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 A LETTER 
 
 TO 
 
 JUDGE 
 
 GIST HIS OPII^ION^, 
 
 AS PRINTED BY G, T. C A R Y, FOR 
 
 WILLIAM BKOWN, 
 
 PJbjaiJYTIFF, 
 
 m A CAUSE AGAlNvST 
 
 BARTHOLOMEW CONRAD xiUGUSTUS GUGY 
 
 
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A LETTER 
 
 TO 
 
 JUDGE DUVAL 
 
 ojs^ HIS opi:N^ions^, 
 
 AS PRINTED BY G. T. GARY, FOR 
 
 WILLIAM BROWN, 
 
 PiijiurriFF, 
 
 IN A CAUSE AGAINST 
 
 BARTHOLOMEW CONRAD AUGUSTUS GUGY. 
 
 BY 
 
 THE BEFEJYD^Jrr, 
 
DEDICA^TEl^ TO THE liOYS 
 
 OF THE 
 
 HIGH SCHOOL. 
 
To the Honorable Mr. Justice DUVAL. 
 
 A^•^ 
 
 »► 
 
 SIR, 
 
 ll is now ii|)W!ir(ln of nine years since! VVilliiim Hrowri, of nciiiiiM>rl, iinllcr, hroiii,'!!! ujf.iiiist 
 nil' nil iiclioii, in wliii'li lie cliiiliied loliiivc siiHrrcd ill my iiiin<ls(liiin:igi's!o llio Hint' ol' £J(J(). Il;ivlii>,' 
 failed ip llial iielion he appealed lo In. Court of Ciueeii's" Heiifti of wliieli you are a iiieiiilxr, and liy 
 ils deeisiiiii llie pidijiiieiil in my favor was eonliriiied. The Chief Jiisliee, with Judges Meredith and 
 Moii(h-icl, eoneurreii in the contirinallon, Imt Mr. Justiee Aylwin and yourself were, as usual, unfavo- 
 rable to me. 
 
 b'.mboldeiied by the disseiil of Kvo judges, my advi^rsary has apjiealecl lo llie Queen in (.'oiineil; 
 ll vexali(Mis, if nol an absoliilely ruinons result, wliieli could not have followed a iinaniinous iud^'iiicnt. 
 Your opinion then is not a iiialier of indid'ercnce to m •, n ir indeed to any suitor. On the contrary, my 
 interest in it may be I'stimateil, in this ease, at jCIOOD, an amount wliieb it will probably cost iik; to 
 repair lo England to sustain the judgment of the majority <if llie Court. I prop^ise thcreiore to exer- 
 cise my undoubted right t,) dissect yo.ir piinled opinion, nor shiill I hesitate, It) lemoasuute afler the 
 manner of the frogs in the fable, against a proceeding which, liowever, pleasant to you is or may 
 be death to me. 
 
 On iIk! occasion upon which the jiuiginiMit was pronounced, you madt; only one remark that I can 
 remember. You rclcrrcd to a period' al which you and I were studi-nts in the oliiee of Mr. Vallicres. 
 You said that he had bi-cii denied his cosis in a suit which, being plaintill', he had conducted in per- 
 son. I care not about the accuracy of the statement, nor is it in my apprehension of the least moment 
 wlielhcr it be or bi' nol true that he was so unjustly dealt with about forty years ago. Mr. .Justice 
 Aylwin always full of" wise saws and modern instances " always ready with a dieluui tosu|)poit an 
 act, was pleased, in one of my cases, to declare that an " adverse practice of seven years was siitiicient 
 to defeat the express terms (if an act f)f Parliament." ll seems lo me a fohiori that a /ii'Me made 
 practice not only founded on no law but conlrary to law, can be abolished by an uninterrupted series 
 of adverse decisions pronoiiiu'cd by the hiirhesi judicial authority and a full Hcnch wi!li()Ul a dissen- 
 tient voice during a period of three times .seven years ! Now this w/pr «/(« is a, fact of which you 
 ought to be informed, more especially as you, yourself, so decided at least in one cause, that of C innon 
 vs. Henley. 
 
 The sole ri'liiiirk which you ll>u> made related to the costs, and my cDiiimints published in the 
 Memiri/, were necessarily conlinc to that subject In the iiresencc, however, of th(! judicial com- 
 mittee of the i'rivy Coniuul, ak volo,sic juueo, '.-ould be indecorous, and although you evinced iio 
 regard for the t-uitor will, w hose rights yo'ii (realt, you have since eoinpose.l ant! permitted the plaintiff 
 to'print an elaborate opinion. Able, educati <1, ingenious and fluent Mr. .Justice Aylwin thought that 
 he could ali'onl to admit his inability to pidiiounee anoral judgment. You may have becm restrained 
 by other considerations, but how deplorable the condition of a country in which two judges of the 
 Supreme Court are incompetent to as.-igii orally the reasons of their decisions. 
 
 Mr. .justice Aylwin caused his opinion to be printed, at his own expense and from whatever 
 motive he sent me "a copy. li:) thus disarmed criticism, but having, like Gilpin's wife, a frugal mind, 
 you pursued a diU'ereii, e(airsc, and I oblaiiU'd a printed copy of your work by mere accident. You 
 will lind it reproduced in one kind of type ; ll ccaiimeiilary appears in another, and tliey are meant 
 lo be read logetlier. For obvious reasons I li;ive added a number lo each paragraph. 
 
 I. I>ai-liu'i-iipli. " Ttie A|ipcllani, Bimvii, iiiMiiiiiccI ihi» miu.ii In ioiii|»'l il»' lti'.-|ioiiiliTil In <tcMu.li>li unci rwiiove n wliurltTcHeil 
 " tiy liic tiitifi- III iTie Uivei' iiinupon, i-iiusiiia Brown vfiy sifiii iliiniui,a-, ns lie cxiilain.s in his duelarnlioii, lilwl m llie Suiniior Cuiii'i." 
 
 The site of niv wharf was the principal (|Ueslion. I maintained » that it was erected on a hank 
 part of my own property. I alleged that it was intended to protect that bank from the injurious effects 
 of the current of the svater iiiijiellcd against my land by a wharf buill two years previously by my 
 adversary. 
 
 Such v.as the main (iiiestion, the damage could only be a < onsciiueiice of the act. If the act was 
 illegal, if I built a wharf m ihe river, d-miage iiiiglil ensue. Nuw this is the state of the issue, a prin- 
 cipal ipiestion and eoiisccpienlial (jiieslioii, and yini decide both in the outsit. You alliriii that my 
 wharf is built in the river, and thai it causes Urown veiji iinal damage. These siiperlalives are yours, 
 not Hmwns. The able Attorney, who framed the declaration, judiciously refrained from the use of 
 terms so cMiavagaiit. Had they appeared towards the eoneliision, bad they followed the narrative, 
 and an intelligible statement of fact, they might have been overloiked or condemned at umst as at 
 variance with good taste. Hut, if I understand Knglish, your convidion is the result of the e.fitlinwlions 
 (■onlaincd in the declaralioii. You say, as lie e.r/)i(iins in liis ihiimilioii, words whicli remind one of 
 the lellers Q. E. 1). at the end of every problem in Euclid. As a .judge, you are presumed lo know 
 
 s ething of the language in which you write. Had you said " as he complains," " as he alleges," 
 
 v,)U would Inivc been underslood lo mean that the slatemenl was Hrown's statement. Hut to ex|)lain 
 'is " lo make plain, manifest ov intelligible, to clear from obscurity, to expound." Your use of the lerin 
 ixplains, then im|)lies the existence of a fact made manifcsl (not !iy the proof at which you have not 
 arrived but) by the declaration ! It is as if you had said Brown has (Innonxlriittd hi) his (lec/aralion, 
 and voii seem lo assume that he is right without any eiupiiry. Thus the statement touching the sile 
 of my wharf and the etlecl of its erection is made, in your opinion, to rest not on the authority of 
 
 * I iIkI more ■liaii r.rjttniii lor I proved. 
 
