For more on John YOUNG's past Click here

John was engaged in Shetland in 1869 for the service of the Hudson's Bay Company and went to the Lac La Pluie District where he served until 1878, being stationed at Fort Alexander from 1874 to 1875. Magna's birth date around 1857 or 1860- not sure--- Magna, was apparently taken from her Indian name which was-(Muhh-Qo or u)- Her father's last name was Lacoshegan <Luckoosegun by another researcher via Hudson Bay Archive records> - Magna Lacoshegan was also known as Mary but her Christian name given her was Ellen Thompson.  Click here for a letter that shows some of this. Magna removed from the Lac Seul Band Click here.

*** Note that a recent email stated: Lucoshegan should be spelled Tuckoshegan (but the real spelling is Dakozhiigan) and it means "short back" in Ojibwe. This was a large family in Lac Seul area around that time.

The Hudson Bay Company Archives show that John Young entered their service in 1869 from the parish of Dunrossness <Scotland>.

* An outfit year ran from 1 June to 31 May

- A personal note here - does anyone know about working your way to being a freeman meant in the above case? - have not looked yet - just noting this while typing. - Bruce

- Note that the HBCA Reference B.235/g/1-2 is the Abstracts of Servants' Accounts for the Post (Post Number: B.235)  (Red River Valley in Manitoba) and that Note that the HBCA Reference B.239/g/46 is the Abstracts of Servants' Accounts for the York Factory Post (Post Number: B.239) - York Factory - a fur-trading post, NE Man., Canada, on Hudson Bay, at the mouth of the Hayes River, just east of the mouth of the Nelson River

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(322)     WRIGHT v. BATTLEY     659

WRIGHT v. BATTLEY

(1905), 15 Man. R. 322

Manitoba King's Bench, Dubuc C. J. and Richards J., 14 July 1905 Replevin--Land scrip issued under Dominion Lands Act, R.S.C., c. 54, s. 90, s-s. (f) as re-enacted by 62 and 63 Vic., c. 16, s. 4-- Assignability of scrip--Illegality of contract

Under an order of the Governor in Council made pursuant to sub- section (f) of section 90 of the Dominion Lands Act, R. S. C., c. 54, as re-enacted by 62 and 63 Vic, c. 16, s. 4, the defendant Annie BATTLEY became entitled to scrip for land to be located by her. She sold the right to the scrip to the plaintiff and gave him an order on the Commissioner for it. After delivery by the latter to the plaintiff, Mrs. BATTLEY, knowing that the scrip was in the plaintiff's possession, deliberately assigned it to him for valuable consideration. She afterwards took the scrip from the plaintiff and refused to return it.

The Order in Council prohibited the Commissioner from recognizing or accepting assignments of land scrips and from delivering them to assignees.

Held, nevertheless, that the contract of sale of the scrip was valid and that the plaintiff was entitled to recover possession of it in an action of replevin.

ARGUED: 26th June, 1905.

DECIDED: 14th July, 1905.

[Statement]ACTION of replevin. Plaintiffs claimed that in December, 1903, at the Dominion Land Agent's office at Wapella, the defendants took out of the plaintiffs' possesion two scrips relating to 160 and 80 acres of land, to which plaintiffs were entitled, and they asked that same might be returned.

Defendant William BATTLEY set up that plaintiffs had no legal or beneficial interest in the scrip in question, and Annie BATTLEY asserted she was the only person entitled to the scrip, but that same was never in her possession.

The case was heard before Perdue, J., who entered judgment in favour of the plaintiffs.

Defendants appealed to the Full Court.

660     WRIGHT v. BATTLEY     (323)

G. A. Stewart Potts for defendants, appellants. The scrip having been granted as a bounty, or matter of grace, [Argument.] and being in favour of Annie BATTLEY, not mentioning her assigns, and the Dominion Land Officers not recognizing assigns, but requiring the half-breed to personally locate, the contract of assignment was void as contrary to public policy. The question is: Is half-breed land scrip assignable? The Order in Council dated 6th June, 1901, published in the Canada Gazette of 17th August, 1901, vol. 35, at p. 262, approves an attached memorandum by McKenna, the commissioner, sec. p. 263, and therefore be- comes part of it. It shows that the land scrip is not assignable, and therefore, from public policy, the Court will treat the land scrip as not assignable. Previous Orders in Council are in the Canada Gazette of 2nd March, 1900 and 13th March, 1900. See answer to the fourth question in Gazette of 2nd March, 1900, and the amendment of 13th March, 1900. These only apply to money scrip and not to land scrip. The Order in Council has the full effect of the statute under which it was passed, and must be read as one with it: Institute of Patent Agents v. Lockwood, [1894] A.C. 347. There is no penalty in the Order in Council for its breach. See (as to the effect of that absence) Sussex Peerage Case, 11 Cl. & F. 148. Here the condition is for the protection of the half-breeds, they being to that extent treated as wards of the Government. The grant of scrip is only a grant of a right to go on and own the land. Contracts violating Orders in Council are as illegal as if violating statutes: Inglis v. De Barnard, 3 Moo. P.C. 425. Scrip and Orders in Council are under Dominion Lands Act, 1899, c. 16, s. 4. Cope v. Rowlands, 2 M. & W. 149; Leake 549. See the form of the scrip.

C. W. Bradshaw, for plaintiffs, respondents. The onus is on the defence, where plaintiffs had possession of the scrip, and defendants took it out of their possession.

