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IN AN ACTION IN THC Court of lltno'0 B^n(6, APRIL TERM 1823. REPORTED FROM STENOGRAPHIC NOTES ST WILLIAM S. SIMPSON. 1 ^ * } Province of Lower-Canada, District of Quebec. IN THE KING'S BENCH. Friday, 4th April 1823. Before the Honorable Chief Justice Sewell and Mr. Justice Perrault, And the following Special Jury : Andrew Patterson, Robert Melvin, George Symes, Martin Chinic, William l^emberton, JoliL Douglas, 2? James Ross, Francis Coulson, Robert Haddan, Charles Poston, Thomas Burnup, ■ Mayrand. Laughlin T. M*Pherson, Plaintiff. vs, George Arnold, Defendant. Counsel for Plaintiff, R. Christie & A. Cochran, Esquires. Defendant, A. Stuart, Esquire. Mr. Cochran — May it please your Honors j Gentlemen of the Jurv, I RISE to address you in a Case wherein Mr. Laughlin J. M*Pherson, well known to you as a Notary Public in this place is the Plaintiff, and Mr. George Arnold also of this place, is the De- fendant. — On behalf of the Plaintifl', for whom I appear as Counsel, it is necessary to state, that his Action is brought th recover damages from the Defendant for defaming his Character in his of- A ficial ficial capacity as a Notary Public, in repeated ver- bal conversations with different persons, which the Declaration of the Plaintiff alledges,were malici- ous, false and without any provocation. The ac- tion in its nature. Gentlemen, is the common or usual action brought in cases of defamation of cha- racter by malicious detraction — At this stage of the Proceedings, it will be unnecessary to do more than read that part of the declaration of the Plain- tiffin which are set forth divers injurious public slanders of the Defendant against the Plaintift^ — slanders made to different persons and uttered on various occasions—- and you will be, Gentlemen, in complete possession of the nature and extent of the injury for which reparation is now sought at your hands. The allegations of the Defendant accuse the Plaintiff of having been guilty of For- gery in falsifying a Notarial Instrument, or j^cte Autlientique — of acting in his official character with partiality instead of (as was his duty) with fidelity — that in the transaction whence this and former Legal Proceedings have originated, there was an improper and unfair understanding between the Plaintiff and a firm of the names of Boyle and Brothers, trading at Gaspe, that resulted in Mr. M*Pherson, the present Plaintiff, violating his du- ty so grossly as to render him unworthy of a Com- mission, so highly honorable and important as that of a Notary, or any other employment of trust and confidence.-^These, Gentlemen, are the general expressions which Mr. Arnold has thought proper to use in reference to the Plaintiff and his official character, and that they have not been made light* ly or in a moment of irritation, will become appa- rent when we give in evidence the various modes by 8 by which publicity has been given to the slanders— Before detailing an outline of the evidence by which our case will be supported, I shall trouble you by reading that part of the declaration alrea- dy alluded to, and then proceed with the very few additional observations which it will be necessary to submit in opening the present case. The declaration, Gentlemen, sets forth :— <( «( (C i< ({ tt n n n <( « it «( u tt tt tt tt tt tt it n •* That the said George Arnold, well knowing the premises, but greatly envying the happy state of him the said Laughlin Thomas M'Pher- son, and contriving and wickedly and malicious- ly intending to injure the said Laughlin Thomas M'Pherson, in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace, with, and amongst all his neighbours and other good and worthy subjects of His Majesty in this Province, and to cause it to be suspected and believed, by those neighbours and subjects, that he, the said Laughlin Thomas M*Pherson, had been guihy of forgery, and falsifying, mutilating, changing, obliterating and altering the Acte or instrument hi writing, so as aforesaid made rnd executed by the parties and persons above r. umed, before him, the said Laughlin Thomas M*Pherson, and to subject him the said Laughlin Thomas M*Pherson to the pains and penalties of the Laws of this Province made and provided against, and inflicted upon persons guilty of the crimes, oifences and misconduct aforesaid, and thereby to injure the said Laughlin Thomas M'Pherson in tlie way of his profession or business as a No- A 2 «' tary If « It rners leut- evi- dant, very r the ing*8 ench (( i( (I (( (( (( <( IC Bench against him, and himself a member of the Grand Jury ; the Bill, however, was thrown out, and this Bill (the last Court more particularly) we contend, was calculated to injure the charac- ter of Mr. Mcpherson, and being the offspring of malice and falsehood, that the Defendant ought to be made to answer in damages to the Plaintiff. This part of his malignant conduct has been set forth in the declaration — *' And the said Loughlin Thomas McPherson further complaining of the said George Arnold, further represents that the said George Arnold, fbrther contriving and ma- liciously and wickedly intending, as aforesaid heretofore, to wit, on the 27th day of the month of April now last past, at Quebec aforesaid, fal- sely and maliciously, and without any reason- able or prbbable cause whatsoever, at his Majes- ** ty*s Court of General Session of the Peace, then " stttingand holden according to Law, for tiie Dis- " trict of Quebec, at the Court House of the said District, before John Fletcher, Esquire, and other Justices of the Peace of our Lord the King, for the said District, did cause and pro- cure a certain Bill of Indictment to be present- ** ed and laid before the Grand Jury, then duly ** convoked and assembled according to Law, at *• the said Court of General Session of the Peace, against him the said Laughlih Thomas McPher- son, by the name and description of Laughlin Thomas iVlcPhersbn, late of the Parish of No- tre Dame de Quebec, Notary Public, for that he, the said Laughlin Thomas McPherson, on the 17th day of November One Thousand Eight " Hundred and Nineteen; at Quebec aforesaid, B " there (( (< (( tt n (( <( (< €i (( 10 (( it ft tl (( (C (( tt tt tt (( (( (< (( (( (( <( {( li tt tt tt tt t( tt tt tt (( (( {( tt tt tl tt tt there being a Notary Public duly admitted and sworn, for the said Province of Lower-Canada, made and executed under his hand, and deliver- ed a certain paper writing, to wit, the Acte or Instrument above mentioned, wherein the said Laughlin Thomas McPherson, wickedly, unlaw fully and maliciously divising, contriving and intending as much as in him lay, to oppress, in- jure and impoverish him the said George Ar- nold, in the said paper writing, to wit, in the said Jcte or Instrument above mentioned, having the said paper writing, to wit, the said Acte or Instrument above mentioned, in the custody of him the said Laughlin Thomas McPherson, he the said Laughlin Thomas McPherson, unlaw- fully, knowingly, deceitfully and falsely, after making and executing the said paper writing, to wit, on the said seventeenth day of November, in the year One Thousand Eight Hundred and nineteen, at Quebec aforesaid, did alter, and cause and procure to be altered the said paper writing, to wit, the said Acte or Instrument above mentioned, by them and there, unlawfully, knowingly, deceitfullv and falsely obliterating and effacing the words " and Richard AnnetV* and the words " John Thomson, acting as well for himselfy as Jor and in the name of William Thompson^ James Ross, Michael Clouet" also the words " and William Hall, Master Mari- ner, and Richard Annett" and the following unto the said John and William Thompson, is the sum of' One Hundred and Forty-jive Pounds ten shillings and seven pence, unto the said James Ross, in ffie sum of One Hundred and Twenty- seven Founds five shillings and one penny half- ** penny. 11 3d and inada» eliver- icte or le said unlaw ig and ess, in- ge Ar- he said having 4cte or tody of son, he unlaw- jr, alter ting, to member, red and er, and I paper rument iwfully, crating nnett" as well William also Mart- llowing son, is Pounds James loenty- \y half" penny. tf» fenny, unto the said Michel Clouet, in the sum of One Hnndred and Six Pounds seven shillings and four pence** also the figures " j&145 10 7» £\%l 5 IJ, £\01 1^ 4," also the words and figures " unto the said WilUam Hall, in the sum qf' Sixty four Pounds and thirteen shillings ^64 135" and these ** Eleven Hundred and Thirty Pounds seven shillings and one penny Currency** and that he, the said Laughlin Thomas McPher- son, then and there, unlawfully, knowingly, de- ceitfully and falsely, did insert and substitute the following, that is to say, " Six Hundred and Eighty Six Pounds Jijleen shillings Currency** with an intent greatly to injure, aggrieve and oppress him the said George Arnold, and that in pursuance of such intent, he, the said Laugh- lin Thomas McPherson afterwards, to wit, on the same lyth day of November aforesaid, the said paper writing, to wit, the said Acte or In- strument above mentioned, so altered as afore- said, unlawfully, subtilely, knowingly, falsely and deceitfully, did utter and publish, as a true and re- al paper writing, to wit, the Acte or Instrument in writing, binding and obligatory upon him, the said George Arnold, which said Bill of Indict- ment so by the said George Arnold preferred against him, the said Laughlin Thomas McPher- son as aforesaid, the Grand Jury aforesaid, af- ter examining certain witnesses, touching and concerning the supposed offence or misconduct, of which he, the said Laughlin Thomas McPher- son was thereby accused, afterwards, to wit, on the 29th day of the month of April aforesaid, rejected and returned into the said Court of General Session of the Peace, for the aforesaid 15 2 " District 12 " District of Quebec, endorsed and signed " No *^ Billt Joseph Stilson^ foreman" by means where- ** of he the said Laughlin Thomas McPherson is ** wholly acquitted and discharged of the aforesaid ** supposed ofience and misconduct against him, ** so as aforesaid wrongfully and unjustly impu- « ted/* This Grand Jury in the Court of Quarter Ses- sions triumphantly refuted the charges made a- gainst the Plaintiff, and then the present action was brought. — Owing to various circumstances its trial has been delayed till the present day, and you Gentlemen are to decide whether the Plaintiff is entitled to any and what damages — To sustain this action we shall prove against Arnold malignity the most persevering and unrelenting.— That re- futations the most triumphant to his calumnies-— that a dicision of this Court establishing Mr. M*Pherson*s integrity as a Notary, and as a man exhibiting clearlv as the light his complete inno- cence of every charge brought against him, could form no restraint to the wanton and cruel slanders of the Defendant, whilst procuring the Bill of In- dictment to be drawn up as a safe method in his opinion of extensively propagating his slanders, the dicision of this Court was given against him in the civil Action, and you will recollect Gentlemen the Inscription enfaux^ which he endeavoured to sup- port by evidence that the conduct of Mr. M*Pher. son was strongly attacked.-^It mipjht have been expected that here even Mr. Arnold's malignity might have rested satisfied, that further measure? would end equally honourable to Mr. M*Pherson. But, Gentlemen, not so thought Mr. Arnold for stung 13 ** Ko where- rson is 3resaid it him, irapu- ;er Ses* lade a- ; action nces its ly, and Plaintiff sustain alignity ?hat re- nnies — ng Mr. \ a man e inno- , could landers of In- »d in his ers, the m in the men the to sup- ^*Pher. ^e been alignity leasure? herson. lold for stung %tung by defeat he reiterated his accusations at a- nother tribunal and claimed as before the unwor. thiness of the Plaintiff to hold his commission or any other situation where trust and confidence were required, his next step Gentlemen was to cause Mr. M*Pherson to be indicted in theCrimi- nal Court of King's Bench, but here also his schemes were defeated, the Grand Jury did (as they heard only ex parte evidence) in this instance return the Bill a ** True Bill," but on his trial be- fore the Petit Jury where the evidence on both sides was heard again, Mr. M*Pherson was acquit- ted, and by the verdict of his Country declared innocent of any crime. As to the instrument itself of which so much has been said it might be valid or might not, but it is manifest that no fradulent intentions existed on the part of Mr. M*Pherson as was reiterated in the accusations of the present Defendant. — If ever Gentlemen a case came be- fore a Court of Justice stamped with malignity and falsehood, it certainly was the indictment presented at the instance of the present Defendant to the Grand Jury, notwithstanding the dicision of the Court a few days before, negativeing the whole of his obhgations. Never I consider within the knowledge of man did such determined malice shew itselfi and 1 feel confident Gentlemen, after hearing the evidence you will entertain a similar opinion.— Reviewing the whole conduct of the Defendant from first to last as it will be exhibited to you in evidence, no other conclusion can be ar- rived at. The falsehood of the accusations will ap- pear equally manifest, for in point of fact they had no foundation whatever. The u The Law upon this subject is extremely simple and as it has been explained to you by the high authority of the Court, 1 shall make no remarks up- on it. In conclusion I will just observe that although a variety of slanders are alledged or set forth in the declaration, it is not incumbent upon the Plain- tiff to prove the whole, it is sufficient, the authori- ties say, tliat when the declaration contains several actionable words some of them be proved ; this we shall do, and to prove the malice which originated the Bill of indictment and its falsehood, we shall show that the Defendant was the prosecutor or that his personal activity in the business justified a be- lief that he was so. Being personally active in the business of prosecuting a malicious and false in- strument, is sufficient legal proof to establish ma- lice in the individual so acting, whilst in the pre- sent instance the rejection of the Bills by the Grand Jury after examining the Defendant who was one of their Body sufficiently demonstrat- ed its total absence of truth. Upon the whole, Gentlemen, we shall leave the case in your hands satisfied in our own minds that we shall obtain from your verdict suitable reparation for the injuries of which we complain by our suit. Mtx. Christie — The first piece of evidence we shall produce is the commission of Laughlin Tho- mas M*Pherson as a Notary Public, which will be read by the Prothonotary unless my learned friends chuse to admit the fact that he is a Notary. Mr. Stuart observed that in the present case he was not disposed to admit any thing, and was pro- ceeding to state some objection to the instruments, even being read, but after a moment's considera- tion i 15 simple he iiigh arks up- ilthough th in the e Plain- authori- 5 several , this we iginated ^^e shall ir or that ied a be- ;e in the false in- blish ma- the pre- 3 by the ant who nonstrat- )on the case in that we jparation our suit, ence we ilin Tho- h will be id friends t case he was pro- ;ruments, onsidera- tion I tion not pressing it, the commission was read by the proper officer. Benjamin Tremain, Esquire, Sworn and exa- mined by Mr. Christie — Mr. Tremain — I am acquainted both with the Plaintiff and Defendant in this case, Mr. M*Pher- son is a Notary Public, carrying on his profession in the Lower Town of Quebec. — I know the De- fendant in this case, Mr. George Arnold, and have conversed with him on matters from which as I" suppose the present suit may have originated— I have no recollection of holding any conversation with him on the subject before the month of May last, and I rather think I had not — I did in Octo- ber last hold a conversation with Mr. Arnold on the subject of the acte or instrument drawn by Mr. M*Pherson as an agreement or contract between Messrs. Boyles of Ga&p6 and their creditors. Mr. Christie was about pursuing observations and the examination so as to ascertain the nature of the conversations, but Mr. Stuart objected that until the words laid in the declaration were actually^ proved, evidence could not be received of any words spoken subsequent to the commencement of the action now in suit — w^hether such evidence can be received at all may be a topic for future discus- sions, but no doubt can exist as to its utter inad- missibility at the present moment. Mr* Christie acquiescing in the objection, r6. quested Mr. Tremaiu' not to leave the Courti as he should 16 should have occasion soon to examine him after proving the slanders in the declaration. , Mr. John Munn was then called, but did not answer. Mr, Wm. Thornton sworn and examined by Mr. Christie. » < . Mr. Thornton— I know Mr. M*Pher3on the Plaintift' in the present case. I am more acquaint- ed with the Defendant Mr. Geo. Arnold. I had frequent occasions to see the Defendant during the last fall and winter, and to converse with him. I did so frequently and about this business of the alteration of the Acte or Instrument, signed by the BoyJes and their Creditors, or some of them as I understood. Mr. Arnold frequently spoke of the Business of the Acte being altered after he had signed it, and that names had been struck out and sums of Money also. He spoke of this having been done by Mr. M*Fher5on, and that for so doing, he was unworthy of holding a Coaimission or of any employment. Other expressions might be and were, used, but I cannot speak to particular words. The general Tenor of Mr. Arnold's obser- vations alluded to Mr. M^Pherson's conduct in his business of ^ Notary Public as I supposed. These conversations were not in confidence as I imagin- ed, nor did I by any means consider them as con- fidential, most certainly they were not spoken in whispers or privately. They occurred generally I belicYB in the Street, and were the result of ac- cidental meeting. Mr. Mld*s obser- duct in his ^d. These I imagin- em as con- spoken in generally esult of ac- \ spoken of faction for having i i having altered the Acte or Instrument in the case of the Boyles by which he said he 'ad lost a good deal of Money. Mr. Stuart, — I must object to this sort of general evidence of general conversations. My learned friends in their declaration have very properly laid a great number of particular and specific words or sentences as having been uttered by the Defendant, why I would ask do they not proceed to prove them distinctly, instead of delaying the time of the Court and the Jury by matters which may or may not turn out to be evidence. Mr. Christie, — The course we shall pursue is to prove in the first instance the allegations contained in the Declarati on generally ^ after which, we shall proceed to adduce evidence of them particularly. Mr. Stuart, — To this course of my learned friends I object, the particular words they have stated in their declaration they must prove before they can be allowed to go into Evidence to shew the quo ammo. My learned Friends as a Substra- tum must shew or prove the particular words or expressions charged in the declaration, and after- wards for the purpose of aggravating their dama- ges and fully establishing the quo animo of the De- fendant they may be permitted to give in Evi- dence general conversations, but this I contend, they can not be allowed to do till the former are fully proved. We are called upon to answer certain particular expressions, distinctly set forth in the long declaration of the Plaintiff, these expressions are charged to be false, scandalous, malicious & defam- C tory. r^'l 18 atory, but surely, the commencement of my learned friends* case, is to prove the words thus particularly charged, and not general conversations. Chief Justice Sewcll. The most natural as well as desirable course, certainly, is to prove as early as possible, the slanders charged in the Declara- tion; to effect this, however, the substance of con- versations bearing materially upon the subject, may be proved, as it is not to be expected that the whole of long conversations will be remembered with precision. The evidence of this witness, as far as it has gone, amounts to this " that Mr. McPher- " son was spoken of by Mr. Arnold, in terms of " great dissatisfaction, for altering the Acte or In- ♦* strument in the case of the Boyles" — a variety of the expressions in the Declaration relate to this point, for one of the charges, indeed tlie principal one is, that the Plaintiff did improperly alter and obliterate the Jcte. sK f* Mr. Stuart — There is this peculiarity in our case ; we are not charged with uttering these ex- pressions or slanders as they are termed, at any precise time or place ; it is not said, whether they formed parts of one continued discourse, or of many ; the Declaration merely alledges, that on or about the lOth of April 1822, and at divers tim es before and since, publicly and in the presence and hearing of divers good and worthy subjects of His Majesty, " the said Geo. Arnold falsely & malicious- ly spoke and published of and concerning the said Laughlin Thomas McPherson, with respect to his conduct in the way of his profession, in the " making and executing the aforesaid Acte or In- " strumenrt <( (( (( i i f learned rticularly •al as well ! as early Declara- :e of con- 3Ject,may the whole Bred with ,, as far as . McPher- terms of icte or In- — a variety [ate to this ; principal alter and ty in our these ex- ed, at any ether they jrse, or of that on or ivers tim es esence and jects of His malicious- ing the said respect to sion, in the Acte or In- strumenrt A (( i( «c 19 " strument in writing above mentioned, these ** false, scandalous and malicious words following, that is to say, / mil make an example of him, meaning the said LaugliHn Thomas McPher- son," and so on with respect to the other words —It therefore appears to me, that the learned gen- tleman should confine himself to proving the words laid in the declaration, or we cannot tell what we are called upon to answer; after these are estab- lished he can adduce any other testimony that his judgment may dictate. The examination of the witness then continued. Mr. Thornton, In the conversations I refer to with Mr, Arnold, he spoke of the Courts of Jus- tice, and of his having lost cases therein, and he spoke particularly of the case of the Boylcs, against whom he had brought an Action in the Court of King's Bench ; he also spoke of Mr. McPherson in connection with that cause; he said that Mr. McPherson had altered the Acte or Instrument in question ; that he had struck out certain persons, names that were in the Instrument when he signed it, and in consequence of his so doing, he (Mr. A.) had lost his suit against the Boyles ; Mr. Arnold did express his opinion of this conduct on the part of Mr. McPherson, but I cannot repeat the exact words in which it was expressed ; the opinion cer- tainly was not favourable to Mr, McPherson's re- putation as a Notary Public. Mr. Christie, — On the contrary, were not Mr. Arnold's language and expressions highly injurious to his reputation and fame as a professional cha- racter ? C 2 Mr. 20 Mr. Stuart, — Untill precise words are explicitly proved, I object to any questions of tho n»ture or tendency of that just proposed i/y iny learned friend ; this witness has only spoken to a very ge- neral conversation or conversations with the De- fendant, and qualiHes even that testimony by de- claring, that he does not recollect