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In a Cause Between James Shepherd, Esquire, (DeJ'entlanl in the Court below) Appellant ; AND Jean Baptiste Maclure, (PlaintiJ'in the Court below J Respondent, THE APPELLANT'S CASE, _l HIS was an action of Revendication brought by the Respondent against the Appellant in the Court of King's Bench, for the District of Quebec, for the recovery of a large quantity of timber which the Respondent alleged that the Appellant detained from him. The Delaraiion states that on the fifteenth day of July, one thousand eight hundred and ten, at Quebec, the said Respondent was proprietor and in possession of the quantity of timber therein specified and described. That on the seventeenth day of the same month of July, one Mary Barrows obtained permission to have the said timber seized as her property, and accordingly on the eighteenth of the same month sued out of His Majesty's Court of King's Bench for the District of Quebec, a Writ oi arret simple, returnable on the first day of Octo- ber then next, commanding the Appellant, Sheriff of the said district, to seize the said timber. That the said Appellant did in consequence seize the said timber, and dispossess the said Respondent thereof. That after the return of the said writ of arret simple, to wit, on the ninth day of October aforesaid, the said Mary Barrows discon- tinued her suit and main levee was granted of the said seizure, and the said Appellant ordered to deliver the said timber immediately to the said Respondent ; but that the said Appellant hath hitherto re- fused to do so. The conclusion of the Declaration is the ordinary one in an action of Revendication. To this declaration the Appellant pleaded several pleas ; 1st The Generalissue. 2d That on the same eighteenth day of July, one thousand eight hundred and ten, the said timber so attached by the said Appellant Was by the irresistible force and violence of the winds and waters carried away, and the said timber (saye aod except a certain portion thereof Appellant. ' negligence on the part ol the said saidp^i^^'^irul^d^Pge-Jit^^^^^^^^^^^ expcnces in recovering and f v"n^ a "l.T ff great and heavy was possible, and had recSmeda„d'-Hf >,'''" ''"''^ ''"^^" as a part thereof, viz. &c. ^''^'^ ^°'" '''« "''I Respondent "aivag'i'^'f t rd"tt'^.J::iS°^;rbeV^p^"^^^ ;" -^ «^°- ^^c to w.t. to the sun. of three hundred poun"r°""'''^ '° ' ''•^^e sum. That the said appellant had » »,,»„• i /• said .i^.be^ and a ri,^fc to hofd andl ? h? '"^ P"^!''"^^ °" «''^ said sum of three hundred pounds as S t ^17 """' ^' ^'^^ '''« him. Founas, as his lawful fees were paid to is said^lbolt'th '"lalfagV" &i' ""'^ " ''''"'' '^^-"S out all that To the first plea the Respondent fyled a General Replication. al!Jn7teld^:feraVrTh:Nr.Jr^^ t'h^ 'he Respondent said Respondent had notified the ApDeHanr I ,l' ''"^ ''"'^''' '^"^ sa.d timber and to employ men in Sh^ , »ake great care of.he preserve the same. whi?h l^hrAp^el anf had Z?^,' "^ «""^ ^"^^ any part of the timber was lost it was bv rh. "ot done, and that, if pellant, &c. To the third plea a Dechl^ '"^^" ^"^'' °* ^^e Ap. stantially the same as the abovr "'''" ^^'^ also fyled, suL Replications were fyled bv tfi^ A ii answer,, and .h. i,sue ,h„i pe„i,ed X !hc' d^l'S '3""' both which issue was joined. ^ ^'Von^j t/j droit, upon .0 */A;p^EsSdri^:,\^trs °^'r "-'^^^-^^ the demurrer with costs. '"^^ ^°"" ''^^'ow over-ruled .he.aScrirof"e^^idt^V"r;j:i1"P^ the RoU of £«,«,,,,, t,, the incidental demand. ' ' "^°" ''^'^ '^•^'"'•nd i" chief as upon ten. Mary Barrows/emitti fcrse!l'se?°"'''"^ ^'^^^ ^""^^^^d and ieigneuries of Saint CharLs BnnL ^"^"';."''' °^ '^^ Fiefs and Bourg Marie del'Ouest and L half of°R"' ^°""-g M«"e de l'£st. Court of King's Bench for the District TA^T"' ""^^ «"» "f 'he ^'vendication to :,tt»ch , !,.:„!.f:""'i''L?f . Qwbcc a writ of \^».v >d altogethfr lo, the part ol the said Mimeoffylingthe I great and heavy iie said timber as said Respondent 1 in and about the !d to a large sum, i privilege on the e until as well the fees were paid to iving out all that ntal demand for last mentioned 1 Replication, he Respondent said timber, the grtatcareofthe r to guard and 'ne, and that, if tta of the A p. »lso fylcd, sub. two last special d in chief. he Respondent en droit, upon e Respondent ow over-ruled Enquetet, for chief as upon )w; — lundred and he Fiefs and rie de J'Est, ed out of the rit of Saisis ossession of o her. The The ground of the claim and seizure wai that th'5 Respondent had cut thi,i Timber upon her lands. Un the eighteenth of the same month of July the I^ailifF em- ployed by Mary Barrows proceeded with the SherilFs warrant to the place where the Timber lay, at some distance above Qucbrc for the purpose of seizing it.