y FACTS DISOLOSBD Ilf BOMB UNEEPORTED CASES. ^^ V PUBLISHED FOE THE PUBLIC GOOD, BY A VICTIM. , > (A Gvgy) " In En((Iand every man's honse is his castle, " not that it is surrounded with walls "and battlements; it may be a straw " built shed; every wind of heaven may " enter it, but the King cannot, the King " dare not." Lord Chatham , J' 2 7 XjX n V J' FACTS DiaOLOSED IN Bom UNREPORTED CASES. PUBLISHED FOR THE PUBLIC GOOD, BY A VICTIM. " In Enjifland every man's house is his castle, "not that It is surrounded with walls "and battlements; it may be a straw " built shed; every wind of heaven may " enter it, but the King cannot, the King " dare not." Lose Chaxhah. K -54 3 244854 PREFACE. The French Law, as it stood in France before the Revolu- tion, obtains in the Province now called Quebec, and in France at that period, the Parliaments were Courts of Law. On the first Wednesday after the great vacations, the French Parliaments held a full session. The deficiencies in the administration of justice, and particularly in the course of business, were then discussed, and measures were taken for correcting such of those evils as were then apparent. The first President and the Crown Advocate were alternately bound to report to the meeting. From the day of assembling, their speeches were called mercurials — this name was also given to a reproof or rebuke — because the members on this day received their reprimands. This was a sort of periodical moral purification. Here, after the rising of the Court, we are content with opening the windows and admitting fresh air. In France the aristocracy over-topped the Judges. Here, however narrow the intellect, bad the habits, scanty the information, vulgar the manners, capricious the coniuct, over- bearing the deportment of a Judge, however incapable, incom- petent, unworthy or vicious, he has no social superior. Every Judge is absolutely and literally irresponsible ; the difficulties and embarrassments impeding the progress of every im- peachment of any one of that class proves that. All Judges may commit with impunity all kinds of offences, even to being drunk upon the Bench in open Court. Judge Aylwin has proved that. Dukes, Marquises and every member of the aristocracy in France despised what they called " La noblesse de la Robe." Hence it must have been comparatively easy to bring a Frenclt Judge to justice and to inflict on him condign punishment. This was known, and the Judges feehng that they would be unceremoniously dealt with (a sensation unknown to Canadian Judges) were always more or less on their guard. In France, too, the mercurials above mentioned tended to excite in them a salutary dread of exposure. Here the Judges have pecuniary independence, official power, social superiority. They have also in their hands the fortunes, the lives and reputations of every member of the community. It is by no means sjirprising that their heads should appear to be turned. They are free from official checks, exempt from mercurials, nor dare any one call them to account : on the contrary, as arbitrators of the fate of all their fellow- men they are feared and treated with affected defer- ence even when held, as often happens, in absolute execration, nor have they any inducement to behave well, for they are sure of impunity whatever the extent of their misconduct. They evidently calculate on the mis-application to them of an English rule. No English Judge decides upon the fact. He leaves the fact to the jury, but his previous expositioli is public ; he deals orally with the evidence that the jury has heard — as he has — when elicited, and upon which they, not he, are to decide. Nor can any English Judge have been brought within the range of those demoralizing influences which corrupt and taint for life so many Attorneys. Now a Canadian Judge must have been an Attorney ; however detestable his conduct as an Attorney, it forms no obstacle to his promotion. He is also Judge of the fact with which he deals, not in pub- lic, but in the privacy of his study, in the shape of written depositions. Of these he may well form, as many do form, a mistaken estimate, even if he should appear to have perused them, which is not always clear. He may or he may not tead the evidence^ and that is a question into which no inquiry can ever be instituted. The great, the deserved homage which is offered to Judges in England is duo to circumstances impossible, or at least unknown, in the Province of Quebec. To evince for a Judge of this Province the sort of respect offered to an English JudgOj to erect bulwarks for his protection, to multiply impe- diments to prevent his being accused, to embarrass, impede and wrong his victims when they seek legal redress, is simply to offer a premium for misconduct, to embolden them in their career of wrong-doing, to offer impunity to crime. Then we have seen how little in the selection of candidates fitness or worth are taken into consideration. One who needs a place in Parliament and has the power to pay for it at the public expense, hy the y'lft of a Judgeship, is always sure to find a member ready to make an exchange. Thus a fellow who, by enormous lying and a recourse to evil practices, including every description of meanness wins his way into the house, may be forthwith translated to the judgment seat. Considering the motives by which Ministers have been in- duced to elevate divers individuals to rank, power and conse- quent fortune, one cannot avoid the intrusion of strange mis- givings in relation to some at least of the recipients of the so-called Royal favor. Having been frightfully oppressed, and knowing, too, much of the grounds upon which Judges have been named, I have deemed a full exposition of the mode in which the law is administered likely to be conducive to' the public good. This is the origin of the details submitted in the following pages. A light suddenly exhibited to a pri- soner confined in a dark dungeon has not the effect of enabling him instantly to distinguish objects. So here there are no traditions relative to trial by Jury ; and the prejudice against that mode of administering justice is so strong that before its adoption the present century may pass away : Yet is it the only remedy for the evils entailed on the community by the concentration of so much power in the hands of the Judiciary. Though this rcimirk may expose m« to rrrach aminad version, the advantages which, in some respects at least, must attend the change that I recommeiul, ought to be evident to the meanest capacity. 