more upon the subject, than that the opinion entertained by Mr. Arnold was unfavourable to Mr. McPherson. Mr. Christie, — Remarked that it was not neces- sary to detain the Court, by replying at any i ngth to the objection of his learned friend, as there re- mained only one or two more questions which he was desirous of putting to Mr. Thornton, and to these, he imagined, no objection could be made ; the examination then continued, and the witness deposed. Mr.. Thornton, — These conversations were not private, nor did I consider them conHdential ; to the best of my recollection they took place in the street ; I do not recollect other company being present when they were held. Mr. Stuart, — Without trespassing on its time by argument, I leave to the Court to decide whether this is evidence? I claim its decision more for the purpose of settling, whether in future a si- milar course is to be allowed, than with regard to the: testimony of the present witness; for whether admitted to go to the .J tj ji jjt, is of very little consequence, it is so very general. Chief Justice Sewell, — It is almost impossible in TW 21 explicitly nature or y learned a very ge- h the De- my by de- 5 upon the led by Mr. erson. inot neocs any ' ngth as there re- is which he ton, and to I be made ; the witness IS were not idential; to place in the [ipany being on its time to decide Bcision more future a si- th regard to {'or whether )t very little impossible in n 4 in cases of the desciiption now before the Court, to lay down absohitely any general rule, equally binding m ♦•very instance. The practice in the different Courts at home even, is not precisely uniform us to the admission of evidence, in cases of actions for slander and libels ; it has been usual in Knglund to huld in actions tor slander, that pro- ving words equivalent to those set forth in the De- claration, to have been used by the Defendant was sutHcicnt to support an action, without express evi- dence to the exact words charged as having been uttered. More modern decisions, however, stop short of this length, and determine that the words charged in the Declaration must be proved, if not U'hotti/ yet certainly in part, A proportion of the allegations contained in the Declaration must be exprassly proved, and then evidence may be ad- duced as to other words, to shew the malice in which the alledged calumnies orirrinate ; nothing said by the present witness, beyond what is most strictly evidence, has been taken down, and conse- quently nothing else will go to the Jury. Mr. Christie, — Declaring he had no further questions to put to this witness, Mi. Stuart cross examined him. Mr. Thornton, — The expressions used by Mr. Arnold were to this etiect, that Mr. McPherson had altered the ^cte, after he (Mr. A.) had signed it, and in consequence of this improper conduct, that his suit in the Court of King's Bench against the Boyles had been lost, but the particular words he used, I cannot recollect j what I have mention- ed is the substance of conversations I held with Mr. Arnold. Mr. 22 Mr. Stuart, — If you, Sir, had sustained the loss which Mr. Arnold considered that the improper conduct of the Notary had subjected him to, would you not have found your feelings hurt, and have expressed yourself much in the same manner as he did? Mr. Thornton, — I ceftainly should, and in Ian*, guage much stronger. Mr. Christie, — Was about proposing some oth- er question to the witness, but after interchanging a few words with tiie Court and Mr. Stuart, he called Mr. John Munn, who being sworn, was ex- amined as follows by Mr, Christie. Mr. Munn, — I have frequently heard Mr. Ar- nold speak of the alteration of an Acte or Instru- ment by Mr. McPherson, and that he had been a great loser by his conduct in that case. Mft. Stuart — If these general conversations are considered by the Court to be evidence, I trust that the witness will be obliged to fix some time to their having taken place, otherwise it will be impossible lor us to meet and repel them, or, on the other hand, if the witness is unable to fix a time, that he may not be allowed to testify except to words or expressions, of which we have received notice, by their being set forth in the declaration. The Chief Justice read some Law Autho- rity, but without mentioning the name of the wri- ter from whom he quoted, and briefly observed, the evidence already taken went this length, that in different conversations, the Defendant had com- ^ planed I I t J «• •^ J ( 1 V ^a pl»iiieJ of tlio Plaintifr& his conduct in the public capacity in which he practised as a Notary Public. That he charged or accused him of having alter- ed a certain Acte or instrument, after its being signed by him, (i. e.) Arnold, in consequence of which alteration, he, (according to the opinion he expressed,) had lost a Suit in Court, which he car- ried on against some persons trading under the firm of Boyle k Brothers. — Whether that opinion was well or ill founded, is of no consequence at pre- sent. — The other ])art of the evidence certainly bears upon a part of the declaration which charges the Defendant with having accused the Plaintiff of altering or falsifying the Acte. The examination of the witness was resumed bv Mr. Christie. Mil. MuNN — Mr. Arnold complained of the Acie or instriunent having been altered after he had signed it — He said that several names had been struck out, by which it was not the instru- ment which he had signed. I do not recollect the conversation so particularly as to be able to give evi- dence upon oath, to the exact words made use ol", I cannot recollect precisely what Arnold said. Mr, M'Pherson certainly had my confidence previ- ously to Mr. Arnold having made these represen- tations concerning him, and it appeared to me, that he had Mr. Arnold's also, at that time, Mr. Arnold did not speak of him or his conduct in terms of applause, but rather of strong disapprobation. He felt, or considered himself injtned by Mr. M'Pherson by what he said, and he expressed him- self in language such as an injured man might be expected 24 expected to use. Although I do not precisely re- collect the very words he used, I do remember, that Mr. Arnold, while speaking about Mr. M'Pher- son and the Acte, said, ** that some of the names ** had been struck out or obliterated from it after " he, (Mr. Arnold) had signed it." Mr. Stuart — Mr. Munn, had Mr. Arnold's case been your own, instead of his, would not you have considered yourself an injured man, and expres- sed yourself or opened your mind to your friends as Mr. Arnold did ? Mr. Munn — I undoubtedly should, and think very likely much more so than I ever heard from Mr. Arnold. Doctor Morrin sworn and examined by Mr. Christie. I Doctor Morrin — I know both the parties in in the present suit. Mr. Stuart suggested, that having been infor- med that Doctor Morrin was an incompetent wit- ness from the relationship between him and the Plaintiff, he wished to ascertain from Dr. Mor- rin whether that was the fact. The Court would perhaps put the question, or permit it to be put noxvt for the purpose of saving time. An interro- gatory, corresponding with the suggestion, being put to the witness, it appeared from his answer, that he was a Cousin to the Plaintiff', and he there- fore left the Box. And upon Mr. Smillie being cal- led, Mr. Stuart observed, that as far as he was ac- quainted 25 quaintedwith the facts which Mr. Smillie's evidence would point to, it would be necessary to have the original or Notarial /icfe or instrument drawn up between the Boyles and their Creditors. In the mean time, as there were Fac Similies at hand, one of them could be used so as to allow the case to proceed, and Mr. M'Pherson might be directed by the Court to fetch the original Document or Acte. Mr. James Smillie sworn & examined by Mr. Christie. Mr. Smillie — I am a Silversmith, Jeweller, &c. in this City — I am acquainted with both Mr. M*Pherson and Mr. Arnold ; I have a knowledge that a disagreement existed between Mr. Arnold and Mr. M'Pherson, in consequence of some no- tarial Acte or instrument drawn up by Mr. M'Pher- son, having been subsequently (as Mr. Arnold said) altered illegally or improperly by the Notary Public. — The conversation between Mr. Arnold and me took place between ourselves, alone, to the best of my recollection. — [It was intimated to the Court that the original Acte or instrument was not in the hands of the Prothonotary and the exami- nation was resumed.] Mr. Smillie — I am not acquainted with the par- ticulars connected with engraving the Fac Simile, nor what were the precise alterations of which Mr. Arnold complained ; I did not execute the Fac Simile ; It was done by my Brother who is in Court ; I was not present when my Brother was engraving the plate, and am not acquainted with D the 26 the particulars of the alterations said to have been made ; I know that Mr. Arnold said that names had been struck out of the Acte after he had signed it, and that a sum of something more than ii^680 had been inserted instead of one much larger in its amount ; I do not remember any thing more that passed particularly relating to this subject. Mr. Stuart — I have no questions to put to this witness. Mr. David Smillie sworn and examined by Mr. Christie. Mr. David Smillie — I am an Engraver by Pro- fession, and Silversmith ; 1 know both the Plaintiff and Defendant in the present action ; I was em- ployed by the latter to engrave the Fac Simile of the Acte op instrument drawn up by Mr. M*Pher- son as an agreement between some persons trading at Gaspe, and others represented to be their cre- ditors , I did in point of fact engrave it ; it was easy to see that alterations had been made in the manuscript from which the Fac Simile was taken, but I know nothing of the time when they were made. From looking at the writing I should have supposed it had been altered although I had not been told so ; I have nothing particular to state about the business, all I know is from having en- graved the plate or Fac Simile ; I have conversed with Mr. Arnold upon the subject but not parti- cularly. Cross examined by Mr. Stuart, Mr. D. Smillie — When the conversations took place ebeeii names signed .^680 T in its re that to this by Mr. 3y Pro- 'laintiff 'as em- mile ot* Pher- trading eir cre- it was in the i taken, y were d have lad not o state ing en- nversed >t partt- ns took place 27 place between me and Mr. Arnold they related chiefly to the engraving of the plate ; the plate was engraved by myself for the Fac Simile, but I had some help j I have every reason upon looking at the original to suppose the alterations, &c. had beer made some time after the instrument had been drawn up ; Mr, Arnold said that it had been altered by some person since he had signed it, but I do not recollect that he named the person by whom it had been altered ; he said that erasures had been made so that the deed was completely changed in its na- ture and effect as the debts of some had been taken away or struck out ; I do not remember that he mentioned the particular amounts or the names of the creditors whose names had been struck out ; I heard several conversations about the Acte, but I cannot charge my memory with any particular words as having been used by Mr. Arnold ; Mr. Arnold I do recollect spoke particularly of the al- teration of the amount of money on the face of the Acte, which was from upwards of eleven hundred to some sum between six and seven hundred pounds as I think j I do not remember tliat Mr. Arnold ever said before me more than what I have mentioned in substance to the Court. Mr. John Mount sworn and examined by Mr. Christie. Mr. Mount — I am acquainted with both par- ties in this suit ; the Plaintiff I know as a Notary Public, and the Defendant as carrying on Business at Quebec ; I have heard the Defendant Mr. Geo. Arnold speak of the Acte or instrument drawn up by Mr, M*Pherson,asa Notary, between the Boyles D 2 and 28 and their Creditors, as it was understood ■; I speak now only from general recollection of conversati- ons which I have heard and the general impressi- ons made on my mind by them ; 1 have heard that after Mr. Arnold had signed the deed, some of the names of the Creditors of Messrs. Boyles had been erased or struck out of the Acte ; I do not recollect the exact words made use of, but that was the substance of the accusation brought as I understood against Mr. M'Pherson. Mr. Stuart — As my learned friend does not bring forward positive evidence to any of the nu- merous slanders set out in the declaration ; I think it my duty to object to this general sort of evidence being extended j my learned friend's first duty, is most clearly, distinctly and unequivocally to prove his Declaration, or so many of its substantial aver- ments as are necessary to bring home to the Defen- dant undeniably the charges brought against him ; if any other course is pursued we abandon the beat- en road of common sense and the first principles of law to seek a labyrinth j up to the present moment they have not proved a single one of the very many slanders so distinctly laid in the Declaration, and the present witness is led through the same histo- ry of general conversations, though he had candid- ly answered that he does not recollect particular expressions, and cannot prove particular 'words — What (I ask) is the very^'w/of the PlaintifTs case? To shew by producing positive evidence to the precise words and expressions charged in the De- claration, as the cause of action against the De- fendant ; I say it is to prove by positive testimony that he uttered them j to the present moment, ac- cording 29 cording to my ideas, we have not a tittle of legal evidence to support any one of the slanders, or to shew that the Defendant even uttered one of tnem ; why shall my learned friend be permitted to pursue his course, so contrary to every re- ceived rule of evidence ? Mr. Christie considered that he was complete- ly within the Rules laid down in all the Treatises on the Law of Evidence. W, upon closing his case it it should be found that the evidence of his witnesses had not proved the slanders set forth in the decla- ration, the learned Gentleman will be entitled to the full benefit of the omission. Mr. Geo. Whitfield sworn, and examined by Mr. Christie. Mil. Geo. Whitfield — I am acquainted with both the Plaintiff and the Defendant in the present case ; slightly with thePlaintifF, and rather intimately with Mr. Arnold. I am not connected in anyjwise with either of the parties, but am a Clerk to Mr. Languedoc. I had occasion frequently, to hear Mr. Arnold speak of a Notarial Acte or instrument prepared by Mr. M'Pherson, and which he com- plained had been altered since he had signed it, without his knowledge, and that in consequence he had lost a considerable sum of money in a law suit with some persons of the names of Boyle. The instrument spoken of as having been altered was an agreement between the Boyles and their credi- tors. Mr. Arnold was generally known to be a con- siderable creditor to that firm, at least I always understood him to be so, and as such, had signed the so the Atte in question. In speaking with Mr. Arnold on this business, I never considered there was any thing confidential in cur conversations, or that I ought not to repeat them. Mr. Arnold said the Acte had always been with the Notary, and it could not have been altered except by him or at his directions — that a Notary was answerable ibr all deeds left in his posse jion ; that they were not to be touched, except the Law justified a Notary in so doing. Mr. Arnold said this instrument had been changed by alterations and erasures having been made therein after he had signed it, and the Notary who would be guilty of doing such a thing, or allowing it to be done, was unfit for or unworthy of his office or commission, as no confidence could be put in such a man. He observed gene- rally, that there was no security for property, if a Notary could alter an Acte or instrument, for if he could add any thing, or take away any thing, (no matter how trifling,) he might alter it as he chose. I frequently entered into conversation myself with Mr. Arnold upon this business, and he never chan- ged or dissembled his opinion. He said also in substance, that such a Notary not only ought not to be employed, but deserved to lose his commis- sion, and that if such a thing had been done England by any Notary, he would have lost it. in Cross examined by Mr. Stuart. Mr. Whitfield — The conversations that I have referred to took place at very different times jsome of them may have occurred before the twenty- fifth of May last, and some after, but I cannot fix any particular date. Mr. 31 Mr. Stuart — If you had been treated in a si- milar manner to Mr. Arnold, would you have felt aggrieved, and have spoken of the person by whom you had suffered loss, as much as he did ? Mr. Whitfield — I am sure I should, and should have said a great deal more. Mr. Geo. Aird sworn & examined by Mr. Chris- tie. Mr. Aird — I live in the Lower Town, and keep a Tavern there. I know both the Plaintiff and De- fendant, and have heard many conversations upon matters connected with their disputes or misunder- standing. I never had any conversation myself directly, either with tlie Plaintiff or Defendant on the business, but have merely heard them speak- ing. Mr. Christie — Before putting additional ques- tions to the witness, would suggest, that he con- sidered the slanderous words now fully proved, and that he was therefore at liberty to prove other words than those laid in the declaration. It might be ob- jected, that such evidence would of itself, or at least that it miojht constitute a ground for a dis- tinct action. The point, however, I consider to be completely settled, if not not in cases of Libel, yet fully in those of Slander. I am (said Mr. C.) now entitled, by any evidence I can adduce to shew the malice of the Defendant in using the words set forth in the declaration, and my learned friend well knows that I am not bound to prove the whole — " If the Declaration contains several " actionable 32 <( if (( (( «( (( <( " actionable words, it is sufficient for Plaintiff to " prove some of them.'* Selwyn*s Nisi Prius, P. 1104 — and the same writer P. 937 observes •* In an action for a Libel, after the libel upon which the action was brought had been read, the Plain- tiff's Counsel offered in evidence other Libels written by the Defendant. This having been ob- jected, to on the ground that the Plaintiff could not give in evidence any thing which would of itself constitute a ground for a distinct action, Lord Kenyon, C. J. said, he thought the evi- dence was admissible, and compared it to actions " for Slander, in which, he continued, evidence of ** other words, besides those stated in the declara- ** tion were usually received (to shew the malice of the Defendant")— He (Mr. C.) had submitted these observations, that his learned friend might make any objections he thought proper before the next witness was called, whose evidence might be of a nature to render such questions necessary. Mr Stuart, — Had understood the Court to have concurred at an early period of the trial, in the position he had then submitted, and which he had always considered to be law ; viz. That the parti- cular words they have stated, must be undeniably established, wholly or in part, before they can go into evidence as to the quo animo, I by no means admit that there is evidence before the Jury, estab- lishing any one of the words set forth in their Declaration. The whole mass of testimony now before the Court and Jury relates to general con- versations in which the Defendant had expressed his opinions, relative to the duty of a Notary Pub- lic, which in regard to a particular Acte or Instru- ment, 33 lintiffto :*rius, P. es ** Itt m which he Phun- er Libels r been ob- itiff could would ot :t action, t the evi- to actions vidence of e declara- ,he malice submitted ;nd might before the ; might be cessary. irt to have rial, in the ch he had i the parti- indeniably ley can go no means ury, estab- h in their mony now meral con- expressed otary Pub- 01- Instru- ment, ment, he conceived had not been attended to by ^ the Plaintiff J to the authorities quoted by my learned friend, I shall merely remark, that he is not within the first (Selwyn 1104) according to my idea, as no specific words laid in the I3eclara- ion are yet proved. I have no wish to detain the Court by argument at the present moment, and my learned friend had perhaps better proceed with his case, and if during his examination of witnesses I should be compelled to object, I shall then go more fully into the law connected with this part of the case. Mr. Ebenezer Baird, sworn and examined by Mr. Christie. Mr. Baird — I am a merchant, carrying on trade 4 in the Lower-Town of Quebec ; I know both the Plaintiff and Defendant, and have heard of their differences. I have conversed with Mr. Arnold often upon the subject of them ; he always spoke as any one would do who thought himself injured, which he considered he had been through Mr. McPherson ; he spoke about the Boyles and the Instrument generally, which he represented to { have been altered improperly ; the conversations J to which I refer took place at different times ; I cannot positively recollect the dates, but they might be, or a good cumber of them, before the 25th of May last ; some of them certainly were previous to that date ; I cannot remember any particular conversation about the 14th ; Mr. Arnold com- ^ plained of the erasure of names from the Instru- , ment after he had put his signature to it, and con- ceived that it had been done improperly, and that S4! it had operated injuriously to him ; he blamed Mr. McPhcrson tor the erasures having been made in the Acte or agreement between the Bovles and their creditors, and said he was a cunning little ras- cal ;* he appeared (that is, Mr. A.) considerably enriged or angry about the business; he talked as a nr an would do who felt he had been aggrieved, and certa'.nly to the discredit of Mr. McPherson, to whose conduct he attributed his losses in the Boyles* business ; I had always entertained a good opinion of Mr. McPherson as a professional cha- racter, and know nothing unfavorable to him, but the reverse ; I had, however, no particular ac- quaintance with him. Mr. Christie, — But if you had not known Mr. McPiierson's good character, would it not have produced that effect upon you. Mr. Baird, — If I had not known any thing of Mr. McPhcrsons character I should perhaps have entertained a bad opinion of him, though I do not know that it would be to that extent ; it certainly has produced no such effect on my mind, for I do not think he would knowingly act in a manner un- worthy of his commission. Mr. Christie, — But, Mr. Baird, had you been entirely ignorant of Mr. M*Pherson*s good reputa- tion and Character, what would have been your opinion when you heard him accused of crimes which are punished by the pillory and flagellation, or such other punishment as the Court may think proper to inflict ? • The reporter's notesdo notshew very distinctly whether it was Mr.McPhcr- •on or one of the I3oylcs, who was thus described. Air, I 35 Mr. Baird did not answer immediately, not ap. pciiring exactly to understand the question, and it was not pressed. Cross-examined by Mr. Stuart ; Mr. Baird, — I rather think the conversations I had with Mr. Arnold were considered as confiden- tial, at least those I had before the 2.5th May ; on one occasion after the Q5th May, 1 recollect we had a conversation near the steps at Mr. Reeves* corner; the conversation to which I referred in ray examination in chief, wherein Mr. Arnold was indignant, and described some one of the persons engaged m the transaction, as a little rascal, took place before the 25th May, and was considered confidential, I believe, by Mr- Arnold. 