l^-'.-v-k IMAGE EVALUATION TEST TARGET (A>lT-3) 1.0 I.I 1.25 l^ilM 12.5 iS Si' - iitt 6" 2.2 2.0 1.8 U 111.6 ^J^'- -^ ^ '/ #. ;t Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ^•v A c\ \ 4^ <\ V '^0^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques ^ Technical and Bibliographic Noteo/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this cony which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked be'ow. D Coloured covers/ Couverture de couleur j I Covers damaged/ Couverture endommagde Covers restored and/or laminated/ Couverture restaur^e et/ou pellicul6e Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes g6ographiqu33 en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with oth^r material/ Reli£ avec d'autres documents D D D Tight binding may cause shadows or distortion along interior margin/ La reliure serr^e peut causer de I'ombre ou de la distortion le long de la marge intdrieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors d'une rsstauration apparaissent dans le texte, mais, lorsque cela dtait possible, ces pages n'ont pas 6t6 filmdes. Additional comments:/ Commentaires suppldmentaires: L'ln^ititut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vi'e bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mdthode ncrmale de filmage sont indiquds ci-dessous. t i I Coloured pages/ Pages de couleur Pages damaged/ Pages endommag^es Pages restored and/oi Pages restaur^es et/ou pelliculdes Pages discoloured, stained or foxei Pages ddcolor^es, tachetdes ou piqudes Pages detached/ Pages d6tach6es Showthrough/ Transparence Quality of prir Quality indgale de I'impression Includes supplementary materit Comprend du materiel suppldmentaire Only edition available/ Seule Edition disponible r~~| Pages damaged/ I I Pages restored and/or laminated/ r~yVages discoloured, stained or foxed/ Lll P I I Pages detached/ j I Showthrough/ I j Quality of print varies/ I I Includes supplementary material/ I I Only edition available/ 7 P a fi C b tl s o fi SJ o T sl T v\ IV di ei b( ri< re m □ Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible imdge/ Les pages totalemant ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6t6 film^es d nouveau de faqon & obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est f ilm6 au taux de "-^auction indiqu6 ci-dessous. 10X 14X 18X 72X 12X 16X 20X 26X 30X 24X 28X 32X 9 (tails 5 du lodifier r une mage The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or Illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol —^(meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning ir the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: L'exemplaire film6 fut reproduit grSce d la g6n6rosit6 de: Bibiiothdque nationale du Canada Les images suivantes ont 6x6 reproduites avec le plus grand soin, compte tenu de la condition et de If nettetd de rexenl to the citizens of Montreal for sympathy and moral support. A. GUGY. • It was by turning the current of a river against it that I was injured. Now it should be noted that the injury was continuous, by night as well as by day, on Sun^lays and holidays, when, had my adversary eiuploycd iaborer^, gome Intcrm'ssion could not have been avoided. ^^mmmmmmmmmmm mmm- . fyt Wi TSW CHIEF JUSTICE DUVAL. This^ public functionary has interest, has at least a power - ful friend, at Court, and the link which binds the one to the other is not inexplicable. But as no explanation is imme- diately necessary, I shall, with the avowed intention of bringing about the removal of one whom I hold to be quite unfit for the position which he occupies, revert to the conduct of the Judge as Judge. He was one of a minority unfavorable to me, and he opened as follows;— "The Appellant (Gugy) would not, I think, " have succeeded in his action even in the Courts in France. " Domat, who cites the ordinance of 1539, sa/s that ordi- " nance had gone almost out of use. It appears, however, " to have been revived for vexatory actions." On the last occasion on which I wrote, much hurried by the approaching depaiture of the mail, I did not direct public attention to the discrepancy between the language of the Judge and that of the author whom he named, nor did I affirm as I now do that the inference which ho drew from Domat was the very reverse of the doctrine which that author inculcates. In this matter I am perfectly conscious of the disadvantage under which, in thus setting up my opinion in opposition lo that of the head of the law, I labor. But putting myself, as it were, on " my country"— addressing myself to the whole community as to a jury— I shall place the words of the Judge and those of the author in juxtaposition. The rule on which 6 I relied, borrowed from the Roman law, was intended to prevent the rich from oppressing the poor. It is clear, too, that inasmuch as it tended to diminish litigation, it was not popular with the clas3 who profit bj, and, it must be admitted, occasionally encourage litigation. That, class then, which is always at the service of the rich — many members of which could at all times be found to aid and abet the rich in their contests, however iniquitous the cause — would naturally be very loath to enforce such a rule. In all cases the parties urging its enforcement must be poor men, unable to " come down handsomely," and the defendants would invariably be rich men, able to bribe, or at least willing gratefully to repay in current coin, the considerate abstention of professional men. I make no allusion to contemporaries, but confine myself exclusively to the Attorneys of Domat's time. Novr, a