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 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
.«m^mmmil» 
 
 ST 
 
 i 
 
 BEF( 
 
 1. Thomas { 
 
 2. John W. 
 
 3. PlTKB D( 
 
 4. David Dt 
 
 k 
 
 The evide 
 c«UBe on the 
 iMt, was as I 
 
 PRO 
 
 The first ■ 
 
 the defendai 
 
 1897, the firn 
 
 composed of 
 
 . lime ; I w 
 
 qHb address 
 
 rp^nsibilitj 
 
 OB that occaa 
 
 I tola^Iaintil 
 
 and which mi 
 
 He replied ht 
 
 had asked me 
 
 »Bd I told hin 
 
 shoBtd take M 
 
 hk qualificati( 
 
 to be one of tl 
 
 treal, I told 
 
 ' opinion of hii 
 
 qnently expres 
 
 bis (Opinion tl 
 
 very excelienl 
 
 expressed his ^ 
 
 the expiration 
 
 for five years, '. 
 
 aaked me to, 
 
 leaded, and 
 
 April. This w 
 
 ■ation with me 
 
 letter frcm plai 
 
 I did not see s 
 
 desk. The fin 
 
 cei?^e such a lei 
 
 or saw it or ht 
 
 when my lawy 
 
 the conversatio 
 
 185T, money wt 
 
 from plaintiff e 
 
 ^fter the con\ 
 
 
'mmmLim^i 
 
 SUPERIOR COURT 
 
 EVIDENCE TAKEN FROM THE RECORD. 
 
 3*17.1 
 
 THOS. S. KIGGII^N, Plaintiff, 
 
 vs. 
 
 BENJAMIN LYMAN etal., 
 
 ^ 
 
 [PENDANTS. 
 
 
 
 BEFORE JIR. JUSTICE BmiM AND THE mUWING SP*41, JUKY:- 
 
 1. Thomas Oavkrhill, 
 
 2. John W. McGovran, 
 
 3. PiTBR Donnelly, 
 
 4. Datid Duncan, 
 
 5. Walter McFarlanh, 
 
 6. John Murphy, 
 
 1. Andrkw G. Holland, 
 8. Robert Hutchbson, 
 
 9 Alexander Auld, 
 
 10. Georob Starke, 
 
 11. Patrick Brennan, 
 
 12. Thomas Gordon. 
 
 The evidence adduced at the trial in this 
 c«i6e on the 13th and 14th dayi of November 
 last, was as follows : — 
 
 PRODUCED BY THB PLAINTI^'J'. 
 
 ♦ kJ*!? ^'^} ^'^^°T' S"N"MiN Lyman, one of 
 !S.7 fK^°B^*"*'j. Reposed :-0n the 4th April, 
 1867, the firm of Lymans, Savage & Co was 
 com^sed of myself, He.iry Lyman, and Alfred 
 • mS^ jJ ^*! ^^^'^ ^«°*°'" Partne.. On that 
 <«| addressed a letter to plaintitf on my own 
 recpnsibihty, and at the time told plaintiffso- 
 l1^l?''-'"^-'^?^7'°^'' *'^« "*•"« o''the firm.' 
 L^ w1?- T^'? L?°'^ expressed my own feelings 
 Md which might not be agreed to by the firm 
 He replied he thought they would. Plaintiff 
 had asked me what I intended to do for him 
 fhiL?t 'iS" I had always intended that he 
 shoold take Mr. Savage's place. I approved of 
 hto qualifications for business, and believed him 
 to be one oi^ the most perfect young men in Mon- 
 treal, 1 told him my brother Henry had a good 
 • opinion of him, and that Mr. Savage had fre- 
 qBently expressed, in fact, on several occasions, 
 hia Opmioa that his conduct in business wa^ 
 very exceuent. Mr. Savage had, before this 
 Mpressed his wish to be released, a year before 
 the expiration of the partnership, which was 
 for ive years, on account of ill health. Plaintiff 
 aahed me to. give him in writing what I in- 
 
 A •? ' mu^^ ^ ^*^® '''™ '"^^ letter of the 4th 
 April. 1 hig was written at time of his conver- 
 sation with me (witness.) I did not receive any 
 letter from plaintiflf of date the 5th April, 1857 
 Jelk. ""'iXr^.^ l^Jt'^L 1}?IJ>-, *>je office 
 
 t1«/1 
 
 
 deak. The firm did not t.n m^ irnn» _ 
 
 ceive such a letter. I niver read 8uch"a''retter 
 or saw It or heard of it till a day or two airo 
 when my lawyers showed me a copy of it. In 
 the conversation with plaintiff on the 4th April 
 1867, moneywas spoien of. The firm received 
 from plaintiff a thousand pounds a few days 
 after the conversation. The circumsUnces 
 
 were these : At the time the letter was written 
 plaintiff said he should be soon i^ re^'nt of 
 money from the sale of land by his fSer 
 which he would like to place aT interest "i 
 said to give it to Mr. Clare and the firm would 
 pay 8 per cent. The terms of the letteTwTiUen 
 were complied with by the firm, i. e., so for hat 
 the plaintiff received £200 a'year' and 5 Per 
 
 PllllV^^^r^'' ?^'^' ^"«'"««« for two years 
 Plaintiff had been in our employ for sev^n or 
 
 A f • ^'f ."'*'°"*f ^^ t° ^''<=«»^« the money 
 
 ?ni.K «'''^'^ ^ '*^7«f'« l«"er demanding it 
 and the firm was sued for it before they gft a 
 chance to pay it ; the firm gave a bon for Ihl 
 
 Th^L " ""^ ?"'^.'^"" ^J^^^^""" was is ued 
 The money remained with the firm for about 
 two years at 8 per cent. When the monev wm 
 K'fj.'^'i'lr^"^ °°* '° difficuItirat^aT 
 
 it?he emnfn^nfT T'"/"' Plaintiff remained 
 in the employ of the firm for two years. It was 
 
 fi?rh.*r' '"^ '^'. ^""•"^^ of 1857 that we 
 first had sopae suspicions of plaintiff's morality 
 wrote p amtiff from Toronto on the Is^Ap fl' 
 iwijJ'"*'' -""^ P'-oduced; I believe an "n- 
 
 ptSs' •^''t^^ ?>f noTLly 4 ZrL7eZ 
 plaintiff's. The letter of the 16th April now 
 produced, was received by the firm from plX 
 f^ r?- ^!,"!'°'^u'''« 28th April, alsoprcduS 
 
 flila/K *u i^^ ^P"'' '^•'^ produced, was re- 
 ceived by the firm from plaintiff. I believe the 
 figures 1857 are wrong, and should b"?Rfi9! 
 
 tiffth?! » *^*^' ^^°^' ^'^^ *"™ ^ote to pTain- 
 tiff th J letter now produced. I wrote that let- 
 ter, and s-gned the name of Lymans, Savage A 
 to The letter of the 3rd May 185Q !« in 
 S r fif™ ^'^"d-^iting, and by'^'him'signed" 
 The firm received that letter. The letter 
 
 stned'b/mJ V' '''^' ^'^ ^""en and 
 signed by me . I do not know of any other cor- 
 
reapondence on tl»e subject. Our firm doet a 
 large biisiness in Its jiaiiita and drugs. 1 can- 
 not say to what extent without consulting the 
 books. It may bo to the extent of seventy-five 
 but I think not to tho extent of £100,000 per 
 annum. I am not aware that the plaintiff could 
 have had, at the time, the Medical Hall. I 
 heard that a partnership was spoken of with 
 Mr. William Lyman, but plaintiff said he would 
 not take it. William Lyman could not succeed, 
 Never heard plaintiff could have had the Medi- 
 cal Hall. Plaintiff is one of the best persons 
 for the business that I know of. 
 
 Cross-examined by the Jury:— The X200 
 a-jrear and 5 per cent were paid voluntarily, 
 wishing to pg,y it without suit. The firm paid the 
 £1000 when sued for it. Plaintiff could have 
 had it on application. The £1000 was not a 
 condition of his remaining with the firm. 
 
 Cross-examined ;— The letter of the 4th April, 
 1869, was written in Plaintiff's room, in the 
 store, when I was taking my luncheon. I told 
 him I had not the sanction of my partners, and 
 he said if they did not consent it would go for 
 nothing. Plaintiff said he thought I could in- 
 duce my partners to come into the arrange- 
 ment. I had not the sanction of my partners ; 
 the first time I told my partners that I had 
 written such a letter was after I wrote the letter 
 of the Ist April, 1859. I recollect about a year 
 after this that Plaintiff said he would like his 
 per centage carried to his account. I then 
 asked for the letter from Plaintiff, and was 
 surprised to sec it signed Lymans, Savage & 
 Co. Till then I supposed I had written my own 
 name. The firm was sued for the £1000 ; this 
 copy of the declaration and writ now produced 
 was served upon us, no mention of the partner- 
 ship in it. The Plaintiff did not demand this 
 money before the suit ; I got the lawyer's letter 
 first. I went up the same afternoon with a 
 cheque, and met Mr. Cross, who seemed embar- 
 rassed, and referred me to Mr. Bancroft. Mr. 
 Bancroft was absent, and I left the cheque with 
 Mr. Dorman . The bailiffafterwards gave me the 
 summons on my return to the oflSce, on the same 
 day as the letter. The account was made up as 
 in the paper now put in— marked LM, allow- 
 ing 8 per cent on £1000 the first year, and 
 £1080 the second. The first entrance made in 
 the books of the firm with reference to the 5 per 
 cent was not made till this year. My partners 
 knew nothing of it till about the time that 
 Plaintiff demanded to be taken into partnership 
 and was refused ; the firm was sued afterwards 
 for the 5 per cent. After the suit I and Mr. 
 Clare made up the amount to the best of our 
 ability ; as many accounts were not collected 
 and some were in suit, we decided that if the 
 amount so made up were not accepted Plaintiff 
 might go with the suit; it was accepted, and 
 the receipt now fyled, marked N, given, signed 
 by Plaintiff. The $1,200 so paid to Plaintiff, 
 was charged to me individually, on the ground 
 that I had promised it to Plaintiff— without my 
 partners' consent, and that they were not respon- 
 sible. Plaintiff called on the book-keeper about 
 the time he was leavjiig to make up his ac- 
 count; this account was made up. I know 
 that Plaintiff's account was credited by salary 
 £200 per annum. When his salary was paid I 
 was in England. It was I told Mr. Clare to 
 credit £200 to Plaintiff about the time of his 
 leaving. 
 
 Bu the Jury :—l never notified Plaintiff of his 
 conduct in 1857, or previous to 1859. There 
 were two actions, one for £1000 and another for 
 the 5 per cent. I never tendered him any 
 amount before the suit. 
 
 Re-txamined: — The 5 per cent was paid at 
 date of receipt, same time in 18G0. The amount 
 was not made up and offered before, because it 
 could not be made up. Cannot say that the 
 firm received the letter produced, of date 9th 
 August, 1859, asking for an account of profits. 
 Cannot sav they did. I do not recollect ev«r 
 seeing such a letter before now. 
 
 William Workman, Esq., merchant :— Knows 
 the parties in this cause. Has seen the letter of 
 the 4lh April, 1857; about that date knew 
 Plaintiff well. Had a favourable impression of 
 his ability. Witness had that letter in his cus- 
 tody for a year, having been given to him by 
 Plaintiff. 
 
 Question; — Had you any knowledge in April, 
 1857, of Plaintiff's prospects of business ? 
 
 Jlnswer ; — I had. The late Wm. Lyman wished 
 to have him in his business, and told me to hold 
 out to Plainttff the possibility of bis being a 
 partner, without naming a time. There was 
 another party desirous of having Plaintiff. I 
 told him to keep to the house he was in, and to 
 get any offer of partnership put in writing. I 
 was aware of plaintiff's offers. The party named 
 was Mr. John Carter. I do not know if he was 
 in treaty with Plaintiff. I always advised 
 Plaintiff to keep to the concern he was ia, The 
 late Wm. Lyman requested witness to speak to 
 Plaintiff. A position in Mr. Lyman's business 
 witness would consider an advantageous posi- 
 tion. W. Lyman has since died. Witness 
 considers Plaintiff a competent person to have 
 taken up^ the late William Lyman's br liess; 
 which after his death no person carried on. 
 Witness knows that £1000 was raised by Plain- 
 tiff for the firm of Lymans, Savage & Co., partly^- 
 from funds in the hands of witness' late firm, say 
 £700, and partly his own. The money in th« 
 hands of our late firm was part his own and 
 part his father's. Money was scarce in 1867. 
 The Defendants did as large a drug business m 
 any in the province, and perhaps in America. 
 It has been established over 30 years . Witness 
 would value the good will of the whole business 
 from eight to ten thousand pounds. The late 
 Wm. Lyman retired with a large fortune from 
 the firm. Wm. Ljman authorized witness to 
 say to Plaintiff, as ho was an old man he wished 
 to have him to get the customers of the old 
 firm for his business. 
 
 Cross-examined .'—Our firm allowed 6 per cent 
 interest on the moneys in their hands belonging 
 to Plaintiff and his father. 
 
 John Oartbr, Chemist : — Knows the parties. 
 Did not know personally Plaintiff in 1857. 
 Witness wished in 1857 to have a per- 
 son to superintend the Medical Hall, 
 and Plaintiff was recommended. Witness was 
 willing to take the Plaintiff as a partner. 
 Saw Mr. Workman and also Mr. Malcolm, and 
 was informed by them that it was too late, as 
 Plaintiff had made arrangements with Defend- 
 ants. Witness would have given Plaintiff a 
 partnership and a handsome salary. Thinks 
 the good will of the Defandants' businsss, whioh 
 was established over 30 years, equal to the pro- 
 fits net of a year's business. Defendant's good 
 will estimated at profits of a year. It is the 
 
Plaintiff of hia 
 1859. There 
 and another for 
 iered him any 
 
 It was paid At 
 ). The amount 
 ore, because It 
 )t say that the 
 ed, of date 9th 
 )unt of profitB. 
 recollect ev«r 
 
 hant ; — Knows 
 en the letter of 
 lat date knew 
 B impression of 
 itterin his cus- 
 ren to him by 
 
 ledge in April, 
 isiness ? 
 Lyman wished 
 told me to hold 
 }f bis being a 
 3. There was 
 ig Plaintiff. I 
 was in, and to 
 
 in writing. I 
 de party named 
 mow if he wa8 
 Iways advised 
 e was ia, The 
 !ss to speak to 
 nan's business 
 ntageous posi- 
 ied. Witness 
 person to have 
 lan's br iness; 
 tn carried on. 
 lised by Plain- 
 8 k Co., partly 
 s' late firm, say 
 
 money in the 
 t his own and 
 aroe in 1867. 
 ug business at 
 ) in America. 
 ars. Witness 
 whole business 
 ids. The late 
 i fortune from 
 sed witness to 
 man he wished 
 ers of the old 
 
 ived 6 per cent 
 inds belonging 
 
 ra the parties, 
 itiff in 1857. 
 have a per- 
 [edical Hall, 
 Witness was 
 ts a partner. 
 Malcolm, and 
 3 too late, as 
 3 with Defend- 
 en Plaintiff a 
 lary. Thinks 
 usintss, whioh 
 aal to the pro- 
 Fendant's good 
 IT. It is the 
 
 
 largest business in the province. Witness gave 
 i;760 perhaps 20 years ago for the good will of 
 a retail house, corner Place d'Armes. Witness 
 paid for everything besides. If a fair business 
 was done it should give a net profit of ten per 
 cent, that is such a business as witness supposes 
 Defendants did. That is wholesale and retail. 
 Witness was Executor to the estate of the late 
 William Lyman. Defendants had to pay him 
 from i;i8,000 to £20,000. Cannot say for what. 
 From Plaintift's reputation and high recommen- 
 dations, witness was disappointed at not <rettinir 
 Plaintiff. ' * 
 
 Cro*s-4xamined: — Witness took a Mr. Beers 
 M partner in the place of plaintiff. He made no 
 protit because a good many bad debts were made, 
 »p.d did not conduct business to witness' satisfac- 
 tion. Beers is dead. It was into this business 
 witness intended to put plaintiff. Had there been 
 no bad debts at the balancing of the books, 
 profits would have been good. Thej were better 
 every year— £600 profit second year. Witness 
 had a share in the business before taking Mr. 
 Beers. Mr. Beers had £200 as salary and a 
 share of profits 
 
 Jou.N C. Si'KNCB :— Knew plaintiff in 1857. 
 Knew of his receiving a letter from defendants. 
 Plaintiff brought the letter to witness who saw 
 a draft of the reply in 1857, shortly after he first 
 saw the said letter from Lymaiis, Savage & Co. 
 Witness saw plaintiff one Sunday in the store, 
 and i)laintiff said there is my answer to their 
 letter lying in the desk. This was shortly 
 after uiy seeing the letter to him from Lymans, 
 Savage k Co. 
 
 Cross-examined: — Plaintiff showed witness 
 the draft of his reply shortly after his receiving 
 the original letter ; cannot say how long after 
 the letter that I speak of as having been pointed 
 out to me by plaintiff; was so pointed out on Sun- 
 day ; none of the firm were present,nor any one in 
 the employ of Lymans, Savage k Co. Plaintiff 
 had the key of the premises, and was apparent- 
 ly in charge of them. On that day witness did 
 not read the letter lying on the desk, but has 
 read the copy shewn to him by plaintiff. It waa 
 pointed out by plaintiff as being the letter, and 
 this by plaintiff. To the best of his knowledge 
 it was the Sunday after the 5th of April, 1857, 
 that witness saw the letter lying on the desk 
 that plaintiff pointed out to him, 
 
 John Sinclair :— Plaintiff called at witness' 
 ofBce and said he had offers from the defen- 
 dants, and wished his advice. He spoke of other 
 offers from Mr. W Lyman and Mr. John Carter ; 
 when he told witness all, witness advised him 
 to accept the offer of Lymans, Savage k Co. 
 There was nothing of a private matter about it. 
 
 Cross-examined : — Plaintiff" did not shew the 
 letter to witness. He only consulted him about 
 his offers. 
 
 Henry T. Lamplouoh r— Knows parties. The 
 defendants do a very large business ; estimates 
 good will of such a business at from £8,000 to 
 £10,000. Is not aware they were in need of 
 rnoney in 1857 ; war .ot asked for accommoda- 
 tion paper. 
 
 Here the plaintiS^s enquete closes. 
 
 EVIDENCB FOR DEI ITS. 
 
 John O'Lbart -.—Knows pai On the 28th 
 
 May, 1857, witness had some conversation 
 with the defendant Savage about plaintiff. 
 Savage said he had heard something about 
 
 plaintiff, au wished me to Hod out whether 
 It was true or not. On the same evening 
 witness went io the store of defendants, 
 and remained there till half-past eight, when 
 plaintiff came out ; went up St. Joseph Street 
 to Little St. James Street, through St. Mary 
 Street, and went down a little street to a place 
 where one of Mrs. Scott's daughters lived. He 
 rapped at the door ; it was opened, and he went 
 in. Witness returned to the store, and plain- 
 tiff returned at 12.30 p.m. in a cab. Witness 
 took cabman's number. This was a house kept 
 by Mrs. Scott's daughter, as far as witness 
 knows. The daughter is known as Martha 
 Scott ; have known her for 5 or 6 years. About 
 four years ago she lived with her mother, who 
 kept a bawdy house, and does so still. Since 
 that time she lives in a house adjoining. Wit- 
 ness was in there only once, and that was about 
 three years ago. Since tiien witness does not 
 know her character, as when on duty witness 
 was told not to go there, as the only person who 
 visited her was Mr. Higginson. Cminot say if 
 she was a ]>rostitutc in her mother's house ; to 
 the best of belief witness says her sister was liv- 
 ing ill the same house with Martha Scott. Her 
 sister's name is Emma ; all I know of her is the 
 same as her sister. The general repute as to 
 plaintiff's character, is that he consorted with 
 .Miss Scott. Witness has heard so, aad heard 
 that plaintiff' goes there still. 
 