1 think the conversation was confidential, because there were only he and myself present, and Mr. Ar- nold spoKC very freely. IMr. Stuaiit — If a Notarial Instrument that you had signed, were altered and falsified, and in con- sequence you lost £S or 400, would you like it, or be disposed to speak very calmly of the person through whose misconduct this happened ? Mr. Baird — I suppose not — it is not likely that any man would do so. I have conversed about the instrument, both before and after the action was brought, butlnever heard Mr. Arnold say any thing against Mr. M'Pherson, except in relation to this business. Mr. William Maxham sworn and examined by Mr. Christie. E2 Mr. Kf^S .v I'S^ 36 Mr. William Maxham — I am acquainted with both the Plaintiff and Defendant. The llaintiff is a Notary PubUc in the Lower Town, and 1 al- ways considered his reputation good — I never heard it attacked, or his integrity doubted, before this affair of the Boyles and the Deiendant. I considered him an upright man, and he was gene- rally thought so, I believe. Mr. Christie — Is it within your knowledge, that Mr. M*Pherson*s integrity was impeached, and his reputation injured in his profession, by the Defendant ? Mr. Maxham — I cannot exactly say that, for I do not know whether his reputation has been in- jured — I have, however, a knowledge, that Mr. Arnold complained of Mr. M*Pherson*s conduct in his professional capacity, relative to the making or executing of a deed or Acte of agreement be- tween the firm of Boyles & Brothers and their cre- ditors, which he had signed, and which afterwards, he said, was altered, by which he had lost a consi- derable sum. Mr. Christie — Do you know, Sir, that Mr- Ar- nold presented, or caused to be laid before the Grand Jury of the Court of Quarter Sessions, for the District of Quebec, in last April, a Bill of In- dictment against the Plaintiff, Mr. M'Pherson, ac- cusing him of wickedly, maliciously altering, and falsifying the said Jcte ? Mr. Maxham, — No, I have no knowledge that Mr. Arnold presented such a Bill, or caused one to be 37 be presented, but from coming in and out some- times of the Court of Quarter Sessions, last April, and in the same way being accidentally in and out of Mr. Arnold's, during the winter of 1821-22, I may say I do know that some Bill of Indictment against Mr. McPherson was before the Grand Ju- ry of the Court ot Quarter Sessions ; In the same way 1 know it was thrown out, and that Mr. Ar- nold was a member of that Grand Jury ; I have been present at various conversations on this sub- ject, when different persons were accidentally met; Mr. Arnold always complained of the alterations made in the Deed, which consisted of names being erased, and the original amount of debts being ef- faced, by another and smaller sum being written over it ; if I recollect right, the amount originally inserted in the Acte was about Eleven Hundred Pounds, instead of which a sum of something more than Six Hundred Pounds had been written over it ; Mr. Arnold has said in my presence that could this be allowed, or such conduct, that there would be no security for what a man made here, and that a Notary so acting deserved to be punished. He observed also, that any Notary altering a Deed in England would lose his comuiission. Mr. Arnold did not make any secret of these opinions, the subject was spoken of as any other might be ; Mr. Arnold would sometimes express himself warmly on the business, as he considered he had lost mo- ney through the alteration of the Acte or Deed. Cross examined by Mr. Stuart. Mr. Stuart, — By the term ** warmly" which you just now used, do you mean that Mr. Arnold was 38 was in a passion or rage, or that he spoke as a man might be expected to do, who lielt himsehf aggrie- ved, and that in consequence of the improper con- duct of the Plaintiff he had suffered an injustice, and lost a very considerable sum of money ; ex- plain if you please your last answer, Mr. Maxham, — All I can say is, that in speak- ing of this business, Mr. Arnold expressed him- self, as one might be expected to do, who thought himself injured j he would not, I suppose, speak very coolly of losing £4/00. Mr. William Boyd sworn, and examined by Mr. Christie. Mr. Boyd, — I am well acquainted with Mr. Arnold, the present Defendant, and have frequent- ly conversed with him on this business ; It was in the winter of 1821-22, 1 recollect, because I used frequently go to see him in a fit of sickness, which he had at that time; Mr. George Arnold was sick nearly three months, and it was principally during that time, that I conversed with him on this busi- ness; he generally con.menced the conversation himself, and there was not usually any body else present than ourselves. [The witness elicited no new fact, and the Reporter considers it unneces- sary to load the report with mere repetitions to the facts already fully testified to.] Archibald Campbell, Esq. sworn, and examined by Mr. Christie. Mr. Campbell, — I know both the parties in the present suit; I am a Notary Public, duly sworn and commis- 39 ncd commissioned for the Province of Lower-Canada ; I have lieard of the notarial Acte or Instrument made between the Boyles and their Creditors ; I was consulted upon it by Mr. Arnold previous, as I believe, to any step being taken by him of a legal nature against the Notary ; he called on me and asked me generally, whether a Notary Public had any right to alter an Acie after it had been signed, without the knowledge or consent of the parties who had signed it ; I said that I should think it ve- ry wrong in a Notary to do so ; he then began to explain that a Convention had been drawn between a Firm at Gaspe and their Creditors in Quebec, in which the names and amounts of monies due to all and each of their Creditors had been inserted ; that he and many other Creditors had signed, supposing that the whole were to do so ; that some of the Creditors refusing to sign their names, had been struck out, together with the amount of their debts; and that the total amount of debts had been effaced by writing over it a smaller sum. There were some other alterarions which, I dare say, were mentioned, and he also said this took place after the Deed had been signed by himself and others, and was done without either their knowledge or consent. He mentioned Mr. McPher- son as the Notary before whom the Deed was pas- sed. I believe that Mr. Arnold stated the Notary by whom the Deed was altered: I did not wish to hear any thing more upon the subject, or to give any opinion, or interfere in any way, as it is excee- dingly disagreeable when a Cotifrere*s conduct is called in question ; Mr. Arnold, I believe, then consulted his Advocate. Cross 40 Cross examined by Mr. Stuart. Mr. Stuart,— Notaries Pubiic, of whom in this Province you are one, are not, I believe Mr. Camp- bell, in the habit of obliterating, or striking out any part of an Acte or Deed after its being signed by any one of the parties, without their knowledge or consent ? Mr. Campbell, — No, they are not. Mr. Stuart, — I suppose doing so must, in your opinion as a Notary, rendei' an Instrument invalid or a nullity ? Mr. Campbell,-— Did not answer the question, (than as the reporter understood him) that it was Mrhat he should not do himself, or allow to be done. Mr. Thomas Atkins sworn, and examined by Mr. Christie. Mr. Atkins, — I am a merchant or dealer in the Lower-Town of Quebec, and I am acquainted with bo h the Plaintiff and Defendant. Before the 25th May I had no conversation with the latter, on the matter in dispute between him and Mr* McPherson. Mr. A. retired. Mr. Christie, — I shall call Benjamin Tremain, Esq. again, and my object is to prove the malice of the Defendant by his subsequent conduct, and the authority I referred to in Selwyn's Nisi Prius, I conceive completely bears me out in this course ; I shall, however, h^ar any objection my learnea 41 ti in this [r. Camp- iking out ng signed knowledge St. in yom- ent invalid lie question, I tbat it was dlow to be jxatnined by dealer in the n acquainted Before the 'th the latter, him and Mr. min Tremain, ,ve the maUce t conduct, and Selwyn's ^^si me out in this objection my learned learned friend may offer, and will then trouble the ,1^ Court in reply. Mr. Stuart, — Were I even disposed to admit as conclusive authority the citation of my learned friend, still he is premature, for such evidence can not under any rule be admitted to go to the Jury, until the words actually laid in the Indictment or Declaration have been distinctly, unequivocally, undeniably and almost irrefra;;ably proved. It is not until after they have been so proved, ti^at evi- dence in aggravation, can be received. Where is my learned friend's evidence, or what does the whole amount to ? — a mass of heterogeneous gene- iieral conversations, in many instances, so gene- ral, that not even the substance of them is recol- lected. Where they took place — whether before some pillar of a capitol — a market house or a pa- ^ lace, we are equally destitute of testimony. When they took place, is left in equal uncertainty — no period is fixed, from the Mosaic age, to the present day. I mean, no definitive date enabling my Cli- ent to defend himself. As to what space of time these allcdged slanders occupied, whether one day or two — a week — a month — a year, all is equally uncertain, and I contend, and do so with the firm- est persuasion, that (in such a case as this) the Court will sustain the opinion, that each of these are essential, before evidence of matters in aggravation can be received. As to the "dcords themselves — that they must be substantially and literally proved, will, I imagine, scarcely admit of - doubt. Indeed, the admission of this evidence is insisted upon, on the ground, that the averments of the declaration or words are sufficiently proved F at 42 at the present moment. Before entering upon this point, or that of whether such evidence can be re- ceived at all, I have one word to ofter as to time and place. Where the words themselves prove time and place, I admit, that the words being pro- ved, is sufficient, but very contrary is the rule where they indicate neither. In addressing my- self to your Honors as to the sufficiency of the evidence at present before you, I shall merely re- fer you to Com^?i's Digest, verba Defamation, Let- ters G. and C. The authorities there snew tlie extreme strict- ness with which the rule has always been held to apply, to words alledged to be defamatory. Tiie allegata et j^rohata must be precisely the same. The simple, unimportant difference between is and arcy as, he is, for l/ici/ are. has been held not to be proof sufficient. Another instance I mention, where the words were, I will hang him. In pro- ving the substantia' averment, evidence was given of the word both, having been used — this was held to be insufficient of the allegata. I feel persuad- ed, tliat the Court will not, by relaxing tlie strict rules which have hitherto obtained upon the sub- ject, encourage actions of this nature — actions cal- culated only to gratify a vindictive spirit. I come now, to consider the siifficiency of the evidence as it actually appears at the present moment. It will be necessary to read clause by clause, of that part of the Declaration which contains the alledged slan- ders, that it may be apparent, that not a tittle cf legal evidence to prove any one of them, is at present before the Court. The first words set forth in the Declaration are, " will make an example of him ;" on this be re- 3 time prove :ig pro- ic rule ig my- of the lely rc- jn, Let- ; strict- held to f. The e same. Ill is and lot to be mention, In pro- as given was held pcrsuad- the strict tlie sub- ions cal- I come Idence as It will ,t part of ed slan- ;ittle ci' , is at set forth ample of bim 43 him ;" meaning the oaid Laughlin Thomas Mc- pherson. It may be well to observe, that the lat- ter explanatory words occur after each averment, and I shall not trouble you by repeating them. "Which of the witnesses of my learned friend have proved any thing resembling this allegation ? It then goes on, that, " he has falsified that ylcte,'' moaniiig the instrument in question. Again, " he is guilty of forgery ;'* and further, " Mr. M'Pher- " son has fraudulently struck out some names " liorn that Jcte,'* meaning the Acte or instru- ment in writing above mentioned, " that were upon " it when I signed it," and further, **Mr.M*Pher- *' son has obliterated the names of some of the ** creditors of the Boyles from that Acte.** I pre- sume, it is this part of the Declaration which my Icp •'ned friend considers so completely proved, that he is entitled to pursue the course of examination just now proposed, and I shall therefore direct my attention more particularly to it. Were they as fully proved as my learned friend supposes, (which I by no means admit,) what, I would ask, do they amount to ? simply to this, that according to the conviction of the Defendant's mind, a certain No- tarial Deed or Instrument, in which he was per- sonally interested, had, without his knowledge or cor: sent, been altered after he had signed it, and from its being in clie custody of Mr. M'Pher- son, that it had been so altered by him. The instrument has been altered, it speaks for itself — obliterations of names have taken place— and I would ask of my learned friend, by what authority any Notary dare to change the contents or face of any instrument passed before, and left of record with him The Defendant, like every F 2. other 41- other man of ordinary common sense, knew tliat such an action was highly improper, highly da ge- rous, in short, totally unwarrantable. lie knew, that the sacredness and inviolability of property, which it has hitherto been our boast to have assu- red to us by the pure administration of the Law, must be shaken, if miy of it Oiticers, and more particularly, if an Officer, invested with such ex- tensive power of doing evil, if so disposed, as a Notary Pubikt could presume to alter an instru- ment that constituted an Actc of record with a Public Officer — that even the finger of an Angel could not be permitted to touch it for the purpose of alteration or obliteration. Whether the change were material or immaterial signifies nothing, tho* here the alteration was material, and very materi- al too. What does the Defendant say ? The in- strument has (by Mr. M'Pherson) been altered since I signed it — names have been struck out since I signed it — obliterations have been made to the ^4cte since I signed it. What does all this amount to, I again ask, were it at once granted to my learned friend ? To nothing. All that the Defen- dant said, was what any person might say with per- fect propriety and saliety from any prosecution for defamation. There is, however, a fatal omission in the proofs of my learned friend, viz. that he has not attempted to prove by any one of his numerous wit- nesses, that the Defendant ever accused the Plain- tiff of having altered the 'm^ixwmeni fraudulently^ The allegation of my learned friend's declaration is, " That " he" meaning the said Laughhn Tho- mas M*Pherson, " is guilty of forgery ^ and fur- ther, " Mr, M*Phersont** meaning the said Laugh- lin Thomas M*Pherson, " has fraudulently struck "out 45 that a ge- :ne\v, )erty, assu- Law, more :h cx- , as a nstrii- »vith a Angel urpose :hange g, tho* iiiateri- rhe in- altered it since to the imount to my Defen- ith per- son for 5sion in has not 3US wit- i Plain- kdently^ aration in The nd fur- Laugh- w struck « out " OM^ some names from that Acte," meaning the Actc or instrun^ent in writing above mentioned, *' that "were tr^.i itivhen I signed il.** The very ^75^ and marrow of my learned friend's case called upon him to prove tliut the Defendant had charged this misconduct to have been committedjrudiderit' /j/, but he has as completely lost sight of it as if it formed no part of his case whatever. That the Defendant considered it an action highly improper, and that he so expressed himself, may be extremely true, as that he might have said, that such conduct in a Notary in Englandy (without at all looking to, or attributing motives to others,) woulddeprive him of his Commission. Tiiese expressions go no fur- ther than to simply declare the opinion of the De- fendant — an opinion, in which, I believe, he is perfectly right. This expression implies, that in that Country, so strict is public sentiment rela- ting to any deviation on the part of a Notary from his duty, that no countenance would be given to him, but on the contrary, that he would no longer be allowed to exercise his profession. Opinions of this kind, do not form matter for the substantial averments of a Declaration, and it is those, which ray learned friend ought to have proved. Another averment made in the Declaration is, that " Mr. Mcpherson has obliterated the names of some of the Creditors of the Bojjies from that Acte^ and some understanding must have existed between the Notary'* meaning the said Laughlin Thomas M'Pherson " and the Boyles, in this business." In a marginal note it is added, " he has struck out some of the principal clauses from that Acte^ since I signed it.* ' Where is my learned friend's evidence to this charge or accusation of collusi- sion prove that the Defendant, in this instance, has used the words set forth in the declaration at allicr times than the declaration speaks of, and even af- ter an action of dama«;es for the slanders had been commenced aounsel is anxious to prove the quo animo by which the Defendant was actuted, which he avers to have been malicious, as is always the case in actions of this nature. The difficulty, and the sole difficulty is, can he be permitted, in attaining this object, to introduce evidence as to the conduct of the De- fendant subsequently to this action being brought ? Can he be permitted to prove words spoken by the Defendant, (or supposed to have been sjjoken by him) after the 25th May 1822, the day on which the declaration is dated ? What is the rule of evi- dence in criminal cases ? Most certainly, that no evidence can be received, except directed to the offence immediately charged in the indictment. If any other rule could obtain it would lead to the trial of one offence by another. To meet how- ever, the question now in issue, the Court will on- ly observe, that w^hatever uncertainty may for- G merly 50 merly have prevailed upon the admissibility or in- admissibility of such evidence as the Plaintift* in- troduced, (I mean in the Courts in England) none now exists. A pretty late case in the Court of Common Pleas, before Chief Justice the late Sir James Mansfield, brought under consideration the identical case now before us. That case was one of libel — the name of the case was Fennerty vs. Tipper — and after proving the libel or libels upon which the action was founded, in order to strength- en their case and aggravate the damages, by more completely proving tlie malicious quo animo of Defendant towards Plaintiff, the Counsel of the latter made the precise proposition now submit- ted by Mr. Christie, viz. to exhibit in evidence other libels which the Defendant had written a- gainst the Plaintiff. A very able argument ensued in support of, and against the admissibility of such evidence ; the Court decided, that it could not be received. A variety of similar decisions might be produced as authorities, but it is unnecessary. Such evidence is not permitted in Enghmd, and the decision of this Court is in accordance with that rule. The evidence proposed to be submit- ted of other words spoken by the Defendant, and since the date of this action, cannot be recei- ved. Mr. Chas. Noyes was examined, but his evidence being similar to that already reported, it is not considered necessary to insert it. William Green, Esquire, sworn, and examined by Mr. Christie. — I am one of the Clerks of the Peace for the District of Quebec. I know that during 51 or in- itt' in- ) none urt of te Sir on the as one rti/ vs. s upon engtli- y more imo of of the ubmit- 'idence it en a- [ensued of such not be isht be Such nd the with ubmit- ndant, recei- ut his rted, it amined of the Bw that during during the April Term of the Court of Gene- ral Sessions of the Peace, for the District of Que- bec, a Bill of Indictment was presented and laid before the Grand Jury, against Mr. Laughlin Tho- mas M*Pherson. Upon referrence to the Bill of Indictment, I perceive, that the name of Mr. George Arnold is endorsed thereon as one of the witnesses. Mr. Christie moved that the Bill of Indictment be read, which was done by the Pro- thonotary. The said Bill of Indictment was re- turned into Court by the Grand Jury, with the fol- lowing words endorsed thereon ; •* No Bill," sign- ed ** Joseph Stilson, foreman," Mr. M*Pherson paid me about seven dollars ex- penses attending the removal of the Indictment by a writ of certiorari^ to the Court of King's Bench, for a copy of the Indictment, &c. &c. Mr. Joseph Stilson sworn, and examined by Mr. Christie. — At the General Court of Quarter Ses- sions held in April last, I was a Member of the Grand Jury, and acted as foreman thereof. I know both the Plaintiff and Defendant in the suit now under trial. Mr. Arnold was a Member of the Grand Jury of which I was tlie foreman, in April last. Mr. Stuart — inasmuch as time might thereby be saved, wished his learned friend to give some idea of what he intended to prove by Mr. Stilson, as also to name the authority upon which the Court was to be called on to admit the testimony about to be oftercd on this branch of the case. G2 Mr. 52 Mr. Christie — My object is to prove the mali* cious intent of the Defendant, in causing this Bill of Indictment against the Plaintiff, witliout even the shadow of a cause for so doing. I propose to prove that the Defendant was the prosecutor of the Bill, and having already shewn by the Clerk of the Court, that such a Bill was before the Grand Jury, and by them ignored or returned " 7io Bill/* my diiij is " to shew that the Defendant was the pro- *' secutor of the Indictment, by proof that he ap- " plied to a Magistrate, to prove which all the pro- " ceedings before him should be produced, and ** proved as that he was otherwise personalis/ active ** m the business." (( (( (( (( (( The Chief Justice asked Mr. Christie whe- ther these hitter remarks were his own or whe- ther he was quoting any authorili/, Mr. C. repli- ed that it was reake*s evidence page 310 he had been reading and was still continuing to quote. — The Plaintiff should also be prepared to shew the falsehood of the charge, and if the Bill were found by the Grand Jury, he must either prove express malice in the Defr.idant or that there was not the least cause for the prosecution." I vill with the permission of the Court read one ad- ditional authority relating to damages which will be found on the same page of Feale. •* To encrease *' the damages, the length of imprisonement, the " expenses of the PlaintifJi and the circumstances ** of the Defendant are, also proper subjects of ** proof," In support of the correctness of these authorities I refer to a cause precisely in point men- ti('ned in Sekvyn^s Nisi Frius^ page 1104, in these wotds. — *' In an action for words of perjury thj Plain- 53 «* Plaintiff offered In evidence a Bill of Indictment, whicti had been preferred against liim by the Defendant, and which the Grand Jury returned ignoramus.'