1. Lawsuits will generally be brought to a termination witliin one-fourth or one-fifth of the time which it is now necessary to devote to them. 2. The expense incident to the attendance of witnesses will be reduced by nine-tenths, and perjury, now so common, will be (if not impossible) always susceptible of detection. 3. The number of the Judges can be diminished by one- half, and the remaining half, instead of exhibiting symptoms of exhaustion or lassitude, will come to the Bench fixjsh, with intellects bright jned and spirits exhilarated by the hope of manifesting and of infusing virtue. 4. The grounds of the decision will be no longer a mystery, nor will it be in the power of the Judge to conceal his real opinion. Publicity will ensure rectitude. 5. It will, in the supposed event, behove the Government to select for the Judicial Bench gentlemen of the highest moral courage and worth, with commensurate capacity. To instruct, to enlighten, to guide Juries, to enable them thereby honorably and efficiently to perform their part in the admin- istration of justice, to control them, and to apply the legal remedy where they faib are not tasks tliat every political hack, every donkey, can perform. But as " the deaf adder hcareth not the voice of the charmer," so ignorance and prejudice that can have no con- ception of the legitimate and beneficial power and influence of able Judges over Jurors, can form no estimate of the con- sequences which will most assuredly follow the adoption of trial by Jury : nor can the evils ef the present system be more vividly illustrated than by the exhibition of its effect* upon the conduct of a gentlemar 'n private life so exemplary and generally courteaua as Chief Justice Meredith. My impression of the existence of a very senous evil has been confirmed by a recent decision of the judicial Committee of the Privy Council. The Bank of Upper Canada brought an action against the late Mr. Bradshaw. It was conducted in the Superior Court (so called because it is the Inferior Court) by the Counsel who had advised the Bank to pursue that course. There the Bank was unsuccessful and on Appeal to the Queen's Bench failed again. The case was then brought before the Privy Council. There the same learned Counsel appeared in support of the Appeal. He was patiently heard throughout but when he stopped the Lords Justices intimated that they did not deem it necessary to hear the Counsel for the Respondent Mrs. Widow Bradshaw and they forthwith confirmed the judgment of the Canadian Courts. In my opinion the fact proves that we need in this country the assistance of another class of Counsel learned in the law. We require Counsel who must be held^ hound and sworn to advise and to perform no other part whatever. Such advisers would have no interest whatever to warp or disturb their judgment. It is not so now, for the Attorney who advises the bringing of a suit invariably profits largely by its being brought. Without intending to animadvert on the learned Counsel in question, I venture to suggest that this sort of temptation, a temptation of daily occurrence is too much for human nature, The loss and the anguish suffered by the above named then recently bereaved lady must excite general sympathy but mine is not free from a spice of selfishness — for could my suggestion have been acted upon by my enemy, I should have been spared upwards seventeen years of torture. Facts disclosed in an unreported case. GRENIER, Plaintiff. vs. GUGY, Defendant. It is necessary to premise that, before the occurrences which I now propose to bring under the notice of the com- munity, I had been in the Circuit Court (rion-appealahle side) condemned to pay a small sum to the Plaintiff. It was, I maintain, an unjust condemnation ; yet in e very-day life one has frequently to choose between the least of two evils, and, in one word, it behoved mc to pay the amount. As the Attorney of my adversary Brown, Monsieur Bossd, conducted the case for the Plaintiff, no hope of any kind of indulgence could be entertained, and I made every possible exertion to obtain the means to pay. But all my goods and chattels having been previously seized by my above-named adversary, I could not then raise the amount by selling a horse, or even a cow. It is quite true that I was entitled to thirty times the amount, or more — as costs allowed by the tariff in cases in which I had successfully defended myself when sued by my adversary Brown. But certain Judges had taken it into their heads that it was consistent with justice to deprive me of all compensation for my labour in the exercise of the right of self- defence, and they exmero motu — quite spontaneously — decided that in several cases in which I had been attacked, and had successfully defended myself, I should not be allowed any fees. Having explained this in a pamphlet on the ** Beauties of the Law" I shall not now dwell on the subject : suflfice it to say, that I was then very, very poor and absolute- ly wretched — reduced indeed to a state bordering on despair. This condition, T admit, was not caused by my mere desti- tution — but the conduct of the Judges was well calculated to produce alarm, affliction, and despondency. It will scarcely be believed, I fear indeed that in despite of my affirmation it may be doubted, that they went so far as in one Judgment to declare that " hy law and 'practice no fees can he allowed to Counsel and Attorneys in cases in which they act as Attorneys of Record in the cause.