 778 7 !'i 177 No. 126. Statement of the prices of Wheat for different years, as below stated, furnished by the Reverend M. Comte, Montreal. Year. Liv. Sol. 1 Year. Liv. Sol. Year. Liv. k3ol. Year. Liv. Sol. Year. Liv. Sol. 1729 3 1750 3 .. 1779 8 .. 1800 12 1821 5 5 1730 3 1751 5 .. 1780 10 8 1801 (> 1822 6 1731 2 io 1752 4 .. ! 1781 9 .. 1802 6 1823 6 12 1732 3 1753 3 10 1782 7 .. 1803 6 1824 6 1733 2 1754 3 10 1783 6 .. 1804 9 ; 1825 G 1734 2 1755 3 10 1784 6 .. 1805 8 1826 6 1735 2 1 1756 5 .. 1 178> 6 .. 1800 8 10 1827 6 6 1736 3 10 17.J7 10 .. 1786 4 .. 1807 9 1828 9 1737 4 1766 3 .. 1787 3 .. 130S 9 10 : 1829 7 1738 3 .. 1 1~(>7 3 10 1788 10 8 1509 10 10 ' 1830 7 1739 2 1768 4 .. 1789 6 .. ISIO 10 10 1831 G 1740 2 - . 1 mi<) 6 .. 17.00 4 .. 1811 12 18:i2 6 1741 2 10 1770 4 10 1791 4 .. 1812 19 1833 5 10 1742 3 10 1771 3 .. 1792 4 .. 1813 16 1834 5 10 1743 4 5 1772 4 .. 1 1793 4 .. 1814 9 1835 6 10 1744 4 '-^h 1773 5 -- ! 1794 5 .. 1815 16 j 1836 10 17 15 3 -- 17?' 4 4 .. i 1795 10 .. 1816 12 1 1837 8 10 17 u; n 10 1775 4 .. 1 1796 7 .. 1817 7 10 1838 8 1747 3 .. 1776 3 10 1797 6 .. 1818 8 5 i 1839 7 10 1748 3 1777 6 .. 1798 5 .. 1819 6 ! 1840 6 1?» 1749 10 1778 6 .. ; 1799 9 .. 1820 4 io 1841 7 10 I* JSB, G. Q. D. 178 is> c/: ill m i :j:> n- ^> r< CO O I— I m CG ?» ^ O w fe ry2 e Sis^s <-.2 S^-a^ n3 ^.g le v •S b Si «> 3 §H. a* o o M «)««•'-' _a a aS iS-S e-^a^ 5-M' 3 b£ o Co a >^ S-3 bp « o •a . 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St = i) u >> • -5 ^" Q 7J W Lc ^ 3 ;- Hi > *.■«•= S-^ f ^ S a - ■" 's QJ W Co ^ 'r- ^ t, -^ P &|~ '/J " 5 a s t^ 8 es o *- . -e a ; §^ '- K *< ,2 a aS^^cS •3 S 0=« a! o o. a. 3 "'■ t. O rg -^ tH o a " ■-■ " .5 i-3 O •? ^Tj O . •-' M ^< s »j a « a S a a 2 "•3 S''^ 2.2 £-==2 2 e* ed e4 SO,. '^ O S H ~* 12 o a s ¥^ . . .. ° «« > s :» 5 ^"512 ^ ~ O o a » - es u •^ g^: -s g-5 „,w .-sc: >ta i/H ^ to » > to « s ." /^, O V. «^ c 1 U4k I l:> °'"J :5 ___. "-s •-S r^ T3 a a (U V u u 0) ^ > > a Cj Cd K £ti^ 0) are'" ♦" ►"' ?c„ u > i; <£ .- 4) So u a. 3 r ^ -2^ ft. ■Jt. >'^ a CD -a o a TO a ^•1 3j tC so .0 § S ^ 3 CO ^* C '2 I O i T3 b Wl O b T) I 15 K b u i 180 cr -< 3> 5^ X lO-s ^§ —' "" i- 1~- CI o a 'XS O o fe r/) ft o o tf w fe 1-3 181 o •o a "S »• s 2 s i- :: ^ ^ .- !i P. s ^ a ? ■. ' ■¥ ■•? - JJ *~ ^ t ^ -a ^ t ^ 4? « ^ h ^'e i S h ° ^ '" E. Si 4i -, ^ ■* -fc^ C " S fc i5 ?. "5 "Z r~ ^ -^ a C .5 .R^« , 'te's '^ •*; ":- ^ e». ^ ' 'S « f/-, : b c «■ "? S ■ ~ 2J > -~ ■■ -5 S. 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O QD •a o 3 *' IB «tt a .2 ""^ 1^ o . a u • « '3 o o •j: Tj< « a, 3 is a a S f^ 2 J a -p^ CO ^ » r;3 "» •S ■d o 3 a *- o V a as ^ o o 00 00 o I -a V O ■«i< e> a ? O O \ ?g r3 o 3 .1 '""^ CO a^ as? cacO i O O 1 t i5g x|- u C8 u u § ^"^ ^ w ••« -H grH a f? S 0) '- a gci u u c3 cd CO ^S ?& •- i CO .ts s a2« OQ ^ t ♦ i.U TABLE OF THE CONTENTS OF THIS VOLUME. t i DOCUMENTS OBTAtNED PROM THE ARCHIVES OP THE MARINE AND COLONIAL DEPARt- MENT AT PARIS, BY MR. FARIBAULT, UPON THE OCCASION OF UIS MISSION TO EUROPE IN 1851. PAGE Proposal of a Decree relating to corvccs, etc., by the Council of the Naval Depart- ment, of the 9th May 1717 5 Letter from Messrs. de Beauhamois and Hocqiiait, concerning divers abuses, of the 10th October 1730 7 Letter from the same, of the 3rd October 1731 9 Letter from Mr. Raudot senior, of the 16th November 1707 10 Letter from Mr. de Pontchartrain to Mr. Raudot senior, of the 13th June 1708. . 