of the difference of the tenure, and that the douaire coutumier cannot exist with the soccage tenure. It is said that this tenure is the same as the franc alleu,-but this is a great fallacy. There is an essential difference between the two; for land in franc alleu descends to the children in equal shares, and soccage land rightly or wrongly recognize primogeniture, as the rule of descent. Again under the custom of Paris, the tenure en fief has one rule of descent and that en roture another.

The last observation that I would make is that the soccage tenure having its incidents or "nature and consequences," which are characteristic and distinctive, the King who granted these lands by this tenure had a right to make his grants subject to such customs as he pleased; the acceptance of them was voluntary. Parties may in their marriage contracts derogate from the Custom of Paris. Why should not the King do the same in his grants. The grantor may make such conditions as he pleases. He imprints his will on the grant, and that cannot be altered. At common law a grant of lands in free and common soccage carrie's certain conditions with it, and just as lands en fief, are descendible by one rule, and those en róture by another, the free and common soccage tenure carries with it its own rule of descent, alienation and dower. Having expressed my opinion at length in the case of Stuart and Bowman which is reported, it would be waste of time upon the present occasion to say more than to refer to it. I would merely observe, that at this argument reference was made to a case of Delanaudière and Baby. I have a particular knowledge of that case. The suit was one of an amicable kind, between a mother and her children. It was not a case of douaire at all, but a very different one, the partition of the biens de la communauté between the widow and her children. There was a contract of marriage, by which communauté de tous biens présens et à venir was stipulated.-Subsequently to this marriage a grant of Crown lands in free and com

mon soccage was made to the husband; of course either the lands or their equivalent fell into the communauté. I am persuaded that the judgment of Chief Justice Sewell (1) intended to go that length but no farther. I am constrained then to adhere to my former opinion, and I would dismiss the appeal, but am in the minority.

The motifs of the Judgment in Appeal were as fol

lows:

"The Court, &c., Considering that the late Joseph Wilcox, father of the Respondent, by his first marriage, died on the 31st January, 1825, contracted a second marriage with the appellant, Sophia Blodget, and that at the time of the celebration of this second marriage the said Joseph Wilcox held and possessed, as proprietor, the immoveable property claimed by the respondent by his present action;-considering that at the time of the marriage of the said Sophia Blodget with the said Joseph Wilcox, lands held in free and common soccage in Lower Canada were subject to dower, in favour of married women and of their children, in the manner prescribed by the custom of Paris; that no contract of marriage having been executed by and between the said Sophia Blodget and the said Joseph Wilcox, anterior to the celebration of their said marriage, the lot of land described in the plaintiff's declaration became subject to dower in favor of the said Sophia Blodget and of the children born of her marriage with the said Joseph Wilcox, as prescribed by the custom of Paris, by which the children of the said late Joseph Wilcox, born of his marriage with the said Sophia Blodget, may claim a right of property in the one un

(1) Chief Juctice Sewell, as Attorney General, took a very active part in the grants of lands made by the Crown in the townships, all of which are in the English form of Letters Patent. One or two of these grants were made to the patentees "as tenants in common," under the English rule regulating such tenancy. To remedy the evil arising from grants in such form, a Statute of Canada, the 10 and 11 Victoria Cap. 37 was passed, and in the very last session of Parliament, our Canadian Legislature made provisions further to facilitate a partition by passing the Statute of the 20 Victoria, Cap. 139. The term "tenant in common," and the phraseology of the Patents universally, shew that the framer had in contemplation English and not French law.