^^ They so decided against me, they so acted against me in- dividually, refusing mefeee in a suit in which I had " acted as Attorney of JRecord in the cause,''^ while at the very date of that decision they were daily, if not hourly, allowing fees to other Attorneys, and actually, by the terms of the very Judg- ment which I have herein above quoted, they granted fees to Messieurs Parkin and Pentland, who had acted in that very cause as the Attorneys of my enemy Brown, which fees they condemned me to pay !* Every generous man will feel that such decisions tended to excite in my mind the most painful — not to say the most dangerous — reflections. Mr. Justice Mondelet, it is true, honestly refused to participate in the act, but it was the result of the capacity, learning and sense of justice of Messieurs Aylwin, Badgley and Berthelot.f At this juncture, then, when but for that benevolent baker, McCorkell, I should have wanted bread. Monsieur Bossd in endeavouring to enforce the above-mentioned little Judgment obtained from Chief Justice Meredith the underwritten order, copied in extenso. • On my appeal to Her Majesty the Queen, this judgmei t whs reversed at a cost (a loss) to me of about $1000. This subject mny be hereafter referred to. f I have not included Judge Meredith, yet according to the Record be appears to have concurred. 10 PROVINCE DE QUEBEC, j - COUR DE CIRCUIT. DISTKICT DB QUEBEC. j Le 4 Mai 1868. Present: — Honokablk W, C. Meukdith, Ch. J., C. S. GIGUERE BT GRENIER, et GRENIER vs. GUGY. " La Cour vu la requete de la part de Francois Xavier " Grenier, le demandeur en garantie, alldguant qu'il a 6t6 " ^man^ en cette cause unbref d'ex^cutionpourfaire saisiret " vendre les biens dn defendeur en garantie, Bartholomew " Conrad Augustus Gugy, et que le dit bref d'ex^cution n'a " pu Stre ex^cut^, parce que le dit Bartholomew Conrad ** Gugy a ferm^ et harv6* ses portes, et a refus^ de les ouvrir, *' en cons, '■■■-? ,t>^ ' -.:'/-■_■' r-7 * >'-r\- 19 FaetB disclosed in an unreported case. FERGUSON vs. GUGY. ., I \. Ill/- •■ / !• Without a short preliminary statement the injustice which was inflicted on me by the decision, of which I propose to give an account, might not be quite intelligible. In October, 1852, my neighbor Brown, instituted against me his first action. He shortly afterwards brought two others. In all three he complained of injuries which he pretended that he had suffered from my meddling with the channel of the River Beauport. In all three I appeared by Attorney — in the first, indeed, I had at least five different Attorneys. He failed in all three ; and appealing, failed again. As a conse- quence, I ought to have been allowed fees ; but three Judges of the Court of Queen's Bench, namely, Lafontaine, Aylwin, and Duval, composing the majority, decided that I should have no fees in either of the Courts, because, as they stated, I had appeared in person. Now, supposing that to defend oneself when attacked should be an offence, which it clearly is not, I had only appeared in person in one Court, and the punishment for that offence should have been restricted to that Court. But Ferguson, who arrived in this country in 1854, did not reach Beauport until the month of December of that year. He then entered into my adversary's service, and in this climate he could not have seen the water flowing in the river, or the channel free from ice and snow, until the month of May, 1865. Now, he was produced by my adversary as a witness, and he described on a plan, with great circumstan- tiality and minuteness, the course of the River Beauport in 1852. He traced, in fact, another, and quite a different channel from that in which the water was flowing in 1864 and 1856, and he pledged himself for it " as a fact," but he was compelled to admit " that he never saw the water flowing in that channel" which he so traced. 20 In arguing this case it was pretended that, in commenting on that testimony, I had used a very strong term, and there- upon Feri 'uson immediately sued me in damages. It thus became necessary for me to expend a large sum, not merely in preparing and filing my pleas, but in procuring copies of the evidence in question, and of divers exhibits and plans filed in the cause, all indispensable to contradict Fer- guson effectually and to support my assertion. Issue was joined ; witnesses were examined, and I waa eventually condemned to pay damages! Without any disrespect to the Judge who so decided that case, an amiable gentleman whom I esteem, I must add that, on my appeal, his decision was reversed. Here again, without a great expenditure, I could not have defended myself ; but again, in this case, the same three Judges* denied me the fees to which I was justly entitled. I venture to add that in a subsequent case the same Court, then composed of Judges Aylwin, Meredith, Badgley, Mon- delet and Berthelot (Mondelet dissenting), denied me fees on the ground that "by law and practice no fees can be " allowed to counsel and attorneys in cases in which they act " as attorneys of record in the cause." A judgment was, however, subsequently pronounced by Her Majesty the Queen, in Council, reversing that judgment and determining the question of the right to fees in my favor. These facts are submitted to show how much I must have lost and how much my enemy must have been encouraged by a series of unjust and illegal decisions, by which he was enabled to worry me without incurring the penalty, the usual pecuniary penalty in the shape of costs. In the meantime, the record in the suit brought against me by Ferguson having been returned to the Court below, * Chief Justice Lafon j^ine and Judges Aylwiu and Duval. 