L'exception à la forme est maintenre, et l'action déboutée. (2 D. T. B. C., p. 367.) TESSIER et TESSIER, pour le Demandeur. ENQUETE.-PREUVE. SUPERIOR COURT, Quebec, 20 juillet 1852.. Before DUVAL and MEREDITH, Justices. KELLY, Plaintiff, vs. FRASER, Defendant, and DIVERS, Opposants. Ure contestation liée entre denx Opposants dans une cause est une contestation distincte quant à tels Opposants. Toute preuve écrite, ayant rapport à telle contestation, doit être produite par les Oppesants, et il ne suffit pas que tels documents aient déjà été produits par d'autres parties dans la cause. Jellard and Connolly were both Opposants à fin de conserver. The latter contested the opposition of the former. In his plea of temporary exception péremptoire en droit, he alleged three several notarial deeds on which his contestation was founded; one only of these was filed with his plea, the other two were alleged to have been already filed of record in the cause by other Opposants. A demand of answer to plea having been made, and no issue having been joined within the delay required, Jellard was foreclosed by Connolly from the right of anwering the plea, and the latter obtained a rule Nisi to dismiss the opposition of the former. Thereupon Jellard moved to strike the foreclosure from the files, as the two deeds in question had not been filed by Connolly with his plea, as required by the Rules of Practice (Rule 24), and that, in consequence, Jellard was not yet bound to answer (Rule 26). Judgement granting Jellard's motion; Connolly's rule discharged; the court observing that the contestation was a distinct issue between Opposants, and could not be supported by evidence adduced between other parties. (2 D. T. B. C., p. 368.) O'FARRELL, for Connolly. POPE, for Jellard. DROIT CIVIL.-TERRES TENUES EN FRANC ET COMMUN SOCCAGE.— PRESCRIPTION. SUPERIOR COURT, Montreal, 26 mars 1851. Before SMITH, VANFELSON and MONDELET, Justices. SIR JAMES STUART, Bart., et ux., vs. BOWMAN. Jugé: 1. Que le droit civil anglais n'a pas été introduit dans le BasCanada par la proclamation de 1763, ni par l'Acte Impérial (l'Acte de Québec) de 1774; 2. que par l'Acte Impérial de la 6o Geo. IV, ch. LIX les lois anglaises n'ont été introduites dans le Bas-Canada, par rapport aux terres tenues en franc et commun soccage, que dans les cas où il s'agit de ventes, ou cessions, successions ou douaires; 3. que pour obtenir un titre valable quant aux propriétés immobilières il faut qu'il y ait tradition réelle; 4. que pour acquérir au moyen de la prescription, sous l'empire du droit français, la possession naturelle est nécessaire. This was a petitory action, brought by Plaintiffs against Defendant, to recover the possession of two lots of land (Nos. 11 and 12, in the second range of lots in the township of Buckingham, in the district of Montreal), with the rents, issues and profits thereof. The action was instituted in February, 1835; the declaration of the Plaintiffs contains 12 counts, and sets forth the title of Plaintiffs in a variety of forms to meet the law of the case, whether the question is to be determined by the English law or the French law. The facts of the case, as detailed in the declaration, may be stated as follows: That, on the 29th May, 1799, by letters patent, under the great seal of the Province, His Majesty, Geo. III, granted to John Robertson, several tracts or parcels of land containing together about 2000 acres of land, situate in the township of Buckingham, in the district of Montreal, being lots Nos. 9, 10, 11, 13, 14, in the first range of lots, and the Nos. 9, 11, 12, 13 and 15, in the second range of lots, to be holden in free and common soccage; That John Robertson entered into possession and so remained, until the 15th October, 1804, on which day, a sale thereof was made before Chaboillez and colleague, notaries, by Catherine Christie, the wife of John Robertson, and one William Martin, as the joint attorneys of John Robertson, duly authorized thereto by power and attorney, bearing date the 5th day of April, 1800; that the sale so made was made to Patrick Robertson, a brother of John Robertson and to Francis DesRivières in his quality of tutor to certain minor children therein named, to wit, Elizabeth Robertson and Catherine Robertson, for and in consideration of the sum of £833 6 8, current money of the Province; That said minor children, so represented by said Francis Des Rivières, their tutor, were the children of Alexander Robertson (also a brother' of John Robertson and Patrick Robertson), and Mary McPherson, his wife, and were the co-heiresses of said Alexander Robertson that, by this deed of sale, said Patrick, and the children and co-heiresses of said Alexander Robertson, represented by their tutor aforesaid, became the owners and proprietors of the said 2000 acres of land, and held and enjoyed the same; that Patrick Robertson on the 16th March, 1808, died, and said Elizabeth and Catherine Ann survived him. That Catherine Ann died, on the 18th January, 1814, and that Elizabeth Robertson, the sole survivor, afterwards married James Stuart on the 14th March, 1818; that, when Patrick Robertson died, on the 16th March, 1808 he left one Niel Robertson, his eldest brother, his heir at law, who afterwards. died, on the 18th June, 1813, leaving an only daughter, Elizabeth Ann Robertson, who died on the 6th August, 1823; That John Robertson, the original patentee from the crown, died in Jamaica, in the West Indies, in 1815. The title of Plaintiffs, arising out of these facts, is set out in the declaration in the first count. That, by the sale from John Robertson, by the ministry of Catherine Christie, his wife, and William Martin, as his duly authorized attorneys, to Patrick Robertson, and Francis DesRivières, in his quality of tutor to the minor children, Elizabeth and Catherine Ann Robertson, children of Alexander Robertson and Mary McPherson, his wife said Patrick and Elizabeth, and Catherine Ann became and were joint tenants of said 2000 acres of land, each for one half; that, by the death of Patrick and the survivorship of Elizabeth and Catherine Ann, the latter became jointly, as such survivors, the owners and proprietors of the whole 2000 acres of