* " This was holden to be admissi- ble evidence to bhew the malicious intent with which the words were spoken." The Court inti- mating to Mr. Christie that he might proceed with his case, the examination of Mr. Stilson was con- tinued. €t *S (( (< (( Mr. Stilson — I considered Mr. Arnold to be the prosecutor of this Bill ; all Indictments are prosecuted in the name of the King, but Mr. ^\rnold was the first witness, and 1 suppose w^as what is usually termed the private prosecutor ; Mr. Arnold was examined before the Grand Jury or rather as a member he was called on to depose what he had to say as to the Bill j I cannot re- member all he said, but I recollect he detailed very minutely a great many things connected with the Indictment j every tiling that he wished to say was heard. Mil. Stuart — If my learned friend is desirous that Mr. Stilson should give the particulars of what passed in the Grand Jury room, I have not the slighest objection, for I can disclose the reasons why that Grand Jury rejected the Bill. The Court over-ruled such evidence being of- fered to the Jury. Mr. Stillson, — The Bill of Indictment was by the Grand Jury after due consideration thrown out I the paper now shewn to me is the Bill of In- dictment H dictment to which I have referred in my testimo* ny, and it is endorsed ** no Bill," Joseph Stilson, Foreman," which signature, &c, is my own proper >''>nd writing. The next witness called was Gil- 1 't Ainslie, Esquire, when Mr. Stuart enquired '/ aether his learned friend was going to examine -dr. Ainslie as a Magistrate before whom some de- position had been taken which bore upon the pro- ceedings, or whether he was called in another capa- city viz : that of Clerk of the Crown on the Cri- minal sideofHisMajesty'sCourt of King's Bench j in short whether his learned friend was attempt- ing to introduce evidence connected with transac- tions in that Court, which were began and finish- ed long after the commencement of the present suit. — To Mr. Ainslie*s examination as a Magis- trate the slightest objection was not intended to be offered, but if that gentleman was to be examin- ed as Clerk of the Crown, and the proceedings in September were to be gone into ; he (Mr. S.) begged to be heard in opposition thereto before Mr. Ainslie was sworn. To these remarks Mr. Christie observed that there were two or three points upon which he proposed to examine Mr. Ainslie, whom he did not call as a Magistrate^ but in his official capacity of Clerk of the Crown. He Proposed by that gentleman and the record which e would produce, to prove that upon a second Bill of Indictment which was laid before the Grand Jury of the district in the same Court, accusing the Plaintiff of various oflences and misdemea- nors arising still out of this Acte or instrument, that although they returned it (having no evidence before them except ex parte testimony) *' a true Bill," that subsequently by a Petty Jury in the Court I 55 Court of King's Bench, by the Jury of his coun- try, of his equals, who had the advantage of hear- ing both sides of the evidence ; he was instantly acquitted ; his innocence of even the shadow of guilt or of the slightest deviation from integrity either as a Public Officer, or in his private walk as a Man, was proclamed to his fellow citizens by a triumphant acquittal. I may also (said Mr. C.) have occasion to examine Mr. A. as to expences incurred by Mr. M'Pherson in consequence of these Indictments in both Courts. It appeared that the Court did not concur in Mr. Stuart's ob- jection as stated by himself, but after a very few words between the Court and the Counsel, Mr. S. abandoned it, and Mr. Ainslie took the Book.— - 0- (W. S. S. at this time was at the door of the Court but could hear what passed with the excep- tion of the remarks delivered by the Court which were exceedingly short.) Gilbert Ainslie, Esq. sworn, and examined by Mr. Christie. inig >ea- [nt, nee me the irt Mr. Ainslie, — ^I am one of the Magistrates for the District of Quebec, and I am also Clerk of the Crown for this Province ; I remember that in last September Criminal Session of the Court of King's Bench, a Bill of Indictment was removed there by a writ of Certiorari from the Court of Quarter Sessions, for the District of Quebec, against Mr. Laughlin Thomas McPherson ; I pro- duce the said Bill of Indictment, (Appendix C.) it was returned " a true Bill,*" Louis Besserer, Fore- man'* ; Mr. McPherson in consequence thereof took 56 took his trial, and tlie verdict upon that trial re- turned by the Jury, was, that of " Not Gulhy" ; I produce the Record of tin Verdict (Appendix D. read.) I have heard, but I cannot say that I have a strictly personal knowledge, that in the p/<"''ious j4p7il Session of His Majesty's General S ions of the Peace, for the District of Quebec, a ,:,:ll of Indictment against Mr. Laughlin Tho- mas McPherson, was laid before the Grand Jury, containing some accusations of a similar nature to that removed to the Court of King's Bench in. September ; that Bill was returned Ignoramus or " No Bill" signed " Joseph Stilson, Foreman" •—In either I should imagine Mr. McPherson must have incurred expence, but in the Court of King's Bench he certainly did ; I can not say at the mo- ment what they would amount to, but if desired I could compute them to a certain extent ; (Mr. Ainslie enumerateo two or three Items of Ex- pence, incidental to Defendants in the Criminal Court,) an^ci observed, Mr .McPherson appears to have paid him (Mr. A.) ^re pounds, but I cannot say precisely the amount at thi? moment. John Ross, Esq. sworn, and examined by Mr. Christie. Mr. Ross, — I am one of the Prothonotaries of this Honorable Court j 1 know that in the Term of April 1822, an Action or Case (N ® , 34, on the Court Roll) in which George Arnold was Plaintiff, and John Boyle and others were Defendants, was decided ; I have the Record of that case and 1 pro- duce it : the Notarial Acte or Instrument passed before the Plaintiff in the present case, between the ries of Term on the aintifF, s, was 1 pro- Dassed tween tho 57 the Boyles and certain persons their Creditors, is not there, but in every other particular the Record is complete. Mr. Stuart, — I cannot but express my surprise at the Statement just made by Mr. Prothonotary, that a part of the Record of any case is deficient, and that in defiance of a positive and direct order of this Court, that no exhibit filed in any case shall in Term be withdrawn pending such case, or with- in a year and a day from the final Judgment in such case. I refer the Court to the l^th Rule under Section IV. of the Rules of Practice. In answer to the Court, Mr. Stuart said, he knew nothing of its removal, and that he had no notice served upon him ; in answer to another enquiry, as to "wherey or in 'whose possession the Acie or In. strument was at the present moment, it appeared to be in the hands of Mr. McPherson, who was directed to go for it, just before Mr. Stuart closed the following observations. During the whole of the Trial the engraved Fac Simile was used, the Honorable Bench, learned Counsel on both sides, as well as the Jury, appearing to be perfectly sa- tisfied as to its correctness j Mr. Stuart then con- tinued ; in the present case 1 look for strict, the most strict administration of Justice, agreeably to the rules laid down equally for the government of every case that may be brought before the Court j 1 speak not of the importance of the present suit, and far less am 1 disposed to speak of the more im- portant ones which have preceded it, although recol- lections will force themselves upon the mind, when- ever this pretended Jcte or Instrument is named, which it IS utterly impossible to exclude ', suffice H it 58 it to say, the present Is a case in which I am neith- er disposed to seek or to grant indulgence of any kind ; as to this precious part of the record being removed in disobedience to, and contravention of a direct, positive, standing order of this Court, made most solemnly after mature deliberation on the part of yo'ir Honours, 1 say nothing, except that it is singiilai r as to this very part of the re- cord in the case of last year, finding J Is way from tiie Files of this Court (which are in the sacred custody of high and res})onsible officers attached thereto) into the hands of the Plaintiff' in the pre- sent case, and that only a short time previous to this trial being expected to take place, I say noth- ing, except that it is singular ; I impute no mo- tives lor this conduct to any person, but as the Pa- per has bet-n taken off the Files of the Court, I in- voke therefore the strictest enforcement of the Rule of Practice, and I invoke it as my right, wliich is all I require ; the Rule N ® . 12, of Section IV. is very short, distinct and positive, and it is in tlese words : Ordered, " That, no exhibit " which now is, or hereafter shall be fyled in any " case, shall in Term be witlidrawn pending such ** case, or within a year and a day from the final *' Judgment in such case, from the Record of " such case, without the order of this Court up- on motion, with previous notice of such mo- tion, by the space of tw^o days, to the adveise party or parties therein interested, duly ser- ved ; and in all cases in which such application shall be granted, such exhibits or other paper writing, shall not be withdrawn until a true copy thereof duly authenticated by a Prothonotary « of this Court, shall have been made and fyled of tc (( <( (( tf tc C( (( 59 neith- )f any being tion of Court, ion on except the re- y from sacred ;tached he pre- ious to y noth- no mo- the Pa- rt, lin- of the right, 12, of ve, and exhibit in any 5 such le final ord of urt up- zh mo- ld veise ly ser- ication paper le copy >notary I fyled " of '< of Record in such case, in lieu of such exhibit *• or other paper by the Court allowed to be with- " drawn." In conducting the Trial to day I have been indifferent to much that has transpired, knowing that the Plaintiff must produce the Re- cord in the case of last year, and then all that would be necessary to the defence of my Client, or nearly all that would be requisite, would be to shew this piece of paper to the Jury, and the evi- dence of their own senses would be tlie best pos- sible testimony I could adduce ; I am, however, now told that it has been removed (Mr. Ross inti- mated to INlr. S. that the Acte was now on the Re- cord.) As it is now here I say no more on the subject. The various Pleas and Exceptions which hacl been fyled by the Plaintiff and Defendants, were severally enquired for by Mr. S. as well as the Judgment pronounced by the Court on the •' Inscription en Fuilv* fyled by the Plaintiff in the then cause, and that given on the general Ac- tion. The Counsel for the Plaintiff then declared that they closed their case here. DEFENCE. Mr. Stuart, — May it please the Court, Gt ntle- men of the Jury, in rising to address an intelligent Jury, as 1 have now the honor of doing, it is at all times a source of gratification to reflect, that in arriving at the decision which it becomes your du- ty to pronounce upon a case submitted to you, that of fulfilling the oaths which each of you take before entering the Box, there are no preconceived opinions or supposed rules, by which you are to shape your conduct. On the contrary, it is alone H 2 by CD by the broad, simple, natural and universal ideas 01 right and wrong, which pervade society at large and every individual member thereof, (whose judgment is not biassed or warped from some cause or other, which I am certain yours will not be) that you will be guided. It is a happy circum- stance, that in a country where the Code of Civil Law is principally in force and practice and the trial by Jury is little known, that in selecting ca- ses in which the advantages of the English Sys- tem of Jurisprudence might be resorted to and en- joyed, that of actions for personal wrong from whatever cause it proceded, stand included. The "wisdom of this arrangement is self evident ; we men of the law from force of habit see through spectacles of a particular colour ; accustomed from infancy to apply ourselves to the study of a science, the rules of which are extremely narrowed, ab- struse, and precise in their application to princi- ples, we insensibly adopt a rule too narrow and technical, to allow us to determine between our fellow subjects in cases such as are now before you. In all matters of property, the wisdom of the law of France^ has placed in the hands of those — whose elevated rank, profound learning and sage experience, peculiarly qualify them for their able and equitable decision — the passing a judg- ment bounded by the strict rules of law. It is then. Gentlemen, our happiness this day, to await at your hands, a Verdict dictated by no other feel- ing, influenced by no other circumstance, than the unbiassed, unsophisticated and unprejudiced voice of each of your own consciences. This, Gentle- men, we expect from you, not more because it is our right to expect it, not merely because you, and each CI their It is await r feel- an the voice entle- ; it is u, and each each of yon, have sworn to return •* a true Ver- dict,*' but because we know you understand your duty, and correctly appreciate tlie importance of your office, and will do honor to the latter by the conscientious performance of the former. We shall be satisried with your Verdict, because it will be, what to be a true Verdict it must be, the decision of your hearts and consciences, unmoved by any undue human condescendencics to any quarter, un- influenced by any thing you may have heard from my learned frienils, or may yet hear from them ; uninfluenced most completely by any observations that I may trouble you with, and Gentlemen, when our humble ministry shall have been excercised, and the case left to your decision alter receiving the charge of the Court, to which your utmost at- tention is due, and I am sure will be given as com- pletely; (1 speak it most respectfully) uninflu- enced by the wisdom of the Bench, except where it may assist in the comprehension of the na- ture of tiie action, and the evidence that has been, or may be brought forward. Your opinions are to be borrowetl fjom no man ; it is you who have been sworn to decide the case, and I repeat it, the Verdict must be yours and yours only. The nature of this action was so correctly stated by my learned friend, who on the part of the Plaintiff opened the case, that I shall not trespass on your time by adding a single remark. From the fa^ts, however, connected with the case, and which are indeed the foundation of the present suit, you will discover that intimately, and I may say inseparably are involved in your decision, very weighty points, and most particularly the sanctity of property, the security of every thing that ren- ders ^ 62 ilers life itself a blcssini]^, irulccd, in one word, I may say that tlic first, the great, ti»e riiiuiamental principles whicii form the basis of all tiiat is valu- able in society, viz. the principles of plain com- mon honesty, are at this moment in a state of abey- ance, waitin*; your decision, whether tiiey are to remain tlie salutary and powerful Bulwark, and Guardian of every thing that is valuable to us, or whether Society is to be left afloat, destitute of any other rule or guide but the inclination, good or bad, of each individual member thereof. I shall once more, Cientlemen, remind you, and I am sure you will allow its extreme importance to form my apology for pressing the point so earnestly ; this decision must imperatively be the exclusive dic- tate of your hearts; the unbiassed voice of each of your consciences. ThcJaclSf Gentlemen, to which 1 alluded a few minutes ago, are very few, and equally clear and simple, so that a hasty out- line of them is all that is required f"om the Coun- sel for the Defendant, to the immediate under- standing or anticipation of his defence, in the year 18 il), as well as for some years before, a Fiim carr} ing on business at Gaspe, in the Whale Fish- eries, under the Firm of Boyle, Brothers & Co. had been accustomed to deal with a number of merchants in (,Juebec, and among others with the Defendant in the present suit, Mr. George Arnold. In the autumn of that year, these persons (the Boyles) finding themselves in a state of Insolven- cy, or from their embarrassments totally unable to pay their just debts, consulted with their Credi- tors, amounting to eltven in number in Quebec, and eventually, vvth that forbearance and liberali- ty which distinguishes mercantile intercourse, be- tween 63 void, I iniontal is valii- n coin- t' abey- ! are to k, and o us, or itiitc of n, good I shall am sure J nil my y ; this ve dic- af eacli nen, to 3ry t'cw, 5ty out- ; Coun- undur- lii the a V\\n\ Fish- & Co. jcr of* th the iiokl. (the olven- nble to Crcdi- berah- 5e, be- tween IS tween the Creditor and less fortunate Debtor, it appearcil tliat a general agreement on tlie part of the xcholc of the Creditors, inclined to give the Messrs. Boyles two years to ])ay their debts. This, I believe, was the generally prevailing idea among the Creditors, at least I can speak with cer- tainty for Mr. Arnold, and assert, that it was only that understanding which obtained his consent to the arrangement. It is at this stage of the proceed- ings, Gentlemen, that the present Plaintitf, Laugh- lin Thomas McPherson makes his appearance in this (to my unfortunate Client) very serious drama. It became necessary to reduce thir> verbal understanding between the Boyle- and t'^eir Cre- ditors to writing, atul a Notary Public's minist,;' being necessary, the i)rcsent Plaintiff was ap| ]i« d to prej)are an Acte or Instrument suita'^le to give elfect to the supposed unanimous intention, of the parties named in the Instrument, to wit, originallif of Creditors the number e/exen, and of Debtors the mwnhcr four t In the preparation of such an ordinary, every day Instrument, there was nothing intricate ; nothing that demanded the exercise of very profound professional knowledge ; nothing requiring in fact, I will not say, the long expe- rience of Mr. McPherson, but more than an ordi- nary capacity, and a few months study of forms in a Notarial Office. The In-^trument was prepa- red in conformity therefore »o the understood views of the whole of the parties interested, and this Instrument and the subsequent conduct of the Notary, have been the proliiic cause of a long train of law proceedings, antecedent to the present suit, and is the primary occasion of the trouble you have this day. Gentlemen, I never think upon tin's Jcte 04, Acte or Instrument, far less look at the miserably mutilated nullity (as I have always coiiceived and contended it was) without ideas of astonishment, of wonder being excited in my mind, that by any process of reasoning, however oblique and per- verse, any man stamped with the dignity of a professional character, could have arrived at the conclusion which the Plaintiff' did arrive at, viz. that he might torture, strike out, insert, obliterate, in fact do what he chose with an Instrument, which was still to be valid and of force. Gracious God ! for what have we senses if such a conclu- sion can be made ? But I should have hoped such opinions would have been confined to the present Plaiiitifi", for with the exception of my learned friends at present opposed to me, who in dischar- ging their professional duty have coiiteiided for its validity, I could not imagine that in either of the three commercial towns of the Province, a lawyer, a notary, or a lawyer's or a notary's apprentice could be found, but would instantly have declared such an Instrumeiit inchoate, imperfect, invalid, in short a nullity. Unfortunately the pocket of^ my Client has felt that this supposed plain, self evident proposition, was capable of being wrapped up in intricacy, and from an authority to which it is at all times our duty to bow with the most pro- found respect and submission, although we cannot at all times so easily shake off and divest ourselves of preconceived opinions, as immediately to give an unqualified assent to the decision even of pro- found learning, aided by the most superior talents, and enforced with the dignity of authority; I say, Gentlemen, that my Client to his heavy cost has felt, that my learned friends* arguments for the va- liditv liserably ived and slunent, t by any nd per- ty of a i at the e at, viz. )literate, trument, aracious X conclu- iped such e present y learned a dischar- ied for its ler of the a lawyer, )prentice declared invalid,^ jocket of ain, self wrapped which it most pro- we cannot ourselves y to give n of pro- )r talents, ty ; I say, cost has or the va- lidity 65 iidity of the Instrument were sustained, and it was alloN'edin the case of which the Prothonotary just now proved the Record to be used against him ; indeed it is a part of the evidence on that Record that is produced before you. Mr. Christie begged leave to set his learned friend right, as to the argument which hf (Mr. C.) had held on the former trial, relative to the Notarial ^ctc or Instrument ; he (Mr. C.) had only contend- ed, that for certain purposes, and in regard to certain j)ersons, the Instrument was valid and of effect, amongst the latter were included Mr. Arnold ; that if alterations had been made, and though they were made subsequent io the signature of the Instrument by Mr. Arnohl, they were to him perfectly immate- rial, as his interests were tliereby in no wise affected, and they were made before (he final completion of the doed ; and I remind my learned friend, that the Court did not give a judgment as to the validity of the Ada ; it was received by the Court as a piece of legal evidence to a fact, which Mr. Arnold had in his general replication to our temporary Plea of Ex- ception, thought proper tO deny, viz. that one Ri- chard Annett constituted one of the Partners in the Firm of Boyle and Brothers ; the Acte or Paper Writing, or whiitever name my learned friend may be pleased to giVe to it, was, I contended, good evi- dence to contradict the assertion of Mr. Ar- nold, and sustain that allegation which formed our Plea of temporary exception. The Court considering us entitled to the benefit of the direct evidence of Mr. Arnold's own hand writing, that he did know Richard Annett to be one of the Firm of Boyle and Brothers, by acknowledging on this Notarial Instru- I ment 66 ment that he was so, in six or seven dilTcient parts of the ^cte, accepted it as evidence of that fact ; the Court did not pronounce the Instrument to be good or bad. nor was it necessary to give its judgment, when the very first step in the Plaintiffs suit was er- roneous, and being proved so by his own testimony, must inevitably lead to a dismissal of the Action. In justice to the character of a Public Notary, whose professional and moral integrity, had been attacked wirh a severity, I will limit myself by saying almost bordering on cruelty that never was paralleled ; and as unmerited were the attacks as they were bitter ; the Court did what it felt itself bound to do, name- ly, it declared that they saw nothing in Mr. McPher- son's conduct that looked like a shadow of Fraud, or that made him responsible j in fact, that the utmost which could be said of the Notary, was, that he had acted incautiously in giving a Copy vi'ithout a comjml' siofu Mr. Stuart had not interrupted his learned friend, because he had expected to hear from, and he was desirous that the Jury should hear also from the occasional defender of the validitij of the Instru- ment, his own arguments; satisfied, if not convinced by the strength of his own reasoning, they could not fail to be amused by the singular ease with which the Acte was now said to be good, and then allowed to be invalid. 