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several universal legatees of the said testator, William DARLING Darling, in the Plaintiff's declaration in this cause fyled mentioned, and to the said Plaintiffs, in their aforesaid capacity, for their several and respective shares in the aforesaid estate and succession."

BROWN.

That Wm. Darling & Co. rendered yearly accounts to the late William Darling Sen., during seventeen years before his death, by all of which they admitted to owe him, as the Plaintiffs claim, the statement for the term of the last year of the life of the testator showing $44,525.64 due to his estate.

There was an answer to the débat de compte, and a demurrer to the conclusions in the said débat de compte for, among others, the following reasons:—

First,-Because said allegations refer exclusively to questions between the Defendant William Darling and the firm of Wm. Darling & Co., therein mentioned as composed of the Defendants, William Darling and Thomas Darling and the late William Darling Sen., and as to whether said William Darling and Wm. Darling & Co., were or were not the debtors of the late William Darling Sen., and not whether the Defendants, as executors, were accountable in the premises;

Second,-Because it is not shown by said allegations, or either of them, that the Defendants, as executors, recovered, or became possessed of, or accountable for anything whatever which may have been in the hands of the said William Darling or Wm. Darling & Co., due to the said late William Darling Sen.

Third,-Because it is not shown that either the said William Darling or Wm. Darling & Co. owed any debt to the said late William Darling Sen., which they, or either of them, had acknowledged to owe, or had undertaken to pay within the time allowed by

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law for the recovery of the like indebtedness; or that the Defendants were bound and liable to have pro- DARLING ceeded at law for the recovery of such indebtedness, and had failed in their duty in that behalf.

Besides the general issue Appellants pleaded that the ultimate result of the transactions between William Darling Sen and William Darling Jun., made William Darling Sen. not a creditor but a debtor.

That if William Darling Jun. had been a debtor, which was denied, he never paid nor would pay the executors, and they never did nor could recover anything from him. Besides, being a commercial matter, the claim was barred and prescribed by the lapse of more than five years, and also more than six years before action brought.

They also denied the alleged agency for the other executors, and denied any negligence as to inventory, which they say was made in the only manner George Templeton or his wife would permit.

The case came up for trial before His Honor Mr. Justice Mackay on the 3rd December, 1875, and on the 22nd February, 1876, the Superior Court rendered judgment in favor of Respondents, maintaining the débat de compte fyled by the Respondents, and condemning the Appellants, jointly and severally, to pay to the Respondents the sum of $6,360.80 currency, besides interest at seven per cent. This judgment was confirmed by the Court of Queen's Bench of the Province of Quebec (appeal side).

On this appeal the principal questions to be determined were :

1st. Whether, at the time of the institution of this action, the Appellant, William Darling individually, or as having carried on business under the firm of Wm. Darling & Co., or as successor to the firm of

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Wm. Darling & Co., composed of said Appellants, DARLING William William Darling, and Thomas Davidson, owed the estate of the said late William Darling Sen. any, and if any, what sum.

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2nd. Whether the Appellants were liable in the present action to account for more than they had actually recovered and got into their possession.

3rd. Whether the Respondents were entitled to raise the question of the indebtedness of the said firms of Wm. Darling & Co., or of either of them, or of the Appellant William Darling, or of the Appellants William Darling and Thomas Darling, to the said late William Darling Sen.

4th. Whether, if liable, the Appellants should have been condemned jointly and severally, and whether Adam Darling should not have been included in the judgment, or each condemned only for what he received, or for his share of what came into their united possession.

5th. Whether any, and if any, what part of the amount claimed by said débat de compte was barred and prescribed, either by the prescription of five years or by that of six years.

6th. Whether the judgment against the executors for seven per cent. interest from the date of the decease of William Darling Sen. is well founded and can be sustained.

From the evidence it appears that Adam Darling, one of the Plaintiffs, wrote a letter to the Respondents on the 11th August, 1871, asking them to render an account. It was only on the 1st day of May, 1875, that the Appellants, after being sued, rendered their account, and by that account they admit their joint indebtedness as executors to the estate of William Darling Sen. in a sum of $15,938.01. On a débat de compte, it was

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proved by the books of Wm. Darling & Co., that William Darling Jun. was indebted to the estate of his father in DARLING a further sum of $30,015.33. This indebtedness arose in the following manner: In 1853 William Darling Jun., purchased for £4,000 the stock in trade of David Darling, and having valued the goods, he placed the value over and above what he paid for them, viz. : £2,837 1s. 11d. to his father's credit, he being interested in the estate of David Darling, representing D. & C. Darling. From that time until after the death of William Darling Sen. in 1871, William Darling Jun. continued this credit, paid interest on it, and rendered an annual statement to William Darling Sen.

It was also proved that $6,360.80, the amount claimed by Respondents, was paid to other legatees by William Darling Jun. as their share in the estate (one seventh).

Mr. Cross, Q.C., for Appellants :

Executors are not, in the Province of Quebec, as under other systems, representatives of the deceased generally. They have only such special powers as are given them by the law, or by the testament; they are like mere attorneys, with the powers, and the special powers only, conferred on them and no other.

Furgole, Traité des Testaments (1); Toullier (2); Nouveau Furgole (3).

Testamentary executors for the purpose of the execution of the will, are seized as legal depostiaries When his duties are at an end, the testamentary executor must render an account to the heir or legatee who receives the succession, and pay him over the balance remaining in his hands.-Civil Code, L.C., Art. 918. He pays the debts and discharges the particular legacies, with the consent of the heir or of the legatee who (1) T. 4, Cap. 10, sec. 4, Nos. 12 & 16. (2) T. 5, Nos. 577 & 578. (3) T. 2, p. 469.

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receives the succession; or, after calling in such heir or DARLING legatee, with the authorization of the Court. In the case of insufficiency of monies for the execution of the will, he may, with the same consent or with the same authorization, sell movable property of the succession to the amount required. The heir or legatee may, however, prevent such sale by tendering the amount required for the execution of the will. The testamentary executor may receive the debts due, and may sue for their recovery.-Civil Code, L. C., Art 919.

His seizin is not a true possession, but a mere detention for the heir or universal legatee, who can cause it to cease at any time, by furnishing the necessary funds to pay the particular legacies. Demolombe (1); Bourjon (2); Coutume de Paris (3); Toullier (4); Civil Code, L. C. (5).

Before the Superior Court the question tried was whether Wm. Darling & Co were debtors of William Darling Sen. Now, if William Darling Jun. is indebted to the estate, and if he be at the same time an executor, he is liable, the proper course to recover would be on an issue raised with William Darling Jun. alone.

[HENRY, J.: Why did he pay three legatees and refuse to pay Respondents?]

Any money paid to the other universal legatees proceeded from William Darling Jun., who had a right to pay it, without involving the executors in a liability.

No executors account was at any time made, save the one produced in this cause. There was no obligation on their part to collect debts. All they were required to do was to pay debts.

(1) Don. t. 5, No. 57.

(2) T. 2, Partie 5, Ed'n. 1747, C.

11, sec. 2, Nos. 14, 15, 19 & 20.

(3) Art. 297.

(4) T. 5, Nos. 581, 582 & 585.

(5) Art. 919, 1027.