( > ) 
 
 Hrown l)iii nil \<mi iiii I only. 'I'lii'* will iliiiihll»'»i« Imvr ulrtick rwty liiwytr who rend your (ipiiiiun, 
 l)iil most lnyiiiii'M, jiidLciii^ lij \iiiir liui^'iinp-, wcmld Imvf loriiHul ii very t rroneoim oxiinmttj (if Uie 
 vt\'ri\ oi' till' I'jplniialii'iin loiitiinitd in a Unlurotiun. It in ii coiiimMxIioiiH iih'IIumI ol arri'. in^ lit u con- 
 I'liision, wh'i'li iniiy im'tmnl lor iimiiy piiiiii'iil I'vcriN, for the iivowiil of wliioli, lio\vfv<T, I wan not 
 iircpatcd. Allow iiii' lo i< li'i yon lo tlic iiiax'iii seruiidum itlliffuta el probiitu, iiiul to fiitjiiiri; wliclhcr 
 ihf nccfssiiy for proof has bci ti ili:<piiiM'il with by any recent ctHlnte? Poets habitually commence 
 in midiaa ns, but you Imvc Ix'^nin with tin- md. 
 
 II, '• Tliii" miiiMi, will kiiiiwii 111 iHir l.i: w l.y ili> mi i)l ilrmmn ihiiii ile noiivtl mtvre, i> hikuii inmi ilii' Kxniaii Liiw. Tim iinnijiple* 
 
 " cm wluili II wliiiiiiiltil, ami Hi.' riilr« liy Willi li tiiiiiinoi Jiiiiiuc ar.' i.. I« guidod iii niljudiolinif on Iho i Men Hilin.illnl lo ihmii, am 
 " cifllrly Imdiliiwii liy tliu hmiiI jiiii»t» wim liiivu wrilleii nil llio •ulijt'ri." 
 
 8. '• II in iiiiiieirMiiry lni iin- ln'ri- u< ►iiilr llii' liirU i.l llin i«»4' » Im li aru Ml lorlli in lh« l»(luiii« ol Iho iMinii-n niiJ in the ojiiniuDa of 
 " ionie ol Ihc JiiiIgM | »iillln' ii lo Miy, Ilinl llii» t'oiiii la i aikii upon loik'iile * quwrtion ol Law ami a i|ur»lion ul lacl." 
 
 PuMMln^ ovrr the xecond piragrapli, I nhnll dtvoie a few momcnls to the third. 
 
 Wore you di:»p(iM'il lo diKsiniiiiutf any part of thf partiriilnr kind of knowlcdKn which you possess, 
 \oii might "ciilii.'hlcii he iik'' by a r*p<T; heat ion of the causes in which " qut'.HtionM of law or questions 
 of fad," aic not involved. You say that il is " uiiiicccssary for you to slate tlie facts" (and judging 
 fr<iin the context) hecauM' " they iii'i' >e; foith in the lactunis of the parties and in the opinions of some 
 of the judges." You ch-arlv iiii-an at least that tli im- who may be desirous of iiiforuiation upon the 
 (luesitioii of fact can and w ill c.htain it in the (piartcr indicated. Now this would be quite satisfactory 
 if the statements contained in the Fiiiluiim were identical or similar. But they eontlict, and one is 
 at a loss lo know which you hold lo be tiue, which false. VVheri' is a candid man to IcKik for the 
 truth? If you ailinit that some respect is still due lo it you must acknowledge that you might, with 
 udvanlage, have reierrcd lo the sources at whii ii correct inforuuition could have been oiituined. 
 
 But you couple 'Mlic op nioiis of .some of ihe judges" with the statements contained in the 
 factums! Which statemenis and wliicli judges? Do you mean Judge Aylwin, who assesses what 
 vou call pay gnat damage at one shilling ? What is the public to under.sland you to mean ? So.mk 
 Is a term signifying a number greater or less, but indelerininate. Supposing some to apply to llu; majo- 
 rity of the Court we have three judges making statements the very ri.-verse of those, on which founded 
 " on the cxpliiniilions conlnined in Ilie declaration " your convictions would seem Ui rest. They all 
 three maiiitain that my wharf was not built in the rivt'rand that it caused Hrown no damage whatever. 
 You surely can't iiiciin thi.t lliose judges make correct statements! Acknowledging that you have 
 puzzled me, (not lor the first time) I submit that if you should have intended to say that judging by 
 tli<:ir factums, the parties and tlic judges all agreed as to the facts of the case, then there can be in 
 this case no question of fact. But you assert that there i.s a (luestion of fact as well as a question of 
 law ! This passes my comprehension : but that may be my fault or my misfortune. 
 
 Clearly, some must be underrftnod as contradistinguishtd from all. You yourself are not one of 
 the some nor can some stand for Judge Aylwin or for any one of the others. Then all the others are 
 apparently not agreetl. &>m(\ to use your very words, in their opinions set forth stalemelits of fact. 
 If some only make thoM- slaleiiients, il follows that the others do not. Filhor you moan that the others 
 do not in their opinions set forth any statenu-nt of fact whatever, or that the statements which they do 
 set forth are not the slaleiiients on which you rely and to which the parties interested are torefer for in- 
 formation. Here 1 am driven to conclude that you mean that there is a difi'erence between the state- 
 ments set forth liy some of the judges and the statemenis set Ibith by others of the judges. But this 
 is a case of obfuscation and I can grope no farther. 
 
 I " As III ihu (iiiCTlion of Law, Ihal in Browii'» riglil of aiiioii acnin!.t the HtsiKiiidiiil, asMiiiiiiig ilie lauls he uliu^ea lo 1»; iriie, Iha riijbl 
 " niipciirs lo I*; In-yoml fair lonlroven-y, even oilmillmg that Ihe Appclliuil had mislameil iiu pi-iiiiiiary loss when hu msiiliiltil his aelion." 
 
 5. •• Troiiloiisr. » hu has wrillen most ably on ihf subjeii, in his Traile de la PrcMtriplioii, vol. 1, No. 3t3, unya : " Ce n'esl paa lonire 
 " uii cli.iimiiipc i-aim iiu'on vuiilnil «■ prfvinir miiis lonlrc iiii iliniRir ml un lort li veiiir." The same doclrine will be found in Ihe Tlh 
 " voliiine ol Aterlin'.s Ke|iei1oire ile .liiru.prudencf, p.lge 39,i, and ihe lollowing- -Davicl ilea Coiirs d'eaii, vol. I, No. 471, el »ee. To Ihn 
 
 " may be adilid Ihe opinions ul (lariiier, (irenier and I'roiidhiin " 
 
 Troplong, could he hear of it, would doubtless estimate al its just value the certificate of character 
 which you give him. I would, however, contrast the woiil, which you cite with those of my adversary. 
 Kefeiring, as you do, to his explanations, as yiai call them, you will doulith'ss allow me to cite his vcry_ 
 words. The plaintilf is sujjposed to be well advised aiid to understand his case. He complains of 
 the evil for which he seeks redress and he claims the interposition of the coiiU upon specific grounds 
 alleged in his declaration. Thcsi; are \\\calligula by means of which the defendant is apprized of 
 the pietensions of the plaintiff. Tiie defendant, when he plead.s, must confine himself to those aUegaia, 
 that is to the terms in which the plaintilf clothes his complaint. The proof adduced must necessarily 
 be restrit led to that particular kind of complaint. In this country the power of the judges is enormous, 
 but honestly and justly they cannot travel out of Ihe record. They are bound to decide the case as 
 presented by the plaint itt: 'They can't make a difl'i rent case for him. Thus to make this plain to 
 laymen 1 would say, iiy way of 'illustration, lliat if the plainlifl' claims a horse, the court can't pro- 
 nounce a judgment awarding him a cow ! Again the evidence adduced must relate to the allega- 
 tions — all other evidence is illegal. 
 
 Your citation from Troplong may be thus translated : " The object is not to provide against a 
 " damage which one has suHered, but against a danger or a damage to come." I understand you 
 then to mean that Brown's action was brought to recover £300, not for any actually existing damage, 
 nor for any damage done before action brought, but for a prospective damage — a damage which 
 might or might not oct:ur years afterwards. 
 