21 the plaintifT did not see fit to proceed. Now, by law, a suit in whicli no step is taken during three years, is held to be abandoned. Availing myself of that provision of the law, I lately made a motion, and that suit was thereupon dismissed by Mr. Jus- tice Taschereau. I had, of course, claimed costs, and had placed in the hands of the J udgo a decision of the Court of Queen's Bench, Appeal side, reported at length in the 8th volume of the Lower Canada Reports, page 454. Any educated man will find in that report an array of authorities and a chain of reasoning absolutely conclusive. The article 460 of the Code of Procedure, referring to this subject, is in the following terms : ** The Court, in " declaring the peremption of the suit may, according to " circumstances, condemn the plaintiflF to pay all costs." It must be perfectly palpable that this was a case in which I was entitled to compensation ; that " circumstances" were favorable to me, and unfavorable, very unfavorable, to the plaintiff. He had sworn positively to the existence of a fact of which he could have no knowledge. Had he been behoved I must have been deprived of my property, and it must have been transferred to his employer; but the Court did not beheve him, and the inference from that view of his evidence, is, at the very least, that that sort of testimony and witnesses of that kind ought to be discouraged. If the article of the Code, hereinabove cited, was intended to enable the Judge to exercise his discretion, the facts of the case from first to last all militated in my favor. The case cited in the 8 L. C. Reports was certainly not as favorable to the defendant as the present, and society has a right to expect some uniformity in the decisions of the Judges. I venture here to recapitulate : 1st. There was the evidence of Ferguson. 2nd. The necessity for multiplying witnesses to disprove it. 3rd. The danger attending the situation ; the 22 uneasiness founded on the uncertainty touching the effect which would be produced on the judicial mind. 4th. Then the action for damages. 6th. Then the pleadings. 6th. Then the seeking for witnesses and adducing evidence. 7th. Then the ar^ment. 8th. Then the judgment condemning me to pay damages and costs, always costs. 9th. Then the appeal, and the risk and labour attending it. 10th. Then the judgment denying me in that Court all compensation. 11th. Then my being once more brought before the Superior Court to enable the plaintiff, Ferguson, to proceed with his case if he saw fit. 12th. Then my being obliged to wait upwards of three years before I could free myself from that frightful burthen. I cannot imagine a case in which a defendant could be or ought to be more assured of the usual compensation (in the shape of costs) for his labour. The plaintiff Ferguson having brought suit against me in April, 1859, and has thus kept me eleven years in Court. This alone is a serious evil. Yet, Mr. Justice Taschereau denied me costs, that is to say, not merely fees, as the Court of Appeals had done five times, but actual disbursements . Thus under his judgment I was not only deprived of all compensation for my labour, during eleven years of anxiety, but I could not recover and have actully los the whole amount of my dis- bursements^ a very large sum ! This, too, is the legal result, the result according to the law as it is administered, of my successful resistance of an action for damages founded on my comments upon evidence, which, had it been believed, would have been fatal to me, but which, as it was not believed, I could not have stigmatized without reason ! . Now the principal difficulty attending the administration of justice arises out of the frequency of perjury, and it would seem that too much could not be done to discourage the ten- dency of witnesses to lend themselves to either of the parties .89 • ■ ■. litigant. It is a practice, I maintain, which ought to be discouraged. Taking the liberty to compare the two cases thus brought under the reader's notice — that reported in the 8 L. C. R., page 454, and the case of Ferguson — J. dare aflSrm that both those Judgments cannot be right or just. Entertaining great respect for Mr. Justice Taschereau, I do not ascribe his ruling in favor of Ferguson to malevolence. But seeing how perfectly well aware he was not only of the previous decisions by which I had been victimized, but of their effect in nearly ruining me, and knowing /row his own Judgments that he deemed those decisions illegal, his ruling in favor of Ferguson is perfectly inexplicable. It may possibly be accounted for — like that other decision of Mr. Justice Stuart on the same subject — of which I com- plain, by the lassitude, the exhaustion, which is the necessary consequence of incessant labor. Lastly, I respectfully submit to both those gentlemen, that they naturally expect, and receive, compensation for their labor. In their case it is called salary^ and suffers no dimi- nution even when they are prevented by indisposition from performing their duties, nor is it in the power of any indi- vidual or body to reduce it by one fraction. But, I too, am , entitled to compensation for my labor, and though it be called fees, it is my right, just as their salary is their right — upon grounds fully as binding and as sacred. And though the 'Judges have the power to reduce the amount of my fees by taxation, I have a right to expect, and so has every prac- titioner, that the duty of taxing will be performed in a spirit of enlightened liberality based on justice and sound reason- ing, and, in a Judge, the ability and the disposition to apply sound recioning is indispensable. Sometimes too, especially in such casesj even when