the same by and in virtue of grants, bargains, sales, enfeoffments, &c., differing both in manner and form from such rules as are by the law of England established in reference to such grants, &c., and whereas it is necessary and expedient to make provision for quieting the lawful proprietors of such lands, and confirming to them the legal possession and enjoyment of the same notwithstanding that such grants, &c., or other conveyances, do or may differ from such rules and restrictions as are by the law of England established in reference to the same respectively." The first section enacts " that all such grants, bargains, &c., by or in virtue of which any person or persons whomsoever are or shall be the proprietor or possessor of, or lay claim to be the proprietor and possessor of any lands or other immoveable property, heretofore granted in free and common soccage within the Province of Lower Canada, and which may have been made and executed prior to the passing of this act, &c., though not made and executed according to the rules and restrictions established by the law of England in reference to such grants, &c., shall be and are hereby declared to be as good and valid in law, to all intents and purposes whatsoever, as if they and each and every of them had been made and executed in conformity to such rules and restrictions as aforesaid, provided always, that such grants, &c., were at the time of making and executing the same, good and sufficient to operate as such grants, &c., under any law or usage in force in this province, at the time of making or executing the same, and that as fully and amply to all intents and purposes as if the said rules and restrictions of the law of England had never been in force. ” The force of this act has been felt by Respondent, and an attempt has been made to get rid of it altogether. I confess that I am startled at this attempt to expunge from the statute book a law which took its place there, and stood upon it unimpeached as long as the Legislature of Lower Canada itself had an existence, and which has survived that Legislature. This statute was brought prominently under the notice of the old Court of King's Bench for Quebec, in the case of Hunt and Tuit, and afterwards in the Provincial Court of Appeals, and neither at the bar nor from the bench, in either of these courts, was its validity ever questioned. Though the royal assent to it was not signified within the space of two years, as required by the constitutional act of the 31st Geo. III, cap. XXXI, sect. 33, it was proclaimed as law in the Province by royal authority, under a special act of the Imperial Parliament to that effect, equally binding and conclusive in this respect as the constitutional act itself. The proclamation was made in Quebec, on the 1st September, 1831, but before this, viz on the 17th November, 1830, the decision was pro

in

nounced in the case of Paterson et al., and McCallum et al.,
the Provincial Court of Appeals, in which the law of England-
was distinctly recognized as the rule to govern lands in soccage.
It must be observed also, that our Canadian statute, even
though it were assailable as to the time and manner of recei-
ving the royal assent, would yet import a deliberate recogni-
tion, by our local legislature, of the existence of this self same
English rule, and would. be entitled to the greatest weight in
the construction of the Quebec Act of 1774. But there is now
to be mentioned another law of Lower Canada, as to which
there can be no doubts, and it is the last, viz: the registry
ordinance of the 4th Victoria, cap. XXX. The 34th section of
this act of legislation declares in express terms, that "the alie-
nation of the real estate of married women, held in free and
common soccage, and those held under other and different te-
nures in this province, is governed by different rules. Ha-
ving thus passed in review the legislative provisions upon the
subject, it may be asked whether apart from them, the soccage
tenure has not its incidents or nature and consequences
which are characteristic and distinctive, of which it cannot be
stripped and without which it cannot exist at all. It is useless
to refer to the law of France for an explanation of this Saxon
Tenure, for it is unknown to that law either by name or in
effect. It is to the law of England alone that we must look for
information, from the very necessity of the case. But in the
construction of all feudal grants of land, there is moreover a
well recognized doctrine :" La teneur de l'investiture est la
première loi; à son défaut, c'est la coutume locale; à défaut
de celle-ci, la disposition expresse du droit commun des fiefs;
la disposition expresse manquant, c'est l'esprit et le sens des
coutumes féodales qui doivent servir de règle, et ce n'est que
subsidiairement à tout cela qu'on a recours au droit écrit."(1)
This subject is well treated in Laboulaye, (2) He asks:
"Qu'est-ce que le fief?" and answers: Ce nom de fief
comprit des tenures d'origine et de natures fort diverses, et
cette diversité décida seule du droit de succession. Le manoir
seigneurial, avec tous les droits y attachés s'est nommé fief.
Ce manoir était un ancien alleu, ou un bénéfice devenu héré-
ditaire et indépendant. Pour ces concessions seigneuriales il
n'y a plus de règle fixe de succession, c'est le contrat qui fait
la loi, c'est la volonté du Seigneur qui décide. Voluntas dona-
toris in chartâ doni manifestè expressa servetur,dit le deuxième
statut de Westminster. Au baron de décider s'il y aura suc-
cession, et quel sera l'ordre de cette succession. Encore une fois,

(1) Merlin, Répertoire, vbo fief, sect. 2, § 4, No. 3.
(2) Traité de la condition des femmes, p. 208 et seq.

c'est la volonté du Seigneur qui fait la coutume de la terre, et il y a à cet égard un tel arbitraire, que Beaumanoir ne craignait pas d'avancer," Que les coutumes sont si diverses que l'on ne trouverait pas au royaume de France deux Chastelleries qui, de tout cas, usassent d'une même coutume.”

In the preface to Bishop Gibson's Reliquiæ Spelmanniance. The editor referring to the great case of defective titles in Ireland, says that it led to a more general inquiry, "What the reservation of a tenure is to the grant? Whether it be a part of the grant and the modus concessionis, or whether it be a distinct thing et aliud from the grant." In whatever way this may be answered, Sir Henry Spelman himself, p. 19, gives instances of charters granted by Saxon Kings of lands, upon different conditions, dependent upon the will of the Sovereign, and shewing that this voluntas donatoris, freedom of will, might be communicated to the grantee in the disposal of the land after his death, post obitum suum cuicumque voluerit hæredi relinquat, and that he was left to frame his own rule of succession.

