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Les diagrammes suivants iilustrent la mdthode. 1 2 3 1 2 3 4 5 6 t> > fl PROVINCE OF LOWER-CANADA. In a Cause Court of Appeals. Between William Campbell, (Dcjcndanl in Ihc Court below) Appellant; AND Danirl Sutherland, (PlainliJJ'm the Court lato-x) Kespondent. THE APPELLANTS CASE, This Appeal originates in an Ac, on or £.0 ooo dam^gej o^ ^ .^^^^^^ bfoughtbyThe Respondent against the Appellant '"/^e Cour ot K gs Bench at Montreal. The circumstances which gave rise to the are the following : On the 18th June. 1813. NK^^^^'^Tth'Ttn'ofllnJs^BTch Respondent and John Richardson. Esquire were appointed t^xecuto. . Of the death of\is son-in-law the Appellant 7^%""^ /''Pr^^^' o^'' thirtv-seven days after it occurred, by a letter (dated 28ih Ji""^. '8^3) thirty seven uy ^._^ ^^^^j^^^^^ miimation ot ?^Tn tention^rtl e A and w.nout 'his knowledge procured hJlf^t^X to the Appellant's said grand-da.^lncr ; S office in a letter subsequently written to the Appellant, he pre- ::^:;^^SLerfere with ^^^;j::^-::^x ^ th,rs;t^ 'i^tplnl't" ri^Tdhi^^ft^fnirtlon ^ Montreal speedily, and^el eve hi*^' "om the burthen of the said office. As ^soon therefore and relieve mn. , ^ Appellant went to Montreal for the " Joosrof geS'h S aV ointeS^ to his sa.d grand-daughter. P^Pln^cnnpher concerns. He found that the Kespondent. far from T"^ "^iLSthe office of Tutor a burthen, viewed it in a very d.ttcrent tl."t an7 efu ed t rel^ui^h it in tavor of the Appellant who was hlX co-trained- to take^ega course to d-e^t the Res^^ond- o the 111C1..L/; J • /),,,„hfr last oresented a Petition to the Lourtoi rwings f'^V^rM^ntVe^ to eta^^^^^^ appointment of the Respondent to be'ltorfaCsaiia^^^^ Anne ant wuhout notice to him, without h,s knowledge, and to his Appellant, witnouiu , .^ and entuled to the P''J';^ ^hinothis SSild^^l'heRespo.^ to lose the fd" ri wh^ ht^^^^^^^^^ would derive from the pos- adxantage wmcn nc ^^^ ^^^^^ ^^ ^^^ unreasonable- r^ro^i onducf. ino^^^^^^^^^ natural and legal right of the Ap. ^eLntto the care of h?s%rand-child. and pertinaciously resisted the fa^d Jethion Having in if.s answer to the' said Petition ascribed to hrr^seltTea^^ pretensions to the olhce of futor. I ^ fl it « l( (( « (( (( <( and insisted on the appointment already made as a bar to the demand of the Appellant, it became proper, in order to unmask his views, to exhibit thf art and management used by him to obtain the office, and shew hu unworthiness ol it, to fyle the Correspondence which had taken place between the Appellant and him. The letters composing this Correspon- <»ience had been previously put into the hands ot the Appellants Counsel with remarks for his instruction written on them, ?.t a time when thu ne- ressity of fyling them was not foreseen. These letters with the remarks on them were theretore fyled in support of the said Petition. It is these remarks upon which the Respondent has attempted to ground his Action of damages for a Libel —1 his Action was instituted and the Appellant arrested within twenty-four hours afier the fylmg of the Let- ters, upon a most extraordinary aiFidavit, by which the Respondent took upon himself to swt-ar that an actual damage to the amount of £1,000 had then been sustained by him, and that the Appellant was indebted to him in that sum. This Affidavit, which may give rise to other proceed- ings, is not, however, in question in this Cause. In the Respondent's Declaration it is alledged, that the Apellant " en- vying the happv state and condition the Respondents uniform good conduct and character had placed him in. and fearing J^st such his Kood conduct and cheracter, would haveweight m the minds of His Ma- iestv's fudges of the Court of King's Bench, m the decision of a question pending before them on a Petition whi. h he. the said Appellant, had presented to have an election and aopoiniment of the said Respondent as Tutor to Elizabeth Ann, minor daughter of Niel Robertson set aside and himself the said Appellant, elected as Tutor in his place, and con- trivins and 'insidiously, wickedly, and maliciously intending to injure - the said Respondent in his good name, fame, credit and reputation, " and