would have amounted to about £500 or upwards, and which sum has not been entered by the said Joseph Carrier in his said inventory of the 31st of August, 1830; Plaintiff's exhibit n° 34, filed in this cause, that he, the said Joseph Carrier, received in hand, well and duly paid, from Mrs. W. F. Scott, wife of the said William Fisher Scott, the sum of £172. 17s. 7d. on account of some moneys lent by the said John Motz to the said William Fisher Scott, and that that amount was never entered in the said inventory notwithstanding that he, the said Joseph Carrier, had been collocated in the cause of Grant vs. Vanfelson and himself, the said Joseph Carrier, opposant, on the 17th of April, 1830, about one year after the death of the said late Christiana McPhee, and about four months before his said inventory. It appears, likewise, that he, the said Joseph Carrier, had been collocated in the cause of Dalrymple vs. Scott, and him, the said Joseph Carrier, opposant, for the sum of £250 currency, as appears by Plaintiff's exhibit no 39, filed in this cause, neither of which has been entered in his said inventory of the 31st of August 1830; Plaintiff's exhibit n° 17." To the second interrogatory, "Yes; I attested to those facts in that affidavit, and I know them to be true, and called them to the recollection of the said Joseph Carrier about the time of the said inventory, in 1830. I likewise called to his recollection the circumstance of his having left home a short time before that period, and during his widowhood, and of his having left one of his iron chests (for he had two in the house at that time) wide open with the key in the lock thereof, which key remained in my possession from the Saturday afternoon, the day of his departure, until the following Monday, the day of his return, during which time the house was left under my charge and control. I counted upon that occasion, during his absence, upwards of three thousand pounds in gold, silver, and bank bills, which were inclosed in that iron chest. I told him at that time, about the time of the said inventory, that I had counted that sum in the iron chest, and that I knew that the estate of my late father and mother was worth more than he represented it to be. Whereupon he replied, "We have no time to think of these matters now; I only intend this inventory as a matter of form, I will make it all right hereafter I consider you as my own child, and have made you in my last will and testament one of my heirs." I told him that I knew he intended to do what was right, but again represented unto him that I knew the estate of my late father and mother was worth more than he represented it to be, upon which he got annoyed, and replied, that he was not obliged to render me any account whatever of the succession, that he had the usufruct and enjoyment thereof during his

lifetime, and that if I did not hold my tongue he would not give me a fraction, but that if I trusted to him he would carry out my mother's will, as ordered by her in the will itself. Shortly after my mother's death he turned me out of doors, and compelled me to provide for myself, and to abandon the study of my profession, which profession I had studied for the space of two years and nine inonths, with Mr. M'Pherson, notary public; he gave me no means of supporting myself, and left me completely destitute; he knew of my embarrassed circumstances, and that I was largely indebted for barding, lodging, clothing and for maintaining the ordinary necessaries of life; and in the month of April, 1831, he inveigled me into making a transport de droits successifs, filed in this cause as Plaintiff's exhibit n° 13, and which I was compelled to do, and did, in my desperate circumstances with the understanding that my mother's will should be carried out after his death, as had been ordered therein by herself. I was obliged to make this transport de droits successifs because I had no means whatever to procure the ordinary wants of life; this transport was made without a reddition de compte, without the presence of my tutor nor of a tutor ad hoc, without any of the formalities required by law, non visis tabulis. It was, therefore, only after the death of the said Joseph Carrier, which took place in 1851, and when I saw his last will and testament, that I could discover and became aware of the frauds and deceit that he had been guilty of towards me in our transaction and that I found out that I had been inveigled into those transactions, by his deceitful dissimulations, delusive language, and plotting intrigue,"

In this state of circumstances, the Superior Court by its decree declared the instruments and accounts impeached by the declaration, to be null and void, and, in effect, decreed the accounts prayed by the Appellant, Appellant accounting for what had been received by him and those whom he represented, with interest; but, as to the deed of gift and the continuance of the community, the Superior Court dismissed the Appellant's claims. The Court of Queen's Bench, on the other hand, dismissed the suit, saving to the Appellant any remedy he might have by special action.

In disposing of this case Their Lordships do not think it necessary to enter into the question of the age or non-age of the Appellant and William Andrew Motz at the respective periods when the assignments to Joseph Carrier were made by them, or into any examination of the evidence as to the truth or falsehood of the inventory, or as to the extent or value of the property comprised in the community between Joseph Carrier and Christiana McPhee. They are fully satis

TOME III.

27

fied that the inventory was not correct, and they are not less satisfied that, whether the Appellant was of age at the date of the inventory or not, and whether the Appellant and William Andrew Motz were of age, or under age, at the times when they made the assignments to Joseph Carrier, those assignments were made by them so soon after they had attained their majority, and under such circumstances, that standing by themselves, without reference to any question of time or conduct, they could not possibly be maintained, according to the law of Lower Canada.

Neither do Their Lordships think it necessary, in determining this case, to enter into the question so much discussed in these papers, and debated in the argument at the bar, whether the ten years' prescription does or does not bar the Appellant's claims. They assume in favour of the Appellant that it does not but claims, although not barred by prescription, may be extinguished by release, or destroyed by conduct operating as a release; and Their Lordships are of opinion, that the claims made by the Appellant in this suit have been so extinguished or destroyed.