— The Bailiff offered the Respondent to nominate him Guardian of the Timber and to le we it in his care and custody, which the Respondent refused. The Bailiff then nominated one Wiseman, who resided nrar the spot, Guardian of the Timber, and thus acquitted liinisclf of hii duty. Early on the succeeding morning a violent storm nrnse, which broke the fastenings of the raft, to which a guardian liiul been so appointed, and drove it from its moorings. The wciglit of tiie raft and its unusual height above the level of the water gave to the wind greater effect. Upon this accident happening, the Appellant used every exer- tion to recover the timber and laid out the large sum oftwo hundred and fifty pounds, in recovering a considerable portion of it. On the twentieth of July, (one day after the raft had bean dri- ven from its moorings and carried down the river) the Ktspondent notified the Appellant to take great care thereof, employ men, &c. and it is this notification which tfie Respondent refers lo in his sp.cial answers. — It will be recollected that the seizure took place on the evening of ihe eighteenth that the Respondent refised to take charge of the raft or to assist in keeping it, and that between the evening of the eighteenth and early in the morning of the nineteenth when the raft went adrift, it could not be expected that the Appellant could tnke all the precautions, which an experienced lumber dealer might have used, or could even in this short interval procure the men necessary for the purpose.— The Respondent, feeling the weak- ness of his cause on this point, deemed it necessary to make the pro- test of the twentieth, which is drawn up with more ingenuity than honesty, in a way to produce an impression that the 1 imbcr was still in the possession of the appellant, without directly siatmg that to be the fact, which the Respondent knew could be shownlo be otherwise. Upon the return of the Writ of Saisie Rcvendkatim, Mary Barrows and the Respondent confederated for the purpose of throw- ing the lo^ f" this Timber upon the only person who was entirely innocent i' iLc transaction, viz. the present Appellant. A Consent Rule was drawn up, whereby Mary Barrows discontinued her suit, and the Appellant was ordered to deliver up the Timber seized to the Respondent. — It is hardly necessary to observe that this order did not operate as a final Judgment against the Appellant, and left him at full liberty to shew any good Cause which he might have for not delivering up either the whole or any part of the Timber in question. From the above plain statement of facts it is apparent, that if it were even taken as a principle that the SherifiF is bound upon a Seizure, uuder a Writ of Saiiie Rcvenduattuu, at ius own costs to employ men and manage the effects seized, every thing was done by the present Appellant, which the time and circumstances permuted; Ihat no „b,cc,ion-,hc recourse' o 7c RernSJh '^"P""''^"' made . Thr Curt hrlow npp.ar ,o "rve ffj'^r r'""''" ('-^ """'"'''•a '"R " for Krantrd that .ff Shery^i„ 'ht'" '"' ""° "^°^ f^"'" '«k- procr.s,or,he Courts, is Ii;ble o ^" '^°""'^>'' "''^""ng .he civil ".- //«M.,.r of the Fr;nch Court, and thi? •'"""'• nbI.«a/lon, than of .h:,s error having been fallen imoT,, " "°' 'P'^''' ""t^"" Council on an Appeal from a iSerne^^^^^^ h«s Ma|es,y in his Privy Co,,rt, Lord Camden said that " It u,.«f ""^"^^ '" ''"» HonorablJ should know uuh prccsion under whaf' ^""«^"*^"ce that mea ;• Lows of Canada beiuff f)v ,h oLk a '''^^ '"'^ ""•"«• The " c.sion i.) all civil c s'l', no o^ r' k'V '""'''^ ^'^'^ ^^"'^ "f 'le- ;; ppcrate there, excep in'a, L*^, it"l'\^'T ""i ^"«'«^'J <^""''i nuroduced by an Ord.r^'nce of ho 7 *" ""'^ly ^"^ '^''"^"''X bare mention ^f the word Sheri J in"-, oTv"'"' I" '''*>' "^^' '^o eHfct of introducing the wh, I V i r fi''";'"" should hav^ ,he •• that od.ce. was aSSd Tha o"''^ "'.English Law rela.ue td " passed and hardinance ;; gland. If .he C)rd.na'ncc had b :".t^'t"*'"\"f'.^"^ °^ ^^^^ «h.ng to do with ci\il proccsrunder » i ^ """"j^ ''''^^ ^ad no- " the Ordinance that gives hWni.Av ^ ^^"^r °' ^'^''^^a. It i, •• further than it charJr I i J. ''"^'^'"'^n of civil process and :; '^h-eadoVtedteaw Jf tSanTv^^rth"''" !,'" --"enSI-d " on^ht to have been done LclJlrTi '^"'^ /^g'*"^ to escapes, it ;; t e officer tnight l-t^Tn^ ",, r'tcTlf S^ '^"^^s' "-" " ofhce under such conditions. Sir L ovd K.n ''^PP' "^ "'« Takmg It then both from .he authorhv Ch^, ^°" ""^"^'^'^ '" t^is." C.S.OP, that the Sheri/r is not liab ef" .