TOME XXIV

ings as will enforce the payment of ordinary collections. Otherwise, they cannot sue, nor defend, nor invest money, nor alienate property, without the consent of the parishioners in general asssembly ; but they may grant leases, and enforce ordinary collections. As to the right to attend the general assemblies, see Guyot’s Répertoire, vo. Marguilliers, pp. 327, 578; vo. Fabrique, pp. 245-6, vo. Assemblée, p. 682. As to the circumstances under which it is necessary to convoke the general assembly, see Jousse, Gouvernement des Paroisses, pp. 124, 125, 126. The duty of rendering accounts is indicative of the relations between the parties, and implies the right of the parish to control the expenditure. The Jaw defining relations of parish to fabrique, viz., that the latter is an agent with most limited powers, dates from behind 1663. Before the cession, there is no case of a fabrique suving without authority. Records, statutes and decisions in Canada show that this law has been recognised and enforced there: see Edit of 1679; Edits et Ordonnances of Canada, vol. 1 (old edition), p. 243; Edit of 20 sept. 1721, and march 1722, vol. 1, p. 403. A great number of arréts are to be found in those volumes, directing the assembly of the parishioners for the construction and repair d'église et de presbytère : see Edits et Ordonnunces (new edition), vol. 2, pp. 291 et seq. to 588. For statutes, see 31 Geo. 3, c. 6; 1 Will, 4, c. 31: 2 Vict,., c. 29: Consolidated Statutes of Lower-Canada, c. 18: see Baudry's Code des Curés, Marguilliers et Paroissiens, p. 270. It is denied that besides the bureau ordinaire and the general assembly there is a tertium quid called bureau extraordinaire. Consolidated Statutes, ec. 18, (and see 2 Vict., ce. 29) provides ‘for the mode of administration and control of the affairs of the parish: see Baudry's Code, p. 199. Though according to Ex parte Renouf (1), decided in 1844, only notables were entitled to be present at elections of murguilliers, still the term includes all the tax-paying members of the parish. By 2 Vict., c. 29, which recognized the existing French law, sect. 2, “ freeholders ” were first mentioned in lieu of inhabitants. The general assembly of the parishioners is required by sect. 45 of Consol. Stat., c. 18, not merely in elections of marquilliers, but for other purposes also. “ Resident parishiorers being householders” are entitled to vote: and see Baudry's Code, p 302. Besides the general law of France thus demonstrated as recognizing the dependence of the fabrique on the parishioners, the decisions since 1844 have also affirmed this responsibility. Appellants in this case adinit that their accounts were ouïs, examinés, arréltés, clos,

(1) Suprà, p. 262.

in & no wit] wh aut] 84, the nai nos. Jur tion the prop the law, B.

wer actio Can:

rega quil degr (b), c the f refer lin’s Fabr semb As tc dinar naar Trai tion, and ; cedui tion « nullit can 0 press] Th Robe:

Th:

Quee:

1872, on th

lections.

money, shioners enforce general pp. 327, s to the oke the 1T'OSSES, ; indicahe right defining r is an 563. Bewithout la show ere: see I 1 (old 729, vol.

in those for the Edits et 588. For ., © 29; Paudrys D, It is general traordi- , © 29) lof the Though 4, only vurquilhbers of existing oned in shioners brely in “ Resio vote; law of ence of e 1844 his case tés, clos,

in a general assembly ; and on the same principle they had no power to enter on an elaborate and expensive litigation without the consent of the parishioners. Upon the question whether respondeut muy avail themselves of this want of authority, see Monseigneur Desautel's Manuel des Curés, pp. 84, 85 and 86. The parishioners can only go to the court in the name of the fabrique, see Rolland de Villurgues, Dictionnaire du Droit Civil, p. 430, vo. Autorisation pour plaider, nos. 9, 10 und 15. Sirey, Recueil Général (1816), vol. 16, pt. 1, pp. 104, 96, 271 ; Pigeau’s Procédure, vol. 1, p. 77 ; Dalloz, Jurisprudence Générale, vo. Fabrique des Eglises (old edition), p. 14, sect. 58 ; Merlin’s Répertoire, vo. Nullité. As to the question of usage, the view of French law on that subject propounded by the other side is not objected to. But as to the onus, it lies upon the other side to displace the general law, and they have not; on the evidence, succeeded in doing so.