It appears fron the passages which have been read from the Appellant's answer to the Respondent's interrogatories, that the Appellant throughout knew that the inventory on which all the subsequent transactions complained of in this suit were based, did not contain a just and true account of the property of the community between Joseph Carrier and his mother, Christiana McPhee; that it was full of errors and omissions. With knowledge of these facts, he dealt with Joseph Carrier, and, several months after the date of the inventory, during which the relations between them appear, from his statement, to have been by no means amicable, he completed with Carrier the transaction of the 27th of April, 1831.

That transaction was not a mere transaction of account and payment. The Appellant had at that time no right to claim any payment whatever. It was a transaction not merely of account and payment, but of sale and purchase. It was a sale and purchase upon terms which might or might not turn out to be beneficial to the Appellant, according to the duration of Joseph Carrier's life, upon the determination of which the Appellant's interest depended.

These considerations, however, are not, as has been already said, sufficient in Their Lordships' judgment to justify the conclusion that the transaction, standing by itself, could have been supported; but the transaction could at any time have been impeached by the Appellant. He might at any time have sued to set it aside. He took no such proceeding, nor, so far as appears from the evidence, even intimated any dissent

from the transaction during the whole of Carrier's life. During the whole of that period he adhered to the transaction, and took the benefit of it; and not only so, but in April, 1841, he settled all accounts with Carrier, and signed a memorandum which, if it does not amount to an absolute release, at all events approaches so closely to it that it can scarcely be considered in any other light. There is no pretence for saying that the Appellant was at this time in any degree under the influence of Carrier. He was at this time independent of any such influence, of mature age, and fully competent to judge what it was most for his interest to do; and he then deliberately adopted this course. Their Lordships are of opinion that he must abide by it. He says that he entered into the transaction of 1831 upon the faith of promises made to him by Carrier that he would, by his will, carry out the dispositions which had been made by his wife, Christiana McPhee; and it was said for the Appellant at the bar that by the law of Lower Canada the transaction of 1831, was wholly null and void, and did not admit of confirmation; but Their Lordships cannot impute to the Appellant, more especially as he seems to have been brought up to the profession of the law, that he did not know that a will was a revocable instrument, and they find it impossible to suppose that the Appellant could have acted upon the promises which he alleges to have been made to him by Carrier, when they find that Carrier turned him out of the house shortly after his mother's death, and that not only is there no proof of any reconciliation between them, but that there appears to have been litigation between them, in the year 1844, upon the subject of the deed of donation of £600, to which allusion has been made. And, with respect to what was said as to the law of Lower Canada upon the subject of confirmation, however strong the law may be upon that subject, Their Lordships do not find that it disables parties from releasing their rights, or from disentitling themselves by their conduct from enforcing them.. The question here is not whether the inventory was null and void, and incapable of confirmation, but whether the assignment made by the Appellant can now be set aside; for if the assignment stands the Appellant's rights are gone. Looking at the case in this point of view, it was said for the Appellant that he was not bound to sue until the death of Carrier, when his interest came into possession, and this may well be so; but although the Appellant may have been entitled to institute the suit, it does not follow that he was entitled to succeed in it: and seeing that the transaction of 1831, was entered into with full knowledge on the part of the Appellant that the inventory was not correct, and was followed by the transaction of

1841, which, in Their Lordships' judgment, was, or was tantamount to a release, they are of opinion that the Appellant was not so entitled to succeed. In order so to entitle him he was bound, as Their Lordships think, to show that the transaction of 1841, was open to impeachment, as the original transaction had itself been, and in Their Lordships' opinion he has failed to do so. The transaction of 1841, was not a mere sequence of the original transaction; it was, in some respects, a new and independent transaction. It cannot have proceeded upon the faith of the inventory, for the Appellant knew the inventory to be incorrect. It cannot be affected by any considerations of influence or control arising from the relation between the parties, for the Appellant had long been emancipated from any such influence or control. Their Lordships are satisfied that the Appellant when he entered into this transaction well knew that the original transaction was open to impeachment, and deliberately determined that it was more for his interest to release than to prosecute his claims. In cases of this nature the position in which the person whose title is sought to be impeached has been placed, must always be borne in mind, although it may not decide the question whether the transaction ought to be set aside. In this case the Appellant has abstained from suing to impeach these transactions until the death of Carrier, by whom, had he been living, they might have been elucidated and explained.

Upon these grounds Their Lordships are of opinion, that the Appellant's claims, so far as respects his individual interests, cannot be maintained. The same reasons which preclude the Appellant's individual claims seem to Their Lordships to preclude also his claims as co-heir of his sister. The claims set up by the Appellant as assignee of his brother William Andrew Motz, have appeared to Their Lordships to be more open to consideration; but William Andrew Motz settled accounts with Joseph Carrier upon the footing of the inventory knowing, as appears by the account itself, that the inventory was not correct, and Their Lordships, therefore do not think that this part of the case can be distinguished. They give no opinion upon the question whether such an assignment can in any case be made the foundation of a suit, but they think it right to say that assignments taken as this have evidently been, for the mere purpose of prosecuting a suit, are not entitled to any favourable consideration.

Upon the whole, therefore, Their Lordships will humbly recommand Her Majesty to dismiss this appeal; but Their Lordships highly disapprove of transactions of this description entered into by persons standing in confidential relations; and upon this ground, and upon the ground of there having been