^hr^,!''" TT'^ "^'h'"' ^e- gesh.morgivinghisobligatbnf ^J^i^e^^t^n^' Ordinance char. 1 decision and takinir it that l„c r,N ' '''*^"' consistent with this of .he Huts.er 7 Ih F e rfc it^ ^ T^'T''''' "'""ho e against him in the Case before the Cou'rt. '''" '^^'^ "'^ ^"'«» '«/ .he^JScS^^rSr^:^^j;^^-fShep. .>rd. Ap. lestv in his Privy in this Honorable eqiience that men are acting. The : the Rule of de- f England could ly and cxnressly To say that the should h.iv.« the Law relaiive td re- the Ordinance nal Law of Kn,- IH have had no- Canada. Ii js j;il procesg, and 1 it was intended I to escapes, it i language, that accept uf the cceded to this." "i'lg of this De- ^rdmance char, siitent with this sive with those t no action lay > h'm at)d for '1 he was com. t a tiuardian. tne defendant P- 196) and if ^ed would be for the keep. (•J Guardian & officer of the tie par Corpt 640 & Ornnet was bound to lyof the de. ** Plaintiff or t if the Guar= eiiects seized. he, not ihelFuisiier shtll be compelled thereto by imprisonment—No one Case can be shown in the Law of this Country nor even a dictum produced that the Seizing Officer who has appointed a Guardian to effects seized is bound to produce repraenter those effects. It is also well worthy of remark, that by the Law of no Country is the person upon whotn a Seizure is made, prevented from doing those things which ere necessary for the preservation of the thing* beizcd, and by the Law of England, he is bound at his own risque to do so. It has been decided that Raw Hides could not be tanned although alledged to have been done to preserve them from Rotting, and the principle has been carried so far that it stems to be the Dtttcr o|)inion that milth kini^annot be milked by ti'c diuiaiiiorsin order to prevent them from being damaged. (Bradbyon Uisirtss'.'S, p. 241.) Tho Right of the owner to Milk his Cows and to give food to and take care of his Cattle under Seizure, is recognized in the Edict of the Month of September 167.1, asalso the obligation of the distrainer to furnish the means to the guardian if the owner neglects it. (Jousse P- 297-) "he Court below however (dissentiente Mr. ,'ustice Kerr,) pro- nounc*. i the following Judgment : The Court having heard the parties by their Counsel, non the pleadings and proofs adduced as well upon the issue joined upon the peremptory exceptions per/)etue/ at droit as upon the ilrfcnse au fond enfait in this cause filed, it is considered, ordered, & adjudged that James Shepherd the defendant in this cause do en or before the twenty-fust day of November next, well and truly deliver over to Jean Baptiste M'Clure, the plaintiff in this cause, all and every, the Eieces of Pine, Birch and Lath-wood, Spars, oars and Staves, now eing m the custody or possession of the said James Shepherd and being also part and parcel of the Pine, Birch and Laih-wood, Spars, Oars, and Staves by him seized as Sheriff of the District of (Quebec, under and by virtue of the writ of attprhment issued out of tliis Court, on the seventeenth day of July, which was in the year of our Lord one thousand, eight hundred and nine, at the suit of Mary Barrows, of London, widow, against the said Jean Baptible M'Clure ; and it is further considered, ordered and adjudged that by Expers to hv. named by the said parties at the office of the Prothonotaries of this Court, on or before the tenth day of December next, and in default of such nomination, by John Campbell of the City of Quebec, sworn Culler of lumber of and for the Port of Quebec, the quantity, quality and value of such parts and parcels of the said Pine, Birch, and Lath- wood. Spars, Oars, and staves so seized as aforesaid, as the said James Shepherd shall not deliver to the said Jean Baptiste M'Clure, shall be asccrtamed and estimated, with power to the said Expers, and in default of the nomination of the said Ext- 'rs with power to the said John Campbell to examine witnesses aftei- bting duly sworn; of all which It is ordered that the said Expers anA in default of such Ex- ftrs the said John Campbell do make report to this Court on or before the first day of February term next, and that such further pro- ceedings be had thereon as to justice mav aooertain. Costi tphmvpA. The present Appeal has been instituted fromthe above Judgment, Quebec, 15th July, 1814,