 Cross-examined : — In that house at the time 
 resided Martha Scott and h r sister. Not to 
 my knowledge is that a bawdy house ; never 
 prosecuted as a bawdyhouse. Witness heard seve- 
 ral times this 3 years from Emilie Duval that 
 plaintiff was often in her house. He never saw hiiu 
 enter any other house than Miss Scott's. Wit- 
 ness has seen over fifty young men enter bawdy 
 houses. Mr. Savage, defendant, requested mu 
 to go after plaintiff. Before then witness never 
 knew of his going to any house at all. Wit- 
 ness watched till half-past 12 o'clock at de- 
 fendants' store, and saw plaintiff return. He 
 did not again go out. Watched on another 
 evening, but did not go out. 
 
 Francis Turner : — knows Plaintiff and Defen- 
 dants by sight — knows their store, knows 
 Martha Scott, her sister Emma, and their mother. 
 Has seen Plaintiff in company with Martha 
 Scott. Mrs. Scott keeps a house of ill-fame, 
 and has done so for a number of years. Wit- 
 ness some years ago when Defendants were in 
 their old store, probably five or six years ago, 
 first began driving Martha to the store. When 
 in the new store witness has driven both Mar- 
 tha and Emma Scott together to the new store 
 at half-past seven or eight o'clock when the 
 store was open. Witness has done this several 
 times. Both went into the new store. In the 
 old store Plaintiff used to come and drive round 
 with her, Martha, and go in again. Witness 
 would drive down and she would go in, after 
 she would come out they would wait in the 
 neighborhood until he would come out. Once 
 witness drove to Hibbard's store down on St . 
 Paul Street. Paiullff followed down aad over- 
 took witness and the Misses Scott. Witness 
 has seen Plaintiff in her bouse in the evening 
 and mornings often and often. The last time 
 a few days ago. In 1857 and 1858 saw hini 
 there frequently. He passed the night frequeutl y 
 there in 1857 and 1858; that is, he would cume 
 late at night a id go away early in the uioniiug. 
 
— 4 
 
 Martha flcott is kept by Plaintiff, And has been 
 for a good many yearB. WitneHS believes, that 
 she, Martha Scott, has two children by him. 
 There is a third on the road. Among her com- 
 panions she goes by the name of Martha Higgin- 
 son. Has seen Plaintiff at Mrs. Scott's frequently. 
 This is a house of ill-farae. Mrs. Scott Is mother 
 of Martha and Emma Scott. Never drove 
 Plaintiff down there. Has seen him there al 
 
 most every night in the week. Has known him 
 to pass the night there four or five times a week. 
 Plaintiff has paid me for driving himself. She 
 has paid me also. Of the children spoken of 
 witness thinks the oldest three or four years old. 
 The Misses Scott have always lived at their mo- 
 ther's till acquaintance with Plaintiff. The sister 
 has been visited by other men. Martha only by 
 Plaintiff. Has seen Plaintiff in his shirt sleeves 
 at her house in the morning and dressing. 
 Have seen him leaving at 8 or 9 A.M. 
 
 Cross-examined:— Wiimsa does not swear 
 Martha Scott received visits from other men. 
 
 By the Jury .-—Miss Martha Scott left her 
 mother's house two or three years ago. ShQ is 
 backwards and forwards now. Eating and 
 drinking at her mother's. Before two or three 
 years ago, she lived with her mother in her 
 mother's house. 
 
 Jdlm Gkrvais :— Does not think she would 
 recollect plaintiff. But should she see him pass 
 would know him. He has light hair ; wore a 
 light hat. And she understood his name was 
 Higginson. Never saw his face well. Has 
 only seen him pass very quick. Knows Emma 
 Scott and Martha Scott, but never spoken to 
 Miss Scott. Lives next door to Martha Scott. 
 Never saw Higginson at Martha Scott's ; saw 
 him pass, generally in the evening about half 
 past 8 or 9 ; he was the only person who used 
 to go there, and was told his name was Higgin- 
 son. Saw this person leave in the morning, 
 about 9 or 10 o'clock ; but never took much 
 notice of time ; but it was in the morning any 
 way that witness used to see this person pass. 
 Last summer saw such a person pass pretty 
 often. Before the summer before last not very 
 often. Ho could have passed without witness 
 seeing. To see him enter, witness had to 
 look out of a window. Did not do so. Emma 
 and Martha lived in the same house. Martha 
 down stairs and Emma up stairs. Lived in 
 that house about two years. Witness lived 
 next door only for two years. The Scottshave 
 had this house for over four years. Does not 
 know where they lived before ; never saw the 
 person on the gallery or in the yard to remark 
 who. Saw a man there in the yard with the 
 children but did not notice who he was. I 
 thought he was the person who passed the 
 window. Has seen several gentlemen go in to 
 see Emma, but thinks Martha was true. 
 
 Cross-examined :— A gentleman went to see 
 Emma and another to see Martha : the person 
 who goes to see Martha I have heard was nam- 
 ed Higginson. 
 
 Emilib DtjvAL :— Knows the Plaintiflf. Sees 
 him in Court. Knows Martha Scott and Rmma 
 Scott, and also Mrs. Scott. Knows nothing of 
 Plaintiff's connection with Martha Scott. He 
 has often spoken to me about her. Cannot re- 
 collect what he said exactly. Witness used to 
 ask "how is Martha ?" He said " I haven't seen 
 her." He never told witness of his keeping her. 
 Plaintiff talked about the baby : witness asked 
 
 how she was. There was some talk of his break- 
 ing off with her. This was about a year and »- 
 half ago ; waa aware as far as conversation Roes 
 he was intimate with Martha Scott. He safd he 
 knew her. Never saw him go there. Plaintiff 
 often came to witness' house once or twice a 
 week for a couple of months, or for a winter 
 that 8 about four years ago, to see Kate 
 McOuire ; Martha may have been jealous of her 
 Women are always jealons about their man I 
 kept girls at that time. 
 
 Cross-examined:— No one asked me to tfive 
 evidence. Mr. Abbott came to my house about 
 my evidence. This was in the evening. Mr 
 O'Leary was with Mr. Abbott at the time. Hljr- 
 ginson went to see Martha Scott. That is what 
 witness knows. 
 
 Fblicitk Oauthikr, femme Perrault, tage 
 femme ;— Connait pas Mr. Higginson, nl de nom 
 m de vue. Temoin a assisteo a laccouchement 
 de Martha Scott, a I'accouchement de deux 
 enfants. II y avait la sa mere, sa soeur, et une 
 vielle servunte. C'etait sur la rue Craig, dans 
 une vielle maison. II n'y avait pas un mon- 
 sieur present. 
 No cross-examination. 
 
 Margaret Kinmby :— Knows parties. Was 
 employed in 1857 and 1858 about the store of 
 Lymans, Savage & Co. Have been going back- 
 wards and forwards many years. Since their 
 going to the new store, have there made the 
 plaintiff's bed; now and again when I went 
 there It was plain no one had slept in the bed 
 the night previous— I found the bed in the same 
 state as the night before. It happened now and 
 again the last winter plaintiff was there ; wit- 
 ness spoke to plaintiff about it and said she had 
 not so much work to do, referring to her pay 
 for making the bed, and he said it was not 
 witness' fault. 
 
 cross-examined;— Plaintiff sometimes left 
 home about his employers' business. Benjamin 
 Lyman spoke to me about my testimony. Some- 
 times witness had plaintiff^s bed only once or 
 twice in a week to make. Mr. Lyman spoke to 
 ^,*^?®f.l,^^«° plaintiff left; never before. 
 Plaintiff came in at 8 or ufter a.m. The store 
 was open before that time. 
 
 Richard Power:— Knows defendants' new 
 store, where they have been two or three years 
 back. About two or three years ago, one niirht 
 between 12 and 1, saw a man and a woman 
 coming out of the store, walk up little St. Joseph 
 Street and take a cab ; the same man came 
 back afterwards and entered the store ; I did 
 not know the man ; it was two or three years 
 
 ago. J«»ia 
 
 Cross-examined:— Qq not know who was the 
 man or tke woman ; to the best of my belief it 
 w;a8 the same who entered afterwards who pre- 
 viously went out with the woman. The man 
 had the key, and unlocked the door. I do not 
 know all the partners in the firm. Do not know 
 if witness mentioned it; thinks he spoke of it 
 to Mr. Lyman, who is a jeweller. Never spoke 
 of It to any one since. Mentioned it that same 
 evening at the Police Station. The woiuaa 
 was a smart, young looking woman, respectably 
 
 Wiluam H. Olarb :— Witness is now a part- 
 ner of the Messrs. Lyman. Previously, and 
 since 1846 was a clerk with them. I^nows 
 Plain'iff, who was a fellow clerk. Witness 
 drew up the bon produced, marked Q. Hud hq 
 
talk of his break- 
 out a year and a- 
 !onvergation goes, 
 Icott. He said be 
 t there. Plaintiff 
 I once or twice a 
 , or for A winter, 
 ',0, to lee Kate 
 en jealous of her. 
 out their man. I 
 
 Mked me to tWo 
 > my bouse about 
 
 evening. Mr. 
 ht the time. Hig- 
 tt. That is what 
 
 Perrault, sage 
 
 ^iiiBon, ni de noni 
 
 » laccouchenient 
 
 iiemont de deux 
 
 sa sceur, at une 
 
 1 rue Craig, dans 
 ait paa un mon- 
 
 3 parties. Was 
 out the store of 
 been going back- 
 ers, ijince their 
 there made the 
 n when I went 
 slept in the bed 
 B bed in the same 
 ippenednowand 
 was there ; wit- 
 and said she had 
 rring to her pay 
 said it was not 
 
 sometimes left 
 ness Benjamin 
 stiraony. Some- 
 ed only once or 
 Lyman spoke to 
 never before . 
 a.m. The store 
 
 lefendants' new 
 o or three years 
 s ago, one night 
 and a woman 
 little St. Joseph 
 ame man came m 
 the store ; I did I 
 'o or three years 
 
 )w who was the 
 t of my belief it 
 •wards who pre- 
 nan. The man 
 door. I do not 
 1. Do not know 
 s he spoke of it 
 ■• Never spoke 
 >ed it that same 
 t. The woiiimi 
 3an, respectably 
 
 s is now a part- 
 'reviously, and 
 them . Knows 
 lerk. Witness 
 :ed Q. Had no* 
 
 anversatton with Plaintiff. He deposited the 
 ^\nney with me, and witness considered it as a 
 Seposit in interast, and gave the bon. Plaintiff 
 then said nothing about the bon, and nothing 
 kbout a partnership. Witness made up the 
 locument marked M. Nothing was said 
 (between witness and Plaintiff about a 
 [partnership. Mr. Benjamin Lyman instruct- 
 'ed witness to credit Plaintiff with a salary 
 of £200 per annum. It was credited during the 
 spring or summer of 1858, when the books were 
 made up. Th<) Plaintiff had free access to the 
 books then kept by witness. Plaintiff never 
 objected till 4th May, 18r>9, when he was going 
 to leave. He asked witueas for a statement of 
 his account, and witni'.ss gave it him ; he ob- 
 jected to it, and asked why he had not been 
 credited with five per cent per annum. Was 
 first aware of the XIOOO being demanded by the 
 suit. Witness made the account the 4th May. 
 Thinks the summons came on the 4th May. No 
 demand came bafure the summons. Plaintiff^s 
 salary had previously been £160 per annum. At 
 the end of first year witness gave Plaintiff credit 
 for interest on the £1000. Plaintiff staid in 
 rooms fitted up in the store for the purpose of 
 being on hand at all hours— and for the secu- 
 rity of the place. It was perfectly understood 
 in the store that it was Plaintiff's duty to remain 
 there. Witness has no doubt that Plaintiff un- 
 derstood it. Plaintiff had a bed made up in the 
 apartments which were furnished by the firm 
 His bed was made upon the premises, and he 
 had a key to the premises. No charge was made 
 to Plaintiff for the use of these rooms. As 
 book-keeper witness had free access to all 
 books and letters to or from the firm. Was con- 
 stantly in the office. Witness never hoard of 
 tho letter of date the 5th April, 1857; never saw 
 it ; only heard of it a few days since. Had such 
 a letter been left lying on the office desk wit- 
 ness would certainly have seen it; ho thinks he 
 wouldhaveseenit if lyingas Mr Spencesays. It 
 is his practice to put away papers; as they accu- 
 mulate they are fyled away. The 5 per cent 
 claim of Plaintiff was charged Mr Benjamin 
 Lyman In the books of the firm. Witness re- 
 ceived instructions to have it so entered from 
 Mr. Benjamin Lyman. Understood the other 
 members of the firm objected to its being 
 allowed, and so it was charged to Mr. Lyron a. 
 This charge was made in May, 1800. There 
 were, to witness' knowledge, three keys to the 
 shop. Each of the Messrs. Lyman had one, 
 and Plaintiff one — the third. 
 
 Cfost-examined : — Knows of late W. Lyman. 
 Witness understood something of his being a 
 partner with tho late Mr. Lyman. He was not 
 one. It was the habit of the defendants to 
 allow so much per cent on the profit of the 
 business. Witness is a partner of the Messrs. 
 Lyman now. His agreement to have a per 
 centage of the profits was made thus : At the 
 time of the dissolution Mr. Benj. Lyman promised 
 witness a partnership. It was not reduced to 
 writing. 
 
 Qucsticm : — WaS Mr. BcBJ. Lyuian in tho 
 habit of making contracts to allow clerks, your- 
 self among the number, tho per centage in the 
 business of the firm, to tho knowledge of and 
 sanctioned by the other partners ? 
 
 Jnswer: — Witness believes he is the first 
 clerk who received a remuneration in that way, 
 and it was with the sanction of the other part- 
 
 ners. Witness was book-keeper at the time. 
 No writing was made at the time, nor entry in 
 the books. An entry was made at the close of 
 the year. Witness had a conversation with 
 Mr. H. Lyman as well as Mr. B. Lyman at the 
 time of the agreement. My per centage was 71 
 per cent. At the end of the year the books 
 shewing profits were made up. It took some 
 time to make up the books, say to April each 
 year. For 1855, witness tloes not remember 
 what was his share of the profits. The profits 
 for 1865 appeared to be large, for, at the disso- 
 lution of the firm of W. Lyman & Co., a deduc- 
 tion for the depreciation of the stock was made. 
 For 1855, witness thinks his share was £400 ; 
 that is his impression . Tho balance sheets are 
 made by witness. Cannot recollect tho profits 
 uf 1855 ; difficult to say what the profits are, aa 
 the bad debts are not considered so, and writ- 
 ten off; real balance is not then ascertained; 
 never was a deduction of bad debts of any con- 
 sequence made. The deduction made was from 
 year to year ; cannot swear no deduction was 
 made in 1855. Witness got a subpoena. He 
 read it. It did not say to bring the books. In 
 1856 profits were not very large. Witness does 
 not recollect his share of the profits for that year. 
 The balance of 1850 was £2,245 153. Ud., with- 
 out allowing the deduction of bad debts ; if any, 
 very trifling. That year was a bad year. Pro- 
 fits in the y^ar 1855, £7,393; in 1850 the bal- 
 ance to profit, £2,265 15s. lid; in 1857, £2,106; 
 in 1858, $22,156, or £5,539 cy. 1859 is not yet 
 balanced. The business has largely increased 
 since 1858. No sheet has been attempted to bo 
 made for 1859. Witness would suppose tho 
 profits for that year fall under £8,000 or £10,- 
 000. Witness estimates them at from four to 
 five thousand pounds for each year. At the 
 end of tho yaar there maybe bad debts, and 
 their deduction will reduce the profits. The 
 bed-room fitted up for th« ^ilaintiff was on tho 
 third flight ; thinks his taping there con- 
 tributed to tho safety o. t .e building Tho 
 office was on the second fligl i.. Plaintiff might 
 have heard robbers if they were in tho office ; 
 would not Bweur any one was sleeping in the 
 store when plaintiff was away. He was only 
 away twice on business for the firm. In 1856 
 he was in Upper Canada for the firm, to receive 
 orders. The letter marked R. is in the hand- 
 writing of Mr. Benj. Lyman. When plaintiff 
 had this letter, he was absent about two months. 
 Witness cannot swear that any person slept in 
 the store during these two months. Plaintiff 
 was sent to Quebec in the fall of 1856. He was 
 only absent there for two days. Nobody slept 
 in the Store during that absence. Witness 
 knows plaintiff, from time to time, went to 
 Hawkesbury to see his parents. Knows of no- 
 body sleeping in the store during that time. 
 Plaintiff was an efficient salesman. Early and 
 late in his business. He was there before wit- 
 ness in the morning. Witness supposes witness 
 sometimes left in the evening before plaintiff", 
 and as a general thing, before plaintiff took his 
 meals at Mrs. O'Brien's, or iho Ottawa Hotel. 
 Never saw the letter of the 5th April, 1867, nor 
 that of t! . tth of April, 1857. Saw none of his 
 correspondence at all. The taking in of a part- 
 ner was, to me, something to bo known. Do 
 not know where plaintiff got the £1,000, No- 
 thing was said at the house but that it was at 
 deposit at 6 per cent, with Mr. Workman, and 
 
^^Z^^^^!,^^^ --~ 
 
 cou« nf Lli i"^"** ''°' f«rni8hed With an ac- 
 H^ Hn ^J" 3 P" '=•"'* P""""* account. The 
 iih^"* r=knowledg« it to this day. Do not 
 
 or Btateraent. Does not remember of Uancrofi'a 
 
 WitnZh ""''""'"« ^'^h " noteto thefirm 
 Witness became aware that plaintiff wis to have 
 
 l^1I'?.L^!?.^J^. M^^d^'o This :XoTn 
 
 JoBiPH Li>, Salesman for Messrs Mni«.„ 
 
 terday, he is well known to mo. know h!«, 
 since « boy. He is a carter, stands' at D^lho" 
 il^lZl ^'r^ "^y •"'«"*^''»»« *>y nny moans 
 
 "P- " was paid in August, isiiO. The nrofita i full of ..l f„ . • t ,.7. '* * '"^'^ character 
 were made up in April. My 7i per cent had Lvm»n h -^ ''""''''■ ^'""> '» ''"'[M of Jonea 
 
 d.,; nlai'n.iffft,r"h- \'* *''•'"'"'"'• The amount 
 aue plaintiff for his B per cent. profitH wan nnt 
 offered him till ho sued for it 
 
 To Me Jury.— In 1858 the books were ba- 
 
 Jo Mr. CroM .--Witness saw all the letters 
 !!'.".'..*'T« !".'« .t''° firm. He did not put them 
 
 they wero fyled away. Witness thinkrh^aw a ft ionrl.V,, •"••''.?''", ^y""»"' •>« '^""'^ him as 
 the letter marked S Very trifling discrepr r£,Totl":^:':Z' Ir^ 
 
 jril^.-f-^fey^i^ =e! Hetook-i^- 
 gure it her and never returned to pay It iL 
 
 2hm''""v''' 'l" ^'^ characJ.^-Thai £ 
 all he knows about him. "* 
 
 wirhTa!,drrr'''Ss"'k'nown''f^"''"*'"'«'» 
 
 -nyyoars,\i.^„uft!;!;:^''^,l^^ 
 
 cie's '2 «rr„'S'' «;.' ^"^^"r'fling ■dTsc7e;e"n- 
 flul7. * ■^' °'" '^•^"■°''> sometimes occur in 
 the Ualanco erery year. .My family visits some 
 
 rViai/?i^":r?"^^ °"^^ p*''-" "-« 
 
 w^l ''?'"''" v'siting my partners' families 
 Evidence for Defendants' case closed. 
 