BompAs replied : Even if the authority of the parishioners were required for the purpose of bringing extraordinary actions, such authority is not required, either in France or Canada, for possessory actions. For the usage in Canada as regards the fabrique, see Baudry's Code des Curés et Marguilliers et Paroissiens, p. 200. In France, there are three degrees of author‘ty (a), that of the marguillier in charge : (b), of the bureau ordinaire ; (ce), of the general assemblies of the fabrique or parish, which are one and the same thing. He referred to Nouveau Denisart, vo. Arrét, sec. 5, no. 3; Merlin's Répertoire, vo. Arrét, sec. 8 ; Duru..! de Maillane, vo. Fabrique, p. 3; Guyot, vo. Fabrique, p. 245, as regards assemblies ; Nouveau Denisart, tit. Fabrique, sect. 2, assemblies. As to whether this action came under the head of an extraordinary expense, and, therefore, ultra vires the bureau ordinaire, see Rolland de Villargues, vol. 1, p. 430 ; Pothier, Traité du Contrat, p. 234; Merlin's Répertoire, tit. Présomption, no 12; Troplong, Droit Civil expliqué du Mandat, p. 296. There is a broad distinction between possessory actions and actions possessory and petitory : see Code of Civil Procedure, bk. 2, tit, 2, c. 6. The objection to want of authorization could only be taken by respondents if the action were a nullity without it: Consol. Stat., c. 18,s. 45. And a nullity can only be taken into account where a nullity has been expressly declared. Merlin’s Repertoire, tit. Nullité.

The judgment of their Lordships was delivered by Sir Robert PHILLIMORE :

This is an appeal from a judgment given by the Court of Queen's Bench for the province of Quebec, on march 22nd 1872, which affirmed a judgment given by the Superior Court on the 30th december 1869. The village of Verchères, situated

within the limits of the parish of Verchères, was, in the year 1857, erected into an unincorporated village, in the manner prescribed by the ÜConsolidated Statutes of Lower-Canada. The municipal council of this parish having entertained à proposal for forming a new street, which would pass across à portion of land of the fabrique of the parish, occupied by the curé, between the same and another part occupied by the convent, also belonging to the fubrique, public notice was, on the 30th july 1868, given, that, on the following 10th of august, x special meeting of the municipal council would be holden for the purpose of considering or reviewing the report (procès-verbal) of the superintendent, who had recommendel the formation of the new street. On the 9 of august 1868, à meeting was holden of the curé and marguilliers of the fabrique, and certain former marguilliers of the fabrique, but no parishioner who was not or had not been x marquillier was summoned to it. This meeting, thus composed, resolved to oppose the formation of the street and the homologation or confirmation of the report, and they appointed the curé as the special attorney of the œuvre et fubrique, to take the necessary steps to execute their resolution, the cure binding himself to defray all charges thereby incurred. On the 10th of august, the next day,the curé, acting on this authority, appeared before the municipal council of the parish of Verchères, and opposed the confirmation of the report, but the council affirmed it, with some variations not material to the present case. The curé appealed from this decision to the municipal council of the county, and that board, on the 7th of september, dismissed the appeal, with costs, and contfirmed the report, except so far as it provided that no compensation should be paid to the frbr'ique for the land required for the new street. In the month of october the curé brought an action in the names of appellants, that is: Les Curé et Murguilliers de l'Œuvre et Fabrique, &e., against respondents, that is: La Corporation de la Paroisse de Verchères, in the Superior Court, and filed a declaration, in which he prayed that the proceedings of respondents, as to making of the street, might be declared null and illegal, and that respondents might be restrained from disturbing the enjoyment and possession by appellants of their land, and he prayed also for damages. To this action respondents put in a plea known to French jurisprudence as La fin de non-recevoir, to the effect that appellants were not competent to bring the action, inasmuch as they were not authorized to do so by the parishioners regularly convened. They also put in further pleas which it is unnecessary to specify. Appellants replied that the authority of the parishioners was not required by law to