(324)     WRIGHT v. BATTLEY     661

Illegality of the contract is the only defence now re- [Argument] lied on. Before defendants can set up illegality, they must show they have returned or offered to return moneys received by them under the illegal contract. They should have first offered to pay back the $460 and the other expenses incurred. The defence of illegality cannot be given effect to as it has not been pleaded: Hanbury v. Chambers, 10 M.R. 167. It was claimed at the trial that plaintiffs must show a legal title and not merely an equitable one. Carter v. Long, 26 S.C.R. 430, shows the holder of an equitable title can replevy. The defendant's argument is based partly on the contention that the issuing of scrip is a matter of bounty by the Dominion Government. But this Court has always held that scrip issued and land granted to half-breeds were so issued and granted in extinguishment of rights in the soil: McKilligan v. Machar, 3 M.R. 418; Re Mathers, 7 M.R. 434. Once the right arose as a right, the assignability of such right would be within and subject to the laws of Manitoba, and would be beyond the legislative jurisdiction of the Dominion Parliament. The scrips may be located on any Dominion lands here in Manitoba or in the Territories. The scrips and the defendants being in Manitoba, the laws of Manitoba apply. Assuming that the Dominion Parliament could restrict the assignability of a scrip, the statute and the Orders in Council only prohibit the recognition by the Commissioner of assignments and regulate the procedure to be adopted by him. The object of these provisions was to prevent complications from accepting assignments and issuing scrip in favour of assignees. The Order in Council of 6th June, 1901, was passed to meet the argument that the regulations as to money scrip applied to land scrip. The object of the regulations that the scrip should be issued to the half-breed and located by him was no doubt a protection of the half-breeds, but they do not prevent the half-breed's interests being assigned, nor do they

662     WRIGHT v. BATTLEY     (325)

affect his right to deliver possession of the scrip for value. The Ordcr in Council of 13th August, 1904, as to priority [Argument.] of assignments shows that the Dominion Government recognizes the assignability of scrips.

Potts in reply. The defence of illegality was raised at the trial and argued fully before Perdue, J., and can now be relied on. Having been raised this Court is bound to take cognizance of it. The Dominion Parliament, making the grant, can attach such conditions as it chooses.

The judgment of the Court was delivered by DUBUC , C. J.--The only point raised in this appeal is whether the contract made by the defendant Annie Battley, in selling her land scrip to the plaintiff McMeans, was a valid contract, or whether it was illegal and void. It is admitted by the defendants that, if she had the power to assign the said scrip, she had done so.

It is contended on her behalf that the Order of the Governor General in Council, under which scrips were allotted and afterwards issued to the children of half- breeds, empowered the half-breed Commissioner to authorize the delivery of money scrips on powers of attorney or assignments duly executed by the allottees; but that, in cases of land scrips, the Commissioner had no authority to accept or act upon such assignments or powers of attorney. In favour of that contention it is argued that the issue of the scrip by the Dominion Govemment was in the nature of a bounty to the half-breed personally, and that he had no power to assign or transfer the same.

The Order in Council relied on by the defendants is dated the 6th June, 1903.

The Order in Council has no doubt the effect of preventing the Commissioner from recognizing or accepting assignments of land scrips, and from delivering the scrips to the assignees thereof. It might be a matter of policy adopted by the Government for the protection of

(326)     WRIGHT v. BATTLEY     663

the half-breed; they might attach to the grant the condi- [Judgment]tion that no one but the half-breed himself will be recognized and allowed to locate the scrip allotted to him; but that cannot affect the right of the allottee, after he has received his scrip, to do as he chooses with it; he may locate it or not; he may keep it or dispose of it. When in his hands, the scrip, as a scrip, is his absolute property.

In this case, if Mrs. BATTLEY refuses to locate the scrip, the purchaser and assignee thereof may find himself unable to get the land intended to be covered by the scrip, or to derive any benefit there from. But, as to the scrip itself, he has purchased it. Mrs. BATTLEY, on whose order it has been delivered, while knowing that it was already in Mc- Mean's possession, has deliberately assigned it to him for valuable consideration; that certainly amounted to a formal delivery by her to him. Such a transaction should not, in my opinion, be held illegal and invalid.

Whatever the Government may do, or refuse to do, in regard to the scrip, or to the location thereof, it has become the property of McMeans and his assigns. The present case has nothing to do with the lands. The possession of the scrip alone is in issue. As it has been wrongfully taken from the plaintiffs, they are entitled to recover it, and the action of replevin ought to be maintained.

This being the conclusion arrived at, it is not necessary to decide the objection raised on behalf of the plaintiffs that the defence of illegality, not having been pleaded, ought not to be entertained.

I think the judgment of my brother Perdue, should be upheld, and the appeal dismissed with costs.

Appeal dismissed with costs.

Some source:

From Ontario Archives, microfilm MS 932

#015158/02 (Rainy River) William John BATTY, 22, clerk, Ipswich Eng., , s/o John and Mary Ann BATTY, married Annie YOUNG, 21, Lac Seul, Lac Seul, d/o John & Annie YOUNG, witn James KIPLING & Sinastin JACONS, both of Rat Portage, 22 Jan 1902 at Rat Portage

#016363-04 (Rainy River Dist): Benjamin FINLAYSON, 24, driver, Rat Portage, same, s/o Hector FINLAYSON & Sarah BRASS, married Elizabeth YOUNG, 18, Lac Seul, same, d/o John YOUNG & Ellen THOMAS, witnesses were Margaret WILLIAMSON & Mary RICHARDS, both of Rat Portage, Oct. 4, 1904 at RP

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