the scales hang even, and the Judges might be indifferent, he 24 actuated by considerations of public policy, and among- others may fitly determine such questions as that under dis- cussion, with a view to deter men from the commission of crime, if not by imposing penalties on the guilty, at least by with holding all recompense from the guilty — at least by refraining from inflicting punishment on the innocent. - . Now the Code is clearly permissive, the Judge might have condemned Ferguson to pay all costs ! With submission, I repeat, that he ought to have done so, for that might have punished him, in whose conduct the whole evil, the whole expenditure, had its origin. But the Judge punished me, who am, and in this Utigation have ever been, not merely innocen, but frightfully aggrieved ! All whcih is respectfully submitted, A. GUGY. 25 Facts disclosed in an unreported case. BROWN, ■'''':''-'^-":-:'-' , 'V' vs. ., ' . , t r GUGY. ■i' . ■ ' ■** ■ ■ , ' - . I propose to cite another case in which again I have been subjected to much (by no means unavoidable) suiFering. My adversary Brown, who had been foiled in three suits which he had brought against me in this country, appealed all three and having failed again, he brought one of them before her Majesty the Queen in Her Privy Council. He was as unsuccessful in that appeal as in all the others ; but within six weeks of the period at which that result became known in this country after seven Judgments had been pronounced against Aim, he instituted a fourth suit against wie. I pleaded Bes Judicata, and that fourth suit was indeed founded upon the same grounds exactly as the first suit which had been then recently decided in England. This fourth suit bore the number 581. After the usual preliminaries, and after both parties had been heard, the Court deciding that this last mentioned suit, No. 581, originated in the same cause of action as the first suit which had been decided in my favor twice here and once in England, dis- missed the action of the Plaintiff Brown with costs. My adversary Brown wa^ condemned to pay costs ^ that is the fact to which I desu-e to direct the reader's attention. The judgment was dated 4th February, 1865. But dissatisfied with that decision he inscribed it for Revi- sion. Here the Court was divided, one Judge being favorable to me and two against me. It was then, on the 5th of April, 1865, ordered that we should begin all over again, and so we did. This was an interlocutory order. Having proceeded as was ordered, adduced more testimony 26 tod labored hard, I had at length the good fortune, when the case was ripe for argument, to bring it once more before the Court. On the 19th of Octobe**'- 1867, a Judgment was pro- nounced, which, for the second time, dismissed the PlaintiflF's action, and for the second time granted me coats. Thus, in that cause three consecutive Judgments were pronounced, and the last was a final Judgment. My adversary, of course, appealed, but he was again unsuccessful on the merits, and again he was condemned to pay costs. This was the fourth Judgment, and by that decision (of the Judgment of the Court of Queen's Bench sitting in appeal) it cannot be too often repeated mt/ adversary/ Brown was condemned to pay costs ! This subject is regulated by the Code of Procedure, Article 478, which Article as printed is in the following words : — " The losing party must pay all costs, unless for special *' reasons the Court thinks proper to reduce them or com- *' pensate them or order otherwise." The rule thus by Legislative authority prescribed applies to the cause, No. 681, now in question, for the Court did not compensate the costs or reduce them or order otherwise ! I had succeeded, and, by Judgment dated 4th February, 1865, my adversary was condemned to pay costs simply. It is true, however, that that decision was reversed by Judgment of the Court of Revision, dated 5th April following. But by the final Judgment in the Superior Court, dated 19th October, 1867, the above mentioned decision of the Court of Revision, dated 5th April, 1865, was itself reversed, and the first Judgment, dated 4th February preceding, was in eflfect revived and confirmed. The Plaintiff Brown, then, whose action had been dismissed, was condemned to pay all costs! He was not relieved in appeal. On the contrary there he was again condemned to pay all costs in the following words : " Consid^- rant que dans le dit jugement du 19 Octobre 1867, confirm^ par oelui du 4 Avril 1868, il a ^t6 correctement jug^ en 27 autant que I'action du dit William Brown y est rejett^e avec d^pens les dits deux jugements sont confirm^s, et en conse- quence Taction du dit William Brown est et demeure renvoy^e avee dS'pms contre lui en cour de premier imtance et aussi ceux de cette cour." ■ ' • •' - '' When, however, I claimed the fee allowed by the tariff on the first Judgment, that is the Judgment dated 4th February, 1865, as well as on the second Judgment, dated 5th April, 1865, the taxing oflficer rejected my application. This decision was then submitted in appeal to His Honour Mr. Justice Stuart, by whom it was confirmed. It is but fair to that amiable and courteous gentleman that I should here state what I understood were the grounds of his decision. He held that I should have appealed from the interlocutory order of the Court of Revision of the 5th April, 1865, vacating his own previous Judgment of the 4th February preceding. I admit the fact, but it does not seem to me to be sufficient to justify the conclusions deduced from it by the Judge that it was lawful to withhold from me my costs. I argued thus : admitting that the Judgment of the 5th April, 1865, was unfavorable; it was itself vacated by the final Judgment of the Superior Court, dated 19th October, 1867. Thus the original Judgment of the 4th February, 1865, was revived