to bring him to public scandal, infa.iy and disgrace, and to hold « him up as a character unfit to hold his place or situation of Post Muster •• or the appointment of I'utor to the said minor child, did, on the 8th " of October 1813. among other ILxhibits, fyle m the Court of Kings •• Bench for the District of Montreal m the proceedings or record re-s- " pecting the said Petition, two letters which had b( en written by the said " Respondent to the said Appellant, one dated at Montreal, the a8th day " of June last past and marked Exhibit No. 1, and the other dated also " at Montreal aforesaid the 27th day of July also last past, and marked •• Fxhibit No. 2; and on each ot the said letters the Respondent did write ' ceiiain remarks which contain the tnlse, scandalous, malicious, insidious and wanton Libel herein complained of, and by the said remarks did falsely maliciously and insidiously tax, accuse, and charge him, the said Respondent, with having a' ed his public trust of Post Master, and with having detained the sain letter written to him, the said Res- pondent, on the iiSth day of June last to him. the said Appel ant, alter he the said Respondent, had marked the said letter with the Post Othce mark or that he, the said Respondent, had marked the ;aid letter false- ly to make it appear that he had given the information contained in the said letter to the said Appellant, though, in order to forward his, the said Respondent's designs, he had not actually given or intended to give the said Appellant the information contained in the said letter in the time he should have given such inlorination ; and tiuit, m order to withhold from the Appellant tfie information contained in the said letter bearing date the 2i>ih day of June last, and marked with the Post Ofhcematkon that day, the said letter was not then forwarded by the Post but designedly detained by the Respondent to some subsequent Post'day: and further, he, the said Appellant, by the said remarks by him so made and written, on the said two letters, taxes, accuses, and charges the Respondent with having practized a systematic scheine ot insidious hypocrisy and deception and design in his conduct, to obtain I* i) \ ,h " the appointment of Tutor aforesaid to the said minor child ; and lastly, •• he, the said Appellant, most falsely, insidiously, and maliciously in and «• by the said remarks made by him on the said letter dated the 27th day *• of July last, and marked Exhibit No. 2, as aforesaid, vilifies the cha- *' ractcr of the said Respondent in the blackest manner, and holds him *• up as a character that should be held in contempt, shunned, and ab' «• horred by every honest man, by writing and publishing on the last men •• tioned letter, amongst other thmgs the followmg words of and concern- «' ing the Respondent, to wit, " His conduct 'meaning the Respondent's conduct, who was the author of the letter) admits of no comment un- mixed with the contempt and indignation of every honest man, in thus acting in defiance of law, of -^eason, of nature, and of common honesty ;" by means whereof the Respondent hath been injured, &c.": and the Declaration concludes tor £10,000 damages. To this Action the Appellant pleaded— 1st. A peremptory exception a lajorme or demurrer. 2d. The General Issue, 3d. A special pica of justification. The grounds assigned for the exception or demurrer are — 1st. That the said Declaration doth not set forth or shew the par- ticular words complained of as being libellous and defamatory, but ap- pears to contain a coloured paraphrase and construction of the said Ap- pellant on certain remarks or language supposed to have been made and used by the said Appellant, which remarks and language are not set forth in the said Declaration, 2d. That it is not allodged or shewn in the said Declaration, that the words and language therein complained of as libellous were published. 3d. That various, distinct, and different supposed Libels, made at different times and in different writings are confounded in one and the same Count. 