appellant. If there was a fraud arising from this declaration, it was practised upon, and not by the wife. It is simply an absurdity to impute fraud to the wife for objecting against this unheard, unexplained and unknown declaration, which was manifestly introduced into the acte for the fraudulent purpose of shirking the prohibition of the law, and, if possible, of giving a legal form to the acte. She was plainly entitled to prove the fact, because it was in fraudem legis, and in itself sufficient in law to set aside the obligation as to her. Besides, the declaration alone cannot bind her, she must be proved to be the real beneficiary contractor, otherwise the declaration becomes a palpable evasion of the legal prohibition and of public policy in this matter, which would be outraged with impunity. The application of the loan is the test of the liability and must be proved affirmatively, and therefore by the lender, which he has omitted to do in this case; but the wife has made conclusive proof of the fact, notwithstandding, and has proved not alone the making of the loan by the husband Mathieu, but its payment to him and its entire absorption by him in his engagements, without any advantage to his wife. If the creditor be honest in enforcing his claim against her, he must be prepared to assume the onus of proving that she benefited by the consideration of her engagement. The prohibition of the law is so trong that those who treat with married women must see that their obligations turn to their advantage; the evidence of the circumstances of the receipt and application of the money are perfectly admissible as tending to shew an act in fraudem legis, and therefore the rule of law which prevents oral testimony outre et contre le contenu d'un acte is inapplicable, because, if the real nature of the transaction were prevented from being shewn, the laws made for the protection of married women would have no effect whatever. In every case these provisions of law would be evaded by giving to a prohibited contract the garb and semblance of one perfectly legal, and thus would be done indirectly what could not be done directly. 9 Touillier, no 147. This applies to another circumstance, her binding herself in solido with husband, which does not take her out of the protection of the law, because the law cannot be deceived out of its operation by changing the form of the instrument. In such cases the form of the instrument will be disregarded and the real nature of the transaction will be considered. A prohibitive law, similar to our own in this respect, prevails, in the State of Louisiana, which is governed, like this country, by French common law, and by a system of jurisprudence similar to our own; and, under that code of law, it has been held by repeated decisions of the Supreme Court of the State, "that it is 66 66 incumbent on the party claiming to enforce the contract of a married woman, to shew that the contract inured to her separate advantage, and that the wife having a separate ad"vantage in the contract, being of the essence of her obliga"tion, must be proved." These rulings are entirely applicable to this case; the contract has in its terms alleged the separate advantage for the wife, which the proof has utterly demolished and disproved. Independently of these circumstances and rulings, which are entirely in her favor, the female respondent claims the protection of the precise and unambiguous terms of our law: she has contracted with her husband, and the facts of the case shew that she has also contracted for him as security for his loan; she cannot in any way be his surety, and the form of the acte must be disregarded when being a mere surety she is made to appear in the light of a principal: her contention is not a question of sentimental or merely equitable fraud, but it is a legal objection against a plain attempt to violate the policy of the law made for the protection of married women, herself included. DUVAL, J. C., pour la majorité de la Cour, maintint que la déclaration contenue dans l'acte authentique signé par l'intimée, savoir que le prêt avait été fait par elle-même, n'avait point été contredite par la preuve, et que les allégués de l'exception de l'intimée, en ce qui concerne la participation de l'appelant à la fraude qu'elle dit avoir été commise à son préjudice, n'avaient point été prouvés. Qu'au contraire, tout démontrait que le créancier avait été de bonne foi. Que, quel que fut l'usage qui aurait été fait de l'argent emprunté, subséquemment à l'obligation, cela n'était d'aucune conséquence; que le fait