 BVIDENCB ADDUCED DV PLAINTIFF IN REBUTTAL. 
 
 22JdJnr,^RT'"''~^''f"*^'"*'=-The note of 
 iZna July, 1854, now produced, is in my wrihn J 
 andmarUz. Another is in mj ig te"? 
 handwriting. It is marked D.D/canno sL 
 what date i^ was written ; must have been some 
 
 -„i .•'■."** '"" '"8' two or throe veara thn, 
 
 viously, but rarely ayailedTumself o? the in'^i" 
 tat.on. They never whispered anytlUnLif 
 witness' son to witness till nfur ,P'"""8 ot 
 
 Pljirntlff to';ra&"ioy.^''TuS r'^c^Sel 
 timraZ" « ""^ ^'!"*" ' "^"^' '"'^e been som'e S' mon'ey'°'piain'Hff t ""*' "^"'^^^ waaTS 
 
 ?oTst^:;jrii5'8!xrnr^L'rH^L^^^^^ "" ""^^^'^--^ *^ 
 
 ..^v. „,5„. owcrs 11 was previous to 1859 • can 
 not swear as to 1858. Does not know handwrU 
 ing of paper marked B.B. Believes ft proceX" 
 
 JnTl Ti^'T. •'?"'«• No 'Jate to it Note 
 marked P.P. is invitation to Plaint ff to mv 
 daughters wedding. Sl,e was ma ried 2^8^ 
 April 1869. Note marked G.G. of jTne 18 
 is an invitation to Plaintiff to Mr. Lyman's ^^ 
 
 J^iaintitt for tlie woddmg. Knows that writing 
 m pencil, ,3 in Plaintiff's handwriting S 
 nvitat.on was declined. Plaintiff was invited 
 to witness' house perhaps half-a do.en ,"meg a 
 year. Does not fenow if so often beforeTsss 
 ^^uXrS.^''^''''^^ "^ wasoCrary 
 
 C/-os»-ea:a»imerf :_Was in New Vnrif «♦ ♦! 
 noTte^n ? T'"''""' to the' weddtg'* Sm 
 iTaint U n •h^r''?K^^%' '"''"^^^ '"^-i heard of 
 ed ahont H \f"-Z the refusal, when she inquir- 
 es about It. My daughter selected the eiL'-U 
 
 Sni " T"'".^- ^^''"^-''s '«ft home abotft the 
 close of navigation and returned homo once 
 or twice during the winter. ^^ 
 
 5„ ,a.*4'' ^i""'^"=-K"ows plaintiff. Plaintiff 
 m 8=.7 and 1858 took his meals at the Ouawa 
 Hotel-regularly. Never missed him la tie 
 lr.f:L^!:^.°li«^?! •*«d |n 1««0 he slept sever! 
 
 be we-lTknown am^^th^ SardS.Te^rm'e 
 home about theusu«l1,our and got up at the 
 
 ma"n' teH-ff?',".'^ ^^ '' ^^od 'business 
 man. Plaintiff told witness he slept at the 
 
 h-ir V ""' ^"'" wiiness ne slept at the dops n^f 1, ■? "'"J' Particular, a: 
 
 By the /«/•»;— Within ^ m. a „.. 
 this city 5 or 6 time, a year M^r" *"""« *« 
 often as she could Li u ?^'*'^an>e came as 
 
 Plaintiffs room" even on Sunday ^"' ""^ ^" 
 aIo^^eSlYat*trn?oScSr--*^- 
 
 beSy^hiSraflfrn^ot^^^ '' ^^^^^ •-"'<' 
 
 Two^i'^a'.'^aro^W £^^iSo°'=^ ^««V^^ 
 Qves«(m;-Did vnn "'^»'"«on in my house. 
 
 Savage iryourhouL? '''' ''' ^^'- Alfred 
 
 Upon objection taken by I)efeiidm#'o r-„ 
 sel this question was rejected ' ^°""- 
 
 came'rwUnS'hof/se 'mH '«^*^- «« 
 Nicholas Sfee Ha 'know^n h°"'°/' °° ^t. 
 
 for a l.idv. '> "C enquirinir 
 
 Cross-exrt/nfnerf :_iiq ig „ ,„_ . , 
 
 Swears he has been in my house ffn^"*"- 
 he came to see was called A„„! u °® P^"on 
 is dead He w^s yerv nartf "?^^ ^'°7°- She 
 does not know If any on/ i /i'- *"'* ^''""^s 
 he saw ann.hc: " ."^".^ ?"« «?^ him. Believes 
 
 She has 
 
in the Utter part of 
 
 or Meitsrfl. Molson, 
 ess examinud yes- 
 to me, know him 
 sUndH at Dalhou- 
 iate by any means, 
 man witness would 
 
 so delibcriUely. 
 from knowledge of 
 
 is his manner of 
 a loofle character 
 n employ of Jones 
 igafaucy woman 
 nd said he wanted 
 ume. He took it, 
 3d to pay. It Ih 
 laracter. That ia 
 
 -Well acquainted 
 wn them a good 
 «on Witness re- 
 he know him as 
 or three years, iho 
 mercantile char- 
 ited to thi! houses 
 in 1858 and pre- 
 nself of the invi- 
 red anything of 
 fter the rupture 
 1 had they known 
 itness aa witness 
 •nesa and his wife 
 ra with Plaintitt' 
 aintiff with them 
 as done openly 
 uently asiisted 
 vitnesa received 
 money was wit- 
 Bver allowed to 
 
 I years came to 
 fadame came as 
 een with me in 
 
 was never there 
 m. 
 
 ''rancig Turner 
 :ove Mrs. Scott, 
 Witness is a 
 y house runner, 
 'ith Mrs. Scott. 
 
 witness would 
 
 ice yesterday, 
 n in my house, 
 e Mr, Alfred 
 
 ndnnt's Ooun- 
 
 Sarage. He 
 ouso is on St. 
 im for a few 
 
 drugs a. his 
 I he enaiiifintY 
 
 V sized man. 
 The person 
 Brown. She 
 , and witness 
 im. Believes 
 •«h. She has 
 
 I gone to the Btatei. Thii woman, lirown, died 
 tbreu weeks ago. 
 
 JosBPH Trowhlb : — Reiidod In Montreal 15 or 
 16 yean ; has seen Mr. I)enJ. Lyman for 14 or 
 15 years. Have known him; 12 months last 
 May, saw him in the evening. Knows woman 
 Darned Mrs. Landry, whose liouse is known in 
 the neighbourhood as an assignation house. 
 
 Qu«(fton.'— Have you ever seen Mr. Benjamin 
 Lyman, defendant now sitting in Court, go to 
 a house of assignation and ill-fame in this city 
 in company witli a female within the last two 
 years? 
 
 Objected to by defendant's Oounsel, and ques- 
 tion overruled by the Court. 
 
 To tht Jury : — My business is labouring by the 
 day. Never worked for Mr. Hcnjamin Lyman. 
 Never quarreled with him or any of the firm. 
 First spoken to this morning. Never saw 
 plaintiff before then, never told me what to say 
 or offered money to me. Never had conversa- 
 tion aa to evidence ; what witness knew he never 
 kept secret. 
 
 John O'Lbaiiv: — Not examined. 
 
 Alexandkh Cross, Advocate. 
 
 Question : — Look at the letter of date 5 Apnl, 
 1857, written by the plaintiff to the defendant, 
 and when it first came into your hands ? 
 
 Objected toby defendants' Counsel as not evi- 
 dence in rebuttal. 
 
 Objection maintained by the Court. 
 
 The plaintiff declares that he avails himself 
 of the evidence of Mr. Benjamin Lyman, and 
 
 Here plaintiffs' evidence in rebuttal closes. 
 
 Copy 
 
 of Corretpondence between T, Higoinson 
 and B. Lyman, ana between T. Higoinson 
 and Lymans, Savagb & Co : — 
 
 Montreal, 4th April, 185*7. 
 
 Thomat Hlgginson, Esq.: 
 
 Dbab Sir, —Touching the conversation the 
 writer had with you, the present is to say that 
 we will allow you i)200, say two hundred 
 pounds per annum^ and also five per cent on tlie 
 profits of the business carried on here f' the 
 next two years, after which time we wil : ; lit 
 you as a partner on terms that will he i. x'tual 
 and satisfactory. This letter to be strictly pri 
 vate and confidential . 
 
 Yours very truly, 
 
 LYMANS, SAVAGE & CO. 
 
 Toronto, Ist April, '859. 
 
 Dbar Sib, — Since I left home poor Beers died, 
 and I suppose the Medical Hall will be in the 
 market. I have thought it my duty to say to 
 you, that perhaps you can purchase the concern 
 on your own account. I do so from the follow- 
 ing reasons, that circumstances have come to 
 my knowledge that w>U prevent me from rccom- 
 mending to my partners that you should be ad- 
 mitted a partner in the concern: the matter is a 
 personal matter with you, but is of such a 
 nature '..hat I could not go into the circum 
 stances with satisfaction, and I know you would 
 .^ot cars to become a partner without we had 
 the fullest confidence, consequently I thought 
 it best to give you early intimation, to enable 
 you to make such other arrangements as you 
 
 think belt. I am sorry that such is the case, 
 but it ia not my fault. 
 
 I am off tills afternoon for New York, and I 
 hope to reach home by the end of next week. 
 Yours truly, 
 
 BENJAMIN LYMAN. 
 Thomas Uigginson, Esq., 
 Montreal. 
 
 MoNTRiAL, 10th April, 18.'>9. 
 Dkab Sir, — In answer to yours of the 2.<d 
 instant, I have to say that I should have been 
 willing to consent that you be received an a 
 partner in the firm of L., S. k Co., upon such 
 terms as we could have agreed upon, and as the 
 other members of the finn would consent to, 
 were it not, as I stated in my former letter, that 
 certain facts have come to my knowledge, 
 which i)Ut it out of the question, and render 
 your aamission into tlie firm under the circum- 
 stances. 
 
 Yours very truly, 
 
 BENJAMIN LYMAN. 
 
 Montreal, 2nd May, 1859. 
 
 Dear Sir, — Having taken communication of 
 your letter of the 30th inst, in which you state 
 ihat you consider yourself a partner In the firm 
 of Lymans. Savage & Co.; we have to say that 
 such an assumption on your part is certainly 
 without foundation. You are well aware that 
 no partnership, nor any agreement of partner- 
 ship, has ever been entered into between you 
 and us. It is surprising that you should set up 
 any such pretensions. Your position, as you are 
 well aware, ia that, (and always has been,) and 
 still is that of a clerk in our employ, an 1 noth- 
 ing more. 
 
 We may further say, that there are insu- 
 perable objections to entertaining any proposi- 
 tion for your adoption into the firm a» a co- 
 partner with us. 
 
 Your obedient servants, 
 
 LYMANS, SAVAGE & CO. 
 Thomas S. Higginson, Esq., Montreal. 
 
 Montreal, 3rd May, 1860, 
 Dear Sir, — We understand from your letter of 
 this morning that you decline to remain longer 
 in our employ as a clerk, and shall govern our- 
 selves accordingly. 
 We are your. 
 
 Obedient servants, 
 
 LYMANS, SAVAGE k CO. 
 Thomas Higginson, Esq., 
 
 Montreal . 
 
 MoNTRBAL, April 6, I860. 
 £1000 cy.. 
 
 Good to Thomas S. Higginson, Esq., or order 
 for one thousand pounds cy., with interest from 
 
 u3t6. ^'ttSG on UTTpOSit. 
 
 (Signed,) LYMANS, SAVAGE k CO. 
 Per W.H. CLARE. 
 Endorsed, — 
 
 Received the amount of the within written 
 Bon from Lymans, Savage k Co., 21st May, 
 1859. THOMAS S. HIGGINSON, 
 
II 
 
 irXKir^^ '" ">/ »''"""'- into",; 
 thTmonth r„ ' "*'?*" * ^'"7 «" 'he 4th of 
 me month, In acconlance with their wrln..n 
 agreement with me of 4th April, St Thi« 
 
 H aeration, on conditioni that on mr i.art r 
 
 whic'hM,7"ra t1" ^'r""^"*^ J"l'a.nn'cSh 
 wnicn I did at a time wlien cash wng very valu^ 
 «ble and gcaroe. Now. having kept my part of 
 
 of vnnr V "" "'Y"""* U) cauae jo„ „r any 
 01 your partncri to i.pnoi, >i.. 1. ..•' '•' 
 
 WoiiTMAL, 28tb April, 1869. 
 Mttmr, Lyman,, Savag, t, Co., Mmtr*al ■ 
 
 DiAR Sim,— Will you •«.pmll ™- . 
 
 Yourt, Tery truly, 
 
 THOMAH S. HIOOINSON. 
 
 --._ „. ,.„„„ niiviiiinir u) cause von or nmr 
 
 ror?e?t"\rarT.:^'? ^'"•'■^ ''''•°''«'>^-" «'«^ 
 lurieii mat confidence in mn wlnrh v.,.. o- 
 
 knowledged to have loHt at h^M eriod^"f Z' 
 aKreement, I heg to ask you to state oxplciy 
 
 /uiir cnargo. w hen you answer this f Hhuii 
 havegreat pleasure in 'havin, a coSveriafn' 
 
 Vours re.speotfully, 
 
 THOMAS S. iiiaoiNaoN. 
 
 MoNTREAr,, 16th April, 185D. 
 *• Lyman, Etq., Montreal : 
 
 Yours truly, 
 
 THOMAS S. HIGaiNSON 
 
 MoNTUKAL, 16th April, 1859. 
 Meur». Lyman,, Savage i( Co., Montreal , 
 I beg to enclose : 
 
 adn..ss.on as partner int . your'^.inn "' ^"' '"^ 
 
 ^^4th.-Copy of a request for an answer to the 
 Ti!l"7;r°P^.°^*'''- "■ Lyman's answer 
 
 letl'; TuTz zzr' '" ''.'■ « ^^•-™»n-« 
 
 much. Bel nnawo^"*' ^"'•prised me very 
 ply of haV.nf Ji"^'^""''/' expressed in my re- 
 a forfeiture "oVthe clfidr ""^"""^ *« ^--« 
 the time of enterinKTn^o the'^T"''^ '" '"° *' 
 entertained a reSaS h^^^ thKr?/V ' 
 man's explanation would have atfbrd«H " ^^" 
 opportunity of rpmn^iVT™ attorded me an 
 
 might pe™onaIl?'°Saine"J '^t^'!°"%'^« 
 waited for his reasonrh.,fo» I -.^ \. therefore 
 explicit, I no^rr^sk „7a 'fumr„^rn5""^ 
 agreement, must insist on Mr B Lvm,."^'?^ 
 closincr the reasona fnr h;„ „» i^yman dis- 
 
 Yours, very truly, 
 
 T. S. HIGGINSON. 
 
 M».r. r „*'""""*•'. loth April. 188». 
 
 Mt»,r,. lymam, Savoff, t, Co., Montreal' 
 
 I-romyour protracted nilcnce it wm.iH . 
 pear that some aversion ex Js on your part t^ 
 a distinct recognition bv von .J LT ^^!- *° 
 I have, in vain^ried toTel^ove th7a1,"H' h""' 
 several times d.^ired to k ,ow your v?!!"*^* 
 
 ^i^jadecU^^eV'^harVarHj; 
 
 i'y the agreement of the 4th of Anril ^s^Kt t 
 
 was to be admitted as a partner on the' 4th V 
 
 ,.™ '»'« 4th instant I cn^ider myself VnH 
 
 any groulids of objJct of personal t"--" "^ 
 crested iiv M- u y " Pr"°nai to me as suar- 
 
 does not choose to state vi, o ^ . ^^ 
 oa his part to fulfil the eng'agTment ^""'*°'="' 
 Yours, very truly, 
 
 THOMAS S. HIGGINSON. 
 
 MoNTRMAL, 3rd Way laKa 
 laem-i. Lymans, Savage ^ Co • """ 
 
 iA t"sU'7eS7?oTki^rdr ^ 
 
 18S7 I have to express my deep regret ttHl 
 conclusion to which%u hav^arri^eS^S whlcj 
 
 Mettn. Ly 
 
 (Irntlkj 
 of the uiif 
 unsettled < 
 able sluiul 
 your at ten 
 niained in 
 A Co., bet 
 April last 
 hundred p( 
 c. (five per 
 I have rcH] 
 nidli me wi 
 two years, 
 to make u 
 
 YOII! 
 
 P.S.-IV 
 Hotel here. 
 
 $1,200.00. 
 
 Received 
 twelve Ihiu 
 demand iij^i 
 vngo ti Co., 
 tfieirbii.slne 
 hundred am 
 eighteen hu 
 tlement of t; 
 said firm, cl 
 aa compense 
 dition to ( 
 already rece 
 
 (Signed 
 
 The follov 
 letter addrei 
 produced am 
 
 Meurt. Lymi 
 
 Dbar Sibs, 
 the present ii 
 two hundred 
 cent on the 
 yearn from tl 
 admit me aa 
 satisfactory. 
 
 (Signed,; 
 
 P.S.-SIy 
 
 nrm.. 
 
38tb April, 1869. 
 •., Montreal : 
 rmit me to remiod 
 
 to you of the Kith 
 •I obliged to jrou for 
 
 Y, 
 
 H. HIOUINSON. 
 
 ^»ih April, 1859. 
 >; Montrtkli 
 n^u agRin to call 
 HP manner to the 
 he 4th April, 1S87, 
 
 1 me to urge it on 
 eliitive situations 
 
 >ce, it would ap. 
 8 on your part to 
 » of my position, 
 fo this, and hare 
 w your views on 
 ilternative but to 
 lost rcsjiectfully, 
 It I claim as my 
 
 of April, 1857, I 
 Ton the 4th in- 
 small iut(>ro8t in 
 
 appearing in it. 
 ider mvself, and 
 n equal share in 
 Jiartners of the 
 "w be four part- 
 le-fourth share. 
 be made in the 
 e, I will be glad 
 * point. I think 
 >PI)ear as a part- 
 of the partners 
 a new registra- 
 this as an Inti- 
 be a partner in 
 me-fourth share 
 emain and per- 
 hmont on that 
 f being such a 
 XCU80 this inti- 
 case seems to 
 he existence of 
 il to me as sug- 
 t suppose they 
 ot participated 
 B ha? withcid 
 aconscious as 
 Br the imputa- 
 
 un charitable 
 lat his objec- 
 nds which he 
 
 a reluctance 
 It. 
 
 GGINSON. 
 Way 185.Q. 
 
 [■letter of the 
 :nowledge or 
 4th of April, 
 regret at the 
 •d, and which 
 
 inflicts an unutArllvd injury upon me. To re- 
 -ntii^ thf position of n clerk U what yon ran- 
 n..t for a moment cipert me t<. .to. I was afraid 
 
 A \ u ■'?/ ,"«""'"»?. «"'! thi. objections 
 
 .njide by Mr. H. Lyman, that a difflcultv exlntod 
 
 which I hoped would be overcome, and for that 
 
 re«Kon To t it t„ I,., niy duty (., pres* a matter 
 
 ..rmich vital Importance to me until it .-hould 
 
 lie |.laced on asatLnfuetory footing. \ never ni,- 
 
 prejended t'lat it roui.l have ro.ulted in a eom- 
 
 pa-te repudiHiion on your part of the ncree- 
 
 ment. I «m sure tti.it I luive shown no want of 
 
 dinposllloit to perform my |.,.rt of the engaire- 
 
 meut whirl. I earnestly Jesire to carry out, 
 
 l.ut as you decline to do so on your part, [ mii.n 
 
 try If no other remedy is loft to rcpiir the in- 
 
 Jury I suatiiin. 
 