 Admitting tha' my adversary might have brought that sort of action, I submit for your informa- 
 tion that there is not in the allegations or "explanations" contained in liie declaration one word 
 which could justify the application of the authority from Troplong. Had the plaintilf declared so as 
 lo cxiiose ine to the kind of judgment which you would have pronounced, I could have demurred, and 
 
 ' 
 
( ■'i ) 
 
 llic (jcwiiioii (il llic |)iirlii M woiilil liiivf Ih'cii (<(|||c(| liy ilir i iMirl. Am it ir", llic |tliiiiiliir rf<ic(| liiricliiini 
 iiiMin ili«' fxiNlfiici' (if u \vri)iu{ dotii' lii'fori' he hniii^lit his Huit, In- iiiiidc Kin own litul arirl I iniirv(>l 
 tliiit ytiii will luil iiIIdw him Id lie iiptin it. Not Id iiii('nii|it the narriitivc I ofFur ibr ycHir pfriiviil iiiilii! 
 »hu|)o of II note iiM iniu-li ol'ihi' ilfcliiraliori iix i^* iic(!c.>'sary.* 
 
 •, "Thn Appeltnnl'a right of action IwingmlilillahedilhaCourliO'iilltl upon luilrcnti-ii i|ii>»iiiin nl liiil i 
 " « whan III Ihi: itivi'r Hriiii|iurl, iiiiil ilmn Ihi* whirl' I'liuav llui Appellant Ihv ilaiiiaifu he luiiiplii^ia iil I " 
 
 > Oil Ihia hefttl 1 IliiiJ il iiiipoaalbl« lu t'lilv 'a.ii the atinhtt'^t tluiihi.*' 
 
 Hu lh« Rmpimileiil cri'i Ivil 
 
 IW, " l^'l II l« lioriii' 111 iiiiiicl Ihiil lhi« pjrl III' Ihn Kivci- BtnuiHirl wii», iH'liprn llin cil'iliiin <i< I'.i- IU'i<|ii>iiik'iilS wh.irf, iiavl(rnlili'— 
 " )<ili.).iiiiTH h.iM- nuilfii ii|i "» (lira, ihc Apwlliiiii'« Mill. Till) i'nili-iir« cil iiu' llarUiiir MimUT, Luiiililv, iiiiiiiiali-ly ui i|ii»iiiliil wilh ilii- 
 •■ liiriiliiy. luiiMMiiiilniilii III! iliu >iil>ji'il. niiw kl iii> iiHik III llii' iiJHiia lili'il. Il isiliiiiliiliil il II i-Lill 111 lilt' very niiiuilval tue umiM iii Ih'a 
 •' diiy lii' IikmikIiI III lilt' Mill " 
 
 •. '■ Till M' |iliiii< rU'. r'y aliiiw llie Ut'«|H>ntl<iiit'a oiiiriiurliiiH'iila on tlui wry Ud ul'lbv river, ami liia iilli'r diarettuni ul'lliu ri)ihU iiriillii.'r>. 
 ■< Siiri'ly III I A|i|H'lluiit ha- ii riglil lu tiiiiipliiiii ul Ihiaf iiiinii ihiiii'iiln | until tlii'y aru r>'iiiuviili hnw i< hu lu gil giuiii lu hia mill, uiiii avml 
 *• bin Hour t>i llii' iiiurUi'l I " 
 
 to. " III my iipiiiiiiii llit'M'1'iii.'ruui himiila reiultr Ihu A|>|n.'lluiil'H Mill ulliltli' valiiv, lur, iialiu iiiii-t rwiirtlolHmlionvt'yaiiii', lliu rxiKiiM' 
 •* WoiiliI Ijc uliiii'sl riiiiu»ii«.'' 
 
 Yoiir cxchiriinliuri " ^'t us look at ihc plans" aiiioiiiils to a ciialk'ngi- to llic whole worlil ami to 
 a |)criiiissioii lo any one lo coiilraclift you, who in the lc;^iliiiiali' t'xcrcii-f of liis faciiltii's arrives at ii 
 dilli'i'ent conclnsion. 'I'liese plans yoii say, " elearly slow my eiieroaelimenis in llie very Led of ihi? 
 " river and my utter disre<,'ard of ihe rights of olliers." Tiie force of es^otism and eynieisni could no 
 further f^i). Vvliy what Donki'ys the four Judges must he, who could not see what is so very 
 elearly shown ! As a suitor I must siihmit lo your remurks, lail those; Jiidires all f(enerally courteous 
 have claims on your forbearance, and yon iiiinht have liceii less arrouaiii. In givint; piililiciiy in 
 print to opinions' so iiiiieli ;it varianci! wilh iheiis in a lone so Irenehant and ollensive, you eoiupid 
 every reader lo in^liliile comparisons, belween llieiu (iiid you. I pause not to descrihc the ineviliihlo 
 result. IJiil wliclher ihey fail to see what is clear, or you imagine lliat you sec what doo not exist, 
 the ('iiiul of which you are a member miisl siilfer and ils u.-efuiness be eonse(|Ucnlly imjiaired. Voiir 
 fellow judges mayor may not deign to lioliee the position in which you place lliein, but the judge 
 who.'te decision you would have re\ersi'<l is cnlilli'd lo a large measure of respect. Having heard him 
 <lidivrr his judgment and understood him, as 1 have never iiiiderslood you, I propo.se by reference lo 
 the plans to which you Iriiimphanlly refer lo prove how inferior to him you are. 
 
 Pinning your failli on Lambly you will permit me to transcribe and to submit witlioul preface hia 
 very words. 
 
 On the lOili of .May, 1854, he teslilies a« follows. " I have not had occasion to visit the river 
 " Kcaiipoit since the year IH4I." Here we have ii period of lliirlei ii years during which most impor- 
 tant changes by alluvion and otherwise may have taken place. His inlimale acquaintance with the 
 loc.ililv to which you seem lo me toallaeh undue importance has llms been iiiterrui)ted and for a long 
 time. " Hill lie add.s " my reeolleclion is not siidicicnlly good at this period lo enable me to slate in 
 " which direction the river llowed previiais lo the erection of the said wharf by ihe defendant." It 
 will shortly appear that he has no recollection, no memoiy whatsoever. 
 
 On the 25lli March, IH,")5, examined again at the iiisianee of my adversary, he speaks as follows : 
 
 " I have already been examined in this cause. .\l llial period I had not visited the premises in 
 " (iiiestion ill this cause. I have since; done so in company wilh the plaintilf, who took me there for 
 " till' purpose. \ I do It'll rtmember llic time. Il was about six w-eeks or two months ago. I now 
 " rccoliei't thai il is more than two months ago. We went there during ihi; sumiiu^r roads. During 
 " the lime that 1 was Harbour Master at Qiiel>ce, I fieiiuenlly visited the river Beauport and the 
 " i)rcmises in cpieslion in this cause. This may have' been in the year of 1840 or 1841." 
 
 Hut these are Ihe years during which he ceased to he Harbour Masler ' 
 
 " 1 have be i higher up than the moiilh of the river Heauport ■'I'veral times before Ihe visit of 
 " which I have spoken, but never so high up as the. mUl." " The visits of which I now speak are 
 " the visits {mr in the original) to the liver Beauport of which I have spoken in my examination in 
 " cliief. (He had spoken only of oi.< visit). On the occasion on which I went to examine the pre- 
 " mises at the re(|uest of Ihe plaintiff, he called for me at my house wilh his carriage and took me to 
 " the premises. I staid there some time with him and he brought me home." 
 
 There are in the foregoing lines many proofs of iIk; oblivion consequent upon age which 
 might have eM'iicd suspicion. But you were a (derk m the same office with me, and yon know indi- 
 vidually thai I was a<lmitled to the Bar in August, 1822. But you have chosen ex mero molii to deny 
 me fees on ihe i,'roiiud that 1 was a imietilioner. If you can judieially know a suitor, you are bound 
 judicially lo know an ollicer of the Court and the datirof his iulmission to the Bar recorded in the 
 Register. Now for Harbour Master Lambly. 
 
 * The deiliimtioii i.i, upon relle-iion, oiniltt'il as lending unnecewarily to swell ihcue reinorka, and as being of rceonl and ao«e»iUe to 
 every ImhIv. 
 
 t 'the Itiiiii'S are mine. 
 
( « ) 
 
 "I liHVf kriovMi llie (lelfiKliini lioiii iibuul Ihi- yt'iir i-inhti-fii liiiiiilrfd mid « Icveii, lor I wiii» 
 " ii|i|)<>ini<il IIiirlxMir MukI.t ulwiil thnt lime, and / uaed to go inlo Court /ret/umlly whirt the dtfen- 
 " ilant iras ftrinliniiiff.^' 
 
 Ilirt' ijt a I'lul wtirlhy of ymir alliiiiioii. Your lliirlK)ur Mu-dcr, wliusi- ^^evidrnce leaver tin doubt 
 im the mhircl'" !*sv(•llr^' ilmi I wii» |)rii<iiMin>; nl tin- Hiir in IMI I ! VVIiy I whh llicii it Ixiy iit hcIiooI, in 
 Ippir ('iiimdii, iiMil oliiiiiiird my lirsl (■oiiiiiiii-^iin in tin- iiriiiy cHrly in 1812. JiuIki! Duval Kince 
 lhi!< |ml|>iil)li' mixMialiniriii made no iiii|>rt'f»»ii(ii ii|><iii your iniiid, wl;al iiri- we In lliinlt of you? 
 