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ained across à d by the by the was, on 10th of vould be e report imended ;, 1868, à s of the ubrique, narquil- »mposed, Le homoppointed rique, to the curé red, On on this 1e parish port, but iterial to n to the the 7th bnfirmed ensation for the ught an et Murondents, s, in the prayed of the responent and also for nown to he effect on, inasparisher pleas ied that y law to

enable them to bring the action, but that the authority given by the present and past marguilliers was sufficient ; “they further replied that it was not competent to respondents to raise this question of the autorisation, which could only be raised by the parishioners and fubriciens disavowing the attorney or the appellants in the action, and that the plea of fin de non-recevoir was bad in law ; and they also specially replied that the authority of the parishioners to bring the action was not necessary according to the law and custom of the country, and, particularly, according to the usage established in the parish ; but that an authority given by the past and present marguilliers was sufficient. There were also other replications not affecting the present case. Witnesses were examined on both sides before Justice BERTHELOT, who, on the 30th of december 1869, decided that the evidence did establish a usage in the parish of Verchères to summon all the parishioners to a meeting convened for such a purpose, as the one for which this meeting had been holden by the curé and marguilliers alone ; that such usage was not contrary to the general law, and that respondents were entitled to raise the question as to the want of due œutorisation. From this judgment there was an appeal to the Court of Queen's Bench, before which tribunal it was twice argued, and the judgment of the Superior Court was affirmed by the opinions of four judges against one. From these judgments the appeal has been presented to Her Majesty in Council. Their Lordships are unfortunately deprived of the written reasons of the majority of the judges in the court below, which have been destroyed by fire ; but they have before them the judgment of Justice BERTHE LOT, the notes of Justice CARON, and the judgment of the dissentient judge, Justice Moxk. Upon the undisputed fact in the case, that the autorisation, for the prosecution of this suit, was given by an assembly composed exclusively of the old and new marguilliers at which the curé presided, the several questions of law, which have been maintained, were raised before the courts below, and have been again insisted upon before their Lordships. They may be concisely stated as follows: First, was the autorisation sufficient or the position on which respondents rely, a nullity ? Necondly, if insufficient, and a nullity, was it competent to respondents to plead this nullity, or, in the language of the French jurisprudence, opposer l& fin de non-recevoir to this action ? No question on the merits of the case has been decided in the courts below, or is now mooted before their Lordships. The first question, namely, was the œutori isation sufficient ? is the really important and substantial question in the case. Their Lordships have carefully examined the

various authorities which have been cited to them, as well as others upon which it appeared to them that reliance might be placed. It seems to their Lordships proper to make, at the outset, a generul observation upon the weight which is due to French jurisprudence and law upon the present question. It has been urged that the Edit of 1663, which created the Conseil Supérieur i in Canada, required that all subsequent édits should be registered before they became law in this French colony, and that, therefore, the authorities derived from French law, where this condition was wanting, were of little or no weight. But their Lordthips are of opinion that this proposition is too broadly stated. It is one thing to say that an édit required registration before it could become positive law in Canada, and another thing to say that French jurisprudence relating to such édits can be of no avail in the construction of Canadian law or interpretation of Canadian usage. It appears to their Lordships that, for these purposes, and so limited, the French jurisprudence has been rightly relied upon by the courts below, and must be considered by their Lordships. It is manifest that the eurl y French colonists must have imported such portions of French law relating to fabriques, as were applicable to their new position. Such portions must have constituted the foundation of the unwritten law of custom which sprung up in Canada before positive law was enacted in these matters for the colony. Judge BAUDRY seems to state the matter fairly in his recent work, Code des Curés et Marguilliers et Paroissiens, p. 2: “ Un “grand nombre de ces règles dérivent d'ordonnances rendues “ depuis 1663, et qui n'ont pas eu force de lei ici, n'ayant pus ‘“ été enregistrées au Conseil Supérieur de Québec ; cependant, “ces ordonnances sont souvent invoquées dans nos tribu- “ naux, du moins comme raison écrite” In the absence of any established usage or custom, it is right to consult the authorities of great French jurists like Dénisart and Merlin: and sometimes of French édits, which, though directed te a particular mission or paroisse, not unfrequently, as in the case of the Arrét de Saint-Jeun-en- (frève, contained—n1s Durand de Maillane, in his recital of it at length, expressly points out—x summary of principles applicable to the general subject. In the recent case of Dame Henriette Brown \ Les Curé et Marguilliers de Œuvre et Fubrique de Notre- Dame de Montréal, (21 R. J.R. Q., 525, 531, 534, 535, 538 539, 542, 543, 544, 546, 548, 549, 553, 554, 556, 557), their Lordships had occasion to consider the character and nature of what is called la fabrique. But it may be as well to cite upon this subject the detinite language of Guyot, Rép. tit.

