"La donation manuelle pourrait même s'opérer sans tradition, ('etiam sine traditione,' disait Justinian), si celui auquel le propriétaire de certains objets mobiliers veut les donner se trouvait déja en possession de ces objets à un autre titre; la seule déclaration du donateur qu'il entend les lui donner, suffirait sans qu'il fût besoin d'en dresser un acte;' la tradition, en effet, n'est que le moyen de transférer la possession; et ce moyen est parfaitement suppléé par la déclaration du propriétaire qui change la cause de la possession antérieure; la donation s'accomplit donc alors sans tradition mais non pas certes sans possession." (Traité de Donations,' vol. iii. livre iii., titre 2, chap. 4, sec. 73.)

Assuming then there was a sufficient delivery of the certificate to satisfy the requirement of the law, the next question to be considered is, whether the agreement of gift is proved. On this point the indorsement and delivery are equivocal facts, consistent by themselves with the position of the Appellant either as agent or donee. It was, indeed, contended that as he held a power of attorney, the indorsement was not required to enable him to receive the interest, but the bank, notwithstanding this was so, may have desired to have Madame Voyer's own signature.

Mr. Justice Caron, in his reasons, has tersely stated the Appellant's position :

"Il a déposé comme procureur, c'est à lui à établir le changement dans son titre et sa position L'endossement seul et dénué d'explication n'a pas cet effet."

The Appellant attempted to prove that the certificate was the only document of Madame Voyer he had in his possession, and that she kept all others in her own custody. The evidence of this fact is weak; but, assuming it to be proved, it would not conclusively negative the presumption that he held it as her agent. It is plain the Bank required the production of the certificate whenever interest was paid, to enable an indorsement of the payment to be made upon it. Under these circumstances the maxim of the French law la possession vaut titre" cannot be invoked with effect.

The evidence of the gift thus becomes reduced to the testimony of witnesses who speak to conversations with Madame Voyer.

Exception was taken by the Respondents in the Courts below to the admissibility of this evidence, and it seems to have been rejected; but whether on the ground that it was wholly inad

missible, or was deemed to be, when examined, irrelevant as affording no proof of a present gift, does not appear.

It seems to their Lordships that the parol testimony of witnesses is, of necessity, admissible to prove the agreement in certain cases coming within the class of "dons manuels," since it would be incompatible with the law, which allows such gifts to be made by verbal agreement, to exclude the only evidence by which such an agreement can be established.

But assuming the testimony given in this case to be fully. admissible, their Lordships have come to the conclusion that it is insufficient to prove with reasonable certainty that an absolute gift of this property was ever made by Madame Voyer to the Appellant. The witnesses who speak to the conversations do not profess to prove words of present gift. The utmost that can be contended for is, that they give evidence of statements of Madame Voyer, which, it is said, amount to an acknowledment that she had made it; but these statements are in themselves so vague, and the occasions on which they were made are so indistinctly described, that they cannot be safely relied on for proof of the gift, especially when they are not supported by the presumptions which arise from other facts appearing in the case.

In the first place, the manner of the deposit is opposed to the presumption that a gift of it was made at that time. The money was deposited in the name of Madame Voyer, and the account opened with her. It is not clear, from the Appellant's statements, at what subsequent time he asserts the gift to have been made; but he certainly means to allege it was before the first interest was received by him; if this be so, his offer to pay over that interest to Madame Voyer is unaccountable, and entirely opposed to his pretension that an absolute gift had before that time been made and accepted. It is said by him that he never accounted to Madame Voyer for the subsequent interest, but the manner of his accounting with her is not shown. All that appears is, that on two occasions after the deposit, she declared herself satisfied with the administration of her affairs, and gave him formal discharges before a notary..

Again, it does not seem probable that the gift of a large sum of money should have been made to the Appellant in recompense, as it is said, of his services so soon after Madame Voyer had given him a valuable piece of land to reward him for them, or that, if it were intended, the Appellant, who knew the law,

should be content to rely on the mere indorsement of the certificate as the sole proof of the new gift.

It could not be suggested that the motive of the gift was to assist the Appellant in his building operations, for the fact is beyond dispute that he borrowed money at 8 per cent. for this purpose, whilst this money remained on deposit at 4 per cent. only.

Further, he neither drew out the money, nor changed the account to his own name, nor gave notice to the bank of the transfer in Madame Voyer's lifetime. It is difficult to suppose that he was not aware of the importance of being able to point to some overt act to mark a change of possession, especially having regard to his double position of agent and donee; or that he would have neglected to take some step with that object if he had obtained an absolute and perfect gift of the money.