land, and the entire tenancy vested in them; and that, by the subsequent death of Catherine Ann, the entire tenancy of the said 2000 acres of land vested in Elizabeth Robertson, as sole survivor. This is substantially the title set up by the first count of the declaration, by which said Elizabeth Robertson claims. the entire property in the 2000 acres, as sole survivor of the original purchasers of the land, from John Robertson, which purchase operated as a conveyance by joint tenancy, and that, by the law of the land, applicable to such cases, Elizabeth Robertson, as sole survivor of the joint tenants, became legally seized, in her own right, of the entire 2000 acres. The title of the Elizabeth Robertson secondly invoked and set out in the 2nd count of the declaration is deducible in a different way, and based on principles of law different from those invoked in the first count, and is as follows: that by virtue of the sale by John Robertson, by his attorneys to Patrick Robertson and Francis Des Rivières, tutor as aforesaid to Elizabeth and Catherine Ann, children Alexander Robertson, they, the said Patrick and the said minor children, became possessed and were seized of said land, as tenants par indivis, each for one half, that is to say, Patrick for one half or two fourths, and Elizabeth and Catherine Ann, for one half, or each for an undivided one fourth share; that, by the death of Patrick without issue, his estate in the said undivided half passed and descended to his eldest brother, Niel Robertson, who became seized thereof in his own right; that, by the death of Niel, the said two undivided fourth shares passed and descended to Elizabeth Ann Robertson, his only daughter and heiress, and that, by the death of Elizabeth Ann Robertson, on the 6th August, 1823, without issue, the said two undivided fourth shares passed and descended to her cousin Elizabeth Robertson, as the eldest and only surviving daughter of Alexander Robertson, the brother of Niel Robertson That Elizabeth Robertson, thereby became possessed and seized, as in her own right, of three of the undivided fourth shares of the said 2000 acres, and that, by the death of Catherine Ann, her sister, the one undivided fourth share, so belonging to said Catherine Ann, passed and descended to Elizabeth, as sole heiress at law of Catherine Ann, she having died without issue, whereby Elizabeth Robertson became possessed and seized, in her own right, as proprietor, of the entire 2000 acres of land. The title thus invoked is traced down to Elizabeth Robertson, assuming that, by the purchase aforesaid, Patrick and Elizabeth, and Catherine Ann, became tenants par indivis of the 2000 acres, and that, as regards the one undivided half or two fourths so acquired by Patrick, the said two fouth shares passed, by inheritance, to Elizabeth Robertson, as sole heiress at law to Patrick, the original co-purchaser, by regular descent, and to the one fourth share of Catherine Ann, as her sole heiress at law. The third count of the declaration sets out the case as in the second count, with this difference solely, that supposing, by the purchase aforesaid, Patrick Robertson and Elizabeth and Catherine Ann Robertson acquired as tenants par indivis for one third each, and not as stated in the second count, that is Patrick for two fourths, and Elizabeth and Catherine Ann for one fourth each, that by the same course of descent and inheritance the one third share vested in Elizabeth as sole heiress at law to Patrick, her uncle, and as sole heiress of Catherine Ann, her sister, in the same manner as if they had acquired by one fourth shares, as stated in the second count. The fourth count alleges a title in Plaintiffs, founded on a prescription of 20 years by them Plaintiffs, and by all those whose estate Plaintiffs now claim, without interruption, and in good faith. The fifth count sets up the same title by prescription by a continued and uninterrupted possession of 20 years, but alleges the possession to have been in the Plaintiffs, generally, without reference to those from whom and through whom they acquired. The sixth count sets up a title by prescription by means of a continued and uninterrupted possession of 30 years, in good faith, by Plaintiffs, and by those whose estate they now have and claim. The seventh count sets up a title in Plaintiffs by prescription founded on a possesion of 10 years, openly, publicly, peaceably, without trouble or molestation, and in good faith, with just title entre âgés et non privilégiés. The eighth count sets out the same title by prescription, founded on a possession of 10 years with title, but alleging the possession to have been in Plaintiffs, and all those whose estate they now have and claim. The ninth count sets up a title by prescription, founded on a possession of 20 years by Plaintiffs and their predecessors, openly, publicly, peaceably, and without trouble or molestation, in good faith, and with just title, as between Plaintiffs and their predecessors, and entre âgés et non privilégiés. The tenth count sets up the same title by prescription, founded on a possession of 20 years, but alleges the possession to have beeen in Plaintiffs generally, without reference to their predecessors. The eleventh count sets up a title in Plaintiffs by prescription by reason of a possession of 30 years, continuellement, franchement, publiquement, et sans aucune inquiétation. The Plaintiffs then allege the fraudulent possession and detention by the Defendant of lots Nos. 11 and 12, situate in the second range in the Township of Buckingham, containing 400 acres in superficies, and of his fraudulent and tortious entry thereupon, on the 2nd August, 1833, and his refusal to deliver up the same, and of his drawing the rents, issues and profits thereof, and of damage by cutting timber, of £2000 and then follow the usual conclusions as in a petitory action. The only portions of Defendant's pleadings which it is necessary to notice, are the peremptory exceptions which were pleaded as his 15th, 17th and 19th pleas to the action, and the general denegation. The first of these exceptions alleges that, on the 2nd August, 1833, Catherine Christie, widow of John Robertson, being |