 'iut he Hdd(«:" AiliuninlionllH^iKcunionitalri'iuly ri'liTreiltol hiivi- nol jfimo iipuxfar uhIIii- mill, 
 " I liavfi{oni; lo a di^liincf williiii live liiindri'd yards tli« rcof. It allogfllicr di'iM'iidfd »in llic fintf of 
 " tin; lidi!. Fnaii lliat |>oim I could ^rc llu- miiraiid Ix'di ni lew of til.' river; my oliji el in goiiii{ \va» 
 " in |H'rforiimmi' widi my duly and lo sei' dial iluri' v'l-ic no obslrucliiaix in the rivor." 
 
 I xliall |ir(>fiillv notice your jiidieial dicliiiation llait " xcliooiierK " liave >ailc'd u|> an far ni« X\w 
 apiii'llanl'M mill, meanliiue l' would remark llial ilie wilneKs liiiuKidf //free went U|) llial far. 
 
 On the 'JHlli June, IH,')"), y(air llailiour Ma>l(r depoxes iiilrr alia as fojlowr* : 
 
 *' I shall l;e eii,dil\-foiir yais next .XukusI. I liiid dial my miniory is failing. I call teiiiciiiher 
 " Oi'curcnces whieii Uuik place when I was a youth heller than ihose wiiicli are more rcceni, I «lonot 
 '• exaetly reiucmlier the dale of the last lime 'thai I visiled ihe river Beaiiport ; hut I used lo visit it 
 " aliiiosi every year when I was Harbour Masier, wilhoul lii.wniir ^iiinn virifjar '//», lor iiisianee not 
 " thriller up ihan die point at which you can see ihe mid<llc of ihe sircaiu ; " (To see ilie middle of ii 
 stream one need not 111- in it, and lliis expression seems to imply that he saw the middle from itH 
 moulh, or perhaps lelow it ;) " i had never been on Mr. Hrowii's wharf iinlil the |)criod when, as I 
 " iiave slated in mv cxaminalion in chief, I went tbcrt- to oblige him. It was very lately thai I wcni 
 " there, bul ;ii,iy muiion/ diitii mil < inib'c iw lo .il>ei:ijfi the time.''' " Since the period when l(ease(i 
 " lo bo Harbour .Master, I had never visiled ihe river llcauport ualil I went ihcre lo oblige lhi« 
 " piainliir, as lliave said, lam unable lo say when llial was. I must be slujiiil lo forget it, but 
 '' so it is, I base loigetlen il." 
 
 These admissions were assuredly sirilieieril lo have neiilrali/ed that iiilimute uaiiKiiuUnur vith 
 t/ie ioralitij of which you saw lit to make such a parade, but you alli'ct to rrly upon llial sort of 
 evidence, and upon tiriit sort of evidence I liiid ihat you wcaild have ruined me ! ! ! 
 
 Lainbly had previously deposed as follows: "TIk' plainiilfis my niiiglibor, I now see his house 
 " from my window, I liuvc" known the family of llic Lady of Mr. Hrown for u great immber of years." 
 
 Here we have the disclosure ()f a fact pregnant with eoiiseiiuences. Il ad'orded ijiy adversary 
 daily opportunities for talking over an old man of 84 and moirlding him to his jjurposes. The use which 
 he made of those opportunities were il only in the drive in my adversary's carriage, is a mutter of 
 inference. 
 
 Now for the patlieular fads, tlu' basis of your jiidgmeiil ag.iinst me as leporled in your opinion: 
 
 Isllv. "Tiiat lliis pari of the river (moaning llie part along my wharf) was before the election of that 
 wharf navigable." This is your judicial slatciiient implying llial owing lo thai wharf it has censed 
 lo lie navigable. 
 
 2ndly. Thai schoiuiers have sailed up as far as die a|)pellanl's (Hrowrrs) mill. 
 
 :!rdly. That il i> diaiblful if(wliilher would have been a more ai)|)ropiiale word; "a skill' of the 
 " very siiiallesl size could al ibis day bo brought lo llic mill." 
 
 Vou |)in your biilh upon Lambly and can have no olijediou lo my oiling in lelalion U) die iravi- 
 gation, hi.«i very words. 
 
 " The river fJoaup(M-l I look upon as lillle more than a '•reek, the same as the river St. Chailcs. 
 " I ciinsi.ler all rivers crooks which are dry al low water.' Bearing in mind ihat l.ambly was an 
 Englishman, llie word •'crook " in his mouth has an onglish not a yankee signilii'alion. " The river 
 " Boauporl, he adds, is a small river, but is navigable at high water to near llio null lor batcau.X, 
 " SMALL schooners and so forth." 
 
 You have a genius for amplificalion. The plaintiH' complains only of damage but you sot the 
 judicial seal to il and il bceomos very groat damage. The wilness ii|)on w liose loslimony your judg- 
 , monl is founded indioales llie size of lire schooners, bo u>os lire word smdll, but unless ijre possession 
 of judi(!ial power places you above the reach of crilioism, I may remark that ycai oiiiU, ot c(Mirse, 
 purposely omit, llio (juaVifving adjcoliv.'. Y.ai probably know too thai bateaux, a primilivc sort ol 
 lighter or dimiiiiilivi' oial'l draw al" iiiosi, when fully laden, from ihroe to six foot (if water. It was 
 pr(>bably intendo<l to represent lliom as being lar«or than the small scliooneis, in whioli case the 
 " and so forth " might bo intended to cover any thing down to a canoe. If <ai the oonlniry the wit- 
 ness 1)0 under-slood lo have iiu'ant U) ilepose in an ascending climax the ,' and so forth" may apply 
 to a hundred and twenty gun ship ! Il was the business of my adversary lo have proved his case by 
 clearly intelligible and credible lestimcaiy, n(M- need I now speculalo upon a pari ol his ovidoneo not 
 intelligible and llier-cl'orc not likely lo bo taken inlo oor.sideralion by an imparlial jiKlgo. " Schooners, 
 vou say, have sailed up as far ai llr<' appollanrs mill," and you cric no oilier wilness than l.ambly. 
 Now begging your pardon, Lambly does not sav so. What Lambly says is thai, " the river is nav- 
 " i"able lo near the mill for bateaux, small schooners and so forth." Bul ho hiinsoll .m Ins own 
 admission never was as high up as the mill. He tlioroforo never saw any craft whaicvor sail up. 
 His evidence then is merely inferential and not that of an eyu-wilness. Thou intcrontial as it is, he 
 
( 7 ) 
 
 doftn not »i%y how near, lie iiiicrn Ihni tli« mriHll cmCt In- cli writM>M did Miiii up, or could »iiil ii|i. Tliiii 
 in It point of wliicli yon mnkr ii xniU dfiil iind it wn» tin- inli-ri-Ht of my iidvcrmirv to Iiunc provi'd it 
 If he could ! If liny emit whatever, to iifi- your word*, miilcd ii|i ii» Jhr ait Iht »ii)/, liny could nciir- 
 fidv '«' |>h:iiiioiii Klii|iK, llicy iiitiHi liuvc JM-cn niiinni-d ly living men, iind liuve hern win liy niiiiic 
 oni! or more of the miillitndex ilaily renorliii^ to the mill. Now u'ly one of iiiiy crew, or any j<inKli5 
 H|K'clalor could have tcslilie.l to the fiel. In your view of lilt! chh« IImh fact indecisive. It sv« not 
 my liii^ine-tH to prove it, why did not my iidveiKiiry doi»o,' 
 
 Yon are pleaded fiiiihcrto draw an infen'nce which wciiim in your ei«iiiiiiitiiai to he coneliir.ive. 
 " It i... (loiil)lful, you fay, if a f<kilf of ilie very sinallixt fiizeeonld lie hroii«lil (thai \s lloaled) up 1o thi? 
 mill." Tlie use of f*up"'rhi1ive.'< ill ilie |)recedinij Ncntcn.-e is unlucky, for llie jilaiiH to wliicli yiai so 
 triumpli.inily appeal show thai at the sfxit in ipiestion the chaMiicI is |(» or 20 feel wide. 
 