1 have (said .Mr. S ) heard my learn^.d friend so frequently before on the subject, that the novcli^ has lost its force with me, but after all that has been said, from the commenceiiient of the pro- ceedings, down to this very moment, I have been un- able, by any means, to prevail upon my learned friend in a plain, intelligible word, to say the Instrument is good G7 parts of :t ; the c o'ood Igment, was er- timony, on. In , whose utacked almost cd ; and bitter ; > nanie- IcPher- FrauJ, ; utmost t he had com'pul' earned and he om the Instru- iivinced )uld not hich the )wed to learn^.d hat the all that e pro- >een un- ci friend ment is good good or the Instrument is invalid I call upon him 7WW, as a Lawyer interested in the maintenance of sound legal opinions on all points, and as a Counsel, to say broadly, without any quirking distinctions re- rembling shadows, I call upon him, I say, to decide, in one word, Is the Acte in questiim good or bad? Gentlemen, this does not suit my learned friend, who moreover told us, with profound gravity, that the Court did not give a Judgment as to the vnUdifij of the Acte How he kept his countenance whilst ma- king (his assertion, I know not, but I would ask my learned friend what he calls the proceeding which dismissed our " Inscription en Jaujc^* with costs. I Will trouble Mr. Ross for (he llecord of No. 34. Referring to our moyetis de faux as they appear in evidence before the Jury, (see pages 6 to 9, first part) what w'^s their direct and sole object but to impeach the validity of the Instrument ? Nothing else was aimed at. Our Moycns de faux, as was the preli- minary step of our Petition, were a direct dt clara- tion that the Instrument or pretended Acte fyled by the Boyles, had never been executed by us, and consequently could not be used as evidence against us, nor indeed be permitted to remain on the Fyles of Record. This was the very pith, the sinew, the very marrow of our complaint, and we submitted to the Court in a manner that rendered the avoiding giving Ju Igment impossible. Again I refer my liarned friend to the conclusion of the answer to our Moyens de faux pleaded by the Boyles, in which, had our case been so vaguely or loosely stated that a decision was not called for, his accuracy and preci- sion precluded the possibility of such an occurrence taking place. I refer him to his own words as they stand on record and form a part of his own evidence 1 2 in 68 in the present case. After giving the answers, which it is unnecessary to read, (see 1st part, 9th to 11th pages) the conclusion of the then Defendants* (the Boyles) prayer is, " that the Moi/ens de Jaiw of the *' said Complainant, (George Arnold) by him fyled, ** might by .,iC Judgment of the Court,'* I beg my learned friends' attention, as also that of the Jury, to the precise wurds of my learned friend himself, ** might by the Judgment of the Court, be declared " irrelevant & altogether insufficient to enable him, ** the said Complainant, to have and obain tho con- ** elusions of the said Moycns dejau^v, and that the " said Inscription en faux might be dismissed uith ** Costs," 1 his is my learned friend's application, in his own clear language, for the Judgment of the Court upon our Inscription en faux and the il/oy- cns by which it was vsupported, and upon both, he has gravely told us, the Court gave no Judgment, Mr. Christie rose again, but Mr. S. said he could not be interrupted ; his learned friend had ex- plained at some length, and must now suffer him to proceed. Mr, Stuart. — My learned friend's qualification, I remember, was, that the Court pronounced no Judgment as to the validity of the Acte, "What, I would ask most respectfully, had the Court to give its Judgment upon in relation to that Instrument but its validity ? It was the only point in issue, ^'he sole bone of contention between us was, validity or inva- lidity. The question was, after their declaration of an intention to use the Acte or Instrument, reduced simply, solely, most exclusively to this, Is the preteU' ded Instrument validy or is it not? If it was not so, % which Uth :s* (the it' of the 1 fyled, beg my fury, to himself, declared )le him, l:o con- that the sed "with ilication, t of the e Moi/' t)oth, he ment. said he had ex- him to fication, iced no hat, I to give lent but The sole )r inva- lation of •educed IpreteU' zs not so. 69 so, (according to our opinion,) it was more useless than waste paper. My learned friend will recollect, that the different issues raised in the case, were ar- gued at the same time, and on the 17th April the Court pronounced what my learned friend must ex- cuse me, whatever his opinion was then, or may be now, or indeed that of any other person, for consi- dering a J ddgmcnt. Although I bow, as is my duty, with submission to it, with every sentiment of respect for the authority, for the learning, and the tulcnts which pronounced it, perhaps it is my misfortune, arising from some perversion of the reasoning powers, but 1 cannot refrain from decla- ring openly, yet with proper humility, and at the same time with that cool frankness which cannot de- tract from the respect which, as an Advocate dai- ly practising before this Honorable Court I owe to it, and at all times cheerfully acknowledge and pay — acquiescence does not accompany my sub- mission. The part of the Record which I consi- der a Judgment upon the Inscrlplion enjaux, and as pronouncing upon the validity of the Instru- ment, which, 1 repeat again and again, was the sole object of impeachment in our moyens defaitx, is in the words following: '* Jpril I'Jth 18'22. *• Court of King's Bench tor the District of Que- *• bee, &c. In the case of Geo. Arnold and John *' Boyle et al. " La CouVf apres mure deliberati- " tion, .< ur la dcmande enfaux incldente en cctte cause, *' la rejelie avcc de, ens." I may as well read the Judgment of the Court on the demande principale, and whether the one and the other are or are not Judgments, 1 think the difficulty of deciding will be very small ; — " La Cour Jaisant droit sur lesis- ** sues leves et parfaits par les Plaidoycries des " Parties ;o •» Tar lies sur la dcmandc principalsy dcbout la d'lte " demunde quant a present^ avec dejKHS.** On the lytli April, 1 piesume, my Jearnetl fViend oonsi- dored them to be Jiidgnients, for I pirccivi! the business clo:^es tliiis: — ** La Cour sur in moticm de " Mtre. CniiisTiK, Procurcur dc.< DHcndeurs, " liii iiccordv distraction de- frui>y Mv Cli- ent has found to his cost, that the disniissiou of the demandc en Jmur incidente was a. Judgment, and as the Instrnineni v\as allowed to he used as evidence ngninst us, that it uas considered ii voud Instrument, for if it was not so considered, it he- came a nullity. Tliere can bt', according ;^- my btmible idea, no line drawn wliicii will render an jlcte or Instn, merit good for some purposes, and not for others. Upon the strict sanctity of Public Inst umenls, and upon the correct conduct of Pub- lic Notaries in this country, depend our proper- ties and every thing that endears !ife to us, but if once it shall be understood that the bigh, the al- most supreme authority of this Court, has, by its Judgment, even by implication, leftroom to believe, that although altered without the consent, with- out even the knowledge of the parlies who had signed the Jcte in its original state, that the Of- ficer so altering or allowing it to be altered, was not culpable, and that the instrument remained as good, as valid and binding as if nothing out of the ordinary course bad happened, I fear that Public Confidence will receivt a shock from which it will not easily rise again. To my apprehension, the consequences would be so dreadful, that in my anxiety most distinctly to understand the opinion of the Court, I may have occasionally been too urgent. 1 hope to stand excused from the great, the // la dite On the k\ oonsi- uiv'j the notion de 'hideunt My Cli- isnilssioii idgmcnt, used as d a roid id, it be- g !.; my .nder an OSes, and yi' Public t of Pub. proper- s. but if the al- s, by its believe, t, with- vho had the Di- ed, was ained as out of far tliat n which lension, It in my opinion een too c great, the 1 the vast, the overwhelming Importance of the sidi- ject itself, and the anxiety which I confess, I from the very commencement of these suits iiuve felt on this question. Leaving, however, for the pre- sent, this dubious and singular Paper, and com- ing more particularly to the case of Slander or Defamation immediately under trial, I congratu- late you. Gentlemen, that you have nothing to consult in its decision, but your own understand- ings. Knowing your duty, that it is as unnecessary for you to look to the right hand or the left ; as un- necessary to look to the Sages of the Law for di- rection, as to the Ministers of the Altar. This, Gentlemen, is our satisfaction to-day, and I [)r0' ceed, therefore, to detail the case to you, accom- panying the detail with such observations as duty may suggest to me. The Agreementor Instrument, in its original shape, was in the ordinary com- mon tenor of Conventions betw'een Debtor an(\ Creditor, and purported to extend to the Messrs. Boyles, a forbearance of two years, for the liquida- tion of their debts, that is to say, the one moiety to be payable at the expiration of one, and the re- maining half at the close of the second year. This, Gentlemen, was an Agreement, such as feeling and liberal Creditors were likely to enter into with an honest or a Company of honest, fair dealing Debt- ors, exposed to a degree of pressure that rendered indulgence necessary. All thisisasclearas thelight, perfectly natural, and the occurrence of almost every d;iy. But to Gentlemen of your experience it is needless to observe, that it must be the Acte of all the Creditors, as those not coming into the arrangement have an advantage over these whose humanity led them to concur in it. Unless the whole 72 whole of the Creditors agree to give the delay ask- ed for, those who do so by signing the deed, shut themselves out of present payment, and very like- ly, out of payment at all. The Creditors who de- cline the arrangement, commence suits, obtain judgments, issue executions, seize and sell (he pro« perty of the Debtors, while the good-natured but gulled men of humanity who signed the Notarial Acte which sets forth an imanimous consent on the part of the whole of the Creditors, sand by with their hands tied, see their share of (he property of the Debtor appropriated solely to the use of men of coarser feelings than they possess, and witness the unfortunate but honest debtor reduced to a situ- ation so low as to preclude all hope of future pay- ment. In speaking on a subject like this to intel- ligent men, it is needless to remark, that no man in his senses could have consented to such a one-si- ded agreement. To satisfy you that a Notary can- not have the power, by his mere will and act, to change the nature of an Obligation from conditional to absolute, I need not look into Law Books, or produce the musty opinions of Jurists. It is perfect- ly intelligible to plain common sense, that what is so repugnant to reason, cannot be consistent with law, which, when rightly understood, and purely admi- nistered, forms the very essence of right reason. Such conduct on the part of a Creditor, is not huma- nity to the unfortunate, it is not kindness to the ho- nest but needy deblor, whilst to himself it is (if not absolute insanity) the very height of ioWy and imbecility. It is in fact, to tempt the more unrelent- ing creditor to measures of harshness against the debtor, and with his own powers completely lock- ed up, to have the mortification of seeing the whole funds 73 ^hy ask- ed, shut 2ry likc- who dc- I, obtain the pro- iircd but Notarial nt on the [ by with property e of men \ witiics.s to a siiu- jrc pay- to intel- no man a one-si- tary can- X act, to ditional (oks, or perfect- hat is so ith lav, ly admi- reason. t huma- the ho- If it is biry and nrelent- linst the |ly lock- e whole funds funds of the Estate carried off by one or two indivi- duals, who laugh at their superior management, and stupid, supposed benevolence of his dispositions to- wards the debtor. Such conduct, you well know, Gentlemen, is rather prejudicial to the debtor than serviceable, and to the Creditors it must be utterly ruinous. It is absolutely an absurdity for one mo- ment to suppose, that men possessing two ideas could ever hav agreed to such a proposition, and it must have bet^n some man possessed of more than ordina- ry effrontery, who could have dared to insult, I will not say a Merchimt, a Tradesman or Mechanic, but the veriest Habitant, by supposing that such a pro- posal could meet his consent. What was the great consideration that induced consent to the proposition for granting a delay of two years to the Boyles ? It must have been, that by the agreement of the whole of the Creditors so to do, all stood an equal chanco, and the persons and property of the Debt- ors being by this arrangemejit totally exempt from molestation, as all were included in the agree- ment, fair scope wa.^ given to the exercise of indus- try.unrestrained by any apprehensions of trouble from any quarter. If, however, the parties who signed, if the seven who (supposing the whole of the Cr<>di- tors were to do so,) in the present instance did, sign in good faith the Notarial minutes, are to be bound thereby, and compelled to wait the term mentioned therein, the four who did not become parties may, by the operation of the Law, not only take the entire property of the Debtors in defiance of the majority of the Creditors, both in number and value, beyond that leave any remnant of property loaded with debts arising from costs, and all the harrassingexpences connected with legal proceedings. K There ! 71' There is, I am confident, not a Gentleman at the Bar throughout the Province, however young in practice, that would not consider it a jest, if his opi- nion were asked by a Creditor, whether as one of elc^ ten he ought lo sign an Instrument granting (heiV Debtor a delay of two years for the payment of I lie whole of their debts, but which would only be vsign- ed by seven. Advice to do so would not be error, would not be mistake ; it could only result from the most gross and shocking ignorance that ever degrad- ed a human being. And yet, Gentlemen, here we are to-day — here you are, Gentlemen, sworn to de- cide between my unfortunate Client and the Plaintiff, a professional man, who unblushingly asks not only all the monstrous ab^^urditics I allude to, to be con- sidered perfectly legal and equally advantageous to the seven signing Creditors, but with the same breath, demands damages for having dared to differ with him, and declaring the reasons of so doing. Not to be te- dious, it is necessary to say, that after I he Instrumei.t had been prepared with the names of the eleven cre- ditors, and the amount of their debts opposite to their names duly inserted, Mr. Arnold, being the princi- pal Creditor (the amount of his debt being nearly three times as much as that of any other person) sign- ed ^rs/. I ought, perhaps, to have mentioned to you, that a collateral security was to have been given for the due payment of the instalments, at the tmies fix- ed by the Acte ; however, as it was never carried in- to effect, the Gentlemen who was to become responsible, viz. Mr. Jas. McCallum, senior, sign- ing the Acte — Mr. Arnold, as principal Creditor, having signed, the process went on till seven signa- tures were obtained, which were all that ever were procured j and here I ask your more particular at- tention. ] at til':" ung ill his opi- i?of C'/t.-' g •l^t'iv t of (he be sign- e error, rom the degrad- hcre we n to de- FlaintifV, lot only be con- ;cous to e breath, vith him, to be tc- strumer.t i'xc?i ere- to their \e princi- g nearly on) sign- d to you, riven for imes fix- rried in- become or, sign- Creditor, en signa- er were :idar at- tention, 75 tcntlon, to the facts which mark this stage of the case — It is not attempted to be contested that origi- nally the names of eleven Creditors stood equally clear on the face of the Acte or Instrument, alike free fropi erasure, obliteration or any marks effacing them j that this was th^ actual state ^ f the I'aper, not only at the time of the present Defendant signing, but of all the remaining signatures being affixed, is to my own mind equally clear, for the natural enqui- ry of any man on seeing such a miserable exhibition of scratches, blots, interlineations and marginal no- tes, (oil which by the bye I shall say a \yord or two presently) must naturally and instantly have asked, what in heaven's name he was called upon to sign ? — Another circumstance, and a very strong, suspicious, and dark one it is, is this — the time when the altera- tions were made is a perfect secret — for that the ma- king of them at all was for a time closely concealed, cannot be denied ; I challenge my learned friend to produce a single person, with the exception of Mr. McPherson, and the immediate inmates or students of his Oflice, to produce a single individual (I ou<;ht perhaps to except the Bowles also) who knew of the alterations being made ; no one Creditor who had signed, was consulted or even spoken to upon the sub- ject : No! all was secrecy and mystery, and the In- strument in its mutilated state, as completely hidden from mortal eye, as if put under a Bushel. The margined notes demand in connection with this part of the enquiry, a moment or two of consideration. A reference to the Instrument or one of the Fac Si- mil'tes will evince, that in those alterations which it was intended, that the signing Creditors should be made acquainted with the ordinary usage of signing their initials was resorted, but to not a single erasure K 2 or 76 or alteration of which my Client so justly complaliis is there the slightest indication ot knowledge or consent on the part of the Creditors ; nor could there be, for in point of fact they were never asked to con- sent, nor were they troubled with any informntion on the subject. Tiiey had agreed to, and signed an ob- ligation of one description, but the Notary deter- mined they should be bound by one of a very diffe- rent kind, and at the same time, he appeared to have resolved that nobody should know any thing about this scheme but himself, those menially employed in effecting the alterations, and perhaps the Boyles.— Gentlemen, to decide that such conduct is illegal, is contrary to and subversive of equal justice between man and man, and destructive of all those mounds and barriers, which as first principles regulate civil Society, it is not necessary to refer to this system of law, or to the other — the great universal law of hu- man nature, upon which every Code is founded, which in its administration has for its object the fur- therance and general observance of the great axiom '* Do unto others as ye would that they should do unto you" proclaims equally with the law of the land, the illegality of such a proceeding; because it declares its injustice. That which in itself is not equitable and reasonable, cannot be legal ; for I repeat that the law rightly understood, and purely administered, is at once the essence of reason and the fountain of jus- tice. Tlie Acte as originally drawn and signed by my Client, was perfectly fair and consistent. It em- barked all the Creditors in the same ship, each incur- red the like danger, all exposed themselves to the same risk, success crowning their voyage, reaching in safety the desired harbour, each participated in the advantages to the extent his shat e in the general ad- venture 1 mpla'iis ?dge or Id there to con- ition on i an ob- dcter- ry dilTc- to have ig about oyed in oyles.— legal, is between mounds ate civil I'Stem of V of hu- ounded, the fur- It axiom do unto and, the ;lares its ible and the law d, is at of jus- ▼ned by It em- h incur- to the eaching din the eral ad- venture 77 venture entitled him to. On the contrary, disappoint- ment being the result of the enterprizc, each knew that his share of the general loss and expenses could amount to no more than what attached to the share he possessed in the general Stock. Here was a per- fect community of interests, for their common for- tunes, as far as their debts severally extended, were embarked in the same bottom, and let the vessel sink or swim, lei, under those circumstances the Boyles, prosper, or let adversity frustrate their industry, still the contract being mutual and reciprocal in its provi- sions, there could be no cause ot complaint among those who might be considered as owning or having chartered the ship. But the instrument by which they were to be bound must of course be inchoate, imperfect, and a nullity as a Deed of Partnership, until the whole of the partners sign, and those who have signed are necessarily in an insecure and preca- rious situation, because there is no bond by which the others who have not, and who are acquainted with the whole of their plans, extent of means, and every other circumstance connected with the suppos- ed joint scheme, cannot be prevented from promot- ing merely their own interests, to the entire exclusion of the majority, who in plain unsuspicious honesty and good faith signed the instrument. Exactly that, Gentlemen, is the case before you, or more properly speaking, the source whence it emanates. In deci- ding upon such a case, it is not, (and I mean no dis- respect by the observation) to the distinguished learn- ing of Judges that you have occasion to refer; it is altogether unnecessary, altogether superfluous ; nei- ther need you refer very particularly to the testimony of witnesses, however upright, however intelligent, and the reason is obvious, you carry about you the strongest 78 strongest and best possible evidence, viz. the evidence of your own senses, You require not the aid of learning to enable you to comprehend that the sun shines, nor the testi^Jiony of witnesses to satisfy you when it is ni^ht, both are equally established by the evidence of your own sjnses, and it is to your own hearts and couscienccvS, guided by your own judgments that we appeal this day for a verdict. Common sense then, in the absence of any jfosilive testimony as to xvhen the obliterations and alterations were actuaily made, pointing out the impossibiHty ot men in their senses signing such a convention as this miserable fa- brication now appears ; let us see what light an exa- mination of the Acte itself will exhibit. I first re- mark, that to no one of the erasures, or scratches, or obliterations is there any ^c/e of authentication, while to every marginal reference is affixed the necessary authentication which the Law requires, of the init- als ot the parties signing, and of the Notaries before whom the Ac/e is passed or executed. Can this be the result of want of information, can it be the result of forgetful ness, or of acci- dent on the part of the Notary ? Impossible — equally impossible the one and the other — Can it be ignorance ? Why, there is not a blockhead, not a dunce however stupid, that ever was six months in an Attorney's or Notary's Office, but would feel even his knowledge insulted, could you suppose him ignorant that alterations made on the face of a valid Notarial Instrument, must be duly authen- ticated, or the law is set at open defiance — Uan it have resulted from forgetful ness, or has it proceed- ed from mere accident ? A very slight examination of the alterations in the AclCy will be sufficient to negative either of these suppositions. At the time 79 own lime tllG alterations were making, the person hold- in;;; the pen knew he was bound to specify, either in a marginal