'abrique, art. 24: “ C'est ce qui appartient à une église, tant

pari per deci case not à TA

nt

upo

s well as night be e, at the is due to stion, It the Conent édits s French ed from of little hat this say that positive h juristhe conanadian ur poses, rightly lered by 2olonists ating to uch poriwritten positive

Judge at Work,

: “Un rendues ant pas endant,

tribu-

Merlin :

ed te a in the 1ed—ùs pressly he gen- "OWN V, Notre- 5, 538, ), their nature to cite ép., tit.

se, tant

“pour les fonds et les revenus affectés à l'entretien ou à la ‘réparation de l'église que pour les ærgenteries et les orne- “ments.”...." désigne aussi par ce terme de fabrique, le “corps où l'assemblée de ceux qui ont l'administration des “ fonds et revenus dont on vient de parler.” It seems that, except in Quebec, parishes were scarcely established in Canada before the yeur 1679, and that Verchères was constituted a parish as late as 1722; the first appointment of marguilliers in that parish appears to have been the next year; and the extracts from registers of this parish show that the parishioners almost immediately exercised the right of choosin;s the marguilliers. The general question, however, as to the nature of the subjects which could legally be deult with by the curé and the maryuilliers in charge, or by the curé and the old and new marguilliers, without the consent of the general body of parishioners, appears to have not been strictly inquired into in this parish of Verchères before the year 1830. About that period local circumstances caused the question to be agitated. At first, the ecclesiastical authorities appear to have considered that the intervention of the body of the parishioners, upon almost any subject relating to the fabrique, was a gratuitous concession on the part of the bishop to the parishioners, a proposition which has, indeed, in substance, been maintained by the counsel for appellants before their Lordships ; but it is now adinitted that, on two occasions, at least, the convention of the whole body of the parishioners is required by law, namely, the occasion of electing new marguwilliers, and the rendering of the accounts by the old marguilliers. This is said to be à concession to the parishioners since the year 1843. The fact is, that about this period an important law-suit was commenced, which was decided by the Queen’s Bench in 1844-45. The name of the case was * £x parte Renouf”, supra, p. 262. The marginal note of the reporter is correct and is as follows : “ Les nota- “ bles ont droit de participer à l'élection des marguilliers. Les “ notables sont tous les puroissiens contribuables. Les curé et k ‘ murguilliers peuvent étre contraints d'éppeler les notables

‘auæ assemblées pour l'élection de marguilliers, uw moyen “d'un writ de mandamus. Le retour fuit par le curé et les “inurquilliers qu'ils ont offert d'admettre aux assemblées “certaines personnes notables par leur état et leur rang, à “ l'exclusion de lu généralité des paroissiens, est décluré in- * suffisant et illégal.” After this decision, it became impossible to deny that, for certain purposes, the consent of the parishioners was necessary, at all events in parishes in which there was not a custom to the contrary. But the principle upon which the decision is founded is important. It is clearly

to the eftect that, in all questions of grave consequence affect- LT!

ing their parish, the parishioners have à right to be consulted, 9

This appears to their Lordships to be the true doctrine “q

derived from the resson of the thing and to be supported by “a

the general analogies of the 1:w relating to communes. The “fe

| argument that the concessions originally flowed from the “p bishop, and that, therefore, the parishioners have no right in «nl

the matter, is really untenable. While the revenues of the “pe

À parish were derived exclusively from à portion of the dêmes ; “ be while the civil authority was not resorted to for the purpose “ de

of enforcing rates for the maintenance of the services an “to

ornements and property of the church; while what is now “ y

kown as the office of marguillier was unknown to the civil “ de or municipal law, the argument might have been plausible: “h

but since the corporation called the parish has been legally tit.