In Hale's history of the Common law, p. 252, the course of descents in England is traced up to the feudal grants of land. Dalrymple's history of feudal property, cap. V, p. 197, again traces the rules of descent or succession to the feudal grants, as well as the alienation of property, p. 90. The very definition of soccage land, as given in Woodeson's lectures, vol. 2, s. 23, is" soccage or as we now term it, freehold land is such as is pleadable at the common law, that is, recoverable in the King's Superior Courts. (1)

The rules as to alienation, descent and devise of soccage lands are inseparable from the tenure, and can only be those of the law of England. No hardship was imposed by the crown in making these grants originally by the soccage tenure, the acceptance of the land was voluntary, and the condition was made known to each succeeding purchaser from the grantee, and must have been tacitly adopted by him. Just as lands en fief are descendible, by one rule, and those en roture by another, the free and common soccage tenure carried with it its own rule of descent and alienation.

Being of opinion then, that the law of England is the governing law in relation to soccage land in Lower Canada in what respects descent, alienation and dower, it is next to be ascertained if Appellants have made out a right to the land in question, so as to entitle them to the judgment they claim under the deed of sale of the 15th October, 1804, before Chaboillez, and his colleague notaries, at Montreal, by John Robertson,

(1) Termes de la Ley. Soccage: 1 Preston on Estates, 200, 210.

acting through the ministry of his attorney Katherine Christie to Patrick Robertson and Francis DesRivières.

As to the form of this instrument, under the rule in omnibus quæ ad formam ejusque perfectionem pertinent, spectanda est consuetudo regionis, ubi fit negotiatio, it cannot be questioned here, for it bears upon its front all the essentials of a valid deed of sale or conveyance in Lower Canada. It has been said that there has been no livery of seisin, but the taking of esplees is established to my satisfaction by the sale of the staves, and, moreover, I approve of the doctrine laid down by the court, in the case cited at the bar from the 1st Louisiana Condensed Reports, 321. The objection arising from non registration, under the Act 10 and 11 George IV, cap. VIII, I conceive, cannot apply to a case like this, because the Respondent derives his title, not from the same grantor, John Robertson, but from another, viz, Katherine Christie.

Now, so far from any right being shewn in her, she was the very person who acted as the attorney of John Robertson in conveying the land to Appellants, and is stopped thereby from setting up any title in herself, even if she had one. Again I hold that it is established that Respondent, before he purchased, had full notice of Appellants' title, and that mala fide has been brought home to hiin, he therefore cannot avail himself of the plea of non-registration. In conclusion, under the first count of Appellants' declaration, I am of opinion that they are entitled to judgment against Respondent, and I agree in the condemnation which the court is about to render, as it is the usual form in our court. For though the right is dependent upon the law of England, the remedy must be enforced according to the course and practice of the tribunals of Lower Canada. In his quæ respiciunt litis ordinationem attenditur consuetudo loci ubi causa agitur. On the subject of prescription, I shall say nothing, as it does not at all enter into my view of the case, but I cannot, in connection with the question of registration, omit to notice the terms of the law of England, enfeoffement, bargain and sale, and mortgage, as applied by the Legislature of Lower Canada, to immoveable property held in free and common soccage, in the statute of the 10th and 11th Geo. IV, relied upon by Respondent. The use of these terms is an additional proof of the recognition of the law of England, as furnishing the rule of decision.

MONDELET, Justice: A succinct review of some of the various phases of the legislative history of Canada, precludes, in my mind, the necessity of inquiring into the effects of a change of domination on our system of laws, as, without adverting to any principles of public or international law, it will be found that the rule of decision, in the present case, is written in se20

TOME III.

veral acts of positive enactment, as well of the Imperial as of the local Legislatures. A few general principles being settled, this, like every case, must, after all, depend upon its own particular circumstances. It is, therefore, a pure act of supererogation to acknowledge that the Canadians were fully entitled to the preservation of their property, and that their laws and usages remained intact, until abrogated by competent authority; the ancient state of the law, whatever it was, continued, and of that state, of the changes, if any, it has undergone, the acts of the Legislature, and of the Government, ought to be authentic and decisive evidence: whilst, on the other hand, it is plain that inducements were held out to the old subjects, which, being followed by and embodied in acts of Legislation, were acts of national faith, binding upon the honor of the British nation. As acts of national law, it was equally essential that the power of the Supreme Legislature of the Empire should be adequate to their construction and inforcement. We are met at the outset by the proclamation of 1763, which was the first act of the British Sovereign that followed the capitulation of Montreal. This, it is obvious, could not have, and has not had, any legal effect for establishing any particular system of laws, in it, the King is made to say: "We have given power, under our great seal, to the governor of our said colonies, respectively, to erect and constitute, with the advice of our said Councils, respectively, Courts of Judicature and public justice within our said colonies, for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agreeable to the laws of England," &c., &c. From the period at which Canada became a British Province, up to the Quebec Act, justice would appear to have been administered according to both the English and French laws indifferently, on the authority of ordonnances enacted by General Murray, and others having the administration of the Government during this interval of time. This is abundantly proved by the judicial records of those times.

The Act of 1774 comes next in order, and, in the 4th section, it is enacted" that the said proclamation (of 1763) so far as the same related to the said Province of Quebec, and the commission under the authority whereof the government of "the said province is at present administered, and all and every the ordinance and ordinances, made by the governor and council of Quebec, for the time being, relative to the civil government and administration of justice in the said province, and all commissions to judges and other officers thereof, be and the same are hereby revoked, annulled, and made void, from and after the first day of May, 1775.” In this, we find a recognition of the power under which the

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