 Vours truly, TIIUS. S. IIIGai.VSON. 
 
 MoNTiiKAi., 8th August, 1859. 
 Nfuri. Lymaiu, Savu^e tf Co., Mmtreal: 
 (»iCNTi.K«Kv,-As there is besides the subject 
 
 "L„m"'l'^^"""'"'"". ""K'"ion now pcnding,\n 
 ur.setl e.l necount between us which it is aesir- 
 ahle should be adjusted ; 1 beg leave to call 
 yoiirattenllon to the conditions on which I re- 
 mained in ihe establishment of Lymans, Havajre 
 A Go between the 4th April. 1857, an.l the 4th 
 April lust, viz. : that besides the jCJOO (two 
 hundred pounds per annum, I should have 5 n 
 
 I'l. l?r'" 'ZV'\ "" I""""'« "f "'« business 
 I have respectfully to request that vou will fur- 
 iiish me with an account of the profits of these 
 wo year.., in order that I mny be better enabled 
 to make a correct stateraen t of this claim 
 
 Your.., Ac, T. S. HIGGINSON. 
 
 Hotel h7rJ '"*^*'®'' *" "'" *' ^""'^* 
 
 The miestloni referre.l to the Jury by th« 
 Court of Appeals were as follows :— 
 
 1 . Did the Defendants, as a commercial firm, 
 contract with the Plalnliir to admit him m • 
 d'ccl "r"tlo" i""""*"" '"•' ''"™' " "' '^'th in the 
 
 Pilinlljr" ""' ,f'*^«n'''»"'« refused to admit the 
 I Ininlitr as such partner? 
 
 !<.«; '^''l * u" •*'?'" V^. between the .Jth of April. 
 I«97, and the 4th of April, 18.-50, co-habl to ini; 
 wlt.i a woman of prolligato character, and did ho 
 uminta in her In a state of prostitution 7 
 
 4. Was the IMaintiff bound to remain upon 
 the premises in charge during the night lime? 
 
 5. Did the Plain tr during the salH period of 
 time abient hlmselt from the Difendaits' store 
 
 ' «" ^.''i I" T'"'" }" •'*"' '•'« "'"° «t brothels? 
 n. Did ho introduce women of bad famo into 
 the said store within the said period ? 
 
 7. What is tho I'laintiflTs general character 
 nr»,iM .1" •* '"'■""" of irregular morals and dis-' 
 creditable conversation and repute? 
 
 8. Did the IMaintiff suffer any damage by 
 reason of not being admitted into the said firm 
 .u a partner ? If so, at what sum do you a, m 
 the damage? j"« «■ . i 
 
 $1,200.00. ^^'""'="' '«'" ^^''y> »8«0. 
 
 twS'r'r*' f'T ,'^^»J'*n'in Lyman the mm of 
 twelve hundred dollars in full of all claim or 
 
 Srt^''"'""/' 'r "■• "'^ ^'"' of Lyma's, Sa- 
 ym'. A Co., for hve per cent, of the profit of 
 
 heirbijHiness, from the fourth of April, eighteen 
 
 hundred and fifty-seven, to the fourth 'of! Apr!] 
 
 tletnent of the suit I have instituted against the 
 
 said firm, claiming five per cent, of said profi 9 
 
 M9 compensation for my services as clerk n ad 
 
 I'l'r^H '° e.ight hundred dollars per 'a„„um 
 already received by me. »»uura 
 
 (Signed,) THOMAS S. HIGGLNSON. 
 
 i.Mp'l'' Ih!!""''"^ V^'"?'?'"""^ »° b« « copy of a 
 letter addressed by plaintiff to defendants was 
 produced and fyled by the plaintiff :-' 
 
 MoNTRKiL, 5th, April 1857. 
 Messrs. Lymans, Savage If Co., Montreal: 
 
 Dbar Sihs,— In reply to yours of the 4th inst 
 the present is to say that I accept your offer of 
 two hundred pounds per annui and five m! 
 cent on the nrnfita rvt^r..,. >....•_ Ji'^" T^r 
 
 year, from this -d-aVa?t^r' which" you'^IrJ'^o 
 :atVlcrry" * P"'"" "^" ^™' -"»-»7 
 Yours trulj;, 
 (Signed,) t. s, HIOGINSON. 
 
 TUB jldok'b CHAnua. 
 
 The Hon. Mr. Justice IJ iwy said • - 
 
 thJ LT^."'""^® 2^ V"' '?'"°""' demanded, and 
 the importance of the legal points involved 
 compc mo to extend my observations somewhat 
 more than I had originally iutended in charg- 
 ing tho Jury in this case. -The action seeks t?e 
 recovery by the Plaintiff of Xti,.500 fordaniaVeg 
 said to be suffered by him by Reason of theK 
 fen.lants refu.,al to admi him into their cl 
 par nership fi.m of Lymans, Clare A Co a^ 
 dealers in drugs, Ac, at Montreal and elsew lere 
 in Canada. The declaration sets out that bv a 
 paper writing, dated the 4th April, 1857, written 
 on behalf of the Defendants, by (. '.j. Lvman 
 one of the Defendants, and se'nio'^r parlneStl^ 
 
 h„ 'n "r*^ 'J^"."^ ^''"^ ^'"^ co-partnership name 
 the Defendants agreed to his admission Ta 
 partner in their c.).partuership, which should 
 m .P".'""','!"*''' and continuouii. allejres tie 
 Plaintiff's refusal of advantageous offerfi^ con- 
 sequence Slates his good business capacTtJ 
 their refusal to admit him although oflen re- 
 quested, and h 9 privation of profits and advan- 
 tages f;rom so large and profitable a business 
 becoming more extended from the 4th April 
 I80O estimates the value of his share^ a 
 X6,000, and concludes that by means of their 
 refu.sal to admit him into their cipartnerabip, he 
 t u'^ ^'P""'^ t ?■•"«'« ^^d advantages 
 of xAn''trK"!"''T^'''''"««« t° the amount 
 
 The action is therefore based upon this alleR. 
 
 futelvS- °'*'^' ^^°"« P"'»"' «« ""abso- 
 lutely binding agreement upon his co-partners 
 
 parttr^Jfff ^'°" °' *^« ^'^'""^ '"^o ?heir S 
 The issues raised by the Defendani's pleas, are • 
 \h tk'J" ^«°«Kation of such an agreement. 
 2nd. Their exemption from such agreement 
 
 of t eir partner, being without their cSnsent or 
 
 participation ; and 
 3rd. Hypothetically their relief from such 
 
 I ^^T «•."' '^ i* **''*'"^' ^y "«««° of the Plain- 
 I tiff s rais-conduct. 
 
 f: 
 
The wrlttftn eridenM adduced by the PUintiff 
 coMists lit,qf the agreement or paper writing re- 
 ferred to in tnti declaration ; and 2nd, of twosetts 
 ot correspondence the first between the Plaintiff 
 
 P?.j^»^'"°ilJ'^2"'"*' i*1'* ^''^ «««>°'l between 
 mintjff and the firm of Lymans, Sarage k Co 
 ihe trat commences with a letter from b' 
 Lyman to the Plaintiff, written at Toronto, on 
 the l8t April, 1869, in which the writer aug- 
 , «?**! to the Plaintitf that ho might get the Mi- 
 «iical Mali, «3 Beers was dead, and that from 
 ciicumstances that had come to his (1! L 's) 
 knowledge, he will be unable to recommend to 
 Ills partners the Plaintiff's admission into their 
 urm as a partner. On the 2nd April, 1850, the 
 I laintjff acknowledges the receipt of that letter 
 aenies his interference with the contract by any 
 act of his, and asks for an explicit relation to 
 himself, m a private note, of the nature and 
 cause of the charge. His letter of the 16th 
 Apn , calls B. L.'s attention to his letter of 2nd 
 Apn), to which the Iwtter replies on tlie same 
 m^' *!?£' 'J"°» ^" 0^° willingness to admit the 
 t laintiff into the firm, upon terms which could 
 he agreed upon between them, and as the other 
 partnera should consent to, but for the facts 
 which had come to the knowledge of the writer 
 l-X ??'''"?f,P?"'^iP'^^ ^'t'' "»e tirm then opens! 
 
 Tl^ ^}I^PT^F^ ^*'"«'' to t''«'° of this last 
 aate, 16th April, covering copies of the agree- 
 ment and of the correspondence above, states 
 Uis unconscionsncss of any action by him to 
 bireafc^ or forfeit that agreement, and requests 
 that It may be carried out by the other part- 
 ners and by B.L. himself; on the 28th and 30th 
 lie draws their attention to his note of the IGth 
 instant, and by the latter claims their favorable 
 notice of the agreement, under which he is in- 
 titled to i part of the business, t,3 there will 
 now be four partners, and thinks his name 
 should appear at all events as partner, &c , and 
 demands to act as such partner. The reply of 
 the hrm, dated 2nd 5Iay, denies his assumption 
 "tb?'°?. their partner, declares it unfounded 
 within his own knowledge, ignores the exist- 
 ence ot such partnership between them and 
 him, qualifies him as their clerk, and finally 
 asserts the existence of insuperable objections 
 against any proposition for his admission into 
 their firm as a partner. On the 3rd May, 1859, 
 L, ^. P.°"'on of the correspondence closes by 
 Plaintiffs letter, acknowledging the answer of 
 the hrm, and intimating his intention to seek a 
 reparation of the injury done to him. The 
 action followed almost immediately, the decla- 
 ration being dated the 7th of May, 1859. 
 
 No reference will at present be made to the 
 other written evidence produced nor to the re- 
 ceipts for the moaies paid as they do not sdc- 
 eially apply to the contract. 
 
 Tlie testimony consists of the evidence of 
 »enjanim Lyman and of a few other persons 
 that of Benjamin Lyman is taken under the au 
 
 tnOritV nf n r».v>nf afn»..>« nt ir m ».. 
 
 -__. „. -^..j..uj.uuj,iuuu IS uiiien unaer the au- 
 thority of a recent statute 23 V. Chap. 91 sec. 
 t' !L.*'° enables a party in a cause to be 
 Drought up and examined and cross-examined 
 as a wijness. Benjamin Lyman explains the 
 ■\"e;"."'.^'"=^"°'cnt, which Le says was written 
 at Plaintiff's request, and represented hfs Ben- 
 f» u ^^•"'"S own feeUngs towards the Plain- 
 tiff, but not those of the firm who might not 
 agree to it; told Plaintiff he had not their sanc- 
 tion for it, to which Plaintiff ftplied if they did 
 uot it would go for nothing ; says that the con- 
 
 ditions of the two yeara serrico at £200 per 
 annum and the 5 per cent on the profitaAe^T 
 were subsequently carried out-that hV h«l sus- 
 
 ISsHroir h ""'''^ "*^™,"'^ '» the Bumme "o 
 18&7, proves the correspondence produced, states 
 
 i^ JT ^"«'T^of the firm at i:t5,o6o per an- 
 Stfcf lif"*"".?^'^"*" of « 'etter from 
 Plaintiff of 5th April, 185T, accepting his pro- 
 p sal of agreement asserts 'that the jEIOOO wa, 
 
 te'Jrt oJV'lfJ''""."^ f " '«•» on call atl"! 
 lerestof 8 per cent and was only called bv a 
 
 W':!-^'"'''*^'"'^ '^'^ ">Pt"'e with the Pon- 
 tiff, he did not tell his partners of theaKre^ 
 ment until after his letter of the 1st April, fel^ 
 
 th^ firrnnt-['\r' °°' '"'^'^^^ '" the b(i,ks of 
 the firm until this year, and was unknown to 
 
 them to take him into partnership. £300 was 
 received by Plaintiff in full for that cliira Tc! 
 was charged to Benjamin Lyman's private ao 
 count, as having been propo^d by h^ w thout 
 their c nsent. Heard of a copartnership smken 
 of between Plaintiff and late S^lSS, 
 , Plaintiff said Wm. Lyman could n^sSd' 
 mJ-' '1«"^ that Plaintiff could have had the 
 Medical Hall. Plaintiff's salary at £200 per 
 annum was credited to the Plaintiff and at Ws 
 departure his account was made up by the 
 
 fo^ Pn<.w ^" ^T""'^ ^y'"'"^'^ departure 
 <?9nn ^ '^°^' to credit the Plaintiff w th the 
 
 fa isf/of hif- ^'■'^ r' "°'"> the PlaintVff 
 la 1857 of his conduct, or previous to 1859 
 never tendered the £1000 or the 5 per cen , for 
 which separate actions were brought. The lat! 
 
 ioulTnTif '" i^^-u.'^''** »«'ount of profit^ 
 could not be made up before Admits the good 
 business capacity of Plaintiff. ^ 
 
 Mr. Workman testifies to havin" seen th» 
 
 etter of the 4th of April 1857, abo.ft th^?dat» 
 
 received it from Plaintiff and kept it in his post 
 
 r vmnn k""1''' connection with the late \Vn 
 
 thrpTa'i„rif7i'ir.''° ^*' "^'^"^^t^^ to speak to 
 the Plaintiff about a connection-a connection 
 also was proposed or spoken of with Mr Carter 
 but advised Plaintiff to contrnurirth his house 
 and to get any offer of partnership in writ°nT 
 mentions that a part of the £1000 paid over ?o 
 Lymans, Savage & Co., £700 was 'held by th» 
 
 flSor's'mfnr;"^ *'^ ^'"'""'^'^ -'^ P""^ his 
 Mr. Carter testifies to his willinmie ^ to havo 
 received Plaintiff into a share ofXdical hIiI 
 business. Defendants business largest of the kin" 
 in the province, the good will a vearVnmfif. 
 net profits of a' fair ^siness, thVKho esale' 
 and retail, was Executor of late Wm. Lyman's 
 £20%!,° "''•='' ^^"'^""^ •'"•J to p.y7lTtl 
 
 Pliiff'Sr^SanTaTd ol?f a^atse^S 
 
 piJ!«till'rp'..Tf--?^''?^*'?*« ?«»*«^ ""^ 
 
 ceipt ofThetlgiLrdSe^T^i'ln^d^^^^^^^^ 
 
 
errJoft at £200 pn 
 on the profits here. 
 It— that he had Bus- 
 ty in the summer of 
 
 nee produced, states 
 n at £75,000 peran- 
 » of a letter from 
 
 accepting ^is pro- 
 tbat the jEIOOO was 
 i loan on call at in- 
 as only oiUed by a 
 ure with the Plain- 
 ners of the ajfrec- 
 the l9t April, 185y. 
 red in the books of 
 I wag unknown to 
 aintiff's demand to 
 lership. £300 was 
 for tliat claim and 
 rraan's private ac- 
 wd bj him without 
 partnership spoken 
 ate Wro. Lyman, 
 jould not succeed, 
 5uld have had the 
 Iftry at £200 per 
 'laintifl^ and at his 
 made up by the 
 irected by witness 
 >ymaii's departure 
 Plaintiff with the 
 otily the Plaintiff 
 [wevious to 1859, 
 the 5 per cent, for 
 rought. The lat- 
 account of profits 
 
 Admits the good 
 
 having seen the 
 ', about that date 
 kept it in his pos- 
 Maititiflf had pros- 
 rith tlie late W'ni. 
 lested to speak to 
 on — a connection 
 'with Mr. Carter, 
 Je with his house 
 rship in writing, 
 1000 paid over to 
 was held by the 
 3 per cent on the 
 ■'s and partly his 
 
 lin£fne ^ to have 
 of Medical Hall 
 irgest of the kind 
 a years profits, 
 bat fs wholesale 
 B Wva. Lyman's 
 d to pay £18 to 
 
 offers made to 
 lers, and advised 
 Jt see the letter 
 
 ants letter and 
 rtiy after his re- 
 signed Lymans, 
 efeiidants store, 
 letter. Plaintiff 
 ir letter lying on 
 a copy, draft of 
 iff, none of De- 
 any one in De-.. 
 
 feudants employ. Plaintiff had key of the 
 premises and apparently in charge of them. 
 
 Mr. Lamplough estimates the good will of 
 defendant's business at from £8,000 -to £10,000. 
 With this evidence such as it is the plaintiff 
 closed his case. The evidence advanced by the 
 defendants refers mainly to the defendant's con- 
 duct in connection with a woman named Martha 
 Scott, his nightly and untimely ab.sences from 
 the defendants premises of which he had charge 
 and in which he had an appartment provided 
 for him to sleep at night— his visits to houses 
 of ill-fame and his connection with the woman 
 above named. It is unnecessary at this time to 
 detail this testimony with more particularity; it 
 will be fresh in your recollection and you will 
 be able to supply omissions; it may be ob- 
 served however that it is ofa positive and direct 
 character, that O'Leary's testimony stating 
 Savages application to him on the 28th May 
 185 7, with reference to plaintiff's conduct is 
 confirmatory of the testimony of Benjamin 
 Lyman as to the suspicions of the firm against 
 the plaintiff in tiie summer of that year and 
 whilst in their employ. As to the evidence <>f 
 Mr. Clare, the material parts shew that plaini 
 never spoke to him of his partnership with td^ 
 firm— that the letter of the 5th April 1859 was 
 not seen by him, that the £1000 was a loan on 
 call at 8 p. ct., offered by the plaintiff himself 
 and that plaintiff had a sleeping apartment in 
 the premises, without charge, and had charge 
 of the premises that the two Messrs. Lymans 
 had each a key and the plaintiff the third one 
 that plaintiff had ready access to the books' 
 made no complaint in regard to his account 
 until about the time of his departure on the 4th 
 May 1859— states the annual profits from 1855 
 to 1859 both inclusive to average about £4,000 
 or £5,000 per annum— subject to bad debts- 
 Large increase of business since 1859— states 
 plaintiffs absence on the business of the firm for 
 3 months in 1855 and two days in 185G. Cannot 
 swear if his sleeping appartment was occupied 
 by any one else during plaintiffs absence— would 
 h. ■• seen the letter spoken off by Spence if it 
 hu en lying on the desk. The $1200 paid to 
 plaiuufffor the 5percent claim was charged 
 to B. L. on account of refusal of other partners 
 to allow it Ac. The balance of 1868 was made 
 up to Ist January in May or June of that year— 
 that of 1859 is not yet made up. 
 