 You speak of a skiH'of tlif very sindli'st nm and nic evidently ijjnoriint of the nignificiiiion of 
 llie term. \ Hkilf is a litlli; lioat so ii iri'ow that one man can pull twoiiars, oni! in each hand. They 
 lire indeed often made HO narrow that llie rowlocks are iinavoidalily iillaehed lo out riggers. Any 
 one HO inclined could have lately seen one in the liarlior of (|iicIm'c, sixteen incliCH wide. As I lielieve it 
 Id be slill within reach, I shall \v heiiever the iiccesHily aiises produce it hm an exhi'iit. NuW, sir, you 
 have upon my aiiihority the hreadth in iiicheH of ii HkiH'of the mnallcHi sixe. Do yon duiibt that it 
 could pass ihVoiu;!; a s|iai-e I!) or itl fi et wide .' 
 
 ^'ou (lisliiielly and positively alliriii that the eiiilcnci of l.iimhly ficlndia o'l iloubl llial I have 
 I'recli d . 'I wharf i// llie river Heauport. Lainlily a\ows iliat (until he visiied tin' spot lo ohiigc 
 his iieighlior the plaiiililf) he "//«(/ iitvirhern so /liif/i tt/i aslhv mill.'" lie spccilicH a pnrticiilur 
 (list. nice to which he iliil go and thai distance is " wilhin live Imiidred yards thereof," 
 
 Now Jlldiie Stuart is not the man to look at plans allecling the rights of parlies, as a lilllc girl 
 glizes at Pill. eh an ! .ludy in a piippe' show. He doiihlless stretched the legs of a divirler over the 
 plans of which von speak ; he thus (oiind iliat 501) yaids extended to low water mark ailistanee of 200 
 yards from the iiioiith of ihe river. If l.ainlily's evidence in reference to the distance, was (nirrect, he 
 never li.ul even entered the river Hcaiiporl, hut as he siiid ihal he hail entered it, we will suppose the 
 jni'ge lo have made an allow aiice of half the distance. This is certainly doing a great deal for 
 I, aml.lv. Laiiihly llien who adinils lh:it he had ";!"r<';- heen as high up as ihe mill " may he sup- 
 posi'd to have eiileied ihi' river (as he says in a lioal) as far as a spot silnateil some 250 yards below 
 Ihe mill. Now belwccii Iliat spot and the mill iheie i^, as yiai know, a shii.,. angle or tarn in the 
 river, unking it (|uile impossible that lianihly could Icive ever si en the " loc^ality " as you (-all it. 
 The edifice which you have thus erected upon iiie evidence of Lainbly io dcmolinhed by reference to 
 the |)lans. 
 
 Hilt incapable of yielding you will reipiiie more deinonsiralion. Lainbly says that from that 
 point (at 500 yards) " he could see the mill and both sides of ihe river." " Now let U8 look at the 
 plans;" Laiiibly never coiiTd have seen both sides of the river at llie loealily nor indi'cl either side, 
 at 51)0 yards oreven al 250 yards. Wlial would you think of a tailor who should nndcrtake lo furnish 
 yiHi with a nether garment without takingyoiir measure.' Had yon in your judicial capacity in a suit 
 invol inglhoiisiiids me isiired the spot as you would expect a poor tailor to do you in a suit of no kind 
 of importance you would have ascerlaiiied that no coiitideiice ciHild be repo.sed in the eviilcncc of 
 Lamblv ; I make tiiis remark willioiit impc.iehing his cliaraeter and solely because he had reached 
 an agebcfore which " Swift had become a driveller and a show." 
 
 Permit me to submit anolhc.- view ol llie siibjcel. 
 
 In your contrast between a >kilf of ihe very smallcsl si/ ■ and a schooli'r yon iaieiid lo exhibit on 
 the one h 111(1 exiguil', on the other, bulk. Voii deline it is true (udy the si- ill' lait you expect the 
 imaginalicn lo do the rest. This is your idea made manifest by the suppression of the adjective 
 small. Hut as you were evidenlly ignorant of the possible proportions of a skill, you are not informed 
 of the characteristics of the schooner. It is not a cpieslion of tonnage as yon |)robably without 
 issiimed, bill of masts, spars and cordage, it is not llie size but the rigging which constitutes 
 
 Lnmbly avowedly too old to remember, who had never I ecu as lamp as the mill, was assuredly 
 no authority. Had he been in ])ossessi(ai of his liuailtics, he could not have overlooked the bank 
 upon wliicli my wharf is built, nor could lie have failed lo leniaik that the bank, the natural bank 
 was the lalriaf limit of the navigation as much as the wdiarf built on it. 
 
 It is however upon siicli ground that yon venlure to add lliat owing lo my wharf the "Appellant 
 " must resort lo land conveyance, and tli <t the expense would lie almost ruinous." You tluis assert 
 by impliealion that he had before that period used water conveyance for which there is no authority, 
 aiid could be no authority whatever. He has always used land carriage in that locality and found 
 profit in it. 
 
( « ) 
 
 III llic iiiiilli |)in,ii;iii|)li yon iiiiiiiil'osi u iiiosi uluiiiiiiig igiioiiiiici! ol llu; appcllaiil'.s iiiodc of tran- 
 si)ortinf< his j^raiii iiiid Hour, !iinl y<>" iisciibf to the plans u powi-r (.'ll'oci and inllni'iieo which I 
 dare not characterize. The a|)pfl"lant has never moved g-ain or Hour in tlial direction, nor lias he any 
 occasion to do so, or ;iny interest in (hiini; so. 
 
 11. " The Utfepomlfiu nl (niuliine i\lliMin>tn! lo jiiniify the« eiicToacliinenls bycluiminti lilliMu llii: Ijcil uClhu Uiver, wlil^-h, htsuiil, iii- 
 ** lU-qllircd from the Inle Srii;>tritr ut'Hf(iii|jort." 
 
 ft. " 1)11 refcruiKc lu the HfspoiiilerilViletil, it will l)e loninl IilmIuI not iioqirire hin |)nipprly from llie huo Mr. Duihesnoy, ns Segiieur 
 •* of Betliiiwrl ; he therelore ran cluiin none ol llio ►Sf/ir/y^tfr** ri^'li ^ ur privilr^e.s. Moix-over, ilii' luttjfcH ul' l^ti\*t'r Cniimla liHve <lfcKlf(l 
 " llio .^I'i'WHrJ never had »ULh a right See Lower l.'uiiudu l{e|Hjits. Queilioiu ^i^neiirialra, vol. A, |iui;e 130, d ilis lliviere« Na- 
 ** vijjfablfs." 
 
 Questions ol'law ar- not to he discussed by ilii; profane and I grant yonv inftdlibility in matters 
 on which all the courts tind till th,; Judge.-^ are proverbitiUy tmiiniiiious. I complain, however, of a 
 mi.stake or misrepresentation to my prejudice, contained in the 11th and 12th ptnagiaphs, 
 you say " that at one time I altenipted to justify my encroachments by clainii>: , title to 
 "the bed of the river as having aotiuired it from the late Seignior." You mean of course 
 against all the world. Now i (tcrtainiy did not do tmy such thing. jVly position was 
 this, that in iny adversary's own title in the deed of conveyance to him ihertt was a reserve in my 
 favor. In the'tliird ptigeof ,ny factum I iritiiniiieil tlitit it mi/(/it nt>t be wel' Jouiuled agninat tin; rest 
 of the world ; imi ihtti, being ti re.^'iM' in his own deed, in whic^li I wn8 named as bcin/i in tin rights 
 of the Idle A. J. DndieHiiaii, f<'iiiiiior if Jlemtporl, h", my iuiverstiry, who bonglil upon ihiit comlilion, 
 was estopped from co.itrovertiiig tlitil position. If this should he, as I hope, intelligible to laymen, 
 they will perceive thiit 1 thus rais..- l;et\veen you iiiid inc a serious (inestion, and tlitil I distinctly deny 
 hiiving ill the lernoU'st ininiier a.lmitted eiicro.ichm nls on my p irt. In the stvan 1 p igi; of my factum 
 you will lind the above mentioned condition of his deed, (pioled, to estiiblish this proposition, tlitit my 
 adversiiry <^onld no more tnieioach on me thiiii he could encroach on Mr. IJuchesnay. In case you 
 should revise your opinion 1 submit thi.~ statement for your guidance. 
 