Judge, and especially a Chief Justice, is supposed to know the causes of things, and were my quondam fellow-student a man of capacity (which, in my opinion, he is not by any means) he would have known that a provision of the law, enacted altogether for the protection of the poor, the wretched, and the helpless, would be very likely to be, as Domat says, " seldom enforced," nor would it have been now enforced in this country had I not been, by God's gmce, competent to assert my own rights. But those are the words of the author named by Chief Justice Duval. T!ie author does not " say that the ordi- nance had gone almost t>ut of use." Not at all. He sat/s nothing of the kind. He did not speak of the ordinance but of the rule, nor did he say that the ordinance "had gone almost out of use," but that " the rule was seldom enforced." As the author cited by the Chief Justice uses the words " so seldom enforced," he evidently means that the rule was sometiwes enforced For the reasons herein above submitted it is evident that it could not be often enforced ; but between the occasional, though rare, enforcement of the rule, and the " going of the ordinance, almost out of use," there is a wide chasm. On this point then, I venture to contradict Chief Justice Duval ; nor can I affect an iota of respect for a Jud^e who ascribes to an author words which he never used, and assigns, the words so untruly ascribed as a sufl5cient reason for ruining my family. What the author does say is, that " the rule was so seldom enforced, that it seemed as if it had been abolished." Of course such a rule would be a very unpopular rule at the Bar ; but non user is not abolition, nor can an ordinance, a statute, be ahoUshcd, except by another ordinance, another statute. Chief Justice Duval is presumed to know something of legal distinctions, and if he does not, there are very many lawyers who do. Now, truthfully reporting the words of Chief Justice Duval, and offering a translation of those of the author, relying, too, upon the signification of the word seems, which is by no mearis an affinnation of an existing fact as the Chief Justice has assumed, I shall leave this branch of the case, not, however, without claiming the verdict of the country. But what will it say of a great legal functionary who so incorrectly cites a public writer on law, and who, attributing to him language that he does not use, deliberately, or at least knowingly, ignores the spirit of the book and the evident intention of the author. Thus Domat inculcates the duty of enforcing the rule, at which the Chief Justice, apparently indifferent to the sufferings of " the victims," not only of the law's proverbial delay but of its mal-administration, evidently sneers. Here follow the loords on which I rely to prove, without travelling out of the record, the sort of Chief Justice that we have : " inasmuch as it " (the rule onwhich my action was founded) " is founded in equity as it is a principle of natural law, and " inasmuch as it has been re-enacted hy the ordinances, it is " the duty of the judges to enforce the rule whenever the injustice, iJMttiiiii^at m s-p 8 *' the chicane, the vexation h^ve been such as to call /or repres- " sion,''* Again, I put it to the country to weigh in the balance the words of Chief Justice Duval. According to him the ordinance (in the singular) had gone out of use. Now the words of the author by whom he affects to be guided, are " re-enacted by the ordinances" in the plural. It seems to mc, in despite of Chief Justice Duval, that the verb to re-enact is not without signification and there is probably still some difference between the singular and the plural. Now, for another charge. By judgment of the Court of Queen's Bench, appeal side, • French text of Domat, Livre III., Tit. V., Sect. II., page 271 :— Parmi toutes les causes dont il peut naitre des dommages et intcrfit?, il j en a pen d'aussi frequentes que Tinjustice de ceux qui, entreprenant ou soutenant des proces injustes, causent a leur parties, et des frais que les condamnations des depens ne reparent presque jamais, et encore d'autres dommages dont ces proems sont les seules causes ; comme de la perte du temps surtout de ceux qui viveut de leur travail, et plusieurs autres suites de I'injustice de la cliicane des mauvais plaideurs. Ce qui rend tres juste la condamnation des dommages et interets, lorsqne la vexation est telle qu'elle y doniie lieu. Et quoique cette rogle ne s'obser^'e que si rarement qu'il semble qu'elle est abolie ; comme elle a pour principe I'equite, qu'elle est du droit nature!, et qu'elle avait etc renouvelee par les ordonnancesf il est de la prudence des juges de la mettre en usage dans les occasious oil I'injustice, la cliicane, la vexation peuvent le meriter. x. " Among all the causes in wiiich a condemnation to i»ay damages may " originate, there are but few of such frequent occurrence as the injustice " of those, who, by undertaking and supporting unjust lawsuits, entail " upon their .adversaries not merely an expenditure which a judgment for " costs seldom makes good, but other evils of which such lawsuits are the " sole cause. For example, the loss of time, especially for those who " cannot live without labor, and several other results of the injustice and " of the chicane of evil-disposed litigants. In such cases, when the vexa- " tion is such as to cause damage, it is very just that the wrongdoer should " be condemned to make compensation. And though this rule is so seldom " enforced that it seems as if it had been abolished, yet, inasmuch as it M ^^ founded in equity as it is a principle qf [natural law, and inasmueh as it has I' been re-enacted by the ordinances, it is the duty of the Judges to enforce the " rule whenever the injustice, the chicane, the vexation have been such as to call "for repression," N f*^ ^ated seventh of December last, my adversary Ciown, who had failed, was allowed to appeal to Her Majesty the Queeu, in Her Privy Council. The permission was granted, upon condition that my adversary should give security according to law within six weeks. It was a condition, sine qua non^ and costs were awarded to me. By the 1179th article of the code, it is competent to a successful litigant, in every case in which security is not given witiiin the time prescribed by the judgment, to cause it to be executed. This necessarily implies that the record, in the possessioii of the Clerk of the Court of Appeals, shall be remitted to the Prothonotary of the Superior Court, for the latter Court; alone can issue a writ of execution. The delay expired on the eighteenth of January last, and as the Chief Justice, the organ of the Court, never promul- gated a rule applicable to the subject, and as the Clerk would not remit the record, I was obliged to pray by petition that the article might be enforced. ^ This Petition reached Montreal, where the Court was then sitting, as I understood, on 'he nineteenth. It was presented, but, having been obHged to rely on a friend to present it, I shall not speak of what occurred there. The nineteenth fell on a Friday, and before I had received any information touching the fate of ray petition, Chief Justice Duval had returned to Quebec. I then called upon him, I believe on the Monday following, but he was at dinner, and was denied. I may or should remark that he dines at one o'clock, an unreasonable and improper hour for a judge. I called again, \owever, when he desired me to repeat my visit on the following day. I complied, but after some earnest entreaty on my part and some churlish remarks on his, he directed me to request the officer of the Court to wait on him. I did so, and called on the ensuing day, but was again unsuccessful, for the Chief Justice was at meat. I repeated my visit, and on my pressing my iJ^ili^MiMfifilwtfii 10 suit, he intimated that he had seen a notice of mine dated 26th December, accompanying an official copy of the judg- ment,* and that the six weeks' delay for giving security must be computed from the 26th of December, the date of the notice, instead of the seventh, the day of the judgment. Supplying, in a note a copy of tee judgment, I must add that Chief Justice Duval would listen neither to demonstra- tion nor to entreaty, and, as usual, behaved offensively. I vhereupon left him, and, having understood from Judge Caron that he would take the trouble to see the Chief Justice, I waited until the ensuing day. Having then called again on Chief Justice Duval, I was told that, being sick, he could not be seen. Then, obtaining a small piece of paper, I wrote at his table below stairs, and sent to him by his servant, the following words " Being unable to see you, I take the liberty to submit : " The period fixed by your judyment and hy law, was six " weeks, ending on 18th inst. * COURT OF QUEEN'S BENCH. Appeal Sidk. TUB 7th Dkcembkr, 1871. Present : The Five Judges. B. C. A. GUGY, Appellant ^ vs. WILLIAM BROWN anb GEORGE IIAr.TE, Judicial Adviser to said William Broyn, dtispondentt. The Court, on motion of J. B. Parkin, Esquire, on belialf of the said Respoudents in this cause, by and with the consent of the said Appellant, doth permit the baid Respondents to appeal to Her Majesty in her Privy Council, in that part of the United Kingdom of Great Britain and Ireland ^ called England, from the final judgment of the Court here rendered la this cause, this day, upon the said Respondents yioing the security required hy law within tlx weeks Jrom this date. "'•is^t^y-"'^ "^'' -^[^^"^j 11 " Now, on the 20th, he could not under any circumstances " whatever be admitted to put in security. The time is irre- " vocably passed, why then do you reject my petition ? Please '' accede to my prayer." ANSWER OF CHIEF JUSTICE. " The six weeks limited in our judgment for giving security " must be computed from the 2Gth of December, the day on " which notice was given to Mr. Parkin. This delay has not '' yet expired. I see no reason to change my opinion. J. D.'* The article 1179 of the Code is cited* in a note, so is the judgment, and I lay the facts before the country as evidence that Chief Justice Duval is unfit for the position which he occupies. He may oppress me, but he individually sitting at table in his dining room cannot change the terme of a judgment, cannot prolong a delay fixed by the whole court in Banc. n Now, he never in any way deigned to notice my first petition, presented, as I presume, on the nineteenth of December, when he was in Montreal, and I have never seen it since. But that fact compelled me not only to beg the interposition of Mr. Justice Caron, but to transmit a se°cond petition to Montreal, to the three judges residing there. One, his Honor Mr. Justice Monk, was absent ; another, Judge Badgley, of course agreed with Judge Duval ; but the third, Mr. Justice Drummond, taking the law for his rule of con- duct, immediately and effectually telegraphed for my relief. Thus, then, owing to the peculiar idiosyncrasy of Chief Justice Duval, I both wrote and telegraphed to Montreal. Then I received from thence one telegram dated 27th January, and another dated the 31st. I also received two