13 Letter from the same to Mr. Deshnguais, of the 10th July 1708 14 To Mr. Daguesseau, same date ..." 15" Letter fi-om Mr. Raudot to the Minister, of the 18th October 1708 15 From the Abstract made for the King, of Messrs. Ratidot and D'Aigi-emont's Letters ef the 4th and 7tli November 1711 17 Extract of a Letter from the Minister to Monsieur Begon, of the 16th June 1716. 17 Extract of a Memorandum from the Kmg to Messieurs d^ Vaudreuil and Begon, of the 16th June 1716 17 Extract of a Memorandum from the King to the same, of the 26th June 1717. . . 18 CO 212 ^ PACC A Decree to annul, in the Deeds and Contracts of Conceasion in Canada, clauses contrary to the Custom of Paris, and to order that it shall be observed in future, May 1717 18 Extract of the King'^ Mcmorandun to Messieurs de Vaudreuil and Begon, of the 23rd ,Mny 1719 20 Extract of tlic King's Memorandum to Messieurs do Beauharnois and Hocquart, of the 2oth April 1730, on the subject of the contestations arising in the colony between the owners of fiefs and seigniories and the parties owing thcni seigniorial rents and dues. — Ordinnnco rendered by Morsieur Begon, of June ai.'^t, 1723, and those subsequently i-endcrcd by Monsieur Dupuy, November IGth, 1727, and Juno 13th, 1728 20 Letter fi'om the Minister to Messieurs do Beauharnois and Hocquart, o^'the 24th April 1731 21 Fromtlie Abstract of Messieurs de Beauhaniois and Hocquart's Letter of the 6th October 1731 21 Titles of concession of Lands in censire at Detroit, of the 16th June 1737 22 Extract from a Memorandum on the subject of the colony of Canada and of that which i» projected in Islo-Royale (C; 105 NO lOG NO 107 NO 108.- NO 109— NO 110.- No 111,- No 112.- No 113.- No 114.- No 115.- No 110.- No 117 21S PxaM i ^ vr EXTRACT OP APPENDIX B. TO THE SaID REPORT. *' — Report of Attorney General to Lord Dorchester 93 — Extract from the Grant of the Seigniory of Two Mountains to the Seminary of Montreal 96 . — Extract from Letters Patent of the King of France, relating to the aug- mentation of the Seigniory of Two Mountains 96 — Certificate by the Nuns of the General Hospital, Montreal, relating to the Seigniory of Chaleiuguaj 97 , — Procuration from the Superior of the Seminary of Saint Suljiice, Paris, to the Superior of the Seminary of St. Sulpice, Montreal, relative to the Seigniory of Montreal 98 . — Judgment of the Cour Roijulc, relating to Isle Bouchard 99 , — Concession by Sieur de la Valtrie to Frs. Lapointe, 15th June 1780. . 101 — Do. by do to Andre Gauthier, 9th July 1782... 104 . — Proceedings and Judgment in the Court of King's Bench, Montreal, in case Duchesnay vs. Hamilton Sf al 106 — Proceedings and Judgment in said Court, in case Sir J. Johnson vs. Hutchins 110 Judgment Court of Appeals, Sir J. Johnson vs. Hutchins.. 113 Judgment Court of King's Bench, Montreal, in case McCallum vs. Grav 114 ■Proceedings and Judgment in King's Bench, Montreal, in case Gui- chaud /•*. Jones 116 — Do and do in do do in case Hon. J. R. Roll and vs. J.