4th. That the nature of the proceedings in the course of which the supposed Libels in the said Declaration mentioned arc alledged to have been made, is not in and by the said Declaration sulhciently set forth and shewn, 5th. That although different supposed Libels are in the said Decla- ration complained of, yet the damages therein and thereby demanded are alledged to have arisen from one certain Libel, and it doth not in and by the said Declaration appear, nor is it shewn by which of the said sup- posed Libels the said damages v/ere occasioned. 6th. That it is apparent in and by the said Declaration, that the words and language in and by the said Declaration supposed to have been used by the said Appellant, and therein complained of as libellous were used in a judicial proceeding in the Court of King's Bench, upon and in respect of a matter litigated between the said Respondent and Appellant, and for the support of the rights and interest of him, the said Appellant, in such judicial proceeding ; and that therefore no cause of Action could thence have arisen to the said Respondent. 7th. That the said Declaration is wholly vague, inconsistent, in- congruous and insuiticient in law. bth. ^ PIP il 8th. That the said Declaration doth not set forth or shew a legal cause of Action. Thesoecial plea of justification sets forth «he F"<^"*'"S ^f^^J;* aforela^dPcSnt'osetasiJethe appointment of th. Respondent tb^ Tutor as aforesaid, and the procecchngs ^hereupon had and that J^tn his replication to the Appellant's answer ^^AP^ '" -p^j'^en arks w"^ mentioned in the Declaration, upon which the '°>^°^ "/ /'j ^'^^mrrk^^^ written, viz. : on the said letter of the 28th June J» 3- jhese ^«^J^^^^ " The foregoing letter was not written until ten days «^!^/,f/.;i^"?^^^^ . .. death. aSd n^ot received at York ""' ' V^-^y-^^r".^^^ ,^ fu ve b en .. although, according to the Mcnireal Post mark it ^^ ""^^ h^^e ".f J " received in half that time il it had been t"^^"^^^^', /\^" ^^ •„. .. the «ame day it was receivc-d. intimating '^'''''''S oih^rihmg,m m « tention of coming to Montreal lor the purpo,c of taking charge ot my .. grand dauglu.r a'nd h r allairs, and disapproving ot -/ .^P P^l"^'"^^^^^ .« of Tutor unless required by the laws ot the Lower P'"^'"" -^'."^^^ .. be remarked on iheloregoing letter, (beside, the. extraordinary de ay .» in writing and forwarding) that ist.Mr. S expresses h>> tluctance " even to aa as Executor. 2d. He intimates that ^ ^^'ll^' 'i^^'^^l " cutor. but modestly require, that I should by power of at torney, " sanction whatever the other Kxecutors. or rUhcr ^f ^ ^J^ou-d do^ .. 3d. He says the Gentlemen of the Law advise the !»l^^°l''^^ ."™y °1 •• appointing a Tutor jorthwUk, and intimates h.s mt'-ntion of pro- " ceeding to make such appointment, without waiting to know my sen- " tunen,?. either as Executor or as nearest of kin to the nunor and a I •' this is to be done by the election, not ot ..V one relation, but oyfucnds. " that IS (in construction of law) of stram;>'rs to «l^-, decease^ ^vslematic *' minor. Who can be so blind as not to see m al this a systematic .' scheme of deception and design, especially when compa cd w. h « subsequent proceedings.- And upon the second letter ot the 27th luly. i8iq. there vera written the following remarks, viz : ^ '^e ^ore- •^ going letter was received in eight days after date and ans-.vered the same day. intimating, in expl.cit term,, my all intention of being .speedily at Montreal, and relieving -N'r.S.ot the troublesome and unprofitable charge of Guardianship, wl.ich he complains was thrown " upon him so much against his will." - When the foregomg letter is " con.pared with that of the 28th June. Mr. S.'s intentions are sulhcient- ly developed as designed from the beg.ning, espcually by the insidioiis, but tlnnsy hypocrisy observable in the phrase " unfortunately for him : but when this phrase is compared with his present conduct, in perima- •• ciouily clinging to a misfortune which lie might so easily g.:t rid ot. «• h s conduct admits of no comment unmixed with the contempt and in- " dignation of every honest man, in thus acting in defiance of law, ot rea- '. son. of nature, and common honesty :" which remarks and words are the same remarks and words in and by the said Declaration complamed of as l.bellous.