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 PROVINCE j 
 
 OF / 
 
 LOWER CA%'ADA/ 
 
 IN APPEAL. 
 
 OBADIAH AYLWIN, 
 
 Appellant, 
 
 & 
 
 AUSTIN CUVILLIER, 
 
 Respondent, 
 
 RESPONDENTS CASE. 
 
 JL HE Action in the Court of King's Bench at Montreal, was 
 instituted by the Appellant to obtain from the Respondent the sum of £272 4 9, 
 the amount of a Judgment alledged to have been obtained by Messrs. Joseph 
 Jones & John White in the Court of King's Bench at Quebec, apinst Thomas 
 Aylwin, John Ilarkness and the Respondent, as copartners trading at Quebec, 
 under the Firm of Aylwin, Harkness & Company, on the 20th February 1807. 
 and afterwards assigned over by the said Jones & AVhite to the Appellant bv 
 act passed before Voyer and another Notaries, on the 29th of July 181'i, with 
 interest, and £20 1 10 costs included in the assignment. 
 
 To this Demande the Respondent, on the 16th of February last, answered 
 by his Defences and Exceptions Peremptoires, F That the allegations of the 
 Declaration were unfounded and untrue in fact and in law. 
 
 2** That the assignment, set forth in the Appellant's declaration, had not 
 been served, signifii, upon the Respondent prior to the commencement of 
 the action. 
 
 3° That the pretended Judgment of the 20th Februaiy 1807, in the Ap- 
 pellant's declaration mentioned^ was null and void in so much as related to the 
 Respondent, — 
 
 1st. Because the Respondent had never been summoned to appear in the 
 
 cause in which that Judgment was alledged to have been rendered. 
 2dly. Because, at the time of the sei-vice of process in that cause upon 
 
 Thomas Aylwin, on the 10th of February 1807, at Quebec, the said Austin 
 
 Cuvillier, Thomas Aylwin & John Harkness were not copartners. 
 3dly. Because the service of Process, so niade upon Thomas Aylwin, could 
 
 not be a legal service of process upon the Respondent. 
 4thly. Because, as early as the 14th of October^ 1806, the partnership before 
 
 that time existing between the said Cuvillier, Aylwin & Harkness, had 
 
 been dissolved. 
 5thly. Because, upon the 10th February 1807, the Respondent was at the 
 
 city of Montreal and not at Quebec. 
 
 4® That the Appellant had not given or paid any consideration for the 
 said assignment of the 21)th July 1813. 
 
 5° That the consideration for obiaining that assignment had been paid 
 by Thomas Aylwin by collusion with the appellant, in crdcr to defraud the 
 respondent. 
 
 6" That the appellant had no interest in the recovery of the sums by 
 him demanded in this cause. 
 
 7* That the sum paid by Thomas Aylwin, as a consideration for the said 
 assignment^ was only £50 currency. V<C^ 
 
 147' 
 
 
 ^^ 
 
It is to ho. ol)orv( fl tliat by a mere <!lorical rrror in the respondent's ex- 
 ception and defences, the Jnd<jincnt is expressed to have been obtained, nnd 
 the assijrninent to have been made l)y Jo/in Jones »nd Thomas White, whereas 
 Joseph Jones & Thomas White are nitended to be named, but those instru- 
 ments are otherwise suliieiently designated the Judgment and Amgnmcnt men- 
 tioned in the AmKllant'n Declaration, 
 
 Furthermore the oppeHant, by traversinjf material facts, stated in the 
 respondent's exception, has admitt(!d tlieir applicability to the Judn-ment and 
 Assignment, upon \\Iiieii his action was tbnnded, This he did by his replica- 
 tion, in vvhicii he alleges that the said Thomas AyKvin, John llarkness and 
 the Respondent Austin Cuvillier vvijre, at the time of service of Process in the 
 said cause, wherein Judgment was rendered against them, as mentioned in 
 the Declaration, copartners, at (Quebec, there trading under the Name and 
 Firm of Ayhvin. llarkness & Company, and t!u»t the said Partnership was not 
 dissolved on the 14tli October 1806, nor at any time before the rendering of 
 the said Judgment. 
 
 It was upon the appellant's own motion, (No. 26 of the Record) that the 
 parties were, on the 6th April last, ordered, without any preliminary hearing, 
 to proceed to the adduction of proof upon the issue raised by the pleatlings 
 upon the respondent's exceptions and defences. 
 
 The Respondent proved by witnesses, heard in Court, that from the year 
 1805 to the time of taking the Enquete, he had been constantly resident and 
 domiciliated at the city of Montreal. 
 
 Every partnership between Cuvillier. Aylwin & Harkness was also proved 
 by the defendant's exhibit. No. 18 of the Record, to have been dissolved on the 
 14th October 1816. 
 
 It was incunibent on the respondent to establish the remaining matters 
 of exception, which lie had pleaded, and this the respondent has done by sub- 
 mitting to the appellant certain Interrogatories on Faits & Articles, which 
 were ^uly served upon him at Boston in the United States of America, in 
 virtue of a Commission in the nature of a Connnission Roo;atoire, but to 
 which the appellant having neglected to answer, they were afterwards taken 
 against him pro confesso. 
 
 These Faits & Articles establish : 
 
 1° That during the year 1807 and during the month of Febmary of that 
 year, the respondent actually resided at. the city of Montreal. — (4th Intero- 
 gatory.) 
 
 2° That the assignment of 29th of July 1813, was made in consideration 
 of j£50. — (5th Interrogatory.) 
 
 3" That prior to the assignment, several sums of money had been paid 
 by Thomas Aylwin unto Jones & White, on account of the Judgment stated 
 in the declaration. — (6th Interrogatory.) 
 
 4° That the said assignment had been made to the appellant for the use 
 of Thomas Aylwin. — (7th Interrogatory.) 
 
 5° That the sums paid as a consideration for the assignment were the 
 monies of Thomas Aylwin. — (8th Interrogatory.) 
 
 6° That the sums paid as such consideration, were not of the appellant's 
 monies or property, that the appellant has no interest in recovering the 
 money by him demanded, and that Thomas Aylwin was the only person hav- 
 ing such interest. — (9th Interrogatory.) 
 
 7® That the appellant is uncle of Thomas Aylwin. — (1 Ith Interrogatory.) 
 
 8® That the money mentioned in the assignment, has been ptjid by 
 Thomas Aylwin unto Messrs. Jones & White.— (12th Interrogatoiy.) 
 
 W That the appellant's name is made use of in the assignment at the 
 request of Thomas Aylwin. — ( 14th Interrogator}.) 
 
!!• That the appellant dors not consider himself as liable to pay the 
 costs of suit in the Court balow, if the action be dismissed ; but that Thomas 
 Ay twin has given him to understand he himself would pay the costs.— (Hth 
 Interrogatory.) 
 
 The perusal of this uncontradicted evidence carries such a conviction of 
 fraud as could leave no doubt in the minds of the Court below and the ap- 
 pellant's action was, on the 19th of June last, finally dismissed with costs. 
 
 From this Judgment, however, the present Appeal has been brought, 
 and the reasons assigned are reducible to two, vizt. 
 
 1* That the Court below have erroneously admitted the Respondent's 
 Exceptions and ordered proof thereon. - 
 
 2* That the Appellant's Conclusions ought in Law to have been award- 
 ed unto him. 
 
 The Respondent's Answers arc of course General. 
 Quebec, 12th November, 1816.