note, or as is more customary in the body, or on the face of (he Instrument, wiiat were the obliterations which he had made, as nothing can be taken from a Notarial Acte, any more than added to it, without a direct and distinct specifica- tion thereof, being* made either by miu'ginai refe- rences duly authenticated, or paraplw or l)y the open and full insertion in tlie body of the Instru- ment of the diminution : — Wiicre tloes the one or the other appear? With the exception at the very- close of the Actc, and in writing so small tiiat ninety-nine persons out of a hundred looking at the Instrument, wo.ild not observe the insertion. No wlicre. There, I admit, it is said " six mar- •' ginal notes approved, & one hundred k thirty- ** three words struck out, are null" — But even this does not at all better the case of tlie Notary, for of the few syllables which I just read, all except the words " and one hundred and thirty-thrc-e'^ form- ed part of the Actc as they ap{)eared vvlien the various Creditors signed, while the very manner in which these words are inserted, form strons:* presumptive evidence against tiiat officer. The secrecy whicii n iturally and very properly is at- tached to the oflice of a Notary at all times, will render it ditiicult to procure testimony as to mis- conduct ; indeed ^Jo.v/7/rc testimony scarcely ever can be produced, for the sanctity be!on"lnal words is very nearlv of- fected, but a close inspection of the Aclc enables the reader to make out part of them. This ope- ration in the manual part thereof, is the work of some tliird person, judging from the texture of the hand writing. The examination, Gentlemen, I foar is prolix and tedious, but I I'eel convinced, that vou are satisfied in the performance of my pro- fessional duty to my Client, who is ylready smart- iuii' under this Instrument, and who this day has another attack made upon his purse, for the mere expression of his o))iniou of the manner in which these alterations have been made, that I carniot avoid it. Reviewing for a moment our progress thus far, I would ask where is the secu-'ty fur our ])roperty, if conduct such as I have exhibited can be tolerated in a pnblic oHicer, so deeply entrust- ed with extensive powers of doing mischief, as a Public Notarv? An ofKcer who in addition to the almost unlimited ))ower which he at present pos- sesses, if ^fr. Mcpherson's conduct is allowed to form a precedent, will virtually have the power of doing whatever he pleases ; instructions will no longer be required, your own ideas can be of no consequence, the Notary will think for you, and draw such an obligation as in his wisdom he judges it ])roper you should sign, or having drawn it up in the first instance to correspond with \ our views, he will after you have signed it, alter it to corres- pond with his own. The subject however is se- rious — highly so — and must be treated as such. Upon the sanctity, the })urity, the inviolability of Notarial 83 noncy 3 done 12 total rlv ef- jiiablcs is ope- ork of lire of :lemen, viiiccd, iiy pro- smart- :lav lias \e mere I wliicb [ cannot )rogress fur our leil can ntrust- t", as a 1 to the ;nt p'js- allowed power will no )c of no )i!, and ;} judges ni it up r views, corres- • is se- ; sucli. bility of Xotarial Notarial Instruments, depends in this Country the «'2curity of ail property : any action which in the most remote degree trenches upon tliat sanctity ; whatever tinges with the sliglitest shade that liuri- ty, assails in the very vitals the safeguards of all that after our lives, with those of our families and their hap])iness, is valuable to us as members of society- The administration of justice, through the medium of laws known to the communitv, is no longer assured to us, and every transaction of" civil life, becomes obscured by doubt, uncertainty and distrust. Aiter the examination which we have given to this Instrument, and with it still be- fore our eyes, what occasion ibr witnesses? We have that all potent evidence, the evidence of our senses ; and I would ask, can a thousand or ten thousand witnesses overturn the evidence of your own senses? Again, Gentlemen, I beg you to favor me by their application for a few minutes to this precious })aper, whilst we particularize the obliterations and erasures, in the order in which they present themselves on the iiice of the Acle, that \vc may ascertain with precison their direct materiality, as forming part of the contract vviiich the present Defendant {)roposed entering into, and also the important bearing they have on the pre- sent suit. In the first page of the Arte (see Fac Simile) the obliterations compreiiend three or four lines, coiilaining principally the names of the Cre- ditors who declined signing, and tI:ose on the se- cond consist of the erasure ol' Captain Hall's name, also a Creditor, and in another part of the same page, of that, of one Richard Annett, said to be a partner in the Firm of Boyle and Brothers, which by a marginal note duly signed, is supplied. L 2 The .1 81. The moment these were scratched out, "d'liere was Mr. Arnold's security, or that of any of the Credi- tors, for receiving; a fartiiinu; at the end of the year? ?[7w^ was their security ? A mere sliadow — tlie hands of those wlio had signed, were tied ; their debtor exposed to every evil which leads to, or encreases present difficulty and embarrassments, and placed in a situation that with tho most sincere desire to do his utmost, to pay as soon as j)ossible, rendered him incapable of exertion, or what is ar- riving at the same end, the proceeds of his industry are torn from him by liarrassing exjjensive law suits ; so far from benefiting eitiier the lenient Creditor or the honest Debtor, it is holding oitan inducement, creating a most pow-erful teniptation, in a word, giving a direct invitation to the Jcxi^ to strip the debtor, and deprive for ever the majority of the Creditors, of any means of recovering the value of their property. If tliis power can be ex- ercised by a Notary, you, Gentlemen, and every other merchant, might and would, I imagine, close your mercantile lives. The very nature of com- mercial intercourse renders it impossible, that suc- cess and good Ibrtunp is to crown the exertions of all who engage in affiiirs of cor.imerce, and as '• the ** battle is not always to the strong, any more than *' the race to the swift" so, irequently, the most industrious, meritorious and irreproachable cha- racters fall short — in that case, what is the conso- lation of the honest but depressed debtor ? It is this, but you ai beL^er acquainted with the truth and the reality of the fact, Jian I am, because. Gentlemen, you are frequently evincing your libe- ral symj)athy, in the misiortunes of tliose who are indebted to you. The consolation of the debtor then, \ JLULlUIl, t JCXi'y to it injority ng the ^l be cx- J evcry ?, close ' com- i at siic- > ions of s '♦ the I c than 2 most e clia. .. 80 then, is this ; looking into his own bosom he is able to say, lor my want of success I have nothing to reproach myself with — all that human exertion couki do, I have done — it is the will of provi- ilence, and 1 must submit, but I can meet my Cre- ditors with a clear conscience, and being able so to do, I look to them for clemency and indul- gence — this year*s exertions have been unavail- ing, another may produce a very difterent result. Every day's experience exhibits that the expecta- tion of forbearance is no visionary delusion. The case out of which this action springs, is a case in point, (as a Lawyer would say) but establish the 71C-W sytem relating to instruments of record, &c. the last Notarial Obligation entered into between creuitors and debtors is the last that ever will be passeii before any Notary. Credit is at an cud, confiilence is annihilated, responsibility becomes a shadow, a phantoin, a mere will-o-th'-wisp ; every thing which before was plain, intelligible, upright and honourable, is lost in the chaos of distrust^ fraud and mischiefs which inevitably follow such an eychange. Gentlemen, I pause a moment seriously to ask you, ^vill you sanction by the weight of inlluence in society which you possess, whilst in the execution of a public duty, wherein the question is fully within the scope of your le- gitimate powers, I say, Gentlemen, will you sanc- ticii with the weight of your decision in its favour, the introduction of so disastrous, so ruinous a sys- tem ? I need not fear, apprehension is unneces- sary ; your stake in society in point of property, is too great, your own ideas of light and wrong too correct, your regard for the principles of com- mon honesty too sincere, and above all, your re- gard \ 1 86 garcl for your families, fl^r the preservation of or- der, for the adiviinisii'dtion of tlie Law in all its purity, for the sanctity of tiiose institutions by •which Government is administered, and the bles- sings of an inestimably free Constitution, felt and enjoyed, your allegiance to the Throne of your Sovereign, and your veneration for the .sa- cred Altars of your God, all unite in excluding fear or a])prehensi()n as to your conduct. Tiiis, by my learned friend, may be considered a highly colour- ed statement, but J assert, and without iear of con- tradiction, that once do away, do axcajj, 1 will not use so strong a term but once w eaken the respect & confidence of the Iidiabitants of this Province in what they have been justly taught to consider as 01 !y second in sanctity to Ihe Altars of their Ciod, VI . the Depositaries of the Records by which they hold their gooils and lands ; and Judges may sit; you Gentlemen, may sit; ue, the humblest (or nearly so) of the Ministers of the Law, may con- continue to exercise the duties of our profession; but all will be to no ctfect, fa- that which is the great basis upon which the seat of Justice rests, nuist totter, viz. confidence on tlie part of those who are boiuid to obcv the Laws in their adminis- tration, their s])otless administration, wuen they liave to make an appeal to them, or to answer thai, made by others, (tUe errors incident to the frailty of human nature excepted) k that such is the Law and ills adnunistration happily forms at present an lirticle of belief, as fully as their creed constitutes their bilief on matteis of religion, and it is only the latter that the jjopulation would not consent to part with, rather than give up the Jormer. Shake the confidence of the Population of Canada in the purity I ofor- all its ions by c bles- )ii, t'clt one ol' the .sa- in <,;• tear , by my colour- • of con- ,vill not spcct & ^ince in si tier as Av tJod, wiiich i^es may )lest (or lay con- fession; 1 is the e rests, f those iminis- n they ver that traiky V Law sent an stitntes )ii!y the to part Shake I in the purity I i I 87 purity with wlilch tlieir Notarial Deeds are preser- ved J and I repeat, the Laws will cease to be eiFeC' tive. The respect a //rt/O/Vrw/ has for his Notaiy, partakes of, and is second only to the reverence that he feels lor his Confessor. In a word, up to the 17th day of November LS1|) ; tlic purity of a virnfident, ecarious transac- i\ to do. Christie) tting all s not in- deed or otary in nto with ■ signing lion was Ir. Mc- n which him as ;hat the arties to of it as lit mere AVith :h false- to form No in- ; capri- valid a- a mere at deep- at Acte, ig men too. I ■•:li 1^ too, who would never have been made dupes, had not the Law been grossly violated by the Notary, from what motives he best knows : but I have no desire to enquire into them just now. As Credi- tors wishing to act leniently towards persons who were their debtors, an instrument is prepared, pur- porting to be on the one side between eleven per- sons, and after seven in good faith had signed it, the Notary, thus tying their hands behind them, and then bv a few strokes of his pen, allowing the others to sweep all before them. As to the other point of my Learned Friend's Defence of his Client, and to my mind a very singular one it is, viz. the duty he had to per- form of making obliterations, so that the instru- ment might not exhibit on its face the names of persons who, in point of fact, were not par- ties to it, or in other words, it was necessary to strike out the names of the non-signing Cre- ditors so as to square th'^ Acte to the will of the Notary. Strike names out of a Notarial Acte ai'tcr signatures have been affixed to it, without either the knowledge or consent of the parties who have sign.d? Allow this society is afloat. Although it had not received the closing formality of the Notary " thus done and acknowledged and passed before ** us Notaries, duly sworn, &r.** the deed was a deed fully executed as far as the interests of my Client and the other signing creditors were con- cerned, & I call upon either of my learned friends, or upon any Lawyer to produce me even the sha- dow of an authority giving power to a Notary to add to an Acte so executed, even a dot to an i, or to affix a stroke to a tj nevertheless, our action up- M 2 on I 1 n t 92 on a Promissory Note, given after the deception was discovered, after it was known that the whole of the parties set forth, would not come in, was dismissed upon some technical objection raised by my learned friend, and supported by the evidence of this ve- ry jicte. It only remains. Gentlemen, now to ap- ply some few observations, and very brief they will be to the facts which during the examination of the foundation of this suit have appeared, as they bear either on their truth or their falsehood, to the issue which you have to determine. The Action in '.is nature was so correctly described by my learned friend, in his opening, that I proceed at once to say, that the allegations contained in the Declaration, branch or divide themselves un- der two heads: — 1st, That the words charged to have been uttered by the Defendant, are in them- selves slanderous, and 2d, That the motives of the Defendant in so uttering them, were criminal and malicious. To have made out his case, my learn- ed friend must by his evidence have satisfied your minds fully as to both these points, because to speak in technical language, that was the case he was bound to make out. As to the first point, viz. that the words in themselves slanderous, I shall scarcely detain you a momeni nat those charged in the Declaration in many of the very numerous allegations set forth a'^x.so, lam free to admit, but to none of this descr?p!;ion is there an iota of evi- dence. Suppose that the Instrument were altered, from intentions as pure and simple as my learned friend claims for his Client — that not the most dis- tant idea, of altering an Instrument without the consent or even knowledge of the parties who had signed it, was in itself a fraudulent action, or would 93 would be so considered if brought under legal cog- nizance, still I would ask was it without any foun- dation — was it mere invention on the part of my Cient — that he spoke of the alteration of an In- strument of Record, in the correct legal definition as a falsijication of the Acte ? Most assuredly not : and not only is tliis the utmost length my learned friends evidence, and that gathered from those to whom without reserve, without weighing his lan- guage, Mr. Arnold, as neighbours and acquain- tances, is accustomed to enter into free and unre- served conversation, I say, Gentlemen, not only is this the extreme length of my learned friend's proofs, but it is far beyond them — what was of the very essence of the Declaration, to make out the words slanderous^ which should havebeen unde- niably proved, my learned friend has never touch- ed at all. To no one among his host of witnesses did he ever put a question, calculated to elicit in its answer, whether my Client had charged the Plaintift'with h-Awm^^ fraudulently altered the In- strument in question : — Where then is even the slander, for which mv learned friend or his Client expect you to give a farthing of damages ? I go upon this point one step further, and urge that even had the direct expression in the Declaration been proved, viz. ** that Mr. Arnold had said Mr. ** MPherson has fraudulently altered that Acte " since I signed it,** and namRS had been ob- literated therefrom without his knowledge, which changed in toto the tenor of the agreement, I would ask, whether he had not a right to presume, as Mr. McPherson is a professional man, and must know the law, that if he violated it, it must be from some improper or fraudulent motive — nothing, however. :<"' 94. ■i u a ii! I; however, of that kind is in evidence, nor in point of fact, though reminded by me of his omission, did my learned friend attempt to prove it. My learn- ed friend's evidence is this in substance, if'not pre- cisely in words — " Mr. Arnold complained of the •' loss which he had sustained, and which he attri- ** buted to the Instrument prepared by Mr. " McPhersoii, and his allowing it to be altered — *• he spoke on this subject at all times, as a man *• who felt he had been injured by the conduct of " the Notary in this busines — he said when ex- ** pressing his opinions of the consequences of ** such conduct, that there was no longer any se- •* curity for property, and that in England a No- " tary would lose his Commission were it known " that such a transaction had taken place" — Be- yond this if even it reaches so far, it most certain- ly does not go. Mr. Arnold complained — had he not a right to complain ? — Smarting as he was. un- der what he consi lered a gross violation of Jus- tice, by which he saw Four Hundred Pounds ta- ken out of his pocket under the semblance of law, was he to be denied the common privilege of com- plaint ? A wound inflicted upon him sharper than that of a sword, and he feelin-^ all its poignancy. Was he also to be denied the slave's privilege, that of expressing his feelings to his companions and friends ? Gracious God ! are we come to that pass, that wounded we must humbly bend the knee and kiss the hand that injures us; or are we to be denied the poor consolation of diminishing our woes, by communicating them to those who will sympathize with us ; or doing so, to be exposed to Still further anxiety, vexation and harrassing by a prosecution being instituted for defamation ? Thank 95 . ^ who ' Thank heaven that matters have not as yet reach- ed to such a pass. My Ghent then, expressed himself as a man might be expected to speak, who felt indignant at having been dep ived by little less than what he justly considered a robbery, shielded by the forms of law — he spoke as a man might be expected to speak, who by the ad- mission of techn cal objections in opposition to, or in preference lo positive evidence, which he had produced upon the ti iai, had received a judgment a- gainst hitn, involving in its consequences a heavy pe- cuniary loss, and carr> ing with it the cutting and se- vere mortification of being ob iged to yield to trium - phant injustice. His language, in a word, was (hat ot a man who felt that by a'l instrument, which for every purpose for which it had originally been intended, was, by its falsification, a perfect nu lity, yet admitted by the highest authority to be good (at least virtual- ly so) and allowed to be used in evidence against him. I am aware, Gentlemen, that I have spoken strongly, but I trust and believe, not too strongly for the occasion. The judgment (and it is with every sentiment of respect I speak, but the conscientious discharge of my duty, which is superior to every consideration ot mere personal feeling, demands it of me) of this Honourable Court in A'pril last, dis- missing our Inscription en faux, (which, Gentle- men of the Jury, together with the Moyens defaux, will be handed you before you retire to make up your verdict) was declaring the instrument to be good and valid, it was stamping as valid, with the high weight of its authority, a Notarial Acte not signed by those who upon the face of it appeared to have been parties thereto as the minute was originally drawn ; an instrument full of obliterations, erasures. and CV" 90 I-', and with an interlineation in the hund writing oi' ihc Notary himself, without the initials of the parties to attest or verify either the one or the other, [The Court whhout speakinic expressed its disseiU. ] I beg the Court's pardon, but our Inscriptum an Jhvjfy which struck directly at the supposed valiiiity of the Acte, impeach ng it by every Moyen that my hiuntile talent, aided by the most diligent research 1 was ca- pable of making could suggest, bein{^, after evidence had been gone into, and arguments, such as 1 was a- ble to offer having been heard, I say, with deference to the Court, that this being its judgment, " La ** Cour apres mure deliberation sur la demande en ** faiuv incidente en cette cause^ la rejette avec de- " pens,** and (he general or principal issue having also been dismissed upon a ground furnished by the evidence of this very Acte, or more correctly, by this Acte having been allowed to be used as cviiicnce n- gainst the then Plaintiff, (Mr. Arnold) which, if a nullity in the opinion of the C ourt, I presume, would not have been the case ; 1 did consider this a dcclara* tion on the part of the Court virtually^ that notwith ■ standing the alterations and changes which were cvi- dent, it was a good and valid instrument These judgments having since been, to the cost of my Cli- ent, confirmed in the Court of Appea's, the matter as between these parties may be considered a rea ju- dicata to that effect. I am fully aware of the argu- ments then usf d by my learned friend, and of which we had a specimen lo-day, that its alteration did Mr. Arnold no harm, that as far as his interests were concerned, the instrument in its present state as fully as ever preserved them, but. Gentlemen, we have di- rect evidence to the contrary. We have a descrip- tion of evidence that cannot lie, viz a judgment of thin ^ ■: .