IMAGE EVALUATION TEST TARGET (MT-3) ^' ^ A f/. r/. 1.0 Hi- i == 116 111 ,»„. I.I 1.25 a. m. us 2.5 2.2 1^ llll'. 2.0 i.4 mil 1.6 6" V] •7] 7» ^ .V %^ ^ Sciences Corporation ^ it •s^ \ ^> '^K\^ \ \ '»' signifle "A SUIVRE", le symbols V signifle "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmfo A des taux de reduction diffirents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, 11 est f ilm6 d partir de Tangle sup^rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'Images niicessaire. Les diagrammes suivants illustrent la mithode. 1 2 3 32X 1 2 3 4 5 6 ca en c^ f^ o I •fl Au^^^ «■»»«« o s o H g O O >■ M PROVINCE or /Ci COURT VFABEEALS. LOWER CANADA,) IN A CAUSE^tlwtmwn JOHN JONES, (Defendant in ihe Court below,) AND Appellant, LOUIS LAGUEUX, the elder, (PlainUffin^the Court belm,) (Respondent. rs THE APPELLANTS CASE. i;i "' On the 24 of'May 1817, a charter 6f the ship Adeona, belonging to one Louis Lagueux-the younger and one William Grant, ^as executed, at QuebccTv the^id Lou« Q»^»^' ^<^ting as .vel for himself as for the sa.d WUUan Jrant, to the^said^ppeliant, ^vhereby the ^id U,u.s l^"/"; ^^ ie freiffht herein after mentioned, let unto the said John J«ines the sad brig for a vZge from L port bf Quebec to the island of Barbadoes with hbert, o p'^eK islands toTeeward for a market, and if required to p^ceedto TuVks =sland, for a return cargo and back to Q"«^f /^ %f '^j Jj^'^^^ cueux promised thatthe said brig or vessel was awd,4unng.the said voyage, fhouTdr^e^ tight staunch. sLng and -» ^-"^'^'1 -'^t^^^^X"'^^^^ men, and diould l^ ready to take in her cargo ^t^*^^^. ,'^%*;^""S"tie of he same month of ■ May, and being foadeiiy A«»»ild proceed tlie first fair ^nd to the island of Barbadoes, or to the is ands- to leeward for a market for the said cargo, and a.s should be directed by the said John Jones his agents, factors or assigns, and on delivery of the^sa.d cargo should and would Uike in such a. return cargo, at the port of discharge or at that of any of the islands aforesaid, as should be furnished by the factors, agents or assigns of the said John Jones, which said cargo should be taken from the vvhar* or quay of the port of the island, when the same should be turn.shed and be stowed by tile master and crew to the satisfaction ot the said factors, agents or assigns: which said voyage shduld be commenced, proceeded on and comple ed and thi said 4>utwa.d return cargo delivered safe aiid well conditioned, at the ports of discbarge thereof as aforesaid the act of G.hIv the Ring's enemies &c. excepted —The parties' then, proceed to settle the demurrage days and the pay- ment of the port charges. The freight stipulated by the charter p^rty is £900, whereof .^ '00 was paid down,-^£lOO to be paid oh the receipt of ftdviee of the arrival of he vessel at th^ island of Barbadoes, the balance of £'600 oh fch^ completion of he afotosaid intended voyagebyUie said brig «nd the delivery of the return cargo. The ship proceeded upon her voyage to Barbadoes. During thevoyage, to wit, on the 88th of February 1818. an instrument -was execute'd by LouiiXagueux the younger & Wilbam Grant, purportmg to be a sale of the brig Adeona and of the freight to accrue and become due tiom John Joiies under «nd in ^rtueiof the aforesaid charter party. This instrument recites that Louis Lagueux the younger and William Grant were indebted .to the Srfid Loui. Lagueux the elder (the .present Respondent) m a sum of one thousandone hundred and fifty pounds, advanced and paid by he latter to the former. In consideration whereof ;the said Xouis I^«e»;^ *»« younger and William Grant granted, bargained, 8old„assigned transferied and ^j -vf.y the a«5^ hri" A'a<»nna vyhii^h hiidlieen dulv reeistered in the port ot ijuebec. pursuant tJ'an act of Parliament, for^^ha(.p,rpose the certincate ot which registry it is therein stated, that the said Louis Lagueux a..d W-lham Grant<:o?iWiiiotthea«rodttce|«id*iaw/ fttt and-wepy such sum or sums ot \ !,;ii; !/iv.n't loi. : .! ■ i-u _».n}umni.a money 147086 nonty then due or to etow due or owing unto them in and by virtue of the said charter party. And aiso a certain policy of insurance made and entered into of and upon the said brig. It was only on or about the 20tli June 1818, that this vessel arrived at the port of Quebec, for on that day diflfercnces having arisen between the parties, a protest was served upon Mr. Jones, calling upon him to discharge the cargo. On the 22d. of the same month, Mr. Lagueux drew a bill upon Mr. Jonea for a sum of £600, which, (the differences between them respecting the chartec party not having been settled,) was not accepted. On the 24 August following, Mr. Lagueux instituted his action. The declaration in the cause states that the above in part recited charter party, was made and entered into by and