for cessante causa cessat effectus. The Judgment of the Court of Queen's Bench, dated 19th June, 1869, dismissing the action of the Plaintiff Brown with costs, necessarily brought the case within the provision of the above cited 478th Article of the Code. The Court, as has jeen previously stated in an extract from the French version, ** confirmed the Judgment of the Superior Court which had dismissed Brown's action with costs," and declared that action to be and remain *' dismissed with costs^' — without limitation or reserve ' It follows, as a logical consequence under Article 28 478, that the Plaintiff Brown should pay all costs. This h all the more interesting to me because if he be not bound to pay them I must, and double the usual amount is thus involv- ed in this question. "^^ It is, however, perhaps necessary to dwell for a moment on the omission to appeal from the Judgment of the 6th April, 1865, to which the loss of some hundred dollars is apparently to be ascribed. '" The Judgment from which it was intimated that I should have appealed was an Interlocutory Judgment. Now, such Judgment cannot he sup^ealedde piano — nor except in the three undermentioned cases, specified in the Code, Art. No. 1116 • " 1. When they in part decide the issues." " 2. When they order the doing of anything which cannot " be remedied by the final Judgment." " 3. When they unnecessarily delay the trial of the suit." It will not be pretended that the Interlocutory in question decided any part of the issues — nor did it order anything which could not be rectified by the final Judgment. This latter proposition is proved by the facts that the final Judgment dismissing the action of the Plaintiff" Brown was favorable to me. Referring to the third above cited condition, I submit that the Interlocutory delayed the Judgment, it is true, but not the trial. On the contrary, the trial was instantly re- commenced and proceeded without intermission until a final Judgment was a second time pronounced. It must be evident too that the attempt to appeal would have entailed consider- able expense — without by any means ensuring a decision permitting the appeal. But had the permission been granted that would have delayed the trial ! As I write less for the profession than for laymen, I subjoin an extract from the Code, enumerating the several steps which suitors, desirous of appealing from an Inter- 29 locutory Judgment, must take. This is intended to prove the uncertainty attending this proceeding and the inevitable delay! " 1119. If the appeal is from an Interlocutory Judgment " it must ficst be allowed by the Court of Queen's Bench, ** upon a motion, supported with copies of such portions of " the record as may be necessary to decide, whether the " Judgment in question is susceptible of appeal, and falls " within one of the cases specified in Article 1116. The " motion must be made during the term next and after such " rendering of the Judgment, and cannot be received after- *^ wards ; saving, however, the party's right to urge his " reasons against such Judgment, upon an appeal from or '^ proceedings in error against the final Judgment. " 1120. The motion must be served upon the opposite *' party, and, if required, is followed by a rule, calling upon ^' such opposite party to give his reasons against the granting " of the appeal, and the service of such rule upon him has the " eflfect of suspendmg all proceedings before the Court below." Had I pursued the course indicated in those two articles I might and, in my opinion, probably would, have been denied permission to appeal. But the article, No. 1116, is per- missive merely, and I surely had a right to exercise my faculties to appeal or to refrain as I saw fit. Now, being sure of victory on the final contest, and feeling that by appeal- ing from the Interlocutory I should lose time, I refrained. Some people seem to look upon me as being unduly given to litigation, and it is supposed to be on that assumption that the Court of Appeal has given me so many tastes of its quality. But here is a Judge, whom I hold in respect, punishing me because apparently in this case I have not been sufficiently litigious. Yet I can have no redress. , ;-;• A. GUGY. 30 2n lie ',;V'>t / Tf BROWN, ,, .. Plaintiff, ■1 'f:f.*,'r, t, -1 -^ •_ vs. ■ • Cvv'-M " ■ . GUGY, • '■ ■ , ■' ;. -.''' ' 1 'i'- ■, Defendant. .. ' v^r: It is lawful to prefer any well-founded complaint against any public functionary. The act, indeed, is not only lawful but laudable, for it is conducive to amendment. It is the first step in the process of amendment, and to stifle such com- plaints would be to perpetuate wrong doing. Under that impression I prefer the underwritten complaint against the Honorable Mr. Chief Justice Meredith. In a judgment which he wrote, which he read from the Bench, which, with his permission, I copied and printed, he expressed himself in the following words : — " I now pass from the wharf of the Incidental Defendant " (Brown), between his two stores, to the alleged encroach- " ment, on his part, in rear of the stone store. " There can be no doubt that the Incidental Defendant " (Brown), in order to protect the foundations of his stone ** store, has placed a very large embankment of stones in the " bed of the river at the rear of that store. It is equalfy " plain that the Plaintiff (^0-ugy) is entitled to indemnity " for any damage done to his property by the stones so placed " in the river* " Here I may observe that a distinction is to be made be- " tween the stones placed in the river and the wharf which, " it is alleged, encroaches upon the river. If I were satis- " fied that the wharf was built in the river, so as to injure " the Incidental Plaintiff (Gugy), as alleged, I would hold " that it ought to be removed, for the Incidental Defendant •Purposely italicised. 