divided moiety of the said lot, subject to the usufruct now claimed by the said Sophia Blodget;-considering, therefore, that on the day of the decease of the said Joseph Wilcox, that is, on the 28th day of April, 1846, the said Sophia Blodget and the children of her marriage aforesaid, were by law entitled to claim the said dower, and that by reason thereof, the right of usufruct in the one undivided moiety of the said lot of land was vested in the said Sophia Blodget, of which one undivided moiety she is now in possession, having retained possession of the whole lot from the time of the decease of the said Joseph Wilcox ;-considering that for the reasons above stated, the Respondent's claim to the whole of the said lot of land, in virtue of his purchase thereof, from his late father on the second day of February, 1826, is not founded in law, but that the said claim must for the present be limited to the one undivided moiety of the said lot, and the conclusions of his declaration restricted to the said one undivided moiety; considering that the further claims set up by the appellants, by their plea of peremptory exception are not founded in law;-considering lastly that in the final Judgment pronounced by the Court below, there is error, inasmuch as the said Judgment does not admit the said claim of dower, the Court, now here, doth reverse, annul and set aside the Judgment so pronounced by the Court below, on the 30th of January, 1856, and doth condemn the respondents to pay to the appellants the costs of the present appeal. And this Court proceeding to render the Judgment which the Court below ought to have rendered, doth declare and adjuge that the claim of the said Sophia Blodget to the usufructuary possession of the one undivided moiety of the said lot of land is well founded in law and appertains to her à titre de douaire coutumier, and the right of property therein to such of her children aforesaid as may hereafter claim the same, and that the claim of the said respondent to the right of property in the aforesaid one undivided moiety of the said lot, is, for the present, unfounded in law, but that the claim of the respondent to the other

undivided moiety of the said lot is well founded in law; in consequence doth condemn the appellants, within thirty days from the day of the service of the present judgment, to deliver up to the respondent possession of the one undivided moiety of the aforesaid lots of land described in the judgment pronounced by the Court below, on the 30th day of January, 1855, together with the issues and profits of the moiety of the said lot or the value thereof to be computed from the 13th day of April, 1853, and the costs incurred in the said Court below.

And this Court doth reserve to the respondent such recourse as he may lawfully have for the recovery of the right of property and possession of the undivided moiety of the said lot, now in the possession of the appellant, Sophia Blodget, after the expiration of her right of usufruct aforesaid.

And it is ordered that the record be remitted to the Court below, sitting at Sherbrooke. The honorable Mr. Justice Aylwin dissenting.

FELTON, W. L., for appellants.

DUNKIN, CHRISTOPHER, Counsel.

SANBORN & BROOKS, for respondent.

VICE-ADMIRALTY COURT:-LOWER CANADA.

Before the Hon. H. BLACK, Judge, Vice-Admiralty Court. THE PILOT.-Collins.

Held:-That under the provisions of the merchant shipping act of 1854, a seaman who has contracted and signed articles for a voyage to British North America, and back to a final port of discharge in the United Kingdom, is not entitled to recover for wages here on the ground of apprehension of danger to life, in consequence of the unseaworthiness of the vessel.

Jugé:-Que sous les dispositions de l'acte de la marine marchande de 1854, un matelot qui s'est engagé et a signé un contrat par écrit pour un voyage à l'Amérique Britannique du Nord, et de retour à un port de décharge dans le RoyaumeUni, n'est pas en droit de recouvrer ses gages sous le prétexte que sa vie est en danger par la raison du mauvais état du vaisseau.

Judgment rendered the 16th October, 1851.

The promoter caused the "Pilot" to be arrested on a claim for wages as seaman. The case was originally instituted before the Inspector of Police who referred it under the terms of the statute to the Vice-Admiralty Court.

An appearance under protest was filed on behalf of the owners, and by their protest it was alleged that no sum of money for wages, nor any action therefor, could be claimed or instituted in this Court because the promoter had entered into an agreement or engagement with the master of the vessel whereby he had agreed to serve on board thereof in the capacity of seaman on a voyage from Sunderland to Carthagena, thence to Quebec, and thence back to a port of delivery in the United Kingdom, in consideration of which service to be duly performed, the said William Collins, the master of the said ship or vessel, did, in and by the said agreement or engagement, agree to pay to the said promoter, as wages, the sum of three pounds, to wit, sterling money, per month, and to supply him with provisions according to the scale annexed to the said agreement or engagement; and the said promoter did further agree and contract that he should not and would not be entitled to his discharge from the said ship or vessel during any voyage in which she might be engaged, nor until her arrival in a port in the United Kingdom aforesaid; in witness whereof,