between the said Louis Lagueux the younger and William Grant, of the one part, and the said John Jones, of the other part, that le dit vaisscau auroit, h terns requis et suivant les circoustances du terns etdela navigation, fait le dit voyage, Ci auroit, par I'ordre du dit John Jones, delivre sain et sauf, dans le port de Quebec, dans le cours de Juin dernier, touteia cargaison mise h bord par Vordre du dit John Jones dans les isles, et que les dits locateurs auroit de leur part entierement accompli toiites les obligations convenus par I'acte de charte [HU>tie susdit. The Respondent proceeds to state, that le vingt-huit Pevrier mil huit cent dix-huit, par acte passe devant Mtre. Glackmeyeretson confrere Notaires a Quebec susdit, les dits William Grant et Louis Lagueux fils auroient vendu au dit Louis Lagueux p^re, demandeur en cette cause, a ce present et acceptant le dit bri^ Adeona avec tons les agr^s ap- paraux, tel qu'il etoit lors du dit acte a Halifax, avec ensemble tous les profits faits et a faire, echus et a echoir, et generalement toutes especes de dettes, ac- tions alors dus et qui pourroient devenir dus aux dits William Grant et Louis Lagueux fils^ pour le dit vaisseaux sur le dit voyage. The declaration concludes for the sum of £600 and ^5s. costs of protest. To this declaration the Appellant pleaded the general issue, and thereby put it upon the Plaintiff to prove the substantial averments contained in his declara- tion. The Appellant anticipated that the master or mate of the vessel would have been produced by the Respondent to establish these facts, and he was satisfied that whoever of the ship might be produced, it would be in his power upon the cross-examination of them to shew that the contract had not been fulfilled on the part of the Respondent —This anticipation was not realized ; and strange to say neither the master, nor mate, nor super-cargo, nor any other person having a knowledge of the cargo was produced by the said Respondent. To establish the total insufficiency of the evidence offered on the part of the Respondeat in the Court below, the best course will probably be to state, what by law he ought to have proved and next what he has proved. He ought to have proved, — 1. The execution of the charter party. 2. Th9 fulfillment of the covenants on his part contained in the same and herein : ' 1. That the vessel took in a cargo of the Appellant and sailed to Barbadoes or the Islands of Leeward. 2. That she delivered her cargo there. 3. That she took in a return cargo at the port of discharge. 4. That she delivered the whole of her return cargo at the port of Quebec, 3. That the vessel and her freight had been as averred in the declaration lawfully assigned and made over by Louis Lagueux the younger and William Grant to the Respondent. The charter party proves itself, it being a notarial instrument. Upon the second head the Respondent's evidence is insufficient. He has, it is true, proved that the vessel took in a cargo at Quebec for Barbadoes^ but he has not proved that that cargo was delivered. 'i XI 4 ■i \0 He hw proTed that Louis Laguenx and William Grant delirered to the Appellant out of the said vessel a specific quantity of salt; he haa not proved that the quantity delivered was the whole quantity put on board. Upon the third head his evidence is alio inaufiicient. The sale of the ship Adcona and the freight to accrue was one entire con- tract. The consideration for the assignment of both was one and entire, the •urn of £1 150. The ship was British plantation built, and enregistered at this port. The instrument purporting to be a deed of sale contained no recital of the certificate of registry. Whether it be looked at as a sale or an agreement to sale it, was by virtue of the British statute law null and void to all intents and purposes. Being so, the debt for the discharge of which the alledged sale was made revived, and Louis Lagueux the elder may now recover from Louis La- gueux the younger and William Grant the £libO, which by that deed they acknowledge to owe him. The consideration cannot be apportioned ; There re- mains then no consideration for the assignment of the freight. It is not two contracts, but one contract. A contract of sale of the vessel with an accessory covenant respecting the freight. The principal contract failing the accessory, fell to the ground with it : ciim principalis causa nan consistit, nc ea quidem qua aequuntur, locum habent. Yet the Court below, though they could not but admit that the principal contract was null and void, held that the accessory dependent, covenant was binding uud condemned the Appellant to pay to the Respondent the sum of six hundred pounds, wiih interest and costs of suit. It is from this Judgment that the present Appeal is brought. QuBBEC, 13 January, 1819.