-A ? it ; <)(' I he articH to ['IMic i] I beg •n JatiJTf f of the hiiinhic was cu* L'vidcnce 1 wa8 a- ci'crencu t, " La umde en avec dC' ! having ! by the ^by this cnce n- chi if a , would dechtra* notwith ji'c evi- Thesc ny Cli- matter res Ju- le argu- which id Mr. 8 were 18 fullv lavedi* Jescrip- H'nr of thiR 97 this Honourable Court. We have also for your gui- dance, Gentlemen, evidence by which you cannot be deceived, it is evidence furnished by the Plaintiff himself in his official capacity, viz. The Acte itself. Examine it well, and consider how dangerous to enun- ciate the doctrine, that at his own mere will and pleasure a Notary may transform an instrument in the manner the one in question has been changed. I have before adverted to the extreme difficulty ari- sing from a vast variety of circumstances, of proving delinquency against a Notary, but I would ask, al- though the falsification of the Instrument could not be verified by positive proof of the time when, and the hand by which the alterations actually were made, had not my Client a right, from the different appear- ance which it made a few days after he had signed it, to what it presented at the time of his signing, to suppose, that in the absence of all the ordinary at- testations to changes in an Instrument of Record the Acte in question had by the Notary been falsified ? Smarting under the wounds of triumphant injustice, is it then to be wondered at that my Client should speak strongly? But evidence of a single harsh expres- sion from him in relation to the PbintifF, has not been given, nor has it been even ; v'tempted to shew, that the Defendant ever impute! fraudulent motives to the Plaintiff. However, with the mo- tives of Mr. McPherson he had nothing to do— it is by their Actions that mankind in general must judge of the motives of individuals, lor to Omni- science alone is the power of discerning the hearts of men — but judging of motives by this rule, might not any of the seven signing Creditors— yourselves. Gentlemen — myself, or any man — ^been warranted in expressing his belief, that the transac- N tion i': % I 98 tion was not one emanating from honest motives^ but wrapped as it was in the mantle of secrecy and concealment, that the alterations could only pro- ceed from improper or fraudulent motives? This, however, which was the marrow of the proof my learned friend had to produce, if he intended to sustain his case, he has totally omitted so to do, & it has only been in illustration of some of those first principles of the law of nature, which are always clear and intelligible, that I have taken the liberty of submitting the few last general remarks, as ap- plicable to the situation in which my Client stands at this moment, and as bearing in some degree up- on those principles which probably you will think right to adopt, when considering your Verdict. We will now, Gentlemen, leave the Instrument, and examine some of those reasons which, 1 sup- pose, my learned friend considers as establishing malice against my Client — these we shall find in the second Count of the Declaration in the present case, which relates exclusively to the criminal prosecutions carried on against the Plaintiff'. The Count alledges •* and the said Laughlin Thomas " McPhersoii further complaining of the said George Arnold, further represents that the said George Arnold, further contriving, and mali- ciously and wickedly intending, as aforesaid, heretofore, to wit, on the 27th day of the month of /tpril now last past, at Quebec aforesaid, fal- sely and maliciously, and without any reason- able or probable cause whatsoever, at His Ma- ** jesty's Court of General Session of the Peace, " then sitting and holden according to law for the District of Quebec, at the Court House for the said District of Quebec, before John Fletcher^ *' Esquire, 'i i^:; •i' l' ■i^^: l|: f '* ¥\ •| J ll! ^i:' lOi humiliating spectacle of Grand and Petty Juries humbling themselves to the dust, prostrating them- selves in the ashes of" self-abasement, and instead of rigidly fulfilling their oaths " well and truly to " try, and a true deliverance make" that istoffive will by their verdict (what we are confident you give us to day) the response of their own con- sciences, guided only by the evidence which they had heard ; it has been the aggravated misfortune of my Client, to see Juries obsequiously adopting the opinions of others, and pronouncing if not ac- cording to their direction, at least in conformity to what might be gathered to be their opinions. No man, whether as at the bar, or as a private in- dividual, has a more dutiful and profound respect for the great learning, the high integrity, and oth- er eminent qualities that adorn the Bench, but your Honours (and I trust, I make myself distinct- ly understood, as speaking with that submission which is due to your high authority, though ex- ercising freely those rights and privileges, which connect themselves with my character as an advo- cate) Isay then, that your Honors, elevated as is your rank — profound as is your learning — and distin- guished as are your attainments, are still but Men, & therefore subject to those frailties, which are inse- parable fromhuman nature,and among all the other items which swell the catalogue of our infirmities, liable to the Commission of error. That being the fact, how much more liable to fall into mistake must be that class of persons who are usually cal- led upon to serve as Jurymen in our Criminal Courts, and more especially in the Court of Quar- ter Sessions? Strange as the Return was from the Grand Jury who take only ex parte evidence, I did 105 les g y Jill i^g them- instead truly to is to give i^oii will wn con- ich they sfortune idoptin t' not ac iformity )pinions. ivate in- respect and oth- ich, but distinct- bmission ugh ex- s, which in advo- is is your l1 distin- tMen, & ire inse- he other irmities, eing the mistake illy cal- 'riminal •f Quar- as from ience, I did dlu not in a public point of view, repent that it had been given. It was the mistaken opinion of some twelve or thirteen uninformed, weak, and to a cer- tain extent in number, could, were it necessary, ve- ry easily be proved, prejudiced individuals, altho* in their general characters very honest good men. I have spoken of them merely in their capacity of Jurymen, and beg not to be understood as impugn- ing in the slightest degree their general reputati- ons or characters. Sensible that a flagrant out- rage had been committed against the Laws, and feeling not only that he had been its victim, but also feeling or perceiving the torrent of evils that would rush upon Society, were not a public check given to the individual who had presumed to in- fringe one of the most sacred ligaments by which Society is bound together, the Defendant, as was his duty to do, caused another Bill to be present- ed or laid before the Grand Jury of the General Court of Quarter Sessions held in Juli/ last, which was returned ** A True Bill for For- gery.'* The trial however did not take place in that Court, but by a writ of Certiorari, was re- moved into a higher Court. That the instrument had been altered was not attempted to be denied before the Petty Jury, on the trial at the September Session of the Criminal side of the Court of King's Bench for the District of Quebec. Indeed the thing was incapable of denial when the instrument itself was in the hands of His Majesty's Attorney General, and inspected by the Jury at any moment any one of them expressed a desire to see it. To this finding then of an unbending G-and Jury, what was the defence set up ? Not a denial of the facts and this denial supported by eviience. O Nothing loG . 'i a<' Nothing like this, but the defence and only de- fence was, 1st, That the alterations being totally immaterial, the Notary could have no improper motive in the alterations made in the instrument j 2d, that were he censurable, it was the result of want of information, and was merely a very venial er- ror of judgment, and 3d, that the very high res- pectability of Mr. M*Pherson*s character in his profession and as a man, completely shut out all ideas of an opposite tendency. As to the 1st point insisted upon, the materiality or immateriali- ty of the erasures was completely hors du combat. The marked, bare and only fact, for that Jury to look out for was j has the instrument been chang- ed or altered, or has it not? I repeat, Gentlemen, but one answer could be given, and the truth of it was so apparent, that before a Jury who possessed their senses, it would have been almost bordering on insult to have put the question. It had been altered, and it was only necessary to look upon the face of that miserable document, and confirma- tion as strong as Holy Writ instantly appeared. As to inferences so gratuitously assumed on behalf of the Notary by his learned Counsel, we must say a word. The assumption I refer to is, that the alterations being perfectly immaterial, (this might be a very convenient doctrine for Mr. Mc- Pherson, but it is one that by no means obtained our consent as parties to the Acte in its original state) no improper motive could be imputed to Mr. M'Pherson. This is a proposition that we are far, very far from adopting as our own opinion, but happily, Gentlemen, there is no occasion to exa- mine its truth or its falsitv. Of the motives of men and their intentions wc can form no judgmc^nt ex"- cept k 107 cept by looking at their actions. This rule is uni- versal, and b}' it every man is judged, and equita- bly judged. A man violating any Law to the in- jury of another must be judged to be actuated by improper motives, for without being acquainted with the Municipal Law of the place every man knows-the Stranger — the Foreigner — the Savage — equally with the most civilized and best informed Members of the Community, that he is doing that which is wrong, that he is breaking the great fundamental basis of every Law, " Do unto others " as you would be done by.** The Law therefore infers with peculiar wisdom, the intentions and motives of men from their actions and their actions only. An illegal act being committed, there is no justification or excuse to be found in any supposed innocence of intention. When did a Court of Jus- tice ever receive as a plea from an individual accused of any offence a declaration of the innocence of in- tention of doing wrong? No! the law is too sternly upright in itself, and too pure in its general admi- nistration to tolerate for one moment such a doc- trine. What defence would it be in the mouth of the poor, whom the most pinching hunger had induced to steal a loaf, that he meant no harm, tliat it was to satisfy the cravings of nature in sus- taining a life almost famished? And Gracious God! shall such a defiance be allowed to the richer and better informed, and therefore ten thousand times more guilty, merely because he has moved in a superior and more elevated circle of Society. It is, Gentlemen, with feelings of astonishment^ min- gled with something approaching to indignation, that I reflect that a Jury wasfound, so little acquaint- ed with their duty, and so ignorant of the very O 2 just "1? I' 108 1 w. -ir illt: 'm J I: m y||f 51 < i I just principles which govern all well regulated So- ciety, which could declare a man innocent who ac- tually did not declare himself so. In connection with this part of the defence we may as well ad- vert to the inference drawn from the very high res- pectability of Mr. M'Pherson's character, as shew- ing in the conduct of the Petty Jury, how extreme- ly easy it is for men, with honest hearts but weak heads, to be led away by the superficial and false glare of supposed superiority of station, rendering- it the less possible for error to be committed by such an individual than by one in a state of hum- ble poverty. The business of that Jury, in the I'ulfilment of their oaths, was to ascertain whether the instrument had been altered or not, and find- ing (which they could not avoid doing) that it had, what had they to do with the heretofore good and spotless character of Mr. M*Pherson ? This one action was an exception, and it was with this, and with this onli/f they had to do. How frequent are the instances that we hear of and see recorded, where persons of what is justly considered the very first respectability, of the highest character, who in one unhappy moment by a mere stroke of a pen, dash as it were, from them every thing that hereto- fore has rendered them valuable and esteemed hus- bands, fathers and members of society ? On the tri- al of the misguided man can innocency of intention avail as a plea ? No. The forgery having been joro- ved, can former good character avail ? No. The Law looks in its administration to the single enquiry, has the violation of it charged to have been committed taken place, and is there proof that the perpetrator of the breach was the individual accused? Supposed innocence of intention may be given to the winds, and 109 and former rcspectab'Hty of character possesses not the weight of a feather. The only remaining pica then set up is, that if in truth the alteration of a pub- lic Acte was a crime or a misdemeanor, the conduct of the Notary proceeded from ignorance. My an- swer to this is two fold. 1st, The assertion in itsell' is unfounded : and 2d, even were it true, it could form no excuse for the conduct of the present Plain- tiff. 1st, The plea of ignorance of the Law is un- founded. Mr. M'Pherson well knew the Law upon the subject of Notarial Instruments. How could it be otherwise ? Regularly educated in the duties of his profession, and the term of his being a Student having expired, he is examined as to his qualificati- ons, and being on the contrary from ignorant found competent to enter into public practice, he receives his Commission, which has been read to-day. Ad- mitted into business, which with Mr. M*Pherson took place some years ago, his practice, particularly in ttiat branch of his profession connected with mer- cantile pursuits, has been carried on to a very conside- rable extent. How then can Mr. M*Pherson be suppo- sed to be ignorant of that science which the greater part, or at lea^^t a very considerable portion of his life has been devoted to the attainment and practice of? The thing is too glaring, too absurd for an ideot to be- lieve. But Mr. M'Pherson was bound to know the Law, the same as every other man in the nation is. The mouth of the most illiterate peasant who had committed a violation of the Law v/ould not be per- mitted as a plea to urge ignorance of the existence of the law, though perhaps it would be with ihe utmost truth that he did so. That being the case with the veriest //ia- bitanty with how much stronger justice ought the mouth of Mr. M*Pherson to have been closed when by rff" ■tii^ 110 by his Counsel he invoked a pliant, weak Jury to be- lieve, that if error had been committed, if his con- duct had been erroneous and illegal, it was Himply an innocent mistake, for which he was extremely sor- ry, and proceeded entirely from ignorance of his Du- ty and of the Law. Instead of the direct evidence of their senses, which could not have misled them, & which they had sworn should be the guide of thfir verdict, they appear to have adopted gratuitously an as- sumption which, had at an earlier period been ex- pressed in another Court, that there was nothing frau- dulent oriniproper in the motivesof the Notary, & there- fore acquitted him. Gentlemen, inaddressing^oi^, I am perfectly sensible how totally unnecessary it i» to say one word as to the appropriate mode of^ performing the important duty which in a very few minutes you will enter upon, but you will pardon my observmg, that though hearing with that respectful attention which every thing proceeding from the Honorable Court so justly claims as its due, it is only atten* tion to its elucidations of those points upon which information or additional light is required; but the sole decision of the case is yours, and in arriving at it you are not to be influenced by the opinions or doc- trines of any man on earth. This, then, Gontlmen, is the Defence with which my Client resists this, in his opinion iniquitous attempt, still more deeply to injure him. Reviewing the whole transaction or scries of transactions from beginning to end, what has been the conduct of my Client other than that which any man of correct feelings would have pursued ? Mr. Arnold, in every step that he has taken, acted like a man influenced by the very natural desire of obtaining ing Ill fedress for a deep injury which he conceived he had sus- tained in his property, to vindicate hiniL ' from the foul aspersion so wantonly thrown out against him, viz. the spontaneous allegation of fraud in taking a Note of hand from his debtors. As to the observations or words which have been proved against the Defend- ant, they amount to nothing — they are the mere ex- pressions of his own opinions, the sincerity of which his conduct from biginning to end most undeniably establishes. His sentiments were not uitered in the dark or in allies or corners, but conscious of their being just, the broad li^ht of noon day bore witness to his declarations. He threw the gauntlet boldly, and not by the circulation of dark whispers and mys-* terious hints with a privacy similar to that with which a man is poisoned, or the secrecy with which the as- sassin advances to plunge his stiletto to the heart of hisviclim, did he underminethe reputation & character of the man, through whose agency he felt he had been so deeply injured. No ; feeling himself attack- ed in his reputation, attacked and suffering deeply from loss of property, he selects the Courts of Jus- tice as the suitable place for discussing and deciding his complaints. Is this, I would ask, the conduct of malice, revenge, or determination in all and every way to harrass, perplex and ruin the man who has offended him, oris itnot rather the cool, deliberate, le- gal march of a good subject, whose confidence in the Laws and the administration of Justice is in no wise abated though discomfiture had just been his porti- on ? You will hear. Gentlemen, from much higher authority than mine, that it was a most essential part of my learned friend's cause, to have proved malice against the Defendant by direct evidence of y^c/s — in themselves malicious, or by giving evidence of words uttered f H ii -f If. ^i 'If ■:f\ ii Si' 112 uttered i^ him from which malice could evidently be inferred. From the light of the superior learn- ing of the Court you will receive a clear exposition of the Law applicable to this branch of the case. In conclusion, Gentlemen, it is scarce ly possible to ima- gine a case more important in its origin, in the va- rious stages of its progress down to this very mo- ment, than the one I am addressing you upon. The security of the entire property, (landed at least) of our domestic arrangements, of our own enjoyments and our posterity's expectation — all depend on the sanctity of Notarial Instruments and the inviolability which the Law demands for them. Let doubt as to the purity of their depositaries only be breathed, and all becomes dismay and distrust. We no longer know whether our houses are our own. In a word, why in God's name, I would ask, do we sit here — your Honors administering the Laws, and we in our hum- ble vocation forwarding to the extent of our abilities the interests of our Clients ? Why should we trou- ble a Jury to intervene and by their more general intercourse with mankind and more intimate acquain- tance with real life, unfettered by those strict and technical rules, by which questions of property de- pending for their decision on some abstruse princi- ples of any Law are adjudged to decide between two of their fellow citizens ? It is all a mockei7, a mere waste of time, show without substance, for the very Pillars of the Law are undermined when the sancti- ty of a Notarial Instrument ceases to be respected. Gentlemen of the Jury, all my Client asks, is your own unbiassed verdict. In giving it, let your con- sciences acknowledge no other direction than the di- vine one of " Do unto others as ye would that they should do unto you," and whatever that verdict may be 113 be we shall be satisfied. On it depends a decision of the question whether the Laws are mere cobwebs which are capable of catching flies, but through which the strongest beasts of the forest may break with im- punity ; and afterwards, succeed in drawing from the pocket of those who may have endeavored to pro- mote the course of Justice a large sum of money, as the punishment due to their attachment to Justice. I offer to the attention of the Court the case of Acle between Christopher Wilson and his Creditors, 24 in number. Of these, only one refused to sign j the House of Rogerson Hunter, & Co. Dividends in that case were actually paid in conformity to its stipu- lation, nevertheless the whole not signing, the Acie was considered to be a nullity. Mr. Christie. — No doubt it would be, and very properly so held; the instrument alluded to by my learn- ed friend was one, which until the wholeof the Credit- ors, as well as the Debtor had signed, was imperfect and of no force, because it was not that which upon its face it purported to be. The instrument in question was one of a different description, and was in itself perfect and complete whatever number of Creditors signed, because it was so drawn that it contained as many separate and distinct agreements or undertak- ings as there were Creditors, and some of the Credit- ors refusing to sign, by no means cancelled the obli- gations entered into by those who did sign, because their interests were in no wise affected by the refu- sal. The object (or the pretended object) of the Cre- ditors of the Boyles was, to obtain security for the payment of their respective debts, in payments to be made at the end of one and two years. This all who signed did obtain in the security of Mr. Jas. McCal- P lum. n. I ill m I'll Ml Ir i i i IH urn, senr. who had first signed the instrumentj and era- sing the names of those who refusing to accept ihe terms would not sign, was a necessary step to render the instrument that which on its face it purported to be, viz. so many separate agreements between the signing Creditors and the Boyles. Every thing sought for by the Creditors was secured and remained un- touched and inviolate as it does to this day, the in- strument having been held to be good or valid by the highest Authority. It was certainly not very large' /^considered by the Court in the reasons which vv( re given in explanation of the Judgment dismissing ilie Inscription en faux, because another plea of the then Plaintiff (Mr. Arnold) rendered it completely unne- cessary; but as furnishing evidence of a matter of fact denied by the Plaintiff, the Acte was held to be good and valid as proof. It could not therefore be consi- dered that mere piece of waste paper or nullity which my learned friend at all times describes it to be. Mr. Stuart. — Although my learned friend well knows that he is not entitled to interrupt me, as well as that interruptions whilst endeavouring to sustain by argument »he case we have to defend, are very inconvenient, I do not in the present instance regret it, because we have once more heard from hic> own lips, that as evidence against us, this miserable piece of waste paper was a valid Notarial Acte, although for every purpose for which it was originally drawn, it was an absolute nullity. To ihit. singular proposi- on of my learned friend it is > ca'lv no. easy tt reply by serious argument, notwithstanding the very grave manner in which it has been adduced and supported by him. Some notice however, must be taken of both the position itself, and of the reasoning by which it ^ I sr'il tV'l 115 and era- ept ihe render rted to en the sought ned un- the in- valid by y large' ch Wf-re ;ing tiie the then y unne- r of fact be good ^e consi- :y which }e. ?nd well , as well sustain re very ;e regret hirf own )le piece ilthough drawn, pi'(>D0Si- tv reply ry grave ipported aken of >y which it i it is supported, and in doing so, I shall have occasi- on to contract my learned friend's opinions upon the /Z£7oinstruineius, viz. ilydtbt'tween Christopher Wilsoti and his Creditors, and between that the Boyles and their Creditors. And I first observe, that our busi- ness is much shortened by these two instruments ha- ving been prepared by the same Notary Public, viz. the present Plaintiff— a fact, which at once does away with every idea of ignorance as to his duty ; inasmuch as his own practice had but a very short time be- fore furnished him with a case exactly in point. As to the argument raised upon the peculiar manner in which the instrument in the present case was drawn, it must vanish the moment it is approached for the purpose of examination, for it cannot stand its test. *' It contained" says my learned friend, (I wish to re- peat his position in his own precise words if possible) as many distinct and separate undertakings or a- greements as there were Creditors, and some of the Creditors refusing to sign, by no means cancelled the obligations which those who had signed there- by entered mto, as their interests were in no way or manner affected by the refusal * I have, I think, so fully shewed the gross fallacy, indeed the absolute falsehood of this monstrous proposition in an early part of the observations I have had the ho- nor to submit to you, that I should think it trifling with your time