dant to retain the possession of the said land and premises until the said sum of four hundred and thirty two dollars shall be paid and reimbursed to him, etc.

This judgment was appealed from to the Superior Court, particularly that portion of the judgment awarding compensation for betterments. The Superior Court, composed of Mondelet, Charles, and Badgley, Justices, confirmed the decision respecting the right of the defendant to recover compensation for his betterments, but held that the same had been illegally proved by witnesses, and ordered the rents, issues and profits, and the improvements to be estimated by experts.

The judgment of the Superior Court, which was rendered on the 24th. January, 1857, is as follows:

The Court considering that before finally adjudging upon the pretensions of the respective parties in this cause, it is expedient that the useful and valuable improvements and ameliorations made by the defendant during his occupancy of said lot of land and premises in the declaration mentioned, as the same are mentioned and referred to in the pleadings in this cause, should have been had and ascertained,―doth order and direct that the judgment rendered in this cause by the Circuit Court, on the third day of January last, be set aside quant à présent, and in respect to the adjudication thereby with respect to the improvements and ameliorations; and the Court here doth order that the record be remitted to the said Court, and that by experts to be named by the parties in the usual manner, within fifteen days of the rendering of this judgment, in failure thereof by the Honorable the resident Judge in the district of Saint Francis, on the application of either of said parties, after notice duly given to the other of them or his attorney ad litem, the said experts to name a third expert or umpire in case of difference of opinion between them, or by the Judge, on their disagreeing on the nomination of such umpire or

third expert, the said improvements or ameliorations made as aforesaid by said defendant during the time of his occupation of said lot of land and premises, shall be valued and ascertained, together with the value of the rents, issues and profits of the said lot and premises by the said defendant during his said occupation, and report the same to the said Circuit Court, on or before the first day of the session of the said Court, in the month of May next, to be proceeded and adjudged upon by the said Circuit Court according to law, the costs upon this appeal to abide the final judgment to be rendered in this cause.

The expertise was subsequently had, and final judgment was rendered in the Circuit Court, in the same terms as the former judgment, homologating the report of experts and awarding to the defendant £130 for compensation for improvements, being the amount ascertained by the said experts, after deduction of the rents, issues and profits of the land during his occupancy thereof, and granting him permission to retain possession till this sum was paid.

SANBORN, J. S., for plaintiff.

TERRILL, T. LEE, for defendant.

Held That costs of action, as acces- Jugé :-Que des frais d'action, comme sory of the principal, rank before an hy-accessoire du principal, priment une répothecary claim, registered subsequently clamation hypothécaire, enregistrée subto the obligation for the amount of which séquemment à l'obligation sur laquelle le judgment has been rendered, but pre-jagement a été rendu, mais antérieureviously to the judgment condemning the ment au jugement qui a condamné le dédefendant to the payment of costs. fendeur au paiement de frais.

Judgment rendered the 8th of March, 1858.

The cause was submitted to the Court upon the contestation of a report of distribution.

The Quebec Building Society filed an opposition afin de conserver for the sum of £63 7, amount of a judgment rendered against the defendant upon the 5th October, 1857, and enregistered the 31st of the same month, and for £8 2 0, the amount of costs awarded by the judgment. The action in which the judgment had been rendered was founded upon a deed of obligation by the defendant's auteur in favor of the Quebec Building Society, dated the 16th March, 1850, and enregistered the next day.

Little's opposition was founded upon a judgment rendered against the defendant on the 18th of April, 1857, and registered on the 28th of May following.

By the report of distribution, the Quebec Building Society were collocated in preference to Little for £63 7, amount of the principal claimed by him, and, upon the balance of the proceeds, Little was collocated to the exclusion of the Quebec Building Society's claim for £8 2 7, the costs aforesaid.

TESSIER, for the Quebec Building Society:-Contested the report upon the ground that the costs were an accessory to the principal obligation, and that the obligation having been enregistered before the rendering of the judgment mentioned in Little's opposition, the Quebec Building Society had a right to be collocated for its costs in preference to Little, and he maintained that by a proviso in the 30th clause of the ordinance 4th Vict., ch. 30, it was enacted that costs of suit would carry with it an hypothec, without express mention of the amount of costs in the registration, that it followed from this principle, that the costs were considered as an accessory of the principal; therefore, in the present cause, the obligation in favor of the Quebec Building Society being registered before the judgment of Little, the costs awarded to the Quebec Building Society must precede Little's collocation. That the opinion prevailing heretofore that costs ought to carry hypothec only from the date of the registration of the judgment was founded upon the commentaires of writers on the article 2148 of the Code Napoleon; but it was there enacted that no hypothec would exist for costs, except when the specific amount of costs was registered, making it a principal by itself instead of an accessory. The difference between the two rules was well explained by Troplong (1).

CAMPBELL, for Little :-Contended that if the pretension of the Quebec Building Society were maintained, it would be supporting a doctrine diametrically opposed to the whole of the principle upon which the registry ordinance was founded-namely, publicity and specialty, that the principle the Quebec Building Society was contending for was: "That

a posterior enregistered hypothec should take precedence "of an anterior one duly registered." That one of the three principles laid down in the 20th section of the registry ordinance, was that the sum of money intended to be secur

:

(1) Privilèges et Hypothèques, 2nd vol., Edition Belge, page 106, No 702 :Arrêts de Lamoignon, t. 2,p. 123:- Louet, Lettre D., sec. 42:-Persil Régime Hypothécaire, art. 5155.

ed by the hypother should be specified therein, and that these costs not being a tacit hypothec under the 29th section of the ordinance, were no exception to the general rule laid down by the 20th section, and consequently could not take precedence of the deed of obligation, and that this point had already been settled by this Court favorably to the pretensions of Little in a case at the hearing of which his honor the Chief-Justice presided, namely, in the case of Morin vs. Daly, most fully reported in the Lower-Canada Reports, vol. 6, p. 48.

Judgment :-The contestation maintained and the prothonotary ordered to amend the report so as to give the Quebec Building Society a preference for the said costs.

ANDREWS, CAMPBELL and ANDREWS, for Little,

TESSIER, for Quebec Building Society.