letters of the latter dates, but as yet no formal answer to my • The execution of a judgment of the Court of Queen's liench cannot be prevented or stayed unless the party aggrieved gives good and sufficient sureties within the delay fixed by the Court. "HHWrf- 12 petition. Then the transmission of the record was, contrary to law, delayed, nor could I avail myself of the decision in my favor until the first instant. I incurred some expense, labored •considerably, went to the house of the Chief Justice six times at loast. Then, to protect my property, I have been obliged to reside upon it; and as the distance from ray residenf^e to *he Court House is almost four miles, I have certainly been forced, by the conduct of Chief Justice Duval, to travel at this season some sixty odd miles, or perhaps more: thus losing much time, and travelling and laboring to accomplish an object which ought to have been a matter of course, a mere matter of routine devolving on the clerk. It was, indeed, the duty of the clerk to have remitted the record at the expiration of six weeks, without any application on ray part or the interposition of any judge — a duty which he could have performed in five minutes. Confining myself strictly to the publication of facts which I can prove, I refrain from assigning what I believe to have been the cause by which he was deterred from acting. As every judge is bound to admin- ister the law, and as it is a very bad compliment to thank a judge for pronouncing in one's favor, I neither thank Judge Caron nor Judge Druramond, who, if I did, would probably rtply that they had done no more than their duty. It has been my unhappy fate to be often present in the Court over which Chief Justice Duval presides, and, closing this notice of him with my own evidence, I affirm that what- ever may have been the nature of the discussion at the bar, I have never seen him make a note. While causes have been argued before him, I have re- marked him siting generally with his two hands on his desk (especially on the approach of one o'clock, the hour at which the Court adjourns for refreshment), as if in some pain. He has then, too, appeared to be more or less impatient. I have also, while standing close in front of him, ascertained that his digestion, after he had eaten, v.as more or less laborious. 18 But whatever may have been the number of the causes called and heard ; whatever their dissimilaritj, or the variety of suDJectsand complications involved therein ; whatever the conflictmg statements of the witnesses, or the incompatible propositions urged by Counsel, I have never seen him write a memorandum. To those unacquainted with our system it may be necessary to add, that in this section the Court deciding upon the fact as well as the law has to deal with the evidence. The motive of the Chief Justice is a matter on which I must not dilate, but the omission herein above noticed may account for the universal dissatisfaction excited by the deci- sions of the Court. It may account also for the absence of aU concord among its members, for Judge Badgely, being deaf and unable to hear the arguments, cannot, when they deliberate, supply or act upon the information which the Chief Justice IS (apparently) unwilling to record. Now, people of the Province of Quebec, who are subject ta the jurisdiction of Chief Justice Duval-what think you ot Chief Justice Duval ? ^ And if I have been truthful and have not exaggerated, you, being Christian men, loving liberty, for your own sakes, from patriotism and a d.sire to transmit to posterity the freedom which is our birthright, should give me some moral support ? For what is freedom but a just administration of the law ^ But, if a Judge can treat me, who am understood to be more or less disposed to defend myself, in so cruel and tyran- mcal a manner, he can with impunity oppress every man, woman and child in the community. My cause, then, is the cause of the public at large. A. GUGY. P.S.— Hoping that the Temperance Societies will hear and act upon my cry for succor, I submit the following X4 credentials. My habits certainly should entitle me to their sympathy : Copy of a resolution of the Committee of the Montreal Temperance Society, passed at the monthly meeting, 3rd February, 1844. Resolved— Th3it the thanks of this Committee are due and be presented to B. C. A. Gugy, Esq., chairman of the Special Sessions, and to the Magistrates of Montreal, for their courleoua reception of the petition of this Committee on the subject of granting Tavern Licenses, and for the patriotic and fearless manner in which they have undertaken a reform of vast importance to the welfare of the community. Montreal, 6th February, 1844. SiRj It gives me great pleasure to be the medium of conveying to you the Inclosed humble but cordial testimonial of approbation from the Committee of the Montreal Temper- ance Society to yourself and the Magistrates of Montreal, for your exertions to diminish the deeply injurious traffic in intoxicating drinks. I have the honor to be. Your most obedient Servant, (Signed,) JOHN DOUGALL, President M. T. S. B. C. A. Gugy, Esq., Chairman Special Sessions. To Col. Gugy, M.P.P., For the Town of Sherhrooke, Sir,— At a meeting of the Sherbrooke Total Abstinence Society, held last evening, the following resolutions were adopted, viz, : 16 Hesolvedy—Thsii the thanks of this Society be tendered to €ol. Gugy, the member for this Town, for bringing before the Legislature the subject of intemperance with a view to its suppression. (Signed,) J. S. WALTON, President S. T. A. S. t'l*