 The evidence of the defendants was closed 
 and the plaintiff adduced evidence in rebuttal of 
 the defendants evidence. B.L. was again brought 
 forward to establfsh the plaintiffs intimacy with 
 Ins family. Darling proves the plaintiff lodginff 
 several times at the Ottawa Hotel in latter part 
 of 1858-1859, Lee and Renaghan as to character 
 of Turnout, a witness of the defendants. Thomas 
 Higgmson the plaintiffs father was intimate and 
 friendly with defendants. Never was told by 
 them of his son's conduct until after the rutv- 
 ture--oftea visited by plaintiff at the Ottawa 
 Hotel, when witness and wife came to town 
 «nd that they visited his son at h\a ronm «♦ ♦h" 
 store but not late at night. Other evidence 
 was oflfered but not being in rebuttal was re- 
 jected. With this evidence for the defence which 
 has been gone over cursorily including that 
 of Mr. B. L. of which latter the plaintiff avails 
 liimself under the sUtute, it will be for the jury 
 to render their verdict upon the suggestions 
 submitted for their consideratioa. It is proper! 
 
 to obserre that th*^ statute has introduced b<k 
 thuig new in the matter of the examination of 
 a party except the mode of it— under the former 
 law the party was examined upon interroga- 
 tories, now by the statute he is examined and 
 cross-examined as a witness, but as to himself 
 the result is the same by both laws, he cannot 
 turn his evidence to hia own advantage. It is 
 proi»er to premise in limine before stating to 
 you the law of the case, that both judge and 
 jury have particular duties to perform iu such 
 cases as this. Their respective provinces are 
 sufficiently distinct to enable both to keep apart 
 from each in their respective functions. In a 
 general way it is the duty of the judge to point 
 out to the jury any rule of law which either 
 renders evidence necessary or gives peculiar 
 weight to one species of evidence or defines 
 the manner in which a certain fact must be 
 proved. He should also distinctly explain to 
 the jury, what principles of law are aoplicable 
 to the point in issue, and in order to enable 
 him to do so correctly he must distinguish 
 questions of law from questions of fact. In mat- 
 ters of contracts, the construction rests with 
 'he Court alone. On the other hand it is the 
 duty of the jury to take the construction from 
 the Court either absolutely or conditionally ac- 
 cording as the words of the contract and the 
 surrounding circumstances require or not to be 
 ascertained as facts by the jury. In matters of 
 law also it is scarcely necessary to observe 
 that juries must take the law from the 
 judge and not from their own opinions ; unless 
 this were so there would be no certainty in the 
 law, for a misconstruction by the Court is the 
 proper subject for redress by a higher tribunal, 
 such as a Court of Error or Appeal but a miscon- 
 struction by a jury cannot be set right at all 
 effectually. Bearing these observations in mind, 
 it is my duty to state to you the law in connec- 
 tion with the issues and evidence of record. It 
 will be in your recollection that there were 
 three issues noticed to you upon the pleadings 
 filed in this cause. 1st. The absoluteness or 
 imperfection of the agreement relied upon by 
 the plaintiff. 2nd. The legal power of one partner 
 of a firm to introduce a person as a partner 
 into the firm without the sanction of his co- 
 partners and 3rdly the dissolution o'. an exist- 
 ing co-parlnership or of a contract for the for- 
 mation of one by the misconduct of an actual 
 partner or of the intended partner ; this last 
 issue is hypothetical. As subsidiary to these it 
 may be necessary to advert to the legal means 
 required for establishing the damages demanded 
 and sought to be recovered. 
 
 As before observed the Plaintiff relies upon 
 an absolute agreement, between himself and the 
 Defendants as co-partners under the firm of 
 Lymans, Savage & Co, which is in the follow- 
 ing terms and must be taken in its own words 
 as they are on the face of this instrument itself, 
 and not as it appears iu the Plaintiff's decla- 
 ration. (The agreement is read.) It may be 
 
 !-,. \...i ,.„re._ Fit.. iTTgtti mucauc lias uvea 
 
 adduced by the Plaintiff of his acceptance of 
 this agreement. The copy of a letter dated the 
 5th April, 1857 , seen by Mr. Spence as he says 
 shortly after the Plaintiff's receipt of the alle- 
 ged agreement and the Plaintiff's pointing to 
 a letter lying on tlie oflSce desk and saying 
 "there is my answer" are not in themselves proof 
 of the existence of the original letter under 
 
 I 
 
|!h^ V° '" **'" declaration, no copy Tth!^t 
 tlLVJ 'acceptance was transmitted^. hii**S 
 
 h!« pi'r ®^^' "f " 't mentioned in any part of 
 his correspondence with the firm or made knLn 
 
 hare orespntoH fv,:! „ rimntitl 3 counsel 
 
 and T,fr» "'^ agreement to the Court 
 
 and Jury as a proposal of agreement if sni oni„ 
 
 '.r to 'ST' " "«,««"Pe»"t Che p „p" 
 
 ihl Jl J ^® co-partnership, the shares of 
 
 S'othSrto'thfh"^?'^ ^1^"- «^^^^««« 
 name and In !h!. ^ business, the partnership 
 
 wrUt^n in tL '"'"''°^" ^''h the statement 
 
 tTff'll^m! -^ agreement itself, that the Flain- 
 
 Th« plf!^ .•«?" ^as on terms to be agreed upon 
 
 J.fn^l^"^'"^' *'°""^«' •'^aJso qualified it ^" 
 
 therefore It I, „, d„, ,Tl"ll TOuXi't!"! 
 emhml'« ! """^ '^'*°^''* *»'« second issue which 
 
 liPliii? 
 
 man f'hl f„ • *" ^'"''J'"'"' ^'^"s ^yritten by 15 Lvl 
 man, tne senior partner of iiia «i..^ ".r •>■ ij\- 
 
 i!.;r'?j.;?",'.ir'''''i".o-X.l:Sh,"'„.'^.' 
 
 b"r.°c;'i„TH? 'l-r-^ 
 
 name The aw whioh^f.i co-partnership 
 
 " ... the.. S^iS!i £S?.'',3S Z 
 
 hopins to h.ve a share irLrtS „""'".■■' »"'' 
 
 ™lonte .S omits lo»«?°';""'°'" "« "« 
 C. art. ,842. Coll,„ o„ I'.rtne s ,ip o.Ttt.t 
 
 sT°':ht''l™'rV"f"'°'°''°^"°i? 
 :.r«sJ ""u'^: £«'"•>» X.e''h™o"ri°t 
 
 n:lStJ„\rtir,To'r.'°of''K'£','^,1 
 h..e .s,.„„d ,0 ,|,i, iotSlonXZa" 
 
 sent of a single partner will ovM„Jj„ u- ''"''."'=" 
 it would in eiet' amolT " 'a r gS '"Xe"^,. 
 
 sC'''1o^:£^CoTe?*r -8 l^..*AnTfi^r T 
 contract must be voluntary, therefo.^nn^'r''* 
 ger can be introduced into a fi^ aa ^'1*"" 
 without th3 concur^'Jce of tlierhofefi^r^"" v' 
 delectus person,, is so essentally^necS;''^' 
 
 contract to that effect is rSred ~S" T""'^^ 
 
 pSU". t.r ffiU' o^'L-w-js^'i 
 iSr"--'»-'-"M^ 
 
 368-9, 
 
 object, «"ij!c 
 in virtue of 
 712 :— " Eac 
 ing the pan 
 have receivt 
 tlnte to mar 
 trol of his 
 the undertftl 
 qnence of tfi 
 
?n in their own iiin- 
 plain that my own. 
 geneml concurrence 
 'W writers unon the 
 otlnnd France, the 
 nee. The contract 
 tory on Co-partner- 
 untary contract be- 
 nt persons to place 
 md skill or some or 
 'ce or business with 
 shall be a comtnu- 
 >n them . "—Poth'ier 
 11, 12-" Cost un 
 net formed by the 
 —it is essential to 
 ship be establish- 
 >f the parties, each 
 rt in proportion to 
 into if— Delangle 
 Societe nait de la 
 imilar authorities 
 1 trt. 801— Code 
 neiship, part 182. 
 ) being therefore 
 'ependent for its 
 [ each of the par- 
 in its nature and 
 ^Wished principle 
 it can only com- 
 int of the parties, 
 [•nied no third 
 'ntroduced into 
 out the concur- 
 mpose the origi- 
 
 constitute the 
 of the firm shall 
 
 tion, for the dis- 
 :clude him, since 
 
 right of one or 
 i the nature, the 
 original contract 
 Jersonoe which is 
 >f a co-partner- 
 -"And first, the 
 refore no stran- 
 rai as a partner 
 whole firm : this 
 ly necessary to 
 ? that even the 
 
 of a deceased 
 h succeed to the 
 ers"— a special 
 ■ed. So also is 
 tnents— Pothier 
 Associes, &c., 
 ? the right to 
 its only for his 
 
 1 consequence, 
 rtn'jrs, unite to 
 n share of the 
 )nsent, he can- 
 (^o-pnrtnership. 
 
 "nite a third 
 partner in ray 
 'as established 
 '■ to bring him 
 ir consent, ex- 
 
 not be your 
 -aw socii met 
 0. 95, Pothier 
 artner had the 
 business, he 
 rson a partner 
 
 of the firm, as to give t<» ',[■ > ttners a partner 
 whom they have not choseu :„ied8 the bounds 
 of the simple administration at co-partnership 
 property." Delangle, No. 194, says :— " In 
 civil and commercial partnerships, in which the 
 choice of persons is one of the princi- 
 pal elements of their constitution, no 
 partner can, without a stipulation to that 
 effect or without the consent of his 
 co-partners, substitute his assignee in his place. 
 The cousent is determined by and rests upon the 
 social position— the morality, solvency and in- 
 telligence of the parties. No contractor, part- 
 I ner can of his own will modify the conditions 
 under the faith of which the partnership was 
 formed." Troplong, Ti. de Soc, No. 755, ob- 
 serves :— " A partner in a civil or commercial 
 purtnership may give himself a partner in his 
 own partnership share. This sub-partner is not 
 a member of the first partnership : his admis- 
 sion into the partner's share forms a particular 
 and distinct co-partnership independent of the 
 original one ;" and 4 Pardessus, 973, says :— 
 "It IS the essential part of a partnership for 
 the partners to choose each other. None can 
 force his co-partner to receive in his place any 
 person to whom he may have assigned the 
 whole or part of his rights in the co-parner- 
 ship, nor even if he were sole manager of the 
 business can he admit a new partner without 
 the consent of the old one ; that admission, 
 whenever it may occur, must, in principle, be 
 the result of a unanimous consent and will. 
 The majority cannot govern the minority in 
 this, although he or they who compose the 
 latter should state no reason or ground for re- 
 tusing— and the opposition against such refu- 
 sal could not support a contestation in law, 
 upon which a judgment could be rendered to 
 compel the acceptance ot the new partner." So 
 also Duvergier, No. 373, who, after going over 
 the same ground, thus concludes:— "Personal 
 confidence is the root of the contract, and the 
 mend of my partner may not possess my con- 
 fidence." 
 
 The decisions of the U. S. Courts uphold this 
 same doctrine:— "A person who shares the 
 profits of a member of a firm, may be a partner 
 with that member, and yet not a member of the 
 whole partnership."— 14 Robinson Lou. R. n 
 368-9, 7 Pick 235. 1 Hill Rep. :—" One of several 
 partners cannot receive another person into a 
 firm without the consent of his co-partners •" 
 and in 14 Johns 322, the judge calls it " a very 
 the mandataires of their firm and of each other 
 and that equal authority is given bv the law to 
 
 each to act for all; but that administrative 
 power 13 limited within the co-partnership's 
 transactions for which the partnership itself 
 was formed and constituted. Pothier at No. 06 
 says, " this power consists in making all neces- 
 saryaots and agreements for the partnership sell- 
 ing the goods, receiving the monies from sales, 
 «c. 2. Troplong says every civil and commer- 
 cial co-partnership lias a precise and settled 
 Ovject, nhich thu manager is bouiid fo carry out 
 in virtue of the duties of his functions."" .Vo 
 712 :— " Each partner has the rl^ht of ,,v;,ig. 
 ing the partnership affairs— he is prcs! m -l to 
 have received from the co-partners!ilp a man- 
 date to manage and administer under the con- 
 trol of his co-partners for the advantage of 
 the undertaking. This tacit mandate, a conse- 
 quence of tho-confidcncc between them, c(mipio- 
 
 hends the powers contained in a general pro- 
 curation to purchase, sell, pay, receive, &c., the 
 co-partnership effects;" and at No. 908 an ex- 
 press power to the partners in such commer- 
 cial parliferships is more easily presumed the 
 interests of commerce have oo established it. 
 The partners are presumed, by the mere fact of 
 their association together, to be mandatories for 
 each other, to have given to each other the 
 power of binding themselves and them jointly 
 solidairement and indefinitely for all the legiti- 
 mate objects of the co-partnership ; and within 
 the sphere of that administration, each partner 
 has an implicit mandate from his co-partnera to 
 treat with third persons." So also Duvergier 385 
 and Delangle No. 126-128— this last author res- 
 trains the power to the '^apprciation des acte* 
 et des fails relati/s a I' exploitation des affaires 
 sociales." 
 
 The English authorities are equally plain and 
 positive on this point. Story No. 94 observes— 
 " In virtue of this community of rights and in- 
 terests in the partnership funds, stock and 
 effects, such partner possesses full power and 
 authority to sell, pled.e or otherwise dispose of 
 the entirety of any particular goods or other 
 personal effects belonging to the partnership, 
 within ihe scope of his partnership, he is pro- 
 perly deemed to do such acts as their agent, and 
 as the accredited representation of the firm " 
 Collyer No. 384 :— " One partner has an implied 
 authority to binu the firm by contracts relating 
 to the partnership : he may draw, endorse, &c., 
 and do any other acts and enter into any con- 
 tracts in reference to the business of the firm 
 which are incident or appropriate to such busi- 
 ness according to the ordinary course and usage 
 thereof." So also Gow on Part p. 32. 
 
 Now this power is essential to the well con- 
 ducting of commercial transactions and is 
 necessarily implied in the very existence of 
 partnerships : that implication however carries 
 with it its own limitation and restriction, and 
 comprises its application to the business of the 
 firm, the actual concerns of the partnership for 
 which it was established and formed ; under no 
 circumstances can this power be extended or 
 presumed to extend to the formation of new 
 partnerehiqs or the admission of strangers into 
 old ones, these are not the objects nor the busi- 
 ness of the subsisting co-partners. Where could 
 this abusive power be stopped if it were once 
 allowed to operate. If one stranger could be 
 introduced twenty might by the same rule and 
 the shares and capitals of the original partners 
 would be mnteriiilly changed from those con- 
 templated by the original contract : in fact 
 their capitals original or acquired might be 
 divestel by the participation of strangers with- 
 out capital or capacity. There is butone mode 
 of miintaining an introduced partner of this 
 kind as a member of a firm and that Is the aqui- 
 cscence of the other partners, if that be express 
 his adoption is perfect, but it may also be implied 
 from the acts of the partners themselves as if the 
 otlier partners choose to adopt his acts as a 
 pnriner, if tlipy choose to adopt managements 
 inado by him is tlieir pnrtner ex gra by joining 
 in an .iction for a demand subsequently con- 
 tracted they may do so, and the action will bo 
 maintained and it becomes the act of the firm. 
 —I. Hill, Rep. But knowledge is not enough, 
 acquiescence in the acl^ of the person so inteadei 
 to be admitted as a partner must be clearly 
 
and poBitively brought home to all the other 
 partners order to bind them. 
 
 The mtroduclion of a third person into a 
 firm ,3 a contract with each of the partners to 
 
 which eachmustconsentindividuallyfandUma? 
 be said that there nre as many contrails as t^Vi 
 «re partners. NorwiU the approbation o the mln 
 
 mr?„p7= «°'''f P^tnersof the act of their 
 partner sufficient. Knowledge is not acauies- 
 
 thefr':°/t'"°*"y''P^ inference in sup^r of 
 the r partners act be drawn or allowid from 
 heir knowledge or their silence upon the su" 
 ect during the interval until the time of when 
 the contract might be expected to take effect 
 Acts and words may be suflficient to cons ti- 
 
 ho«Ar,?r.'°''''^'P «°°t^''«t when thejare 
 those of all the partners and shew an accent! 
 ancebj the partners, therefore, to bind them 
 Evidence of this acceptance is required" 6 Madd ! 
 J Jac. S4. If the contract attempted to be 
 
 . £1'^: 'r'°'' ^ ^"^' '" '*« •"'^•-"Ption secured 
 the r sanction and countenance, the joint obli 
 gation attaching upon them ti perlS h 
 plain and manifest as a general nr nciole F Jh 
 
 ) member is necessarily iresumeTto particfnate 
 
 ( contrL'fP^'h'^"'' ^""'"°^ benefits of sudi a 
 contract, and to countervail that advaanta^e 
 the joint duty obliging them to fulfill UisZ' 
 posed :snch an engagement bv thA firm • 
 
 respect yrs from^,^uTf"asXSlie'mber"ti;: 
 only difference is in the number of t « 
 parties, the consequences and respousibilities 
 which ensue upon a breach of it are preciselv 
 the same, but where the inception of the con ^aci^ 
 was unknown to the other partners who rejected I 
 U upon the arrival of :he feriod when it Sto 
 take effect and no evidence of their acceSce 
 was given by act or word, and no acSuiescence 
 Sh^;'t';« responsibilit'ies are th^fr^^wnra^'d 
 whether the other partners be many or few 
 they are m no way compelled to fulfi7whrt 
 they have not sanctioned. It has hln 
 argued that the payment of the 5 nL n . 
 cent on the profits Lie allowed to theSS 
 during the two years mentioned in the proDOsLf 
 of agreement, is a sanction of it by the other 
 p.-ir ners. The circumstances attendygthe in 
 ception of that matter ere within vourfecoUec" 
 tion; the charge was unknown trtheX; 
 partners until after the rupture-Yt was never 
 
 even? f'\T''''ll^\^'''''' ""tirafter [he 
 event. Mr. Clare, the book-keeper was nnt 
 
 fhTV-^t'""*'^ °° b«'n« required to make ou 
 the plaintiff's account after the rupture the 
 latter, for the first time, objected, because thlfi 
 
 per cent had not been cr'edited to him he never 
 previously had objected to the entries in th! 
 
 to them. Moreover, so far from acquiescinrfn 
 
 competn t T' P"'-'- KeXVly 
 
 c=^L'eif^i\h*''tleT^^^^^ 
 
 plaintiffin discharge of thardaim because L 
 
 ?urthr-P.°'"'* 't without their s"'nc ion, aJd 
 
 S „% I'^f °°* P*'*^ »°<" I860. The pav- 
 
 o^l^-U^^n^siss^L^:^ 
 
 te «'"''?•" P''""»'«'« aPPlicaS,-Vopo8e^ 
 ^ h.m a continuance of his service with oe fim 
 ft)Mwo years u» an increased rate of wages 
 
 instead of jCiao, jC200 per annum with « «. 
 
 aTerrhaUimK"'^ *'■'■'' ^h"" ^» "•> Mo'n rS^ 
 atter that time the writer proposes to nlainf iff 
 his admission into the firm upon terras to h! 
 agreed upon and to be mutually MtX orv 
 This was to take place after the two years thi- 
 proposal had never been communffl to tt 
 
 eUher b'v b"'P' *'''• ^l ^^""^^ or Mn l^^e 
 eitnerbyB. L., or what s more stranirp h« 
 
 the plaintiff himself, until his demand' nV 
 
 itTT^'^V^.' ^"^' •^Itho-'Kh B. L Tnforme, 
 hira he had not his partners' sanction for makin! 
 the pro])03al. Until that time therp L «„ ^ 
 prpach to evidence to even toTheirknow leSgeTf 
 his proposal, much less of their acceptance of 
 the agreement or the acquiesce in it by eUh.?, 
 
 s" leSrul"?? ''■ "''-'''' P>«intiff is not on 
 silent upon this important subicct wWh IM 
 
 partners, but he is equally so wii'hilr Clare- 
 there IS no proof of his having done, orbcl^ 
 concerned m any partnership acT which the oo 
 
 sTdered b'vte^'^''' '' '1 ^'^ "-^^ b'ee'S'con: 
 clerk inHm/n " «°y °^her quality than their 
 Clerk and manager as before the rupture Thl 
 aw refuses to compel non-consenting I^tners 
 to submit to proposals of this character wl?i it* 
 .t denies to the partnership signature sub'sSo. 
 by one partner for objects bfyond the sco '« "^ 
 c?Stevt' "^ '"^'°"^' r^ -'ndaVanTef- 
 
 this case the assumed power of one p?r[ne To 
 bind 1.18 co-partners in this matter, and remove 
 any leeal responsibility which could .» 
 supposed to have arisen from he use o? tho 
 partnership name to the abuse of the partnersh n 
 Tt failVn".'^ ''■'''l^' "^"'f^^t tba^yTu ca^ 
 