-By the said plea it is further alledged that the sa^ re- marks and words were justihed by the conduct ot the said Respondent which occasioned the said leinaiks and words, and were not made or used with an intention to calumniate the said Respondent, but were made and used in the judicial proceedings before the said Court, upon the said re- lilion of the sad Appellant, for the s.pport of the rights and interests of the said Appellant in the said judicial proceedings, and m detence ot the said minor and of him the said Appellant. To the exception or demurrer the Respondent fyled a Pleading of the nature of a Joimicr, a reolication to the plea of non-cu.pakhs: and a replication to the plea of justification, by whuh last pleading he aU ledges " that he ought not to be prevented from having and mamtaming (I « 1 ( ' *• his said Action. &c." becau«r hr saith, "That the said plea and the " allKationrm^^^ and things therein alledgcd and set fGrth are al,e. '• untrue, and unfounded in lact, and arc moreover insufhcient in law. To th.s replication isadd-d-the following conclusion-' f'",^^. ret. re " he prays ludg.nent and that the said plea may be rejected, disal owed and ••disinisLdwirh costs, and further prays judgment as in and by his Uecla- «• ration he haih already prayed." The parlies were heard on the exception or demurrer, which the Court below on the 15th February. 1814. dismissed with costs. The Respondent then obtained a Rule, hxing the Cause for trial on the 5th April. On the day fixed for trial the Apprllant moved to discharge the Rule for trial, on the grounds that no legal issue had been taken on the plea ot justification, and that the replication was irregular, involving matters of law and fact, &c. After hearing the parlies, the Court dis- charged the rule (or trial. On the 13th April, 1814, the Respondent moved to fix the cause for hearing on the snid plea of jullilicaiion ; which motion, though refifled bv"the Appeiljnt, was granted. 'J'he parties having been accord- ingly hca'id, the Court pronounced the following judgmrni—" 1 he Court ••having deliberated on the plea of julliht Mon pleaded bythe D fendant, ••it is conlidcred ihat the (aid plea is iniufhcient and inadmilhble in law to "bar ttu- plcaof juUilication aforelaid, and the lame is therefore difmilfed " with colls," From this Judj^meiit and from tfic aforefaid Judgment of the 15th February lafl, this 'appeal has been inflitutcd for ilie following rea- fons .- 1st. For the General Reason. 2d. Because the Respondent's Declaration is insufficient in law to entitle him to maintnin his said Action. 3d. Because the Peremptory Exceptions of the Appellant in the Court below were and are true, sulficient, and well foundetl in law, and by reason thereof and the matters therein contained, the said Court ought to have maintained the said Exccpiions and dismissed the Responflent's Action with costs ; and because the said Court neverlluless irregularly and ille- gaily dismissed the said Peremptory Exceptions with costs. 4ih. Because the said Plea of justification of the iVppcllant wasand is in all things true, regular, well founded, and sullicient in law, and because the said Court ought to have maintained the said Plea, and nevertheless did illegally and unjustly reject the said Plea wuh Costs. 5th. Because no legal issue was by the said Respondent taken or formed on the said Plea of justification, and because the Replication of the said Respondent to the saiii Plea was and is irregular and insuliicient, and did not raise any law issue on the said Plea upon which any hearing or de- cision could be had or L;iven. 6th. Because the Rule or Order in the said Cause made on the 13th April 1814, whereby the said Cause was fixed for ^^^^'"S* ^^'^ irregular and illegal, and the hearing thereupon had, was also iriegiilar and illegal. 7th. Because the Court below ought to have rejected tfie said Repli- cation of the Respondent to the said Plea of justification as being irregu- lar and insufficient. 8th. Because the said Judgment of the 15th February, and 18th April 1814, have been rendered contrary to Law and Justice. To these Reasons a General Answer has been fyled by the Respon- dent: and thus stands the Cause tor hearing.