31 " (Brown) had no excuse for placing it beyond his own pro^ " perty ; and under such circumstances I would not allow a " work illegally constructed to undermine and destroy a " legally constructed wharf on the opposite side. But as " regards the stones j they are necessary for the protection of " the store. " The removal of them would be much more injurious to " the Incidental Defendant (Brown) than beneficial to the " Incidental Plaintiff (Gugy)." The foregoing extracts, from a judgment absolutely intol- erable, but which I shall not characterize, justify, in my apprehension, the following remarks : — First, my wharf being " a legally constructed wharf" on my property, it is, as the Judge admits, " plain " that I am " entitled to indemnity for any damage done to my property " by the stones so placed by my. adversary in the river." Here I take leave to draw a distinction which the Chief Justice overlooked, and I marvel that he did so overlook it. It is this : — The Court of which he was the organ had jurisdiction over the past only, not over the future. That Court, it is true, granted what it called an indemnity for the past, amounting, as I affirm, to about an eighty-fifth part of the amount to which I maintain that I was entitled, and which I had claimed. But the Court could not, and did not, grant me any prospective indemnity. It could not, and did not, decree that my* adversary should make good by future payments in money any damages which I might suffer from the date of the Judgment forward. The Court had not that power, but it had the right, to order the immediate removal of the " encroachment " of which my adversary stood convicted. The immediate removal, I say, " of the stones placed by him, as stated, in the river." I had, by my action, sought for this remedy, and justly expected that it would have been granted to me ; nor will 32 the Judge, nor any sane man, deny that being, as he avows, entitled to indemnity for the past, I was also entitled to protection or indemnity for the future. That, clearly, was my right ; but the Judge, having alto- gether overlooked that branch of the case, left me without any recourse except by action. The wrong, being a continu- ing evil, is either to be tamely endured or is to be abated by a series of actions. Here I would observe that an enquiry naturally suggests itself. How many actions to obtain redress was I expected to bring — one every year, or one every month, or one every week, or one every day ? , The Jud;j;e declir }S that " to protect the foundations of his *' store, my adversary has placed a very large embankment " of stones in the bed of the river." He adds " that I am ** entitled to indemnity for any damage that those stones may " do to my property." He concurred, too, in a Judgment awarding me an indemnity of £4:5 for the past, and for the past onli/. But, as I have shown, the Judge has not granted my con- clusions claiming the removal of that '' large embankment of " stones in the bed of the river." His reason for that denial of justice — his reason, I say, in his own language, quoted from his aforesaid written Judg- ment — is couched in the following words : — " The removal of *' the stones (he has the courage to write and publish) — the ^' removal of them would be much more injurious to the Inci- ^' dental Defendant (my adversary) than beneficial to the *' Incidental Plaintiff (me)." Here, then, is something new under the sun. The stones ^ it is admitted, injure me, but they are beneficial to my adversary ; and that he may thus, at my expense, enjoy a benefit, it is judicially decreed that I must submit to the wrong. , 33 Men generally bear very stoically the wrongs inflicted on others, and even the educated minority who, using their facul- ties, can reason from effects to causes, will scarcely offer me any moral support, still less openly extend to me any sym- pathy. Nevertheless, I shall put a case. The embankment of stones placed by my adversary in the river is, as stated by the Chief Justice, both a benefit to my adversary and an injury to me. Now, admitting that the benefit should not be very considerable, if my adversary has a right to inflict on me a wrong to enable him to reap an inconsiderable benefit at ray expense, it follows a fortiori^ that to obtain a very considerable benefit he would be entitled to inflict upon me a very much greater evil. Thus, as the pos- session of my whole farm would assuredly confer upon my adversary a much more considerable benefit than the protec- tion of the foundation of his store, it would seem to follow that I must be prepared for being judicially despoiled of it, and for its being transferred to my adversary. Could I believe the law of the Chief Justice to be good law, making short work of it, I should emigrate to Kanzas, or to some other country in which every man relies for his protection upon his rifle and his revolver. There, if a man can thus protect his property, he enjoys it. If he can't, he's shot, and freed, in some hastily dug hole, from such agony as that which for years the judges have inflicted on me. Such a hole, fit receptacle for so unhappy a man as I am, could be easily dug here ; but, unfortunately, Quebec law don't kill outright, like a well- directed rifle bullet. I have thus, however, quoted the basis of a Judgment which, as such, may be hereafter cited against me.* I have endured the wrong since 1850, and owing to the laws proverbial delay, have only recently obtained a deci- sion, and such a decision ! * And of course against others, if it may be assumed that anj other suitor can be treated as I have been. D 84 " The removal of the stones" (the Chief Justice declares) ** would be much more injurious to my adversary than bene- ficial to me.'