and that of the Court to offer a sin- gle additional remark. *Till you. Gentlemen, can be prevailed upon to believe, that to bind you hands and feet, and then run away with your property be- fore you, neither affects your interests nor does you injury, I am under no apprehensions of this mode of justifying the falsification of the instrument having the least weight with you. One word as to the other singular « it <( «c ( Hi 't li' )■; y SI 116 singular extremity in which my learned friend invari- ably finds himself placed when he has to consider the validity or nullity of this Acte» We are now told that the Court in dismissing our Inscription uijaux^ did not enter largely into the reasons ot its Judg- ment as another plea of the then Plaintiff (Mr. Ar- nold) rendered it unnecessary, but it was held to be good and valid, and was allowed to be used against us as furnishing evidence of a matter of fact. W^ell we know that it was allowed to be used against us, and as we then contended so we still think, though we bow to the Judgment of the Court, erroneously per- mitted. A Notarial Acte is a totality, it is good al- together ab initio ad terminalioncm, or bad altoge- ther. There is no such thing as individuality in a No- tarial Actc by which one part may be good and ano- ther bad, it is the one or the other in toto. If allow- ed, as to our cost we shall never forget that it was, (and that too, as far as my limited powers of dis- sent extend, rather upon asf^umptions gratuitous in their nature, than upon authorities based on the known principles of the Law) if allowed, I say. Gentlemen, to be used, or rather having been allow- ed to be used as evidence against us, it must have been held to be good. With my learned friend J agree that the reasons for dismissing our Inscription en faux were not gone into at length by the Court. Of its motives but one opinion can be entertained. They were such as actuate every judgment pronounced, viz, a conviction that Law and Justice dictated that decision. I can only express my personal regret that the Court did not think it necessary to assign more at large those reasons which led to its judg- ment, which virtually declared that Instrument to be good, which until brought into Court, was by every person 117 person connected with it considered a Nullity. I do regret exceedingly, on account of my Client, who through that judgment is the loser of ^500 that we are not acquainted with the principles and authorities upon which that decision was made up, because I might have hecn able, being convinced myself of the imj)ossibiiity of any other being pronounced con- sistently with the principles of the law, to recon- cile his mind in some degree to his Loss — Re- minding you of the case of Christopher Wilson and suggesting that it is owing to the different conduct on the part of Mr. M'Pherson in this case, to that wiiich he then adopted, that the long and harrassing train of Law proceedings have taken place, of which by his Counsel he so much complains, and for which he this day asks repara- tion in damages against my Client, the, as I think, already sufficiently unfortunate victim of either his ignorance or artifice. Gentlemen, I thank you tor your ve?y patient attention to observations which must have appeared tedious and I fear fa- tiguing — A sense of Duty impelled me to detain you till I was able to put you in full and complete possession of the whole of the Case, and it was (as I trust you perceive) utterly impossible to do so, without tracing most minutely step by step e\Q\'y occurence, from the 17th day of No- vember 181 9. This I have done and I shall sit down with the satisfactory consciousness that feebly as it may have been executed, I have to the utmost of my limited powers performed that duty which I owed. We await your Verdict, Gentle- men, without apprehension, and though it should be unfavorable to us, conscious that it will be the unbiassed dictate of your own hearts alone, it will be 118 be received by us if not exactly with satisfaction certainly with feelings, very different from those that have been excited by any previous decison or verdict. Gentlemen, here I close my Address. *Mr. Stuart,—! shall call Mr. Jas. M'Callum, Sen. Upon this Mr. Christie enquired, what Mr, S. wislicd to prove by that Gentleman, and was answered that hisobject was to prove, that although Mr. McCallum's name was subscribed to the In- strument, as security to the Creditors for the amount of their respective debts, and as such se- curity was to receive the returns of the next season; he never received any part of the Oil, &c. and always considered the Instrument a mere nullity. Mr. C. said he would admit it. Mr. S. proposing to call Mr. Geo. Ross — a similar question was put by Mr. C. and Mr. S. said he wished to prove that Mr. Ross, though his name was not on the Instru- ment at all, nor was he a Creditor, received the whole of their Oil. Mr. C. said, I admit that also. Mr. Stuart then rose, and communicated to the Court and Jury, that he considered the case made out by the Plaintift'so i'eeble and weak, that his Client hazarded nothing in its going to the Ju- ry upon his own shewing, and therefore he should call no witnesses. .. .1 - i Mr. Christie, — Will you, Mr. Stuart, allow me to say half a dozen words? Mr. Stuart, — No, Mr. Christie, nor half a one. * Communicaled to the Reporter. W. S. S. faction m those :ison or Iress. Vallum, at Mr. nd was though the In- or the jch se- ieason ; c, and ulh'ty. posing ^as put ve that [nstru- ed the t also. ed to e case :, that e Ju~ hould allow If 119 THE CHIEF JUSTICE'S CHARGE TO THE JURY. Gentlemen of the Jury, the present action which has engaged so considerable ii portion of ourtime, is what is generally called an Action of Slander or De- famation, and by it the Plaintiff, Mr. Laughlin Tho- mas McPherson, a Notary Public, seeks to recover damages of a pecuniary nature, against the De- fendant, Mr. Geo. Arnold, for a series of* conduct set forth at length in the Declaration, and which has been so frequently adverted to and detailed, by the learned Counsel on both sides of the ques- tion, that the Court feel satisfied vou are most fully in possession of the alledged slanders, for which this day reparation is looked for by the Plaintiff. It is. Gentlemen, very lucky for the parties, for the Court, and equally so for you, that in arriving at a decision we have not to depend upon the representations of Counsel on either side, or the duty which devolves upon us and you would indeed be difficult to perform. As it is, however, our several duties are neither intricate in their nature, nor will they occasion much trou- ble in their correct execution. The decision of this case as of every other brought before a Court of Justice, depends solely upon the law applicable to it, and upon the evidence produced in support of, and in contradiction to the allegations of the Plaintiff's Declaration. Upon the former head, viz. that of the law, it is so extremely well settled, that the Court has nothing in the discharge of its duty to do, beyond barely stating in a very brief manner, what are its principles on the subject of actions of slander, and leave to you the decision of the case, which you will make unbiassed by any other li; . ff. I Li fM i ■:\ m m S : •,'■ [ 11^ 1^0 other consideration, tlian tiiat which the evidence may suggest. It is, Gentlemen, your peculiar pro- vince to decide — you have sworn so to do, and by that oath the verdict you render must be your own — emphatically and most unwilling indeed would the Court be, to utter a syllable that ap- proached to any thing like an endeavor to influence or direct your opinion. Upon the evidence ab- stracted from every other consideration, either "what may fall from the Court, in the very short address it will trouble you with (except its expla- nation of the law) or from any representations which the learned counsel on either side have thought it necessary to make in the discharge of their professional duty to their Clients — I repeat, Gentlemen, upon the evidence, and upon that alone it is that your verdict will be founded. It is peculiarly your province, exclusively your pro- vince, to determine the credibility and weight to which it is entitled, and God forbid that ever the day should be seen, when (as it has been rather unwarrantably insinuated by the Defendant's Coun- sel) this Court should be so dead to a proper sense of its duty, as to intrench upon the clear, undoubted, exclusise prerogative of Gentlemen, sworn as you are, to deliver 7/our own verdict — influenced by no other monitor than your own consciences in forming it. We have each (1 mean, Gentlemen, yourselves and the Court) a duty to perform to the parties, but they do not in the least interfere with one another. It is our duty to point out the law upon the subject generally, and ex- plain to you its bearings upon the case actually before us, and this we do without consulting you. Having heard such observations, as the Court ia the 1^1 vidence iar pro- do, and be your indeed hat ap- ifluence nee ab- either y short ts expla- intations de have large of '. repeat, on that Id. It is 3ur pro- eight to ever the in rather 'sCoLin- i proper e clear, itlcmen, srdict — mr own 1 mean, duty to he least to point and ex- act u ally ng you. curt ia the the due performance of its duty considered neces- sary to offer. It is ^owrduty, without consulting the Court, without being biassed in the slightest degree (beyond what we have declared to be the law) by any thing I may have said — to retire — consult with one another — and having made up youi' minds, return into Court with, as the learned Counsel for the Defendant so strongly impressed upon you *' a verdict founded alone on the dicta- tes of your own consciences.'* Such a verdict, Gentlemen, the Court expect from you, as confi- dently as that learned Counsel. The only guide. Gentlemen, which you can avail yourself of, is the evidence proving facts, and by that so completely must you be regulated, that in the first instance you are bound to look at nothing else — it mjstby your minds be carefully abstracted from the gene- ral mass of evidencea it now stands, forit will be af- ter you have so done, that you will have to consider whether the words proved are in themselves absolu- tely malicious, or whether they are of a description that justify you in inferring malice from them. This rule is universal, and by it all causes are ad- judged, whether they receive their decision by the verdict of a Jury, as will be the case to-day, or by the judgment of the Court. It forms the security of the impartial and upright administration of jus- tice that Judges and Jury must make the evi- dence as to the facts of every case, the foimdation of their decisions, as the law applicable to each case cannot be brought into correct consideration, till the facts are distinctly ascertained. The facts belonging to the present case, I shall read to you. Gentlemen, previous to your leaving the (. ourt, making such occasional remarks on particular Q parts. \v • r *, f^ 11^ 1:11 •;titfe 122 parts, as may appear to the Court their duty to submit to you ; and that the evidence may be fresh upon your memories, I propose doing so to- wards the close of my observations. That being the order to be observed, we will enquire into the law upon the subject, and as I have befor > men- tioned, it is awell beaten roadthatwehave totravel. In all actions in which it is sought to reco- ver damages for what the law designates " 2'or/,'* or in English •* Personal Wrongs** it is the indis- pensible duty of the Plaintiff' seeking them, to prove against the Detiendant malice. This is a point so fully settled, that two opinions do not ex- ist upon the subject. It is not, however, direct, positive evidence of conduct that could alone pro- ceed from malicious motives that is the only means by which a declaration such as is now before us, can be proved. Words in actions of slander, (which the present is,) if in themselves of a description so clearly manifesting the spirit of the person uttering them, that malice may be injerrcd Jrom them 1>y the Jury. In the present ease then, Gentlemen, you will in looking at the expressions proved to have been uttered, you will have to say whether they are of a descrip- tion which openly exhibit malice ; and in viewing that part of the Defendant's conduct, which the Second Count of the Declaration brings under your notice, you will have to determine whether from this part of his conduct you infer malice, or you consider malice most clearly implied, or wheth- er (however mistaken might be his ideas) the whole was any thing beyond the fair, open, manly but persevering endeavor* of an individual, who con si- 123 duty to be fresh ; so to- at being into tli6 Dr ' men- to travel. reco- ' Tort,** he indis- hein, to This is a ) not ex- direct, lone pro- the only >w before slander, i^es of a le spirit e may be present looking uttered, descrip- viewing lich the ;s under whether lalice, or rwheth- eas) the «, manly lal, who con si- considering himself to have been deeply injured in his property, was resolved, if possible, to obtain justice, and being disa))pointed in his expectations in one Coiut, carries his complaint into another. This he was entitled to do — it is the beauty and glory of that system of Jurisprudence, which at this moment we are engaged in administering, that every man, high or low, rich or poor, may come int » the King's Courts and seek redress. Whilst the Appeals of an individual to the laws of his country, though in them he accuses a fellow subject of some ci une or offence, are confined to the obtaining redress tor injuries he has personally sustained, he is moving ni a safe, because it is a legal course. Hut, Cientiemen, such conduct thougii apparently, and indeed actually in strict conibrmity to the law, may have tor its root ma- lice. It was very appropriately explained to you by the learned Counsel ibr the Defendant, that in actions of this description, the proof of malice of intention against the Defendant, is, what Lawyer's term, the \\^vy gist of the action — it is in fact the hinge, upon winch the decision must turn. Thus in the present, as in every other similar case, if it be proved to the satisfaction of a Jury, that a De- fendant has been actuated by malice, though he may not have overstepped the boimdaries of the law, in his pretended endeavors to obtain redress for an alledged injury, he must pay for it iu such damages as shall be judged commensurate to the injury really sustained by the Claimant, and as may be a warnmg to him not again to give way, to the unworthy feelings of malice and revenge. This would be under the cloak of the law, to attack in the most powerful nuainer which malice perhaps Q 2 could IP ; ■ i 3 I. ■ It ■'i r! jl'l- IX ,1 ?'• 124 could dictate ; but on the other hand, it may havf proceeded from a mistaken notion of the injury received, and of the correct moile of obtaining redress. 1 will endeavor to make myHclf clearly understood upon this point, becuuHU it Ia one of importance that you should correctly Jipprcciate, as it must necessa. ily be considered by you in the making up of your verdict. There i» a broad dis- tinction between the case of a man, who with no probable cause whatever, drags his neighbour be- fore this ('ourtof Criminal Jurisdiction, and being foiled there rushes immediately into aiu)ther— the malice of this man speaks for itsell^hlH conduct can be actuated by nothing else . The upt the irrange- ind the :he full the ta- 1 a case Mr. ^ ' - 129 Mr. Stuart, — Will the Court allow mc with the utmost deference to submit, that my remark ■was, as the " Moj/cvs dejhiu'* by which our •♦ /w- scriptiun en faia** was endeavored to be support- ed attacked at once and broadly impeached the validity of the pretended Acte^ that when judg- ment was given, by which the " Dcmande inci' dcntc enfaiLv" was dismissed with costs, and that when the same paper writing had on the Trial or EnqiH'te been allowed to be made evidence against \is, that it was as far as the parties engaged in the suit were interested, then a virttial declaration that the Actc was goody as had it been held to be bady it must be a nullity to all purposes, and could not, according to my very humble conception, be good evidence, being in itself a nullity. 1 beg your Honor's pardon for the interruption, and thank you tor the indulgence, with which my ex- planation has been listened to — I offer nothing further to the Court. Chief Justice Sewell, — The Court distinctly understand the conception which the learned Counsel entertains of the incidental judgment gi- ven in Apnl\i\9,ti and it is altogether erroneous, as 1 shall presently satisfy the Jury ; I shall therefore continue the course of remarks I was addressing to you, Gentlemen, when the learned Counsel ex- pressed his desire to explain his language, relative to that Judgment. In arguing upon the Acte, the learned (Tcntleman makes a broad, palpable appeal to the common sense of us all, that upon looking at the Acle only, we must immediately discover that it is an invalid, inchoate and imperfect Instru- ment. I am now adopting the learned Gentle- K man's j^' ISO .!•: i' man's own words, as he himself used them in rela- tion to tlie Actet and then he goes on to say that because of liis Demande incidente en faux being dismi sed (for reasons which will presently be ful- ly explained) his Client has lost upwards of «^400. Let whichev er side of the argument he may please, be taken as the rule, how can the learned Gentle- man's Client have lost o€i()0? Is it to be said that the AcU' has been declared virtually good as be- tween these parties (v\hich it never has been by this Couit, inasmuch as from the course of the proceedings, in the case where the ** Moyen$ de Jauj,'** were argued, it was totally unnecessary to give even an opmion as to the validity or invali- dity of the Instrument, for the purpose to which it was originally designed) then he has security for the fulfilment of the Boi/ies* part of the Conven- tion, by the Guarantee of Mr. McCallum, for the payment of his debt. On the other hand, if it is the mere piece of waste paper, which he describes it, how can he lose ji'4()u by it ? Has he not now his recourse against the Boyles for their debt, as firmly as ever, whenever he thinks proper to bring his action in a sha e conlbrmable to th law. The decision given in April last, turned upon quite a different — a totally different point altogether. Art action is brought by the learned Gentleman or his C olleagne, as Attorney for Mr. Arnold, against the Firm of Boyle and Brothers, of Gaspe, upon a promissory note. This firm, it was said, (and afterwards proved) consisted oi'Jive partners, the learned Gentleman sued only Jour, The llun De- fendant's Counsel fyled a plea of exception, in which they alledged the existence of a fifth part- ner, and that the Note in question was jointly made with 131 with one Richard Atnwtt, a Copartner in the Firm of John Boyle and Brothers, tlie makers of the said Note of Hand; but this Mr. Arnold denied in his rephcation upon tlie Enquetet this paper wri- ting was received as evidence, shewing that here- tofore the Piaintifti George Arnold, liad under his own signature atiixed, in seven or eight different places, acknowledged that the partnership was constituted, as the Defendants in their Eixeplion {Temporari/J had pleaded. The negation on the part of the PJaintitt' biding completely overset, by the concurrent testimony of viva vuce evidence, and of his own hand writing, the action must ne- cessarily be dismissed *^ (/iiant a present," and such was the judgment of the Court. The Moycns de faux it was not requisite to the case that the Court should consider, for as the action ".sw?- la dema?ide principal was dismissed *' qvant a prtsenl" that on the demande " incidinte en Jaia'* couJd not stand. That the transaction between the Boyles and their Creditors, was rendered a nullity by the conduct of the Notary, perhaps admits of little doubt; but to say that it amounts to a ibrgery is impossible. Thus much, Gentlemen, 1 have felt it an imperious duty to state and remark in vindi- cation of the Bench fiom an attack made with no ordinary degree of vehemence, and such as the learned Counsel himself, in moments of cooler re- flection, will consicleras rather overstepping that de- cornm which usually characterize our proceedings. Atthesame time,let thelearncd Gentlemen notmis- tonceive me, I am perfectly satisfied that he has only represented, what he conscientiously thought to have been the intention of the Court in its judgment. It had no iuteation of pronouncing the Acte ■ SI 4^ ^3'Z I -I V : ',1 111 :l Acte valid, except for the purpose for Avhicli it was allowed to be used. Perhaps little or no doubt ex- ists on any of our minds that it is a nullltv. And now, Gentlemen of the Jury, before I commence reading the evidence, I shall only re- mind you that in all Crimes the intent or volition of tlie ace isad forms a principal criterion of its guilt or its innocence, whenever it can be clearly ascertained ; but in Actions of the nature which in a very few moments will be left to your deci- sion, it is the very essence, gist and marrow of the PIuir»tift''s case, distinctly to p ove against the De- fendant, in the ways, or one of them which I have mentioned, w?r///c^ of intention. I shall now read the whole of the evidence, oiitM'iug such occasional comments, as })articular facts may seem to demand. [The learned Judge read the evidence — his com- ments were few in number, and in the very humble judgment of the Stenographer, it is not expedient to extend his report, by dissecting the evidence, &c. to insert them, x\d without doing so, to note them, would be useless.] The reading of the evi- dence being closed, the learned Chief Justice said, this. Gentlemen of the Jury, is the whole of the evidence that is impo. tant — the case we now leave with you, expressing at the same time our hope and our coniidence in its utmost extent, that the verdict you return, may be most emphatically your own, and being so, that perfect justice will be rendered to the parlies between whom you have sworn to decide is the firm persuasion of the Court. The Jury then retired, and after a very consi- derable absence, retiuned into C^ourt with a ver- dict in favor of the Plaintiff. Damages — Five Pounds, Quebec, 18th June 18'2J. Stcnograpfiet\ n •?.'•, o ell it was loiibt ex- V. before I only re- volition 3n of its e clearly e which ur (leci- w of the ; the De- h I have low read :casional demand, his com- humbie Lpedient .'itlence, to note the evi- ce said, c of the )w leave 0})e and verdict ir own, :ndered ^vorn to consi- i a ver- n TO -THE MEMBERS OF THE PROFESSION OF THE LAW. 515^m» §♦ SnupSOn, respectfully intimates ; that he would be happy to enter into a permanent en- gagement to take Minutes of all apparently important Proceedings in the Courts of Appeal and King's Bench for the District of Quebec. (To commence next October Term.) The frequent expressions of regret from members of the Bar, publicly and privately, at the want of such assistance ; and the marked one of an Honourable and Learned Counsel on yesterday, while arguing the case of JoneSy vs Howard, involving in it the most Important question of " Jurisdiction of the Court of Vice Admiralty " has produced this Notice. Fqr such cases as might be esteemed worthy of publicadon, W. 8. S. would ask a general Revision before sending the Manuscript to Press, its Progress thro* which the Reporter would caretully superintend personally — [[Communications on the above Sub- ject addressed to W. S. Simpson thro* the M