founded and supported by civil and seculur authority, every Mu

parishioner has an interest in the management of its prop- “ D)

erty, and the argument is without foundation on principle. défe

Accordingly the books of authority and the sentences of ten

French courts, greatly preponderate i in favour of such rights étre

of the pur ishioners as are elaimed in this suit, It is quite con- mai

sistent with the existence of these rights that the inarquil- pou liers chosen by the parishioners should be invested with a ordi

limited power, sufficient for the transaction of the ordinary late business of the parish and for the supply of the ordinary is pl necessitics of divine worship. The law can scarcely be state upor with more perspicuity than it is in the Nouveau Dénisart Stat (358-9), under the title : Fubriques des Puroisses. “ Les fabr -

“ques sont réglées duns deux espèces d'assemblées, savoir, “me “ duns les assemblées générales et duns Les assemblées parti “ jsh “eulières que l'on uppelle assemblée du bureau ordinaire. “lin “ Dans d'autres paroisses, surtout à la campagne, W n'y « “ins

“pas de bureau ordinaire. Tout ce qui est d'administration 40 “courante et journalière est dirigé pur Les marguilliers seuls, Er “ les affuires importa ntes se traitent dans les assemblées génc- “ ch:

“rales de lu paroisse. Some reference has already been “or made to the «rrét in the case of St-Jeun-en-Grève, delivered “th | in 1737, which the learned canonist, Durand de Maillanne, “th : refers to as à collection of the rules of law applicable to the “ere rights of parishioners and the duty of marguilliers. It is “or only necessary to refer to threc of the articles of this arret: “ bo À “ Article 20. Sera fait en outre un état de tous les revenus, “ str “tant fives que casuels de la fubrique, ensemble de toutes les “ SI “ charges et dépenses d'icelle, tant ordinaires qu'extraordi- “ bei “maires, &c. Article 21. Ne sera faite aucune autre dépense pes

“par le murquillier comptable en exercice, que celle mention- “as ‘ née audit état, si ce n’est qu'il en eût été délibéré dans une “pa:

ve uffectnsulted, doctrine orted by LOS, The rom the right in s of the » dêmnes :

purpose ices an Lis now the civil ausible :

legally y, every its proprinciple.

ences of h rights uite connarquil- 1 witha ordinary dinary se stated Dénisart 2S fubri- | SHOT, ps purtili na ire, ny Stration rs seuls, es généy been livered illanne, e to the , Itis s arrél:

events, utes Les aordilépense

ntionns une

assemblée du bureau ow dans une assemblée générale, winsi “qu'il sera dit ci-après. Article 24. Ne pourront les mur- ‘guilliers entreprendre aucun procès, n'y y défendre, fure “aucun emploi ni remploi des deniers appartenant à la “fabrique, ni uccepter aucunes fondations sans délibération «4 précédente de l'ussemblée générale ; : sans préjudice néun- ‘inoins des poursuites nécessaires pour le recouvrement des ‘revenus ordinaires de la fubrique, pour l'exécution des ‘baux, et pour fuire passer des titres nouveaux, pour raison “de quoi il en sera délibéré au bureau ordinaire : et dans ‘tous lescas, du procès à intenter ou à soutenir, seront cléli- ‘vrées aux procureurs chargés d'.ccuper, des copies en forme ‘de délibérations, soit du bureau ordinaire, soit de l'ussemn- “ blée générale.” (Dict. de Droit Can. Durand de Maillanne, tit, Fabrique). The authority of the ancient Dénisart (vo Murquilliers, p. 248, no 42) is also very pertinent. He says : ‘ Des marguilliers ne peuvent intenter aucun proces, ni y défendre, faire aucun emploi, ni remploi des deniers apprtitenant à la Jubrique, ni accepter aucune fondation, sans y étre 7. isés par né délibération de l'assemblée générale ; DIU : peuvent, sans autorisation partieulierr, faire Les en nécessaires pour le recouvrement des revenus ordinaires de la fabrique” It would be useless to accumulate furthe: authorities from French writers on this point. Tt is plain that modern legislation in Canada has been founded upon the basis of this jurisprudence. By the Consolidated Statutes of Lower-Canada (cap. 18, sec. 8) it is enacted that : “ Whenever it is required to erect any new parish, to dismember or subdivide any parish, or unite two or more pur- “ishes, or to alter or modify the bounds, limits or division lines of any parish already established and erected accord- ‘ing to law ; or when in any parish or mission, it is required ‘to construct a parish church or chapel, or chapel of ease or ‘a sacristy, or other appurtenance of any such church or ‘ chapel, or à parsonage-house and the appurtenances thereof, or x church-yard, or to alter or repair the same, or any of ‘them, in any of the said cases, on a petition of a majority of “the inhabitants (being freeholders), interested in them, the erection, subdivision, dismemberinent or union of any parish “or parishes, or in any alteration or moditication of the “bounds or limits of any parish, or interested in the con- ‘struction, or in any alteration or repairs of any church, par- ‘sonage-house, or church-yard as aforesaid, such petition being presented to the Roman Catholic Bishop of the diocese, &e.” And section 45 enacts : “ And for avoiding doubts as to the person who ought by law to preside at general “parish or fabrique meetings for the election of church-