 SLr?-ijL^tsjSt~ 
 
 pTrsuTtrnT;^ssS;' To^mW ^^T"^ 
 
 any of them ; hence it necessarily follows haf 
 If the agreement were perfect which it i« mf* 
 
 2pKf\iv.p?!'-"- !^!^.» .«ithough^ S:'S 
 
 aubsequentWe;ding:haVTbee\";^^ 
 
 
>er annum with 9 per 
 I that is in Montreal 
 r proposes to plaintiff 
 irm upon terms to be 
 nutually satisfactory, 
 ter the two years : this 
 
 communicated to thi' 
 Lyman or Air. Savage, 
 
 is more strange, bv 
 ntil his demand of 
 though B. L. informpd 
 9' sanction formalcing 
 
 time there i.s no aj^- 
 to their knowledge of 
 f their acceptance of 
 uiesce in it by either 
 le plaintiff is not only 
 U subject with the 
 
 80 with Mr. Clare— 
 laving done, or been 
 lip act which the co- 
 his having been con- 
 er quality than their 
 re the rupture. The 
 •consenting partners 
 m character, whilst 
 signature subscribed 
 beyond the scope of 
 nd mandate any ef- 
 
 procuration, how- 
 '. Take aw«y from 
 r of one partner to 
 matter, and remove 
 
 which could be 
 m the use of the 
 ie of the partnership 
 lifest that you can- 
 irrencetotheplain- 
 
 his case in chief, 
 
 this issue is clearly 
 aaintain it in his 
 y, as it would be 
 ;ive rise to conten- 
 lership system al- 
 ate this to you who 
 «d in commercial 
 of you connected 
 )nsiaeration. The 
 
 have endeavoured 
 
 ignores all acta 
 tners upon the re- 
 ther as to all or 
 irily follows that 
 
 which it is not, 
 tiffs favour is cast 
 age & Co or upon 
 that firm by th« 
 
 the plaintiffmuet 
 r success; as re- 
 lingtosupporttht 
 w. I had hoped to 
 y at the close of 
 e defendants then 
 ot have hesitated 
 though the legal 
 quite uuuimnged, 
 en adopted which 
 , the third or hyp- 
 B law affecting it. 
 to detail the evi- 
 e case, it must be 
 liall thcxefor con- 
 !ar»t0 8ustainthe 
 
 CAmplaintR made by the Defendants ; this, how- 
 ever, is for your consideration. The sum of that 
 testimony is as follows : that the Plaintiff has 
 kept Martha Scott for several years past, and 
 during the time of his service with the Defend- 
 unts, and specially during the two years men- 
 tioned in the proposal; that she has had two 
 children during his connection with her, and 
 that a third is coming. That this woman and her 
 jister lived with their mother antil the last four 
 dangerous principle to admit into the doctrine 
 of partnership." 
 
 It must too therefore bo admitted by both judge 
 and jury as well settled to require any comment, 
 that in principle and in Irw when a partnership 
 is once formed, no third person can be after- 
 wards admitted or introduced into the firm as a 
 partner without the concurrence of all the part- 
 ners who compose the original firm. 
 
 But it may bo said that the partnership sig- 
 nature to the propos^l made to the plaintiff 
 binds the firm. The authorities already cited 
 are too precise and perspicuous to be set aside 
 by any implication to be derived from the use of 
 the co-partnership signature by any of the par- 
 ties. It is true that the individual partners are 
 years, that the latter keeps a bawdy house, that 
 living next door to their mother's house they go 
 liackwards and forwards to her frequently ; that 
 the Plaintiff has frequented the mother's house 
 and also that of one Emelie Duval, where he ap! 
 pears to have been connected some time since 
 with tiie girl McGuire ; that ho has frequently 
 left his employers' premises intrusted to his 
 cliarge and spent his nights in these places, 
 with other facts and circumstances that I need 
 not repeat. These are facts sworn to and 
 proved before you, and moreover about in so 
 many words admitted and commended by the 
 Plaintiff's Counsel. If you can bring your 
 minds to consider them as things of no import- 
 ance, as mere venial errors, conduct not disre- 
 putable in itself, which should not debar a per- 
 son trom entering into partnership with respec 
 fable firms or with any of yourselves, should 
 you be placed in such circumstances, or with 
 any other respectable persons, you will declare it 
 by your verdict; on this point you are the 
 judges of the fact, and the decision rests with 
 you. \ ou must bring the matter home to your- 
 selves, m what way such conduct should be 
 considered by you. I have only now to state to 
 .you the law upon the subject of a partner's mis- 
 conduct, and its result. Admitting, for argu- 
 ment sake, that a partnership did actually exist 
 with a partner guilty of mis-conduct, his co- 
 partners, with all their business responsibities 
 upon them, must have some means of escaping 
 from his connection, and here the 1 'w comes to 
 their assistance against the party himself, who 
 might attempt to enforce the continuance of the 
 co-partnership, or the binding nature of an exe- 
 cutory contract. The dissolution of the con 
 trac^ of partnership is admitted by the law of 
 hngland for a variety of considerations. Where 
 the period of the partnership is unlimited it ioa 
 partnership at will, and in such case it is compe- 
 tent for any partner at any time to withdraw 
 from It and dissolve the partnershp. Hence 
 Stor^, No. 271, says, "a partnership at will, may 
 be diSLolved not only by a positive or express re- 
 nunciation thereof by one partner, but a'so by 
 implication from his acts and conduct, whether 
 by acts or ia writing." So also CoUyer, No 
 
 105. So Bell's Comment. B. T, ch. 2, p. 831-3. 
 The Prencl law has similar principles and doc- 
 trine Pothier 65. Do Langlc, No. 662, savs : 
 la loi &c. The law allows every partner to tVee 
 himself from the servitude of an unlimited 
 partnership and it is enough for him to manifest 
 his inclination, at once to dissolve all the links 
 that connect him with the partnership, provided 
 that he does not take advantage of the occasion 
 to enrich himself by the detriment of his co-part- 
 ners or to canse them damage. "Section 2 
 Troplong, No. 911." The same freedom, howl 
 ever, is not assured for limited partnership- In 
 those cases ground must be thewn for making 
 the demand, snch, according to English law, in 
 bankruptcy, insanity, or other real or just 
 ground for giving the required redress by a 
 Court of tquity. This jurisdiction is of a most 
 extensive and beneficial character, and may de- 
 clare partnerships void ab nitio or decree their 
 dissolution from the date of the decree. In 
 this category of grounds for dissolution are the 
 misconduct, fraud or violation of duly of a 
 partner, but every trivial departure from duty 
 or violation of the articles of partnership or 
 every trifling fault or mis-conduct will not set 
 these courts in operation, such as mere defects 
 of temper, casual disputes, difference of opi- 
 nions and other minor grievances which may 
 be somewhat inconvenient and annoying but 
 do not essentially obstruct or destrov the ordi- 
 nary rights interest or operations of partner- 
 ship. Story, No. 28T.— " On the other hand, if 
 a case of gross misconduct, abuse of authority 
 gross want of good faith or diligence, such as 
 IS and must be productive of serious injury 
 to the success and prosperity of the business of 
 the partnership. Courts of Equity will inter- 
 tere. Habitual intoxication, gross extravagance 
 or negligence would lead to a like result. But 
 a strong and clear case must be made out of 
 positive or meditated abuse. There must be an 
 unequivocal demonstration bv overt acts or 
 gross departures from duty, tliat the danger is 
 imminent or the injnry accomplished. For 
 minor misconduct or grievances, if redress be 
 requ^ed, the Courts will go no further than to 
 act npon the guilty or faulty party by way of 
 
 ""ir^'^'r-u S"''' P- 227-Collyer, p. 227,- 
 itiough the Courts stand neuter with respect 
 to occasional breaches of agreement between 
 partners wiiich are not so grievous as to make 
 It impossible for the partnership to continue 
 yet when they find that the acts complained of are 
 ot a character that relief cannot be given ex- 
 cept by a dissolution, the Court will so de- 
 cree, though it is not especially asked." Yon 
 will observe that these remarks apply to actual 
 partnerships where tbe existing contract is dis- 
 solved, and it does appear reasonable that it 
 should be so whenever the objects of the part- 
 nership are no longer attainable or the partner's 
 misconduct so seriously mischierous that it 
 ought not to be tolerated. Now if this be judi- 
 cial actioji upon a perfect and subsisting con- 
 .rr.c, horr mueh more should it apply to intend- 
 ed and imperfect contracts and thereby prevent 
 parties coming together as partners only to be 
 separated." The French law offers similar prin- 
 ciples. Delange, No. 673.-" Mais la Societe, 
 &c., but the partnership, like all other conven- 
 tions, may cease before its term, if the state of 
 things become such, that the object oriirinallv 
 contemplated by the partners can n^ 
 
 w 
 
 1. 
 
BHp tbe.rmustcoasfder'^U ViotV 
 
 tlio diapositioD, the character whol^nH ^'\ 
 
 no consideration in Xthl- . ^' Jnfliience of 
 
 i'ltcresta. Union ffivl«.h„^ "^ commercial 
 cord ruias thetsfbrmld Tnt'i'"'"'''''' ^"* ^'''■ 
 <»rnong co-partners u7h»n '"*"r;r.ze8 ; discord 
 
 tl.edifsoluSrf7he MptrerS"';. '"'" '"■• 
 suit follows from pvm.^ *i," ."^ ' ^hesamere- 
 
 confidencrplacedin the IZ^ '^'^^ sl-akes the 
 partner charged and in.r.!«T'?'*' .*l''«l'''e8 of a 
 the partnersKaSn Their'','' ^ P"* "^ 
 of partners araono: thmeSvP« *""' ''°".'''^«"«« 
 
 ndence is the baBia «p «i.„ ^ ' P'^'^o'ial con- 
 
 li from him ^itTsn'tfrnH^?"*''" discharged 
 each other alone thltth^'' 'ntorcourae with 
 nera in ♦,. Ko . *"* "loralitv of part- 
 
 Sign to the Zl'TA-^'t ""'^ "'^"«" 
 
 •nigh? take from"o7e „ "the Jthe"^'"''-^ ^^''•'' 
 which he enjoyed at ?L ? ' .• 'consideration 
 
 lion. Who would rnnH^^^u** ^^' "^ <^"««»»- 
 
 putable men To he penairof'^r"' "f '^^ ''• 
 
 nership bond haa 1,0^ consider that the part- 
 the fault of one of ^^'"^/"^"PPortable from 
 they will oi^pr itV''^ partners who formed if 
 ucj will order it to be d 38olved " xt ,„^ \j 
 be poor sophistrv tr, ,ion^ .T ,. " would 
 
 these authorities to X"^ ^^".aPP'icnbiiitj- of 
 because they refer 1^ tt IT' '" '?*"^ «""P'y 
 ships ; the^rppTy as we 11 n '"'l'"^ '""•'"«'•- 
 
 "ameaa stroqg pergonal rej^ard for him, toj 
 
 S.Zr?ta'ted'"to7K *" •^"•^^ '"'^ tb, 
 Tngs towaTds him a^d whicT at^tr' '^"'^ ^'••«•■ 
 the applicant he p"? into wrUin^ ,^1""" V^ 
 happened signed the wri".Vw th th« nlf " 
 8hip signature, but intimatini^ n 7». P^^^er- 
 that he had not the sanoHnn ^ A-^* *'""« ''•"« 
 , the Plaintiff's* oth^rrpWe's'-^iri^ri;^' 
 .applicant was to obtain The wri7ir'^ ^^t 
 Tan increase of salary from '^MoVoon'^'^ 
 annum and 5 per oLI]^ .1 to i,200 per 
 business at MorUrealnnHn "" T^^^ °^ *h« 
 sion into thotirm aftPP ,1^ "f'"""^ '"« ^'l™'^- 
 
 be settled' y^TnfXlebrr H^'^ '''""' '" 
 Savage of this propMal ^.mHI ^k ^^yman and 
 occurred, or acqn'esSV ^n k ''fu''"'""'« ^"'^ 
 word or kct at'^inriiSTn' viitTl^^ '^ 
 invalidates this unauthorized propo'l of "'^ 
 partner and nullifips tho ,.„;♦ I"^oposai of one 
 subscribed by hi nUerelvr r"-''' «'8rnature 
 the firm from anl ii. hi7»^ relieving them and 
 wards thlTaSt't' ^ noVf^uK^'il'^S^r 
 
 rro^ the business ofUirfim Hutwh'r''^'^^^^ 
 
 anyoftheco-Sners ^n - ' ""^^couduct of 
 partnershin L „n ^." .*'"^ ^'^^^ there is no 
 
 tween'he'K n^tifT ZlTke'VJ T''"' ^- 
 was no partner in their f!rm ^k?h°""°''- ^° 
 
 twecn them nor fonnHaV '^Z^'"^*'™*"^ ^e- 
 
 daniages ag" irthem aSherc^L?f .^^ ^ 
 the measure of damno-pa "^'"^'^'^^"'^'^"Prohts be 
 
 ncBs of the firm for hfs n'artii^''"'^ ' ™ ">« *'"^'- 
 bution. The Plaintiff w^'^P"'""" "' ^^'stri- 
 
 frequent occurr;^rat^r raro?a"n' """ 
 
 case there can bt in „ ^'''' '*"« .^"cwofthe 
 against tlfe De?end«nts "^^"^•^'"•'"' °f damages 
 
 onfm'tUS.L^l'jrc!' •'•« P'-oper to refer to 
 
 tionedin^hecoSof thp^ ^^^^ '''"" ■°«°- 
 bear i„ mind that fnL„^ ''?' ' i'"*^'^" ""«* 
 the points to bo s" Ci p"^ '? "* ^'•=''''"' "P*"^ 
 
 reck/ess asse.tionorco"isef tLeir^fl" •'"^^'''« 
 or beliefs are not to l,« til ^"PP"''^''""^ 
 tl'ough they m ,v n.ov« fplf '" ^i P'^S^' «nd 
 parties arei^^decided upo.?^h' "'"•/'^'''^ "^ 
 
 SnS^d^^SH?"-^-- 
 
 an agreement,-in UWs case th/lLP™P°'.*' ''°' 
 to be accepted; in th former c^i'Itisl""'' '* 
 tract and cannot support Eases' In tlTuT' 
 the acceptance being'not pro^Knnnttl'l!^ 
 be';n 7r;;or i^^ "t^e "Tu'linr "•'" that th^r^'ha^ 
 
 tnony.of b\^Z, t5:re'isl^ne!irrtfbof?f Sr"* 
 were it is not matter f»r tko i ^ ""t If there 
 
 the testimony "Sold w«^ not"Z,t*? P"" ."?"»' 
 
 buttal of the deftnd«„t^8^evrd«^oi "'^l^ '« "^ 
 
 et.ce Of Turnout. ^ wfclsrtte^njlVt's^ 
 

 »ji to do for him^ tbe 
 iia own views and feel- 
 '('hich at the request of 
 nlo writing and as it 
 itinj? with tlie partner- 
 ating at the same time 
 '»on of his co-partners 
 miiloyers,— wjiicl, the 
 ilie writing secured 
 ora £160 tojf200per 
 on the profits of thu 
 J proposed his adrais- 
 'o years upon terms to 
 5 by Mr H Lyman and 
 until the rupture had 
 in It by them either by 
 in evidence ; the Jaw 
 ized proposal of one 
 partnership signature 
 y relieving them and 
 or responsibilily to- 
 nonfullilmentof the 
 ereof he claims da- 
 ts and advantages 
 1- But what profits? 
 it will which has not 
 It had existed .my 
 18 pleasure, or refuse 
 nly intendeed to be 
 limited partnership 
 the misconduct of 
 this case there is no 
 ity of contract be- 
 - Defendants. Ho 
 1 ) had no control 
 nor under any res- 
 Jts or losses: in fact 
 3or agreement be- 
 >n for a claim to 
 
 loreforo if profits be 
 profits rn the busi- 
 sipation or distri- 
 is one of not un- 
 that of a person 
 authority he must 
 iiTthia view of the 
 smcnt of damages 
 
 proper to refer to 
 t have been men- 
 al ; but you must 
 -o a decision upon 
 
 lo you that tbe 
 their suppositions 
 en as proof, and 
 igs, the rights of 
 
 the evidence ad- 
 n stating his case 
 
 first as a propo- 
 e reminded that 
 ^Jngitis not an 
 I secondly he re- 
 g a proposal for 
 5 law requires it 
 we, it is no cou- 
 ps, in the latter 
 1 cantiQt sun'<«.i. 
 
 1 thatthereVas 
 cting the testi- 
 
 fact, but if there 
 ■y to pass upon, 
 *?tin[^ony iq re, 
 ice. Tl,B6Tld, 
 defendant, has 
 
 A ^ ^?°**!,W' ■"* *" »tt««npt has been 
 made to dUcredit his testimony. Lee and Re- 
 nahanhaTe been broughi up for the purpose. 
 The latter says nothing at all, and the foAner 
 Lee, speaks as to Turnout's driving a prostitute 
 in his cab and getting a smalt bottle of essenb^ 
 for her at a druggist's. If that were an impro! 
 priety in a cabman, it is not an indication of 
 his beingTgenerally unworthy of belief-irapro- 
 pnety of conduct such as his, if it even be imi 
 proper, is no indication of perjury— it miirht aa 
 well be said that impurity If ^o7duct woffi be 
 perjury. Formerly two witnesses were neces! 
 
 Zi 'l^r^Z^' *^'?"'° ^^^'^ ^""Id be no more 
 than one oath against another in a mcvuer of 
 
 p rjury but though that strictness has ong 
 been relaxed the evidence must more than coun- 
 terbalance he oath of the witness, therefore an 
 opposing witness will not avail against a fad 
 •worn to unless corroborated by other indepen- 
 dent circumstances. Now Lee has not opposed 
 any fact sworn to by Turnout, but draws his con- 
 clusions from the bottle of essence. Tumout^s 
 W?°^!n "'-^k" supported by others and has 
 
 Counsri It Ss "^^'V ^^ '^' defendant's 
 counsel. It has also been asserted that the 
 woman with whom the plaintiff had connection 
 
 Tthel ^nrt- •?''« 'r' '"^ "^ house having 
 f«rwarHu ♦ ^'V*^^«"i« i she was backwards and 
 forwards to the house of her mother who kent 
 a brothel, and had lived with her mothe? four 
 
 ne of business The old proverb applies to 
 h.r- We are known by our acquaintance" 
 
 fr^L ilTr'' '°' ^"'"^ considlSn, n'ot 
 Ih„a« '\ '" ^"y^"* «ny misconception on 
 these pomts, and to bring to your mind the 
 testimony attempted to be discredUed the 
 evidence for the defence, as well as that 
 in rebuttal will be read 'to yorrhere tha 
 evidence was read). As before stated K 
 appreciat on of this testimony i? for you Jot 
 for me. It is for you to answer the sugges'tions 
 Le fif r".*""'^^^ /"' y"-^^ ^e^-li^t as you may 
 tract with defendants in the plaintiffs favmir 
 ha* been proved in any manneragSt them 
 
 tur^dSKrJtreSZVK 
 
 loTh«Se?a"tir ?-!^ ''' ^^-'^ ^^'^^ 
 
 •Antwer to Question I. Yea 
 
 '^ntw$r to Question 2. Yes' 
 
 ^mwer to Question 3. Accorr r- to the evi 
 f w^^ ^''^ Plaintiff visited one Xa Uia Scou" 
 
 Sroof oThl^h^'^"^ •^'•r.^^^'! b"t thereTs "c5 
 ma^ntn^„»A'"'^'°« co-habitated with her or 
 maintained her in a state of prostitution. 
 