 IS, 
 
 ** opposite ^ 
 
 " As to till- nlkyiitioiit hilt .iiu Iti'.vponcleiit Wii« loiifl loerei-tthis whorl to piolwthimwifnjjiin.it the worli> ol llie Appi'liuiil, on the 
 ide ol the nviT, it ^ho\v» a . Iiiiii«y ulteiiipt to jiiMily iin iii t done in oivn viiiiHlioii ol'ihe hiw» ol the laildiiml orneishlioiir)' lisliLs." 
 
 You condemn not the at1em|)t alone lait the manner of it. Hiid it been ingenious instead of 
 clum.sy would it have jiU^a.sed you more .- I5n» in your mouth the word clamsy iimounts to a compli- 
 ment as denoting incapacity or iiie.\|)erience i-r both in wrong doing. It wiis clumsy, you trium- 
 phantly declare and of course instantly deic^ied by you. You deal, as is your wont, ippte uncere- 
 moniously with four judges who thus rt'ceive underyour hiind ii certificate of cnaracterfor comparative 
 Dotuseness. This is surely an unnecessary " lifting up of your horn." But if the iilteinpl was so 
 clumsy why could not the three first Judges" who heard the cause, detect it .' Why did they order an 
 expertise and in despite of iny remonstrances founded on my opinion of you, refer the ipiestioti to 
 your stepson iis an engineer itiid a |)ractieal man .- [low was it that foity seven persons, hiiif of whom 
 arc men of high social position, men of education and principle, men distiiiguislied lor scientific 
 attainments and professional ability, all of them in every way unconnected with and independent of 
 me ; how was it, I say, tha. so many (X'rsons could be so l)lind or so wicked as to give the evidence 
 ofrecoid.' You luive thus forty-seven witnesses, three experts tind seven Judges who could not see 
 the clumsy attempt which is to you so very plain. The odds are great, but that is not all. I argued 
 that !he plainlilfeoiihl stop his mill at jjleasure tmd ascribe the stojipa^ift! tome. I added that as I 
 could not pliice any person in the mill to prevent his resorting to trickery or artifice in order to deceive 
 the court, i was in" his power. "JNow let us rciid the testimony of one who had been four years his 
 " clerk in the mill." 
 
 Piitrick O'Brien, deposed tis follows: "The plainliH' has not to my knowledge sntiered any 
 " dtimttge in eonse',|iiene(^ of the erection of the defendant's wliiirf previous to the ;^9lhOctobre, 1852," 
 lilt! day (if the insliliition of the iiction. lie adds : " In my examiniitioii in chief I staled diiit the 
 " building of the wlitirf liad caused a rise of the wiiter which threw it back upon the mill rticeiind put 
 " the wheel ill die water. I liiive since ascertained that this sin error and I now kn(>w Inat this was 
 " produced by a (|iianlity of stone a.id rubbish that were in the mill race. These stones tind rubbish 
 " have since been .eiiioved and the mill race cletined out, since which the evil has ceased." 
 
 The Ibregoing declaration covers the piM iod from the date of the erection of wharf down to the 
 day of his cross-examitiiJtioii (Mtircli, IHiO). Here too is pioofof the stoppage of the mill by meant* 
 of rubbish, which l)::l for tin til'ter thought would have been imputed to me, hut the clumsy attempt 
 which you see, is invisible to the witness 
 
 llcrt? t(X> is proof of an attempt to my prejudice agtiinst which I was perfectly defenseless, nor 
 will you consider it t;lninsy. It is nevertheless the |)laiiili(l' who inlentioiiiilly elit-tted the evidimce 
 in chief, which but for the conscientious scruples of his clerk, woukl by means of a falsehood have 
 established incontroverlibly, his right of action. But the clerk who speaks like a man of intelligence, 
 who was clearly interested in supporting and limiid to support his em|)l(ner, whose attention was 
 doubtless on the stretch, could not see tin? clumsy attempt which you so instantly detected. 
 
 II, " I liuve alwtaiiu'd lioin adverlinfr piirlii'uhiily to tin' lints, lierausetliey areso iiiiiintL'ly noted down mid ahly coiniiu'iiied upon in the 
 " report of lliu experts, Iinillai(:e and Staveley, that 1 1'oiild do no more Ihnii uselessly repeat wlial they have well explained." 
 
 J, , ; 
 
 You declari! in the 14 paragriiph that you have alistained'-iw adverting ])artietilarly to the facts 
 because they are noted doirn and ably eommenled upon by the experts. You have thus three reasons 
 for ignoring'tlu! facts, firstly, the faettmis of the parties, secondly, the opinions of some of tl:e judges 
 and thirdly, the iioliitg down of the xperls. VVhtit you mean by lulling rfrw/'ii, unless there be in your 
 ju(" cial opinion ti iidling up which has a did'erent signilit^ation, I shtill no', pause to consider. Thtit 
 V01I should compliment your stepson Baillarge, whom you evidenlly lielicM to have lieeii imlavor;!bl(> 
 to mi! is natural, but notwithstanding his relationship to you I hold him as a man of rare talent in 
 great comptirativt- respect, and feel strong enough to overlook the abortive elliarts to which your 
 commendation is to be ascribed. 
 
 
( ) 
 
 Your stepson specifically admits, limt the banlv (on which my wharf is built) for,n« .i mlura/ 
 obstruction to the flow of the water. He reports that my wharf has not obstructed any channel cana 
 or passage, for none existed when my wharf was built. He adds, that the tree* Jowin-^ u„',.n the 
 above mentioned natural bank (on which my wharf is built) are pretty good ovidenoe of il,ems!'lves 
 ot the truth of the foregoing assertion, that my wharf does not (as the plaintirt' pretended) traverse th.- 
 river or any part cf the river. What could you have more ? ' '"""''"^ ""' 
 
 •*•" f"r'h««'«ve renrons I inuMdJMenirronilhBJudg'nientdisinisi'inLMlie Anpellonl'i action I wniiU limit il.. u. i ,) u. e 
 
 « properly lo h.gh water mark, nnd onier the ren.oval olall work? b«y„„d this lino"" "" '*'-''P""''""'^ '''«'•' o( 
 
 Concluding this branch of the case, in the fifteenth paragraph, you judicially declare that for the 
 a6o«e reasons j-ou must d.ssen. from .he judginem ; Above an adverb, and a preposition not an 
 adjective, would not have found such a place in a sentence written by any man of ediicilion If 
 when the reu.ons precede the deduction you can say the «6oy<,' reasons, when the reasons follow 
 the proposition you can surely say for the below reasons or the under reasons : the one is not a whit 
 more barbarous tinm the other. Thus when in the very first sentence you decide that my wharf has 
 caused Brown ver;, -rea/ damage you might have elegantly added " for the before or the afier reasons " 
 Vou have, however I take it assigned all your reasons for dissenting, and characteristic as they 
 are, they are submitted for the consideration of a discriminating public. ^ 
 
 OF THE COSTS. 
 
 !«• 
 
 
 !«•• "On thu question of costs, t concurred with the mniuritv of the Court in relii^iiiD h<>.< ii' niil,'.. i.. ii.„ u i . i 
 
 pe™,n, and ..nd,ut«l hi8 own case. Thi, i, ,n conlbniity 'w,.h • he iurlp 'id™^^ tV«ncl.°t'o, "we",^".:^a^.';'uT Va'll'ir,"?' 
 
 .«lere..«.nt, „e neuvent « fatre payer de leur» pla.dc.ne, ou ecril,,,. , , sani a den.an.ler si! y iru, 3!/,Z JaVe. ,^l^rOb ITh ^gi'Jd^ 
 
 The rights of persons and ihe question of fees dependent thereon, arc to be governed by the 
 Public Law ol England, which in relation to that subject, is the Law of Canada. Ex proprio motu 
 upon the ground ol a supposed identity, never noticed at the Bar, to deny fees to an Officer entitled to 
 fees, in the absence of any«flence, without evidence, without trial, without complaint, and even after 
 my adversary had asquiesced m my claim to fees, is manifestly arbitrary and illegal. 
 