‘ wardens and other purposes for which parish and fabrique meetings are by law required in the Roman Catholic parishes of Lower-Canada: 1. Every general fubrique and parish meeting for the election of churchwardens and other purposes for which the law requires general meetings of the parishioners and members of fabriques in the Roman Catholic parishes of Lower-Canada, shall be presided over by the curé of the parish, or the priest administering the same ; and every proceeding at such meeting shall be entered in the register of preseedings of such parish in the usual manner and form, notwithstanding any usage or custom to the contrary which may have been introduced into any parishes. (23 Vict., cap. 67, sec. 1)” ‘ 2. Every such parish meetine shall be summoned in the manner usual in the parish. (Zbid., sec. 2)” “3. The only persons who shall be entitled to vote at such parish meetings, when such parish meetings are necessary to the election of churchwar dens, shall be the resident parishioners, being householders. (Zbid., sec. 3)” “4. Whenever,etc.” “ 5. This section shall not affect fabrique and parish meetings which have been held and presided over contrary to the provisions thereof, and any proceedings which have been or shall be instituted in consequence of such meetings, shall be decided as though this section had not been enacted. (Zbid., sec. 5)” The allegation that à contrary custom prevails in the parish of V erchères remains to be considered. At one time, no doubt, a great variety of custom and usage on this subject prevailed i in France ; and some variety has existed in Canada. Oral and documentary evidence with respect ta the aulleged eustom in Verchères was produced before the courts below. Their Lordships have examined the schedules and summary taken from the registry on this subject, which form a part of the record before them. There are sertainly some errors and omissions in these documents ; but their Lordships see no reason to suppose that such errors or omissions were intentional, or that the curé is open to any charge of mula fides in this matter. But, apart from this cireumstance, the courts below held, and, in the opinion of their Lordships, rightly held, not only that no such contrary custom had been established by the evidence, but that a custom of summoning the parishioners on all but the ordinary occasions of the parish was proven. The result of their Lordships’ examination of the history of and authorities on the first question is, that the matter of taking legal proceedings with respect to this road, inasmuch as it affected ne prorerty of the fabrique and incurred the responsibility of 2 law-suit, was à inatter of that gravity and importance ich according to principle and authority required the previous

unde Cu au air € ad “io!

“ de "pui “du “s'ac à de ( ‘ no7 whet adve resu] there subje lute even schoo of fin the whicl

fabrique olic parque and nd other gs of the Catholic by the e same ; tered in ual manm to the parishes.

meetine h. (Zbid.

d to vote ings are > the resoù ‘à ique and ded over Jceedings uence of tion had at à conmains to y of cusand some tary evières was have exregistry bre them.

hese docose that e curé is ut, apart din the no such nce, but l but the result of thorities sal procted the lity of à e which previous

autorisation of the parishioners duly convened for deliberation on the subject; and that there is no sufficient evidence cf the existence of any custom in this parish which renders the general law inapplicable to it. The remaining question, namely, whether it was competent to respondents to plead