essentiel sans lequel l'intimée ne pouvait pas se faire relever de son obligation, n'avait point été prouvé, savoir que Duchesnay, ou son agent Lamothe, savaient, au moment du contrat, que le prêt se faisait pour le mari, et que l'intimée n'intervenait à l'acte que comme caution. MONK, J., said that there was nothing in the law which prevented a wife from borrowing money. The mere circumstance of the husband being jointly and severally bound with the wife did not indicate that there was any illegality in the transaction. The wife cannot become security for her husband, except as commune en biens, but the husband may be jointly and severally bound with the wife, where it is her debt. So that, in point of fact, the question came to be whether the money was advanced to the husband or to the wife. And, on the evidence, he was against the respondent. The judgment is as follows: "La cour considérant que, par l'acte d'obligation consenti par les intimés, en faveur d'Auguste Juchereau Duchesnay, devant Lamothe et son confrère, notaires publics, en la paroisse de Notre-Dame de St-Hyacinthe, le 27 février 1862, les intimés ont reconnu devoir à Duchesnay la somme de $500, pour prêt de cette somme faite par Juchereau Duchesnay à Marie-Anne-Felonise Brunelle, pour employer à ses besoins et affaires, laquelle somme les intimés promirent, par ledit acte, payer conjointement et solidairement à Duchesnay, en cinq ans de la date dudit acte avec intérêt y stipulé, à compter de la date dudit acte jusqu'à paiement. Et vu que le mont int de ladite obligation et des intérêts dus en vertu d'icelle a été dûment transporté à l'appelant, demandeur en Cour Supérieure, qui a droit d'action contre lesdits intimés, conjointement et solidairement, pour le recouvrement du montant dû en principal et en intérêt; et, en conséquence, que, dans le jugement prononcé par la Cour Supérieure, à St-Hyacinthe, le 27 d'octobre 1869, déboutant l'action du demandeur contre Marie-A.-F.-Brunelle, il y a erreur, cette Cour infirme et annulle, etc. (dissentientibus les honorables juges Caron et Badgley). Jugement infirmé. (15 J. p. 197) LORANGER & LORANGER, pour l'appelant. QUALIFICATION OF CITY COUNCILLORS OF MONTREAL. SUPERIOR COURT IN CHAMBERS, Montreal, 12th April, 1871. Coram MACKAY, J. JOHN SMITH, petitioner. vs JAMES MCSHANE, Jr., and THE MAYOR et al. of MONTREAL. Held:-1. That a lease of a stall in the market of the Mayor, Aldermen and Citizens of the City of Montreal, is a contract whithin the meaning of the 29th and 30th Victoria, chap. 56, sec. 7. 2. That such contract, entered into by a City Councillor prior to new election, is not such a continuing contract as will disqualify him, when re-elected, from sitting under the new election, nor thereby to lose his seat in the said Council. 3. That, under the Act 29-30 Victoria, ch. 56 sec. 7, the words used being, "Any member of the said council who shall, directly, or indirectly "become a party to, or security for, any contract or agreement to which "the Corporation of the said city is a party, or shall derive any interest profit or advantage from such contract or agreement shall thereby become "disquallified and lose his seat in the said Council," the Judge cannot oust from office a member re-elected, who had contracted with the Corporation while sitting as Councillor under a prior election. 66 4. The Mayor has not, nor has the City Clerk of Montreal, power or authority to cancel leases made by the Corporation, and such deeds of cancellation will be adjuged ultra vires. 5. Leases by Corporations, and releases, should be under the seal of the Corporation. The case is stated in the judgment rendered, which passed fully upon arguments of counsel. We therefore only give authorities cited. JOHN A. PERKINS, for petitioner: By-laws of the city as to the Mayor, p. 231; City Clerk, 232, Seal, 4; Markets and Market Committee, 44, 36, 326; Oath of Councillor, 26; Regina vs Francis E. L. & E., XII, 419; Kilner v Baxter, Q. B. Reports, 1866-7, p. 173: R. es York, 2 Gale & Davison (5 and 6 Vict., ch. 104), 2 Q. B., 847, 849, 850; 6 A. & E., 810; Grant, on Corporations, 402; Homersham vs The Wolverhampton W. Co., IV E. L. & E., 426: Angell & Ames, Corporations, p. 190, sec. 221, 222; Abbott, on Corporations, p. 550, sec. 723, 599 (45, 46, 47); Grant, Corporation Leases, 140, 141; Staniland vs Hopkins, 9 M. & W., 178; Reg. vs Paramore, 10 A. & E., p. 286; 1 Keen; 2 Myl. & Cr., 406; and see Atty. Gen. vs Corporation of Norwich, 1 Keen, 700; Simpson vs Ready, 11 M. & W., 344; 1 Ad. & E., p. 878; Reg. vs Alderson, Leominster Case, Corbett