* It is strange that the Chief Justice did not feel that those words " injurious and beneficial," in that con- nection, are what are called " incommensurable quantities." How much " benefit" does he hold that my enemy should reap? To how much injury to ensure that benefit can I be lawfully subjected ? What is to be, in the opinion of the Chief Justice, the limit of the benefit, or the justifiable extent of the injury ? Knowing that he will do me the honor to read those lines, I beg he will note that these two words involve a problem, and he is hereby earnestly invited to solve it. Problem. — Given the amount of benefit which it behoves an impartial sworn administrator of the law to confer at my expense on my enemy, how much injury is that same impartial sworn administrator bound by that same laiv to inflict on me ? This is one illustration, but I can submit a plainer case. We all know that in this community many men with fair talents and some educational advantages fall from drink to the very lowest depths. Now a sturdy beggar of the class above described may have been lounging in Court (as espe- cially in cold weather many do) while the Chief Justice was reading that part of his judgment herein above repeatedly quoted, and our beggar being then sober may have understood the full import of the words " injurious and beneficial" as put by the Chief Justice. Guided by the light reflected from the Bench, he may have thrown himself in some lonely spot in the way of some farmer's wife returning from market. Knowing that she had in her pocket the proceeds of her morning's sales our beggar might accost her as folio vrs : You have eaten — you have money, while I am starving and penniless. 36 Give me a dollar — it will he [more beneficial to me than injurious to you. ■< I will not suggest the possible result of the refusal to give the dollar ! But such an interpretation of the decision of which I com- plain would be only logically carrying it out to its legitimate conclusions. This section of the Dominion is in an anomalous condition . So anomalous indeed is that condition as to be perfectly unin- telligible and probably incredible to those members of the Gov- ernment who reside in the other Provinces. Desirous of brh g- ing about some improvements, I shall now state more factt . Citing the text of the same Judgment, as written by the Chief Justice, I submit the following lines : — Text : — " Jean Baptiste Bertrand, who built Brown's wharf^ " swears that it was built on the bank, and Louis Auger de- " poses to the same effect. Both these witnesses, however, say " that the present wharf is built upon the site of an old wharf. " Now, although there was formerly a wharf near the wooden " store there certainly was not (before Brown put up the wharf " in question) a wharf between the two stores. And the fact " that these two witnesses are in error as to the existence of *' an old wharf between the two stores detracts much from " the value of the remainder of their evidence." I cannot, or dare not, use language suflSiciently condem- natory of this euphemistic mode of speaking of manifest perjury. Hoping that the reader will bear in mind the words " there certainly was not a wharf between the two stores" so thoroughly descriptive of the conviction of the Court, I shall now quote the evidence of Auger and Bertrand, to which those words refer. This Auger examined on 25th June, 1866, testified as fol- lows : — " Je suis entr^ au service du Demandeur il y a quinze ana " et je suis encore ^ son service." J / ■( ^' Je connais lequai duDemandeur,entre le hangar de pierre " et le hangar de hois qui a 6t6 b^ti par un nomm^ Bertrand " et quelquea autres, dont les uns sont morts et les autres " absents. Je I'ai vu batir. II y avait d la mime place un ^* vieux quai b^ti par Monsieur McCallum. J'ai connaissance " que les ouvriers qui faisaient le quai neuf, out dSfait le •** vieux quai pour mettre le quai neuf d la m§me place. ^* Ainsi le quai neuf est oil dtait autrefois le vieux quai." " J'ai rest^ au moulin en question depuis 1832 dans le " temps qu'il a 6i6 poss^d^ par Monsieur McCallum et Mont " sieur Scott. Le meme vieux quaiy hangar et b&tisses ^* existaient dans le temps que je suis entr^ 1^, en mil hui- " cent trente-deux." " Quant au vieux quai, je n'ai pas connaissance quand il " a ^t^ bati. II existait en mil huit cent trente-deux, et le ^* quai neuf qui existe aujourd'hui est d la mime place sur " les memes fondations." " Je dis positivement qu'il existait un vieux quai, qui s'^- ** tendait depuis le hangar de pierre jusqu'au hangar de bois ^* du long du jardin du Demandour, dans I'ann^e 1850, ^* lorsque le Demandeur a fait bS-tir par Bertrand et deux ** autres, le quai qui existe actuellement sur lei fondations *'■ du dit vieux quai. J'ai ^t^ voir les ouvrier- t i travail- ■*' laient et je les ai vu poser le quai neuf qui exisie actuelle- *' ment exactement sur les fondations du vieux quai, de sorte *^ que le quai qui existe actuellement a la mSme forme que le ^* dit ancien quai." " Un nomm^ Chamberland, qui est mort, a travailld avec *^ Bertrand et un nommd Langevin, qui est mainteuant ^loi- <•-. ^ 1867, the same Louis Auger adverted to the same subject in the following words: — -^ ' ** Je suis meunier du Demandeur, et suis a son service " comme 'el depuis dix-sept ans. Je connais le quai du " Demandeur entre son hangar de pierre et son hangar de " bois. Je I'ai vu b^tir, a la meme place que celui il oil y " avail un vieux quai, et le nouveau a ^t^ bS,ti d la mime " place que Vancien." " J'^tais au moulin du temps de M. Scott, et j'ai vu le di^ " vieux quai alora, il y avait neut-etre cinquante ans qu'il " avait ^t^ b^ti par M. McCallum, peut-6tre soixante ans, " pent Stre cent, je n'en sais rien. On entendait dire dans ce " temps-1^ que ce vieux quai avait ^t^ bsiti par le dit M. " McCallum." " J'ai pass^ ma premiere ann^e chez le Demandeur avant " que le nouveau quai fut entrepris, et pendant cette ann