The Counsel For The Architect Went At The Argument Of His
Opponent With Great Vigour, Stimulated By The Expressed Opinion Of
Judge Mondelet, And Went Back To The Days Of Ancient Rome To Show That
Forms Of Action Had Been Difficult Even In Those Days, Having Once
Caused A Revolt.
He declared that even in England they were as
unsettled as ever; and wound up by propounding as a
Dogma, that the
Canadian law was neither English, French, Roman, nor of any other
precedent, but was founded upon common sense, which was the only guide
and authority in the administration of it. In corroboration of this,
the little black eye of Judge Mondelet brightly twinkled, and he nodded
his head in dignified approbation. Judge Van Feloon, who seemed more
phlegmatic, quietly settled the matter by saying, that he supposed if a
man did work for another, and the other had agreed to pay him,
he was entitled to the money, and that therefore the court would have
to see that a bargain had been made, and the work duly performed, and
then decide. The next case argued arose out of a fraudulent assignment;
and in this, too, French authorities, in the old language of a hundred
and fifty years since, were often appealed to - Chardon being apparently
the standard book of reference. The mixture of custom evidently caused
embarrassment, and it was clear that no fixed decisions could regulate
disputes concerning property, while the precedents relied upon were
based upon the differing laws of two separate countries - laws, perhaps,
not now operating in those very countries themselves.
"The tenure of property in Lower Canada is still in part based upon the
old French feudal system. There are still 'seigneurs' who hold lands,
and have 'censitaires' or tenants, paying fee-rent in produce,
services, and money. It is true that a law has been passed enabling a
fixed commutation, in money, of these seigneurial rights; but I am told
that the parties adhere in most cases to the old usage, and despise
innovation.
"A singular custom, too, prevails. Parents, when old and tired of
labour, assign their property to their children, or to one of them, in
consideration of a string of conditions for their own maintenance and
comfort, each one of which is recited in the deed with minute
exactness. They stipulate usually for a house, so much meat, bread,
sugar, tea, &c.; a caleche and horse to take them to church on Sundays
and holidays; so much tobacco or snuff; so many gowns and bonnets, or
suits of clothes and hats; and so on. These gifts lead to frequent law-
suits; and one can quite understand how, in a country with large tracts
of its land held upon tenures of the most complex character, under a
system which has passed away even in the country from whence it came,
and where to this mass of difficulty is added the cause of dispute just
alluded to, the legal profession should flourish, - which I understand
it does.
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