 _ But my claim is su.stained by several ordinances of the French Kings, by the practice of the 
 French Courts, and as the following extracts prove, by the rules on this subject, promulgated by 
 Commentators of the highest merit and authority. J > i" '"uigaitu uy 
 
 Paris, KditioH XO&.—tmkeil.—Vr U cmildmiiiUwu ,l,s Hiiviit, tax, H liqutdiUioii U'irciir. 
 " m:tJZ:i:Z^^Z\nt artllriu^nte:''' *• ""' >""' '" '■"""■'■ '-■"^■^•" "^'"y ""' '■' ^"?- « "-■"•- ••'"""■« 'I -t .'.- P»r 
 
 Le nuuftau ProHcicu Vraurais, pjr M. R,ui G„j(„r, I'rocunnr on /„ co,„ ,/n I'arUmtnt He Pari,, Edili.m ,ls !6«5. 
 
 Tilre. tic la tare dts diitens. 
 
 
 (• iirus que PadtforcU 
 "•>Ui,„dmu„eimm„„itc,tfX,n,pli,m.lc,li,^„3 AuneZ7'^Zi, L.Zfrl ^7n^^ «•» r»«««era,„„ ,/,. ,,„ lijniriti il 
 
 l.K JUIILsfKUDIONCE DU COIIK. 
 /-•. »,Htumtnt hi diri,io,„ dn conrs ,01. ir mine,. Par M. C. Ffrriirc, Livrr VU. Pari,, Edition of 16SI. 
 
 " Qnoiqrif rehii <fiii a ohiriin gain de mine ait fait Ini-memt lame, I,., icrilurea 
 M iJ(irtie,Kirre,/n'd ,i'e,t ja, juste que saparlie, qui a ,nccomM, profit.! di- 8,m Irnv'nil el il faul miUI „ .,„> ™.,.J„ „ i ^ , . r— - 
 
 autre q,n le,eta Jait. Outre que tela serait lujuslc autremeni, paree „"cc i . "Hluml oh^emfVain I ^»/^? '■","""' '" '"'"'" "" 
 " temp, pour d'autri's el fairo le memo gam qu'iltloit avoir fad en travadlina ou'lr l!,,!,,,.'™ "',1 !^ ,i" ";.''ir".T' ■ '™' '"1 «'"l*'y" «"• 
 
 3 ' • ■ ' '" ^''•i'- •'■• ^'•=''- • 
 
 ■,toulrfui,i/ okinidralaeondamnalitm de. deiien, eoiure 
 'nil, el 1/ taut qu'il i/guit rolidamnf nnnme si r'elait im 
 
( 1" ) 
 
 Catlf Civil iHt {'ttmrnflltatir \nf l^(hit"iinamf ih l()67, /w; J\J. St-ipii/oit, Vtnneilttt- (Uril, ;lr. Tittt 3Ir {Ors hi'^eilsA Ef'itiuii of 17'»6. 
 
 " Toutf pnrtic sciil pniMiimle on inliTVi'iinnir, qui siiriomliein muiiiu a im rt-nvDi (IScliimlnin!, a\'iH'alii>nH on r^Kleiiient iIb jiikim 
 " wrn conilninncM nnx dc|Hiis iiKlrSniiiit'nl, iKHinlntiuil In pruxitnile on Hutrtw (iimliin ili'< panivs, xniia mm »oii» prelejlr irciiiiile, pnnngc 
 " iPnv i>, ou (pielipiu B'llri! riiiisf ipiu if soil, i-lle ni piii.xe elre ilwhuinei^ ; OelemJoiis, li iios i-iiiim de I'lirlunii.Mii, (Jriimis Coimell, loiim il« 
 " uidt'M fl niilre'*, luw ('Oui>-. Kt-ipir-te di- iiolrr Motfl ft dii Piilnin 4t a tons aiilres Jlige.'*, de proiioiiti-r par liors dv rotir .*ni.H doiH'iin, VoiiIoiin 
 " qii'da .•.oifiit liixen i-n vtiiii do iiuln> pnMMiie on.oinianiv an ptolil de ccliii ip ■ liuni oljlfiiu deiiiiitiveineiil, eiuua' ipi'ils ii'imism-iiI ele 
 '* adjiif^eti, .Hans (]u'il» piii>t*fiit ciii' niodercH, l.qtiidu^ iij rO^HTvesi. 
 
 '• (Jaoii/ii'iiiir jjiiitiriiir I'tiil tllr-mdnr lea irriliiirt lit soti prorf^Jra ilfjieiif ii,' III i ni .mi t jmt mtriiis dli', pari-f qilM ne wrail pas 
 " juste que la partie qui n mm roinhe, pruliial du smi tniviiil. D•ulill•llr^, . Hui i|iii ii oblenii giiin de rnnsc nurii'i pii »iii|iliiver son tfiiiiw iHiur 
 '* d'aiitres el faiiH le nieine piulil dual il ^.•^illl pri\ o, s'll iie {luiivaii exiifer set* vacaliuii«." 
 
 I'rociimt Cicili ,.ii Clialelel, /'nii*. J.tHlioH of 177i), i > /'/iijiriuliuii, tii:. II, partie II, par Mr. Pigtail, Avocat. 
 
 " Lrs imicHrritra iKurriit rj-rrnr leiir miiiislirr juiir eiir, \mn ffinim-s, enlants, ft purents, li la difleieiue dea buiwcrs el autres 
 ** ollU'iers de justi'-e.'* 
 
 Cuvfirftt ('t lioniier, Tome \er, KliJan, 17i!l, Titre .\'.\'X[, l>ts IHpmt. 
 
 " II liiiit nil-ore olwervir, qiiequoique In partii^uil oinis lie deiniinder la TOiidamiialiondosdepens, lelte omission nedoniie point d'ntleinle 
 " a la sememe, el ii'eiiipcehe pas que la piirtiu qui sui.oiiibe n'y il.ii\e etre ii'lidaniuee, luiil de iiienie que si I'on le» nvuit deiiiundez. ]jj 
 " raison est, pane ipi'en liialicie de eoiitnit. el de >entellee.« on Sllpplee aux rhoses, ilc ijlii/iiit rfrisnimil' rit mrlis mifiratse, (Has; ill I. 3 
 " § « rem, mho l'oit,i.isis, ih U-^. 3. Anjter. tieria. 5. Matlttiil. tiui^ral. SI. Hebiijl. trait, de iVi/cwa. art. 2. Gl. iiii. num. 4'J. Uotr. deri.i. 
 IH (r. V. fjit. 5j. (J. ihi liu'idii.'* 
 
 " Cello i-oiidn iilioii clnit si indis|HMi«8lile. que si le jii-e n'ii\ait pas piononee slii- les deiieil.-, il elait oiilige de lis paver en son noin 
 
 *' proprea eelui qui aviiit ^ni:.'iie lu prm (w par s4iu JiijiieuieDl." 
 
 Thu Judj^es ol'ilic Coint orQiiccn's BciK'h licins^ divided «m the (incslion of costs, directed tiie 
 the Prothonotary of the Sr.p.'rior {(Hiit to eritify llie practice. That Oilicer accordiiiglv ccitificd ihat 
 since Sir .lames Mii.irt hecaiiie Chief Jii>lice in October, IMS, tlie nniroriii practice had been to grunt 
 costs to .\tIorneys who conducted their own causi «. 
 
 In proof of this practice during a period of twenty-three year.s, I would cite the cause No. 846, 
 decided upon the 2n<l .liine, 1846. The Fiainlili; '' James Mof:, Advocali;'" on that day obtained 
 judgment against the two defi iidants, I^anip.son and .Arnold, and ahhougli he had conducted liis own 
 case in person, the Court granted Ices. That Conit was composed of the four Judges, Chief Justice 
 Sir James Stuart, and Justices Howen, Panel and Hedard. A dill'eiTnt couise may have been pre- 
 viously pursued, but thepraclice was thus settled and adhered to from the above'-mentioned date. 
 It is inconceivable that you should ignore the exist, iice of that practice. To prove it the case oi' 
 Molz ought to suilici'. But in April, 1839, three similar judgmenls were pronoHnced--Firstly. No. 
 632, in wliicli J. 1'. Ahem was Plaintilf, another. No. 613^ in which J. W. Lloyd was Plaintift', a"'! a 
 tliird in which Felix Fortier was PiaintiH; all three practising Attorneys, as you know. I submit 
 further that the case of a defendant is more favorable than that of a Plaintifl'. Then lliere were in 
 1856, No. 2133, Allen vs. Gilbride, in ISjT, No. 1417, Pentland vs. Smith, in 1859, No. 1959, Pent- 
 land vs. Bell, and No. 2147, Pentland vs. Bell. 
 