Their Lordships, whilst holding that the evidence fails to establish a valid gift, do not wish to exclude the supposition that something may have passed between Madame Voyer and the Appellant which led him to take a sanguine view of her intention to benefit him. But, be that as it may, it is obvious that in cases where formal authentication by notarial act is dispensed with, it would be dangerous for the Courts to support gifts except upon plain and conclusive evidence of the agreement; and it would be especially unsafe to do so where an agent sets up a gift from his principal and mainly relies for proof of it upon the possession of a document which was, or at least may have been, originally entrusted to him for the purposes of his

agency.

An objection has been raised to the maintenance of the action on the ground that all the heirs of Madame Voyer are not made parties to it; and it was pointed out that Madame Richer and Madame Beaudry, two of her daughters, have not beep joined. The answer was that shey had accepted the legacies given to them by Madame Voyer's will, and had therefore renounced all claims as heirs to her general estate. It was not denied that this would be so under Articles 712 and 713 of the Code, unless the legacies had been expressly given to them by preference and beyond their share. There is clearly no direct declaration to that effect in this will, but Mr. Westlake endeavoured to show by the authority of some French decisions collected by Merlin in his work "Questions du droit," that such a direction might be

inferred from the words of the will under the circumstances of this succession. Their Lordships would be most reluctant to dismiss the suit for want of parties at this final stage, unless it was clearly demonstrated that they ought to do so. It is enough to say that they are far from being satisfied that the decisions referred to have the effect contended for, or that their authority can control the plain words of the Code. There is nothing in either of the three Judgments of the Courts in Canada which lends any support to the objection; and if the point, was really argued in those Courts, the learned Judges must have considered either that there was no substance in the exception, or that it ought to have beeen taken in limine by a dilatory plea.

Their Lordships think it right to notice that it was stated, during the argument, by the Respondents' Counsel that the agents who instructed him had obtained from one of the Judges of the Court of Queen's Bench notes purporting to be the reasons for his judgment. The Counsel for the Appellant loudly complained of this preference, and if the statement thus made be accurate, the complaint was justified. It was stated that the cause assigned for the notes not having been sent to the Registrar as required by the Rule of 1845, was that they had been destroyed in a fire. Whatever may be the case, whether the notes were recovered or re-written, it is obvious that the omission to send them to the Registrar, and allowing one only of the parties to have them, was calculated to give to that party an undue advantage. From the notes actually sent over by the Court of Queen's Bench it would appear that the learned Judge referred to had merely expressed his concurrence in the reasons of Mr. Justice Caron. The Rule requires the reasons given by the Judges to be communicated to the Registrar, and the observa- tions made by Lord Kingdown in delivering the Judgment of the Committee in Brown v. Gugy, 2 Moore, N. S., 365, show that these reasons ought to be stated publicly at the hearing below, and should not be reserved to influence the decision of the Court of Appeal. In the present case their Lordships felt constrained to refuse to look at notes so irregularly communicated.

In the result their Lordships think they ought to uphold the judgment of the Court of Queen's Bench, and they will humbly advise Her Majesty to affirm it, and to dismiss this Appeal with

costs.

KING v. TUNSTALL.

Judgment July 21st, 1874.

Present: Lord Justice James.

Sir Montague Smith.

Sir Robert P. Collier.

Lord Justice James-Their Lordships do not think it necessary to trouble you, Mr. Matthews.

Their lordships have listened with great attention and interest -I think I may add with great instruction-to the very able arguments which have been addressed to them by both the learned counsel in support of the appellant's case. Their lordships will assume, for the purpose of disposing of this appeal, that the law was exactly as stated by the learned counsel—that is to say, that according to the law stated in the Coutume de Paris, which was transplanted, or rather planted, in Canada by royal authority as the law of Canada under the French dominion, the gift in question to Plenderleath would be an absolutely null and void gift, by reason of the doctrines of the law established with respect to adulterine bastardy. They will assume that it was proved in point of fact that Plenderleath was an adulterine bastard, that he was incapable, under the old law, of receiving such a gift as this-that is to say, a gift by way of substitution of the family estates, as to which it could not well be predicated that they were given by way of sustentation or alimens. Their lordships assume, further, that the doctrine of prescription would not apply to a case of this kind; but although they assume this, probably if it were necessary for the determination of the case they would have required further argument and further consideration as to whether open possession under an instrument of this kind held during the whole of the lifetime, and afterwards for a great many years by the successor of the person who had so held, would not be brought within the description of a just titre where the objection was simply taken upon the ground of a doubtful construction of an instrument or the doubtful construction of an Act or Acts of the legislature. They assume, however, that the doctrine of prescription would not apply to this case.

Then the matter resolves itself really into that upon which the Courts in Canada decided upon more than one occasion, and after