 Answer to Question 4. No 
 
 ^nswer to Question 5. No' 
 
 Jlnmer to Question 6. No'. 
 
 4"r7:i,taris^UrrS^ 
 
 irregular, immoral or^discreSie'^o'^Stio^n 
 
 JamS'af^S!^^.^ ^^'*- ^« --- the 
 
 the defendants to set aside the verdict alreadv 
 given in this case, as follows :— •""•wy 
 
 hv'^tilf rr !? ''^''"'•' t''" ^°"" 0° t^o motions 
 by the defendants-one to set aside the verdict 
 
 nfhil f^"/^ """^ to d smiss the action, and the 
 other for- a now trial. These motions'are com- 
 
 -thi ?- ')r°.'*rT°'*'* '" ''° alternative form 
 ^o!5- . ' A. '^«/endants move to set aside the 
 verdict and to dismiss the action, and in the 
 event of the Court refusing to grant that motion! 
 
 ^JI'u "°?° °f off"""-'"?: two or more motions in 
 
 Znlrtn'-'^^r?™''''''^^ *» ''^^^ been san<^ 
 tioned by this Court and also by the Court of 
 
 ter? h.u^^M^ sanctioned by precedent, the 
 flHr "i"^'/"" ">« proceeding adopted by 
 « In?/''"'''"'*' '' '■"f "'"• Ten reasons are as^ 
 signed in support of these motions, and in the 
 view of the law and the practice of' our Courts 
 taken by the defendants, these reasons are ap- 
 phcab e to both. Before examining the valid- 
 
 hLVuT """'T' '' '"'^^ °°' b« a^is to slate 
 fri.ftn ! ^'•°""d/."Pon which motions for new 
 trial, in arrest of judgment and for judgment 
 non obstante veredicto^re based, and thl Sons 
 in law and in fact, usually urged in support of 
 
 shall rir' '^^P'^"^^'^' an^d, in doinTsJ, I 
 shall speak more particularly of the law as it 
 
 utriVand'Tv-^ %' introduction of ou^sfau 
 ute 14 and 15 Vic, Cap. 89. The irroiinH nf » 
 
 motion for new t.ial inLy be any irrfSu? in 
 the proceedings connected with the trial, or any 
 matter extrinsic to the record, shewing that the 
 trial may have been in due form, yet that Ulm! 
 not done justice between the parties For hi- 
 l sUmU'^; 'tu/ thP?'"^\^'^ theVidge's notes of 
 HW.f w-^{ f' ^''^•''"■^ ^"^^ brought in a ver- 
 d ct without or contrary to evidence— th.it 
 Illegal evidence has been adduced, or that lega 
 evidence has been overruled and i^efused tha 
 exorbitant damages have been given, oi?hat tl^ 
 &."^''" ^^^. •nis'iirected the Jury, so that 
 they found an un ustifiable verdict. For these 
 
 suropTf ^f ' '?T'' '' '' competent to the u" 
 successful party to move that the verdict which 
 has been given, be set aside and a new trS 
 
 Arrests »f judgment arise from intrinsic cau- 
 ses appearing on the face of the recoid-M S 
 an action for slanderous words, the Defendant 
 denies.the words and issue is jo'ined thereon if 
 a verdict be found for the Plaintiff that the 
 words were actually spoken, the fact is estah 
 
 MB 
 
 Tdksday, Nov. 27, i860. 
 
 HiaOINSOK-LYMAir CASB-JUDOMBNT SBTTlNO 
 AMD. THl VmoiOT OF THE jtRY 
 
 ._>./---"»' •'tiouuiiui may mov( 
 of judgment, that the words are not in theS^ 
 nature actionable, and if the CouVt be of thit 
 
 thrPlai^ri^""'"/ ?f ^"''''^ ^°d reversed for* 
 the Plaintiff, and U is an invariable rule that 
 whatever is alleged in arrest of judgment must 
 be such matter as upon demurrer wou°d have 
 overturned the action. But the rule w?ll no? 
 hold e converse that everything that maV be 
 alleged as cause of demuh-er will bei^od i^ 
 arrest of udgment ; for merely /•^ma/obSons 
 which might have been 8nffim-«n " °rnv^'5° -' 
 Uemurrer will be cured or aided" by^Sct- 
 ?/om*thS'- ^*°*' "« ascertained w^iich befo^; 
 5ubb!i8 '"*«'«"^«y«f the pleadings might be 
 
 is III Z'jf 1'"°"'^"'^«'°^?* "^ "*»'«»'« veredicto 
 3 aho made by reason of some intrinsic objec- 
 
 Mr. Justice Monk, this morning, proceeded to !Lt "° ""*<*« .^J^ reason of some intrinsic obtec- 
 
jadgmentthatitis made oh tlid part of the 
 
 lenaant. It is according y grounded whnn 
 made by the plaintiff, on H objecUon 'to the 
 pleading of the latter. Thua when the pS 
 
 br some'Z"?, "'''Tf '"^ '''"'^ '^' decIaraC 
 by some matter, which amounts to no sufficient 
 avoidance of it in point of law, and the plain 
 
 he trutrn^f^t, '",""!"% ^"^ ^'»'^«=« issue upon 
 has been found for the defendant, yet the plaintiff 
 may move that, without regard 'to the verdict I 
 Ihejudgment be given in his favor, notwUh 
 standing the verdict-for the plea having con- 
 iTflV^ K^.^^ *P^*"°" ^'"^b, though iZ 
 tllX'^^"- '^J"^' ''«PP«"3upon the whole! 
 that the Plaintiff 13 entitled to maintain lis 
 action and have judgment. Formerly an Z 
 presaion prevailed that this motion could be 
 made only on behalf of the plaintiff-but a con- 
 trary op, „ ion seems to prevail now in England 
 and instances of motions of this description 
 have been made on behalf of the defendant It 
 IS certain that since the introduction of' the 
 n**"^^ 14 and 15 cap. 89 the courts of Lower 
 Canada both those of original and appeK 
 jurisdiction, have entcrlHined and adjudicated 
 upon such motions, made on the part of defen- 
 dant. The cases arc numerous and it is ouito 
 unnecessary to cite them here ^ 
 
 lili'^^l.!:!!! ^!r!^5^.^ ^'?'>4° advert to 
 
 — Y""'- """ ucriuL-u 11 ngnt to advert tn 
 these elementary principles, laid down in all 
 English text books of authority, in order to 
 show hat there has been, in some respects, a 
 deviation in our Courts fro'm the strict practi'ce 
 in England and the Uuited States in regard to 
 
 1 his no doubt bus resulted from the recent 
 modification of our jury system . General ver- 
 diets were abolished by the Act ofourLeSs: 
 
 J^Snr fi'."'^ '' ^''°- ^u"P- ''' '"^'1 special ve- 
 dicts or findings are substituted in their stead 
 The 4 h section of that Act also confers on the 
 Superior Court the power to set asid. on mot on 
 verd CIS and grant new trials-to arrest judg" 
 
 fnuht/f ^"^ f *-*'^'^^ T'^'''^^ ^''h the view no 
 i nn ♦°*^ entering judgment notwithstanding 
 
 ?Lt ?hIT •°^''' ^"•^''^'i '*"<i i' 'appears to me , 
 that the decisions, as well of this Court, as of 
 
 IS«frr'S'''^/''P^'''','.'^*^°g°''==« ^ power, Tn' 
 the tribuna of original jurisdiction, to set aside 
 
 fact Sone "^°" <iiestions of law alone and of 
 I think the decisions go this length Tho 
 cases are numerous but familiar to the B'ar and 
 need not be cited. Upon a careful review of 
 these cases I am therefore clearly of opinion 
 that under our system of jury trials the motion 
 for judgment non obstante veredicto, for the tea- 
 son that no evidence or no sufficient evidence 
 has been adduced, in support of the verdkt" is 
 
 ?.Ti^r:« If there be an ohJection to the techni- 
 cal term non obstante veredicto, we may call it 
 Bimpl:rametion to set, aside the verdict and to 
 en er judgment for Plaintiff, or for the Defend- 
 an I, as tne case mnv ho. not"'it'-ta»--?5->- ^' 
 finding Of special facts IVThVi^^H'^other 
 words notwithstanding theverdict. Holding then 
 that these motions are regular, in the particu- 
 ars above adverted to, it now i;ecomes my du"y 
 to enquire whether either of them should he 
 granted in this case, and if either, which of them ? 
 
 »,nT!V°* °.Pl".* ^^^ question of eTidenee w« 
 «^r ^°,rV^^ ^^^ ^«'"« of that evidence If h 
 Ma nfiff^"^ ''f' '^•'° adduced Ssupp'o^ 
 ♦hfnTi ^K ^ ' pretensions as he has prcBented 
 them in the jiresent action. The Plainiiff ^i-i 
 
 partnership in the best and most e" te^Lsir^es" 
 tabhshment of the kind in Canada "Rvtko- 
 Plea, the Defendants deny the existence yinv 
 such contract, and that^even if" any such co^ 
 tract had been en' red into bv thpm (Jui^u ?x 
 expressly deny) .ney seff^rYh wStty coS 
 der sufficient reasons to show that Plahitiff hn 
 forfeited a 1 right to the fulfilment on their pa,' 
 of the pretended contract. Issue beingjoi ei 
 the hrst question submitted by the Coun t< th,.' 
 Jury wasin these words, and it is obv"o, s that 
 upon their answer to ti is the Phiii.tift" o ' 
 mainly depended :-"D.d^'t,;e"'DrSant: as^a 
 commercial firm, contract with the Pkintiff t 
 
 wi •'"?!,'''/ '.""■*"^''' '" n"^">^er and form al 
 leged in the declaration? ' 
 
 To til is question the Jury answered unanJ 
 
 ZI'^Kl" -h' "*«^'"'^''ve, and it is tS finding 
 
 cons J^7 Tj!"n!f"'.'''''r''' "f ''' ^ '"^^0 "°^ "^ 
 
 3^^«j^;i;f--^;lSt^vi! 
 "p^S^aat^S'i;.!--^ - 
 
 " thnt^r^ '■T"'' '° '">'P"" of tl'ei'- motion is 
 that no evidence was adduced at the said trifll 
 to prove that the Defendants, as a Tommrrc " 
 fim, did contract with the Plaintift" to aTmU 
 Plf.i?;.'^.'!""'/ '? "'^P'^^'-'ind form as alleged 
 ieason- d'^'^l'^ration.'- And their sixth 
 
 of'lSmV'° ^"''^ fi°«J"'g8 and each and every 
 ot them were contrary to law and to fh» IJ- 
 
 dence of records." The paper wriUng?eflrred7o 
 m the Plaintiff's declaration as emLying the 
 contract, was written by Benjamin Lyman tl.P 
 
 hTkltT I" ?' fi^^of Lymans7savaV & 
 00., the Defendants, and in the form of a lettPr 
 'from h.ra to Mr. Higgiuson, the pKff The 
 terms and purport of that letter are as follow 
 
 « TO o .r "^^'^^^^^^ 4th April, 1857. 
 
 Thomas S. Higginson, Esq .- 
 
 writer Zd^wi;^l°"'l"^ '^' conversation the 
 
 ::":viif inr z ^r^ t^ izs:^ 
 
 pounds per annum, and als'o five per cent on tho 
 profits of the business carried on her^fn? Sf 
 next two years, after which time we w?ll admit 
 
 dentUL ^'"" *° ^' '*"°"y P^i^^'e and confi. 
 
 " Yours very truly, 
 
 "LYMANS, SAVAGE & CO." 
 ni • '^.J^ the written contract upon whirh tha 
 Plamtiff relies, and I proceed Z^ZA-n-- 
 into the evidence relatinffto it Tho'f^^V-"' 
 
 d.j I addreMed . letter to fi.i„Uffon m 5.n 
 t..pon.,b,llty, and .t th. tim, told pKiVJ" 
 
 I)artner, 
 
sstion of eWdcnc*, we 
 of that evidence if it 
 adduced in support of 
 
 ' *n.u*'*l,l'*^ Proeented 
 I. InePIainuff claims 
 from the breach of nn 
 intob^ Defendant8,ai 
 inimintopArtnership 
 1 that amount of dam- 
 eprived of profita and 
 ion resulting from a 
 d most extensive cb- 
 I Canada." By their 
 
 the existence of any 
 ven if any such con- 
 
 by them (which they 
 •rth what they consi- 
 ow that Plaintitr had 
 Ifilment on llieir part 
 Issue being joined, 
 I by the Court to tho 
 id it is obvious tlmf, 
 
 the Plaiutiff's case 
 lie Defendants, as a 
 tvitli the Plaintiff to 
 lunter and form al- 
 
 iry answered unani-' 
 id it is their finding 
 of it I have now to 
 ntend that this part 
 nsiistained by evi- 
 •t, it is contrary to 
 e cause. 
 
 ■t of their motion is 
 ced at the said trial 
 ^3, as a commercial 
 Plaintiff to admit 
 md form as alleged 
 And their sixth 
 
 md each and every 
 w and to the evi- 
 ■ writing referred to 
 as embodying the 
 ijamin Lyman, the 
 Lymans, Savage & 
 he form of a letter 
 the Plaintiff. The 
 ter are as follow : 
 4th April, 1857. 
 
 5 conversation the 
 sent is to say that 
 3uy two hundred 
 ive per cent on the 
 3d on here for the 
 me we will admit 
 t will be mutually 
 
 private and confi- 
 
 VAGE & CO." 
 t upon which the 
 1 now to enoui"* 
 ;. The testimony 
 t to this paper, is 
 
 ms senior partner 
 
 6 Co. Ou that 
 intlff on my own 
 told Plaintiff so; 
 
 on that occasion I wrote the name of the firm 
 I told Plaintiff I only expressed my own feel- 
 iDgi, and which might not be agreed to by the 
 firm. He replied, he thought they would 
 Plaintiff had aaktd me what I intended to do 
 for him, and I told him I had always intended 
 that he should talce Mr. Savage's place. Plain- 
 tiff aslted me to give him in writing what I in- 
 tended, and 1 gave him, in writing, the letter of 
 the 4th April. This was written at the very 
 time of his conversation with me. After the 
 letter was written Plaintiff remained in the em- 
 ploy of the firm for two years." 
 In cross-examination, he says : — 
 "The letter of the 4th April, 1857, was writ- 
 ten in Plaintiff's room, in the store when I was 
 taking my luncheon. I told him I had not -the 
 sanction of my partners, and he said if tcey did 
 not consent it would go for nothing. Plaintiff 
 said he thought I could induce my partners to 
 come into the arrangement. I had not the 
 sanction of my partners. The first time I told 
 ray partners that I had written such a letter was 
 after I wrote the letter of the 1st April 1859." 
 As a matter of fact resulting from this evi- 
 dence which is precise and direct, and is uncon- 
 tradicted by any other testimony of record, but 
 on the contrary, is corroborated by the very 
 terras of the letter and other circumstances, it 
 13 manifest aad so manifest as to leave no 
 doubt whatever, in any reasonable mind, that 
 this letter was written without the knowledge 
 sanction or authority of the other co-partners 
 Henry Lyman and Alfred Savage. This fact 
 being thus legally and conclusively established 
 the rule of law applicable is plain. The two 
 other partners were . not bound by this letter 
 wiless they became so by subsequent ratification' 
 
 This is beyond controversy, and therefore re- 
 quires no comment or citation of authority. A 
 ffw k'giil maxims dispose of this part of the case 
 It 13 admitted that each partner is the general 
 agent of the firm, for all purposes connected 
 with the partnership. He may therefore dis- 
 pose of the whole, or anv part of the personal 
 property belonging thereto in like manner as if 
 he were sole owner. So all transactions by a 
 partner, as agent of the firm, will bind the firm. 
 The contract of co-partnership is consequently 
 one ofthe most important known to the law. 
 Hence it is that the express and unequivocal 
 consent of all the other partners is required in 
 the admission of new members. As between the 
 l)artners therefore it cannot be created by mere 
 operation of law, but depends solely upon the 
 fact of agreement. No third person can be in- 
 troduced, by one or more partners, into a firm 
 but with the consent express or intelligibly im- 
 plied from acts, unequivocal in their nature, 
 of all the other parties. This is the laW, and 
 bearing this principle in mind, we have to en- 
 quire, whether evidence has been placed of re- 
 cord proving a subsequent ratification, of this 
 ac, of Benjamin Lyman, by the other partners 
 or not. If such ratification be proved, the vc- 
 dict of the Jury so far is good ; if, however, there 
 uuno evidence whatever, or evidence to tb 
 contrary, the verdict in this particular finding 
 is bad. Before proceeding further, however, in 
 this enquiry, it is right, that the Court should 
 examine the evidence in regard to another im- 
 portant point in this case ; and that is whether 
 It be proved, by any Idnd of evidence whatever, 
 that this offer of partnership was ever accepted 
 
 by Mr. Hlgginson in a way to make that accept- 
 ance known to the firm, or in any way to bind 
 him or the hrm ? It will be recollected that the 
 * 'J'.y.'i'®" by B. Lyman bore date the 4th 
 April 1857,— and it is pretended that the plain- 
 tiff answered it by a letter dated the followinit 
 day, that is the 6th April 1857— this may or may 
 not be true— the Court is not called upon to 
 discuss moral probabilities, or to appreciate the 
 value of conflicting presumptions, which escape 
 the ingenuity of legal argument, but as a mat- 
 ter of fact there is no proof whatever adduced to 
 prove that tliis letter ofthe 5th April 1857 was 
 ever written, was ever sent to, or received by 
 the firm of Lymans, Savage & Co. or even Benja- 
 min Lyman himself. A young gentleman by 
 the name of Spence was examined by the Plain- 
 tiff to prove that such a letter of acceptance 
 was written, and his own words will demon- 
 strate the value of his evidence in tliis 
 particular. " Knew Plaintiff in 1857— 
 Knew of his receiving a letter from 
 Defendants. Plaintiff brought the letter 
 to witness, who saw a draft of the reply in 
 1857, shortly after he first saw the said letter 
 from Lyman, Savage & Co. Witness saw 
 I laintitt in the store on Sunday, and Plaintiff 
 said ' tliero is my answer to their letter lying on 
 the desk.' This was shortly after my seeing 
 the letter to him frem Lymans, Savage & Co " 
 CroM-exomined.--" Plaintiff showed witness 
 the draft of his reply shortly after his receivinc 
 the o-iginal letter. Cannot say how long 
 after. The letter I speak of as having been 
 pointed out to me by Plaintiff was pointed out 
 on Sunday. None of the firm were present, nor 
 any in the employ of Lymans, Savage & Co. 
 Plaintiff had the key of the premises and 
 wa,s apparently in charge of them on that day 
 Witness did not read the letter lying on the 
 desk, but has read the copy shewn to him bv 
 Plaintiff. It was pointed out by Plaintiff as 
 being the letter. To the best of his knowledge 
 It was the Sunday after the 5th April, 1867 
 that witness saw the letter lying on the desk' 
 that Plaintiff pointed out to him." 
 