 Tile series you see is unbroken and, as Judge Momlelet intimated, in the District of Montreal, 
 the question has never been raised. 
 
 In conformity with that practice, you yourself Mr. Justice Duval hwVc granted costs in such a 
 case. It bore the So. 1085, and by the judgment dated 28th June, 1851, which you pronounced, 
 fees were allowed to the Plaintiff, Lawrence Ambrose Cannon, who, suing as Advocate and Attorney, 
 had appivucd in |)ersn-,. hi that case too the Attorney for the Defendant, a widow, had compas- 
 sionately m:ule I lie olijection. The reason assigned lor denying me fees was, however, that I con- 
 ducted my own case— a point relative to which no kind of evidence was adduced. 
 
 I am in possession of olliee copies of your judgment, nor am I aware of any adverse 
 decision, and the Court certainly citeil none. 
 
 Judges who adjiiilicate upo.i the fact are apt to sneer at Juries. Jurors are certainly not perfect, 
 but they are a check iiiion Judges. The latter ate no better than other men, and I have known 
 Judges much worse. To grant or deny costs at pleasure w as in France a common mode of favoritism, 
 and in that country the Legislative power .seems to have been ince.s.santly engaged in promulgating 
 edicts for the repression of that abuse. You will lia\e noticed that the successful suitor who was 
 denied his co.sts had aright of action against the unjust Judge who pronounced the judgment, and it is 
 my intention to insiiuiie against you an such action. Of couise, we shall then hear a great deal of the 
 iipmimities and piiwleges of English Judges, but on that occasion I shall have a word or two to 
 say and wont anticipate. 
 
 You rely upon Joiisse, and make light of Serpilloii. The diU'erence between them is this, that 
 Jousse gives his own opinion, Serpillon the opinions of earlier writers conlirmed by his own. But 
 .fousse speaks (miy of the Avouat ? How does that apply to what from your judicial eminence you 
 call a " Practising .\ttorney." Then Jousse admits the right of the yltv/aMo sue for compensation 
 by a distinct action. The two authors then only diller as to the manner in which the claim should 
 be enforced. According to JoussiM could bring an action to recover " des dommages et intert'ts a 
 cet egard," against my adversary. According to all the other authorities I am entitled to recover in 
 the original action. Which course do you prefer, a single action decisive of the whole controversy 
 or a series of them } 
 
 It. " Were il requireil lo eile any caselo show llie wisdom of ilie Hide I'm; present niijfhl very properly l« scleeled. Tlie lenl of tlie 
 " Rospoudenl, earrnil to e\ees.s, has not only eoused an^'iy diMiissioiis lietwcen him anil Ihc Experts, liul il has led lo violent allcreallons 
 " Willi ul leasi one wilness, who lias insliluled againsl llie Itespondenl an arliiin of damages tiir slander, lately subniilliil to ihia Court." 
 
 An Englishman, arrived in Canada for the first time in 1854. He reached the Prtm/t of Beauport 
 in December, and probably never saw the river free from ice and snow until May or June, 1855. 
 "^' ■' ' ' ' ■ • . .„ I .1 • 1 _. _i. . 1^ .-I _ .1. 1... 
 
 ; 
 
 111 wimiii,.. I, ,ii..i [Mwwai'ijr iicvri saw llie riviT lice iroui ICC and snow until may or June, isoa 
 Neverthi'lcss produced as a witness by my adversary, this mtin undertook to describe the conditiot 
 of the river in Se))lember, 1852, two years and three months before his arrival : and in your judicia 
 capacity you would have interdicted such remarks in the exercise o/ the right of self-defense, ai 
 
 on 
 
 I 
 
 as 
 
( H ) 
 
 Would l)(^ iiiiliiiiilly wruriju; from Miiy (li-fi-ndaiit on su<\\ iiii occiision. "An if, mid if says ihc 
 Lawyer," iiad die case been youis would lliat have hocii your opinion ? Your stepson in !u\v seems 
 1o lia^'e imbibed some of your views, and he evidently imagines himself io be invested with some of 
 your autiiority. He has accordingly made a report wliieh has been severely animadverted upon by 
 all the Judges, your.-elf only excepted. I am not however aware that, he complains of my personal 
 deportment, and on the contrary I have understood, that ail the experts had used in referenc(^ to my 
 conduct ill their presence complimentary language. It is certainly my earnest desire, and invariable 
 custom to be civil. It is inJ; '-d with mc a constitutional iii-cessity, but then one occasionally meets 
 people so coarse and swinish ! 
 
 A pr.ietising .Attorney waging an aggres.sive warfare might be obnoxious to the suspicion of 
 teriorism which you sujigest — but it cannot apply to an unhappy man, acting as I do, purely on the 
 ilefensive ! Then you know that there is a canon which settles the point, cessante ratione ccssal lex. 
 
 The rule that you have laid down is, however, as a mea.-*ure of precaution, so easy ofev,|^<i()ll as 
 to bo quite inoperative. A jiractising Attorney who shoidd desire to flourish in history as a 
 " terrorist," would always find an accomplice ready to lend his name, and to sign all tli(^ requisite 
 papers — the very case supposed by Gastier in lt)65. 
 
 Could you but " lay down a rule" to prevent the rich suitor from grinding the poor — could you 
 hut inicrpose, by any means, lielween the pettyfjgger and hi.s victim — what a public benefactor you 
 would become. 
 
 lO. " •Serpillon'> opinion (cjtod l>y ttie ittisponJenf), ix ot'ljltlc wei^lit. He rcrere to no docieions of tlie Courta, and tiiM r.-Rsoning is 
 ** slrott^jly ngainsl liif* opinion. Hf »uy.i a lawyer ouglil to In: paid {or llis worli. This granted, wliril answer could lie given to a shopman 
 '* or ineclinnii-, elaintin;^ to tie indeinnilied furiosi of lime f Wiiat iiniounl could the Jndge nitow ? Certainly not the lees given by the 
 *' tnrilf, which were nevt i intended to indemnify a par'.y (o the suit for liis loss of lime.** 
 
 Your above written reasoning is not convincing nor indeed quite intelligible. Docs the Statute 
 exclude an attorniiy from being plaintitl' or defendant .' Is he less an Attorney liecause he is plaintiff 
 •r defendant ? Is there not a tariff of fees for Attorneys and is there a like tariff for Traders and Mech- 
 
 ,.,:„.. 3 I.. „ .:..: — ..4. .... i.:u:«„.] i... 1 c L,,i.i: 1 — 3 i „-i «i 1,1 u i-_ij!__ 
 
 * 1 ^ii:ii:mj(ijii ; i r» iiii ii- iiui ti laiiil Ul ict:r^ n»l i^i ivil in: V :^ dim iff liieii a. lll\c: Icll 
 
 anics.' Is a practising attorney prohibited liy law from holding real estate .' And should he as holding 
 real estate be dragged into court, and be kept there for nearly ten years, is he to be stigmatized as 
 " the terror of his neighbors " because lie defends himself successfully.' 
 
 Mr. Justice Uuval, the power of an Attorney for evil is contrcled by the power of the court for 
 good. The Attorney can be at all times restrained by the court, always promptly and effectually 
 restrained : but the Judge is scarcely within the reach of any human tribunal. Without the interven- 
 tion of the Royal prerogative of mercy, Gray, whom vou condemned to death at Montreal, would 
 have been hangfd ! Anc}<»b: enquiry into the failure of justice in the case of Corrigan having been 
 effectually stifled, the manes of that martyr are not yet appeased. ' ' 
 
 Your eyes then might have been profitably turned in another direction, but had I been a practis- 
 ing .Attorney I durst not have compromised the interests of my clients by such an enormity as in 
 dissecting your opinion you will hold me to have committed. I am not at all insensible to the losses, 
 the difficulties and the dangers attending the vindication of my rights, but I am ashamed of the fear 
 of the Judges exhibited in so many quarters, and having suffered prodigiously., being indeed without 
 hope, I borrow courage from despair. 
 
 A. GUGY. 
 
 't 
 
a