‘this nullity as x “« fin de non-recevoir ” is reully a question

of pleading ; and their Lordships would be very reluctant to interfere with the deliberate judgments of the two Canadian courts respecting it. Their Lordships, however, have consulted various authorities on this subject, and find them to be such as fully to warrant the opinion of the judges of the court below. Thus Dalloz, in the earlier edition of his werk (Dalloz, Jur. Gén. du Royaume, tit. Fabrique des Eglises, tone 8, p. 14, s. 58): “Le défuut d'autorisation de la fabri- “que produit-ut une nullité absolue ? L'autorisation est-elle ‘ nécessaire pour défendre sur l'appel et pour se pourvoir en ‘cassation ? Nous nous en référons à ce que nous avons dit “sur ces questions au mot Communes,” section 2. Itis obvious that no distinction in principle upon this question of pleading can be taken between the cases of the fabrique and the commune, and, accordingly, following this reference, their Lordships find that in his later edition of 1848, the author, under the title Commune, tit. 5, ce. 13, observes, first (No 1764): “ Æfjet de défuut d'autorisation à l'égard de la com- “mune: Le défendeur poursuivi pur une commune non autorisée à cet effet, peut envoyer devant l'autorité judici- “aire une fin de non-recevoir tirée de l'incapacité de son “adversaire, et les tribunaux doivent accueillir cette excep- “tion, alors qu’elle est justifiée.” Further on, in paragraph 1779, he considers : “ Zffet du défaut d'autorisation à l'égard “de l'adrersuire de la commune : Si le défendeur actionné “par une commune non autorisée, soit pur suite d'un refus “ du Conseil de préfecture, soit parce qu'elle aura négligé de “ s'adresser à ce conseil, oppose la fin de non-recevoir, tirée “de cette violation des formes, la commune doit étre déclarée ‘non-recevable.” Dalloz examines at length the question whether, if La fin de non-recevoir has not been invoked, the adversary of the commune can avail himself of the nullity resulting from the defect of autorisation. He observes that there have formerly been three schools of opinion upon this subject. According to one school this defect produced an absolate nullity, and could be alleged at any stage of the cause, even befure the Court of Cassation. According to the second school the exception must have been taken before the judges of first instance. Between these two schools of opinion cume the third, of which Merlin w 3, in fact, the founder, and which ultimately triumphed. This distinguished French jurist

[rs

arrived at the conclusion that the objection must have been taken before the case reached the Court of Cassation, either before the judges of the first or second instance. This has now become the law of France, and the whole matter is thus summed up by Dalloz: “Ainsi et pour résumer ce que nous ‘ venons de dire, le pourvoi en cassation, fondé sur ce défuut d “ d'autor isation, ne peut étre ouvert à l'adversaire de lu com-

‘mune qu autant que ce moyen « été proposé en première

‘anstunce où en appel ; murs il peul étre invoqué devant les

“ Juges du second dégré, quoiqu'il ne l'uit pus été en pre-

‘mière instance, à moins que la partie n'y ait renoncé

“ expressément ou tacitement.” (Par. 1786.) Merlin in his Répertoire de Jurisprudence, titre Nullité, $ 2: Par qui les “ nullités penvent-illes étre alléquées,” says: “1. On distin- “ que, sur cette question, deux sortes de nullités, l’une absolue, ‘l'autre relative. La première peut étre alléquée par toutes sortes de personnes ; la seconde ne peut l'étre que par ceux en faveur de qui elle a été prononcée....Cette nullité (namely, the first) peut étre objectée, non seulement pur la “ partie publique, mais encore par toutes sortes de personnes, sans qu'on puisse leur opposer qu'elles se prévalent du “ droit d'un tiers ; et le juge peut y prendre égard d'office ‘quand personne ne lu proposeruit.” And so Rolland de Villargues, in his comparatively recent work Dictionnaire du Droit Civil, titre Autorisulion pour plitider, observes : “ Le défaut d'uutorisation peut étre opposé per toutes les parties, et méme d'ofiice, en tout état de cause, et il vicie tous les actes de lu procédure d'une nullité radicale. I s'agit ici d'une formulité qui est d'ordre public et substantiel” À category which embraces the present case. “L2 point," this author adds, “est constant,” and he refers to several judg-

ments of the Court of Cassation in support of his opinion.

Other authorities might be cited to the same etfect. Upon the whole, their Lordships are of opinion that, upon both questions, the Canadian courts have come to a right decision, and that this appeal ought to be dismissed with costs. And they will humbly advise Her Majesty to this effect. (19, 141: 4R. L., 87; 6R. L., 691: 2 R. C. 232; 6 L, R. P.C, 290; 44 L. J,, P. C., 34: 32 L. T., 178.)

BiscHorr, BomMpas & BISCHOFF, attorneys for appellants.

MATTHEWS and FREELING, attorneys for respondent,.

Cou

Prés