vs Daniels, p. 12 et seq. F. CASSIDY Q.C., and T. W. RITCHIE, Q. C., for defendant, cited Grant, on Corporations, pp. 205, 206, 207, 215 ; Dwarris, 646; 5 and 6 Win, IV., ch. 56, sec. 78; 5 and 6 Victoria, ch. 104; Reg. vs Hiorns, Ad. & Ellis, vol. 7, p. 960; 10 East, p. 210: The King vs Hawkins, 1 Maule & Selwyn's Reports, p. 76: 7 Adolphus & Ellis, p. 360; 2nd Gale & Davison, the case of York, p. 105; 11 Meeson & Welsby's, p. 243; Simpson es Ready, 2nd Adolphus & Ellis, p. 847; Civil Code of LowerCanada, art. 2086-2116, to show that there is no dower on McShane's property; 29-30 Vic., ch. 56, sec. 6 and 7. (The judgment of the Court rests upon this last section of the Act.) MACKAY, J.: The defendant is holding the office of City Councillor in the Corporation of the Mayor, Aldermen and citizens of the City of Montreal. The plaintiff, claiming the office for himself, has taken a quo warranto against the defendant, The city is incorporated by the 14 & 15 Vict., cap. 128, amended by late acts, particularly 29 & 30 Vict., cap. 56. No per-on shall be capable of being elected a Councillor (says 14 & 15 Vict., cap. 128, sec. 8) unless he shall have resided &c., and unless he shall be seized and possessed, to his own use, of real or personal property, or both, within the city, after payment of all his debts, of the value of £500. By the 29 & 30 Vict., cap. 56, this has been changed, so shat now Councillors must be possessed of real estate in the city of the value of £500, after payment of their debts. This real property, with residence, is the principal qualification. There are others by the 14 & 15 Vict. No person shall be capable of being elected Councillor who shall not be a natural born subject, &c., and of the age of twenty-one years, and persons attainted for treason or felony are ineligible for election; and, by sec. 10, no person in holy orders, nor judge of any court, nor any person accounttable for the city revenues, &c., shall be capable of being elected a councillor, or of being councillor. It is further enacted by sec. 6 of 29 & 30 Vict., that no person shall be capable of being elected a councillor who may be indebted for taxes, &c., or is. a party to, or interested in, any lawsuit, &c., wherein the Corporation is a party, plaintiff or defendant. In the Acts of incorporation there are clauses providing that the office of Councillor shall be forfeited, if any Councillor become disqualified in certain events. Thus, sec. 41 of 14 & 15 Vict. enacts that, if any person holding the office of Councillor shall be declared bankrupt, or shall become insolvent, or shali take holy orders, or shall become a judge of any court, &c., or shall become accountable for the city revenue, &c., then, in every such case, such persons shall thereupon immediatly become disqualified, and shall cease to hold office, &c.; and, by way of addition to this, sec. 7 of 29 and 30 Vict. orders that any Councillor who shall, directly or indirectly, become a party to or security for any contract or agreement to which the Corporation of the City is a party, or shall derive any interest, profit, or advantage from such contract or agreement, shall thereby become disqualified, and lose his seat in the Council. This is a wise enactment, meant to guard the corporators at large against rascalities by Councillors who, by contracting in their own names, or by leaguing themselves with outsiders to whom the Council may have to give contracts, may make the Corporation pay more than right for works to be done; also it is meant to guard againt favoritism by Corporation officers, Mayor, and others, whereby Councillors tendering to do works for the Corporation, or to buy from them or contract otherwise with them, might be advantaged unduly, or their creatures or instruments (themselves keeping in the back ground) might he; also, it is meant to guard against oppressions of honest contractors, outsiders, by Councillors, envious of them, either in their own interest or in that of friends and relations of theirs. It is well known that the most dishonorable and horrid frauds are committed in the United States and elsewhere every day by officers of large corporations, city corporations, and railway and trading ones. All trustees are bound to honesty; in our Corporation all the office-holders are put farther, they are put under oath of fidelity. By the 14 & 15 Vict. the Mayor and Councillors, besides swearing to their property qualifications, are put under oath to "fulfil, faithfully, the duties of their respective offices." This oath binds the taker if it to a religious |