-B. Molleur 124 — Do and do hi do do in case Hamilton Sf al. vs. Lamo ireux, and reasons Ibr such J udgmcnt given by the Hon. Mr. Justice Pyke. 143 — AuuftTs AND Declarations concerning grants in this colony : Edict of tlie King of France of the 21st March 1663, revoking grants of land not cleared 160 Arrtl of the King (4th June 1675) for reducing the concessions which are too extensive and for making a census 161 t I 'mm t-i I I ' 5 NO US NO 119 NO 120 NO 121 NO 122 NO 123 NO 124 NO 125 NO 12G NO 127 214 PAOB Arret of tlie King's Council of State (5th May 1716) for the re-union of the lands gr.inted hy the Gentlemen of the Seminary of Saint Sul- pico 162 Arret of the Coimcil of State (15th Mairh 1732), enjoininjrthc peigniors to cause actual settlements to be made on their seigniories, and prohibiting their selling uncleared landd 163 Dcclar.'ition of the King conceming grants in the colonies, 17tli July 1743 164 Declaration of the King, of the 1st October 1747, in intei-pretation of that of 17th July 1743, concerning grants of land in the colonics... 167 Arret enjoining communication to the trustee (syndic) for the inhabi- tai.ts, of the Arret concerning the re-union of the uncleared lands, bef(n-e rendei ing judgment 168 .—Imperial Act 3i-d C^corgc IV, cap. 119 169 . — Imperial Act 6th George IV, cap. 59 170 . — Statement of RovCi.ucs of seigniory of Argeuteull 172 , — Abstract of Revenues of seigniories of \\^. I'. Cluistio, Iv-^quiro 172 , — Statement of the Receipts and Expeiuliture, for public purposes, of the seigniory of Etjauharuois 173 , — Statement of number of seigniorial Actions issued, Montreal 174 , — Do of tlie numl)cr of Executions issued, Montreal, at the suit of ceif'iiiors 175 , — D,i of Quints paid to the Receiver-General, 1803 to 1841 175 , — Do of price of Wheat fs^r different years 177 m . — TAm.ES OF THE Rates and Conditions of Grants op Seigniories : Batiscan 178 Bea'ihaniois 182 Beauport 182 Berthier 178 Boucherville 179 Foucault 182 PAUE nion of >nt Sul- 162 (igniora es, and 163 ;h July 164 ition of ilouics... 167 inhabi- (1 lands, 168 169 170 172 L-c 172 loses, of 173 171 I stxit of 17,5 17;> 177 lORics : 178 182 182 178 179 182 215 PAGE Lac des Dcux-Montagnes, Augmentation of the same, and Confiraia- tion of beth grants, 190-181 Lauzon 182 Monnoii-, and Augmentation of 180 Montarville 180 Notre-Dame des Angcs 179 Portneuf. 178 Ramsay 180 Riviure-du-Loup 178 Sillcry 179 Seulanges 179 Saint-Hyacintlie 183 Vaudrcuil 180 N° 128. — Tables op the Rates and Conditions op Grants op Lands en cen- sivE : Acadie, 1', (barony of Longueuil) 205 Adelaide (Riviere David) 196 Aubert-Gallion 189 Eaie Saint-Paul 188 Batiscan , 198 Beauharnois 202 Becancour 197 Beloeil 200 Cap de la Mugdclcino 196 Cote Sainte-Geneviuvo 190 De Ldry 206 Deschambault 185 Fleurie and Saint- Joseph (Nouvelle-Beauce) 184 u h\ s ?5 If 210 PAGE Foucault, or Lacolle 201 Fossambault 190 Grand-Pre 193 Kamouraska 187 Lachevrotiere 186 Murray-Bay 186 Monnoir 207 Montreal, Island of 208 Nicolet 194 Noyan 202 Orleans, Island of 189 Prairie do la Magdejeine, la 209 Ririere-Ouelle 184 Riviere du Loup (District of Three-Rivers) 191 Rouville 199 Sabrevois 206 Sainte-Anne de la Perade 192 Saint-FranQois 195 Saint-Hyacinthe 204 Saint-Rocli des Aulnets 187 Terrebonne 203 Three-Rivers 195 s ■ - . -. , . „ . .;• . W ,,■■•'.■ ■■". ' ..' *■■ >,< '-.i .,,.<■..... .J , . . , .■.'.";"*,'.■...•.■■■ '.f ■; 'i .: V ♦ 1 ■ * — — — — .. ,v ■: , ' r ■ > V ■J PAGE . .. 201 ... 190 ... 193 ... 187 ... 186 ... 186 ... 207 ... 208 ... 194 ... 202 .... 189 .... 209 ..... 184 .... 191 .... 199 206 192 .... 195 .... 204 187 203 195