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PROVINCE OF 
 LOWER.CANADA. 
 
 Court of Appeals. 
 
 tN A CAUSE BEIWEEN 
 
 JOHN JOHNSTONE, 
 
 (Defendant in the Court below) 
 
 Appellant ; 
 
 AND 
 
 CALVW FULLER, 
 
 (Plaintiff in the Court helow) 
 
 Respondent. 
 
 AesPondejsts case. 
 
 ,. irpHIS action was ipstituted in, the term of February last at Montreal. The Plnintiff 
 1 . .1. r , \ I"!* '^"'"'■at'P" 'ft fp-'l!' M whereas at Chatham in the District of Montreal, on or 
 ,,y„ aJjowt the firstdayof May,one thousand c^tit hundred and eishtccn, by a certain covenant or agictnent in 
 writing, duly made and executed, the proper hands of the said PlaintilFand the said Defendant and one 
 Duncan McCallura, being thereunto subscribed, he the said Plaintiff, on the one part, did in and Ov the 
 Mid agreement denuse, lease and to farm let to the said Defendant and the said Duncan McCallum, for 
 the space or term of two years, tommeueingfvom the said first day of May, ouc thousand eight hundred 
 antl eighteen, a certain farm situated in Chatham aforesaid, anclknown by lots nu-iber ton and eleven 
 «u the.fourth concession, and the said Plainlitf did further bind himself to put the dwelling house, barn 
 and f.^nc-s upon the said farm la good repair, and also to find seed for the first year, likewise, one Cow 
 entirely fcr thq use of the said Defendant and the said Duncan McCallum, and the said Plaintit' Jid agree 
 , , to h.Kl and provide one plough, one harrow, two hOes, two scythes with rigging, two rakes, two forks* 
 , one axe, one shovel, wiii' any other necessary implements for cultivating the si.id farm, the said tools to 
 be returned with the farm,, to wit, after the expiration of the said Defendant's lease, all tare and wear to 
 , be excepted, the said De/endantto carry the said tools to the Smith and the said Plaintiff to be accoun* 
 , table to the Smith for the repairing of the 3aid tools ; and the said Plaintiff did further agree to bind him- 
 self to hnd one pair of oxen with sled, cart and chain-yoke, for the use of the farmers, to wit, of the said 
 defendant and Duncan McCallum, the said oxen to be given sound and returned the same, and if any 
 of the cattle should die by sickness it should be to the loss of the said Plaintiff; and the said Plaintiff 
 rurther agreed to give a garden for the use of the said farmers, to wit, of the said Defendant and the said 
 JJuHcan McCallum ; and the said Defendant and the said Duncan McCallum on their parts and in con. 
 sideration of the said lease, promise and undertakings of the said Plaintiff, did promise and agree amongst 
 other things to give to the said Plainitff the one half of the hay, the one half of the grain with one third 
 of the potatoes, ^/iero/iofca//io«n<j«g-w value to seventj/.Jive pounds cwrent money of Loacr-Canada, 
 raised and produced upon the saH/arm, being due and deliverable to the said Plainlif by the said Del 
 femluntfor the use and occupuiU J the said farm as aforesaid— mid that although the said Plaintiff had 
 at all times been ready and willing to fulfil and had fulfilled and performed all and every the obligations, 
 matters and things which in and by the said covenant he was bound to do, yet the Defendant although 
 often demanded, had neglected and refused to deliver to the said Plaintiff the before mentioned quantity 
 of hay, grain and potatoes or any part thereof, since the same became due and deliverable, nor had he 
 paid the value thereof in money to the said Plaintiff, but the same to do had wholly refused and still re- 
 fuses, ' 
 
 To this the Plaintiff added a count in iWeA/Y«/«,v nMf/OT;)s?V for the use and occupation of the said 
 lot of land or farm, and a quantum jiieriiit thereon, i.nd concluded that the said Defendant might be ad- 
 judged and condemned to deliver to him the said Plaintiff immediately, the one half of the hay, the one 
 halfof the grain, and the third partof the potatoes, forthe causes mentioned in the first count, and in 
 default of so doing, to pay to him the said Plaintiff, the sum of seventy-five pounds current money afore- 
 said, due to the said Plaintiff for the causes mentioned in the second and third counts, w ith interest and 
 costs. 
 
 The conclusions of the Respondent's declaration relate expressly, tst, to the delivery of one half the 
 hay, theone half of the grain, and the third part of the potatoes forthe ciuscs meniioned in the 1st 
 count, and in default of the Appellants so doing, then to pay to 'he Respondent the sum of ag75 current 
 money, forthe causes mentioiedin the 2nd and 3id counts of his declaration, with interest and costs of 
 suit. 
 
 The Respondent filed a paper writing, Intituled, " Agreement between John Johnstone, Duncan 
 McCallum, and Calvin Fuller," and examined three witnesses, 
 
 ^ The first witness Levi Levit stated, that the Appellant had been in possession of the premises described 
 in the declaration, from 1st May, 1818, that he verily believed that the half part of the produce raised 
 
 yearly 
 
 ii 
 
yoRrly u|)on the «:iii1 farm t-ould not to Lo cstlmuti'd at {tin than sevciity-flve pounds, and'tliat the Plain* 
 tiff oii^iit in jiMii- ;inil iti n-asou to icceivi! that luin for the yearly rrnt of the said farm, and that 
 hf^uoiiM uilliiij^ly ji. 'liio Ucspoiuleiit sixty pounds fur the half purl of the producu raiaed upou the said 
 farm, &c. 
 
 The second witiip".). 'William Heathe, was prr-^'iit when the coTrn;iiit or a^rprment, filpd In the said 
 causi', ».!« si .^nr'tl 'ly llir piirti a and si;iiit'd the s iiin- as a witness to tin' i \ccution therrof, that hi' knows 
 «• thi' lli'«jonilrMit 1)1' a man of good iliiriicicr, ,"/r(i! he the, lltMpoinlcnt iirrfurmeit ami J'ulfttkd aU 
 '^ Hie o! r^itlioiu i,! Ih^ siiid agreement hiniUir^ i^ii liim, and tliul lli- Appellant never complained to 
 " hiin/j«///n; Hi sp.iiuliiit had never J'lil/illcd l-ir .s(/»ie, that the saii! Respondent ought to receive for 
 " the yejily rent of tiio same, from seventy to f-'venty-five pounds, in consideration that he the said 
 <' Respondent furnished all the farniing implements and cattle necessary for cultivating the same." 
 
 Tlie lliird wilneMi, J(ilni .McCallum staled, that he had " a knon|pd(;e that the Respondent leased 
 *' the farm, situate in Chatham aforesaid, to the Appellant as mentioned and described in a certain 
 ♦' a;;reement in writ nij hetwecn the Respondent, tlie said Appellant, and one Duncan McCallnm, that 
 " the! Uespondent leased the same on the (irst day of May, one tliousand eight hundred and eighteen 
 " for l«o years then next cnsuins;, and that on or about the third or fourth day of Mny, in (he vear last 
 "• aforesaid, llie said Appellant entered upon and took possession of the said far-n, and from that timi; had 
 " continued in the e»jo)ment and possession of the said farm, that he kne» most all the matters and 
 " things nentionrd and stipulated in the said agreement, and had a knowledge that the said Respondent 
 " on hii part did perfonii aiul fnlfd every thint! incumbent upon him to do, as stipulated in the said 
 <' agreement, that ht worked upon the said farm for a long time, and that the same was in good irder px- 
 " ccpt the pasture-fence which the said Respondent was not bound to repair, and he very believed that 
 «' the half part of the produce raised upon the said farm yearly, and each year, since the said AppcU 
 " hint had occupied the same, ought to be worth at least sixty or seventy pounds a-year." lie. also 
 " proved the signatures to the said agreement." 
 
 Upon this evidence the cause was l.rard upon the merits e«j)0//e, the Appellant Defendant in the 
 Court below not having thought fit to lilc a. Plea. 
 
 And on the 5th Ju'i ■, 1820, the Court bdow pronomiccd the following judgment, '• the Court having 
 «' heard the PlainlilV I Ms Counsel, tlio Defendant net having pleaded to this action, examined the pro- 
 " ceeding and evidence of record and deliberated therto;i. It is considered that by virtue of the lease 
 *' made and agreed on between the I'lainlilf on the one part, and the Defendant, and one Duncan Mc 
 *' Callum, on the other part, in the beuinning of May, one thousand eight hundred and eighteen, of the 
 " faun and premises mentioned in the declaration in this cause, for the space of two years, to expire on 
 " tiie first day of May last, the PlaintilV is entitled to veenver from the Defendant one fourth of the hay 
 " one fourth of (he grains ;ind one sixth of the imtatocs raised and produced upon (he said farm • 
 " and it is tiierefore ordered and adjudged that the Defendant do deliver up to the said Plaiutitf in the 
 «' space of eight days after the service of this judgment, the just fourth part of (he hay and of the 
 "grains and the just, sixth part of the potatoes raised and produced upon the said farm since the said 
 " lease, and in default of so doing, it is ordered that he do pay over to the said Plainlill", the sum of thirty. 
 " live pounds, current money of this Province, for the value thereof and costs of suit." 
 
 It is from thisjudgmont, so favorable to the Appellant(referenoe had to the cvidtince) that the present 
 Appeal has been brought. 
 
 C. R. OGDEN, 
 Attorney for Respondent, 
 
 Quebec, 15th November, 1830; 
 
 -ii 
 
1, and'tliat tlie Pldn« 
 e said I'lirin, and that 
 : raited upou the said 
 
 nont, filed In the .-.aid 
 herrof, that hi' knows 
 meil antt fulfilkd alt 
 [ never complained to 
 it ought to receive for 
 tion that he the said 
 ilittg the same." 
 
 e Rrapoudeiit leased 
 Icscribed in u certain 
 mean MoCalliim, that 
 uidred and ci^htcpn, 
 klny, in Ihi; ynr lust 
 id from that tini(! had 
 I all the matters and 
 t the said licspondcnt 
 ipulated in the said 
 was in good irdcr ?x- 
 he very believed that 
 ince the said AppcU 
 Is a-year." He also 
 
 lilt Defendant in the 
 
 t, '• the Court having 
 n, examined the pro- 
 ly virtue of the lease 
 and one Duncan Mc 
 
 and eighteen, of the 
 to years, to expire on 
 ine fourth of the hay, 
 
 upon the said farm ; 
 e said Plaiutitf in the 
 of the hay and of the 
 lid farm since the said 
 illir, tliesum oftliiity. 
 it." 
 
 tince) that the present 
 
 R. OGDEN, 
 for Respondent. 
 
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