 Mr. Spence says he never read the original 
 but has read the copy shewn to him by plaintiff 
 Both parties seem to unite in speaking highly 
 ofthe character and credibility of this witness- 
 and, therefore, giving the fullest weight to his 
 testimony, I am bound to say that there is no posi- 
 tive or legal evidence whatever ofthe existence 
 of this letter of acceptance. The most that can be 
 said is, that there exists a presumption that 
 such a letter was written as Mr. Spence's evi- 
 dence seems to imply. But this presumption is 
 refuted by the testimony of Mr Clare, book- 
 keeper of the firm, and of Benjamin Lyman 
 Mr. Clare says :— " As book-keeper witness 
 had access to all books and letters to or from 
 and of the firm. Was constantly in the office 
 Witness never heard of the letter of date the 6th 
 April 1857. Never saw it. Only heard of it a 
 few days since. Had such a letter been left 
 I vihg on the office desk witr.sssTr.'-.i'.ld "--■'-' ' 
 T£«f^'».*t- He'Tb'nks hewo''uld'havTseen 
 , ifleftlymgasMr. '_ „nce says. It is hisbnsi- 
 ness to put away papers. As they accumulate 
 they are filed away". 
 Mr. Benjamin Lyman says : 
 
 r*I^'*^i°°.*.u"f®'T? *"y letter ^om Plaintiff, ' 
 of date the 5th April, 1857. I did not see such 
 ft letter lying on the office desk. The firm did 
 
not, to mj koowledge, noeire lach a letter. I 
 
 IL A "*' ^' ^^o •8o» w"**!! my lawyers 
 •hewed me a copy of it." '"w/orB 
 
 The letter here referred to, and of which an 
 alleged copy i. produced, i. in these word. :- 
 
 „ ^ "MoNTRBAL, 6th April, 1857. 
 
 J*fet$r$. Lyman», Savage ^ Co., Montreal: 
 " puAB SiM,_In reply to yours of the 4th inst.. 
 the present is to say thai /accept your offer of 
 tjo hundred pounds per annum, and five per 
 cent on the profits of your business for two years 
 from this date, after which time you areWmi 
 me a partner, upon terms mutually satisfactory. 
 " Yours trueJy, 
 „ ''T.S. HIGGINSON. 
 
 firm " "^"^ *"'""® *° '^PP*'"*' ^" ^^^ 
 
 Hijrglnion, by the 
 
 kJ!, ?.?"' ^®? °^^'^^ t'lat this letter had 
 been written on the day it bears date, or about 
 
 i Hno^/Vn'*"'^ /•'*' '^"^ «™ ^''^ <hen received 
 id woild&iT^P'""'"' it'nustbeconced. 
 ed, would have had a very serious significance 
 
 Pn .,t P,""°* '"'^''' ^"t "^'^ «"»"" oF fact the 
 anv nroo??h.?°* ^k"*^ I" '^' ^^•'1«°<=° 'adduced 
 «K?? ^•?*^"'=''* '«"«"• ^as ever written 
 at the time it purporU to bear date or at any 
 .me during the two years, or that it was sen^ 
 
 i Co' 'nr'^'n- ^^ '^r' ^'"^ "^ ^y"""^; »<^'^T^ 
 
 «^r »„;,«^., T™'." ^y"""' """^ ^e looic in vain 
 for anyother testimony to shew that the l>Iain- 
 
 of^r nfT^^ ^ °': ^T^^^^y accepted the proposed 
 fnT/^"^*?'^]?^^'"*" to become a partner 
 in the firm, before the expiration o the two 
 years It is quite true that he remained in the 
 Defendant's employ-received the £200 per 
 annum and 5 per cent upon the profits It re- 
 suits clearly from thebe*^ facts that so far he 
 did accept the offer, and it may be urged with 
 some appearance of truth, that the afceptrnce 
 aud compliance with part, was, or was'^equi! 
 vaJent ,n fact to aa acceptance of the whole. 
 The jury,no doubt,trought 8o,and that so far as it 
 was a contract, it was completed and rendered 
 binding .upon both parties, and the Court is of 
 opinion that in so far as the acts of H^ginson 
 Ir«., V P/?^«»'» acceptance of the wholf con- 
 tract by him, the proof of these acts was evi- 
 dence to go to the Juiy and that it was the r 
 duty to appreciate that testimony. It wou d be 
 
 proof of the accceptance by Mr. Hiffsinson of 
 Benjamin Lyman's offer of co-partnerS As- 
 suming however, that there was the tacit accep- 
 tance contended, for it could only be such in re- 
 fhJfi ^enjamm Lyman unless it be proved 
 
 S tL /f,?'''^/'"'.^""' ^«^*= a^"e of the letter 
 of the 4th of April, 1857 written by their part- 
 ner Benjamin Lyman and of the offerof 5 p c't 
 on profits and of the prospective partnersWD 
 therein contained. It was urged in arguS 
 by Higginsons couns.l,that we^ must E or 
 presume the other partner's knowledge of tbe 
 offer of partnership and of the 5 p c^t pFofits from 
 
 ^200 per annum after the4thAni!l isr'7 .„" 
 taat ne remained in their employ "^aVine two 
 years. Now the Court is of opinion that evTn 
 in the absence of all evidence to the contrarv 
 we could presume no such thing No B 
 presumption or inference of "^ fact could 
 WM« here and for this simple reason •-- 
 
 Tbe engagement of Mr 
 
 senior partner for two yeara at jtaoS per 
 
 annum found tU flrm-their acquiescence wa 
 
 raw?SlT.;:t''''^' " •«"». were bound i« 
 law to fulfil that entfagemont. If this nart of 
 
 had ratified it by paying him £200 a year J 
 presumption might arise that they had rati&od 
 
 of. The Court must, as a matter of law. regard 
 
 ind fhTfr^?' *° P'^J' '^ P" ««"» °" 'h; profi , 
 and the offer of a partnership separately from 
 the hiring of the plaintiff for two }ears at S 
 fnl fh "f"' ""p ""PPOse.as we must in examin- 
 hl^/v ^'^"'m °f Pr««"«'J>tIons, and the appHca- 
 bUity of evidence, that ilr. Beijamin Lyman had 
 offered without the sanction of the firm 5ne 
 cent on profits and a partnership alonerwoul. 
 complete silence and inaction upon that" 
 ?hTr"''.r''° " presumption in law or in fact 
 that the other partners had ratified the engage 
 ment? Assuredly not. And the Court is of 
 opinion that this is undoubted law, even f they 
 were aware of such an agreement having been 
 entered in o by their partnor. Silence aWn- 
 act.on during the per.'od prior to the time when 
 the contract was to take effect, is not, in a case 
 hke the present, a ratification 'of the'contrac 
 W„iw ^ presumption of acquiesence . 
 legally deducible from such silence and 
 .nactzon, even if they were aware of 
 the existence of such an engagement 
 
 fer inH "f "''^'"' fi ""'« ^"'^^" «°t° this mat! 
 llnnwin/''""'"'' "'^ <^yi<lence touching the r 
 knowledge or ignorance of Benjamin Lyman'. 
 I_etter of the 4th April 1857. And first as^to th; 
 oper cent respecting which a good dea^las 
 been said. This credit of 5 per cent to i.I« n ?ff 
 was never entered in the books. Mr. Clare the 
 
 May ISd''' Tr\^' '^'='""« ^'^•^'^ ofit onty in 
 Alay 1859 The charge was made in the books of 
 the firm in 18C0 and was then charged To Ben- 
 jamin Lyman because the other member of the 
 
 •''The'fifJ'''*. ^° '\ .'''^"J^""'^ L^mlnsly-l 
 The first entry made in the books of the firm 
 
 TsS'lnf !' the 5 per cent was made in 
 1860 His partners knew notiiing of it till 
 
 aSmi tef '-r "^** P'^^^t'ff demanded to S 
 fusTd Th!f'fi Partnership and was re- 
 Ihp ;;' r. ^ ^!^ 7^^ «"^d afterwards for 
 ^!J P'' .?''^- ^^^' suit r and Mr. Clare 
 made up the amount vo the best of our 
 ability, and we decided that if the amount was 
 suit Tifi"'' *^« P|fi°tiffmi{rhtgoon wUhhl 
 pZ^^Hffor"""'^**'^''^^*^^ accepted by the 
 
 KoLd lb!:?'! 'u^-J^'^ '°. ""' individually on 
 ine ground that I had promised ft to Plaintiff 
 without my partners' consent, and that they 
 were not responsible." " 
 
 n«!'„^'i^ ^® remarked that the payment of 5 
 Sn th. ,«fh V^' ^^ Benjamin Lyman himself, 
 hmniL^''!i "^^' ^^^°' ^fter the action wai 
 th« n!.f ' «°'i.f'PPeared then for tha first timein 
 the Defendant's books and to the debit of Mr 
 B. Lyman . T_at his partners were ignoranVof 
 
 .. " --"'•'"" fuiiuers were Ignorant o 
 
 his^engagemeni to pay the 5 per cent till then 
 nuu lucy men aiaavowed his act. This teeVi- 
 
 .• -"«-" ^»ia«Yuweu ois act. Thia tpot; 
 mony corroborated as it is by Clare and by a 1 
 the circumstances relative to this charge of 5 
 per cent as proved, is, in the opinion^f the 
 
 the wLT'I"!'^' = '^'^'^^^ ''"ieod we dUcard 
 the whole statment as a tissue of falsehoods 
 from beginning to end, which nothing in ?h. 
 
• HIgglnion, by th« 
 years «t jesoO per 
 leir acquiescence •wat 
 » firm, were bound in 
 lont. IfthU part of 
 ratiflcntioD, and Uict 
 him i;200 a year, m 
 hat they Bad ratified 
 There is an obriout 
 TO must not lose sight 
 matter of law, regard 
 •ercent on the profilg 
 ship separately from 
 or two years at jt20t» 
 I we must in examin- 
 >nB, and the applica- 
 Benjamin Lyman had 
 )n of the firm, 6 per 
 ershlp alone, would 
 ction upon that en- 
 tion in law or in fact 
 I ratified the engage- 
 Ud the Court is of 
 ted law, even if they 
 ecment having been 
 T. Silence aad in- 
 ior to the time when 
 ect, is not, in a case 
 on of the contract ; 
 acquiesence is 
 such silence and 
 were aware of 
 an engagement, 
 "ther into this raat- 
 nce touching their 
 Benjamin Lyman's 
 And first as to the 
 h a good deal has 
 percent ta plaintiff 
 )k9. Mr. Clare the 
 aware of it only in 
 lade in the books of 
 n charged to Ben- 
 her member of the 
 min Lyman sayj. 
 i books of the firm 
 cent was made in 
 nothing of it till 
 IF demanded to b« 
 ' and was re- 
 i afterwards for 
 f and Mr. Clare 
 the best of our 
 f the amount was 
 prht go on with his 
 i accepted by the 
 ne individually on 
 ed ft to Plaintiff 
 , and that they 
 
 he payment of 5 
 in Lyman himself, 
 r the action wa« 
 ir tha first time in 
 the debit of Mr. 
 were ignorant of 
 er cent till then, 
 ^ct. This testi- 
 3Iare and by all 
 this charge of 5 
 
 opinion of the 
 leed we discard 
 le of falsehoods 
 
 nothing ia the 
 
 dianeter of the wUn«u, or on the record will 
 jMtHy. 
 
 Then as t« the partnership . Mr. Clare nerer 
 ^wdoflt. Mr. Higginson never spoke to him 
 of it and B. Lyman twayn that his partners 
 knew nothing of the lettei of the 4th April, 
 18fl9, and when he made demand of » partner- 
 ihlp he is met by a peremptory refusal on the 
 part of the firm, and yet in the face of all this 
 tne Jury found they had ratified the emrairement 
 entered mto by B. Lyman. The Court has no 
 hesitation m saying that such a finding is not 
 only without evidence, but contrary to evidence 
 
 A.. n°.u"f 4= '" "''* particular is bad an ' 
 that all the findings must be set aside, I have 
 
 monstratei that th« terms of the connection 
 were to be the subject of future neaoliulion - 
 and that us a matter of fact the conditions were 
 expressly left unseltled-lh,v were reserved by 
 the very terms of the letter tor future adjust- 
 ment, and were to be arranged so as U) be mu- 
 tualy satisfactory. Now what is the present 
 action brought for? For the recovery of dama- 
 ges resulting from the breacii of this alleged 
 contract. And what are the dnmages claimed? 
 I'or loss of prospective profits only. 
 
 In order that there may be no misapprclien- 
 siou upon this important point, I will quote the 
 very words of the declaration :— 
 
 " .-^"i^ \^^ Plaintiff avers that by the said re- 
 
 
 verdict was composed of men of hig^. character 
 and great intelligene, and in deciding, as I 
 feel bound to decide that their finding is con- 
 trary to evidence, it is proi)er that the parties 
 immediately interested in this cause should be 
 made hilly aware of the grounds upon which 
 this Judgment of reversal rests. 
 The Court is confirmed in the vie v here ta 
 
 ken. inasmuch as it is sanctioned bv the charite 
 of the honorable and learned Judge who tried 
 this cause, and I entirely concur in the oi.inion 
 he expressed in his charge to the Jury that had 
 a non-Buit been asked for by the Defendants such 
 an application should have been granted 
 
 The first finding of the jury being thiia dis- 
 posed of, it 18 obvious that the remaining seven 
 findings share the same fate— they can oiler no 
 obstacle to the setting aside of the verdict in 
 toto, but It IS proper that the Court should off-r 
 some observations respecting the last finding of 
 the jury assessing the damages, and in doing so, 
 it IS necessary to advert, not only to the evil 
 dence. but also to the allegations of the plain- 
 tiffs declaration. The ccntract is thus set out : 
 And whereas heretofore, to wit, on or about 
 the 4th oay of April, 1857, at the said city of 
 Monireal, by a certain writing, sous seuie vrive 
 writien on behalf of the safd defendants, bv 
 said Itenjamin Lyman, the senior partner of the 
 brm of the said firm of Lymrtns, Savage & Co , 
 the defendants undertook and declared that 
 they would allow the plaintiff" £200 per annum 
 and also five per cent on the profits of the busi- 
 ness carried on there, to wit, in the said city of 
 Montreal for the next two years, to wit, after 
 the date of the said writing, after wl.ich time, 
 to wit, after the expiry of the said two years 
 whicn two years expired on the fourth of April 
 last past, to wit, 1859 ; they agreed to admit 
 the plaintiff" as a partner into the said business 
 ot the defendants, which writing is herewith 
 produced to form part of these present." There 
 18 a strange allegation following, that the con- 
 nection was intended to be permanent and con- 
 tinuous. 
 
 Apart from this averment of perpetuity in 
 the co-partnership we have not a word about 
 the terms and conditions of the proposed asso- 
 ciation—and on looking at the paper writinff of 
 ••-•'■•• f'-j-" i= "cic maut;— -.vc nna tuat not 
 only were no terms whatever agreed upon or 
 mentioned, but that they were to be subse- 
 quently determined upon to the mutual satisfac- 
 tion of both parties. The allegations of the 
 declaration leave us completely in the dark 
 upon thia essential point, and the letter but in- 
 creases the obscurity, except in this that it de- 
 
 vantages and of position resulting from bcinir 
 thereby established in the best and most exten- 
 sive establishment of the kind in Canada, and 
 lias suffered injury and damage in all to the 
 amount o»X"t;,500 currency and upwards." 
 
 It is quite true that in a previous part of his 
 declaration he says " that relying on this agree- 
 ment ho refused other advantageous offers"— 
 but he does not assign these refusals as causes 
 of damage, nor does he claim indemnity for 
 such lost opportunities of improving his for- 
 tunes, but exclusively and exi)res8ly for loss of 
 hiture, prospective profits in the firm of 
 Lymons. Bavago & Co.. and for this olonc. 
 
 Now let us enquire into the nature of these 
 damages and consider the possibility of adjust- 
 ing them under these allegations. 
 
 It is perhaps unnecessary to say that in a 
 case like the present, there can be neither nomi- 
 nal nor vindictive damages. The loss must be 
 determined by the plain process of figures, and 
 the damages fixed with something approaching 
 to arithmetical accuracy— they may amount to 
 more or leis, according to the judgment 
 ot the jury, but there must be a basis 
 upon which the award is to rest, and a cal- 
 culation susceptible of some kind of analy- 
 sis. Now, neither under the allegations of the 
 ]j'°*^ ^ declaration, nor upon the evidence 
 adduced had the Jury any such basis, nor had 
 they any means of making such a calculation 
 of the damages claimed. It is not alleged nor 
 IS It proved (in fact it could not be proved) 
 whether it was money or labour and skill, the 
 Plaintiff' was to contribute. No amount is men- 
 tioned or proved— nor any mention of skill and 
 labour as his contribution, it is not alleged nor 
 is it proved what share of profits he lost. Now 
 holding as we must, with this declaration before 
 us, that loss of profits alone are claimed, how 
 did or how could the Jury award i:i250 ? To 
 what share of the profits was this sum equiva- 
 lent ? With this statement of his case aiid this 
 proof in support of it, how could the Jury find 
 that he lost £1250 when he omits to tell them 
 the proportion of the profits he was to re- 
 ceive ? In this particular, both the allegations 
 of the declaration and the evidence are fatally 
 defective. Whether the loss of nrofits h« 
 accrued or prospective the same iusuperabie 
 difficulty presents itself. The action is so 
 brought and the evidence is of such a charac- 
 ter, thstno legal, no intelligible adjudication 
 of damasres could, or in the opinion of thia 
 Court, «in ever take place in this cause. In 
 a case not only analogous but similar to this. 
 Chief Justice Abbott, afterwards Lord Tenter- 
 
he w(M ninlon fiwit td. mtUm *««» net 
 W«intAinabi, ii,« ttfaetsflce of «vi«l««< .. u, .frpw 
 «« terms mjon whlcli the partiea f»er, 
 becomn partner.^, ond laid tb»t he hud ne*ci 
 Heard ADjr InsiUnco in which tuoh anftotlon bad 
 Wii iupported with.,,, pr«v.f oi' the termi " 
 This »,M the CMte of Figo, y». Cutler and biu 
 »"'%•"< I ai.i aware, Iwen oyerruled. Tin- r»se in ' 
 / /ham, t Med by the pUintiri Cb> "»*'l is I 
 eati. i^ ^'trerent from the present, | 
 
 This, , it appears to me, is not on\y gound I 
 WW, but ifom pure necegglty and the plninegt 
 dICUtes of common senHe is entirely conclusive 
 
 rornU tli. <« MMOM eMiUiwd m4 li'»k- 
 bothof th.' ,, lending! and the «vil«iiM aMimd 
 
 **?,"T* i' if "P'""»" »»»*' •he wMlortotoJ 
 
 'iMd. the flndingi of the Jury and to dH«dM 
 • action niuat be „ran»ed, aad tb* fccUan U 
 
 usiriissed Rccordint{ly with «;» - 
 It only remains for mo to express my oh. 
 
 ligHlion* to the Counsel who nfgued this 
 case both in behalf of the plaintiff and the de- 
 temlan B for the learning and remarkable abilitr 
 with which Uiey urged their respective preteu- 
 siong and from which I hare been so much 
 ntded in my deliljeratlons. 
 
 Tba Oounsel engaged 
 
 worn : — 
 
 For the Plaintiff: 
 Messrs. Cuoss & Bancroft, 
 F. «. JoiiNHON, Ksqiiire, g.C. 
 
 For the Defendants : 
 Messrs. Arbott & Doumam, 
 Mosgra. Hkthunk A Dunkin. 
 
 * 
 
 M. LoN«iiooR« & Co., Printers,." Montreal Gazette" Stean, Press. 
 
}«l IhA RKMioa to Ml 
 
 Jury !\>\d to dtmiM 
 >d, fcrtd tb* *cU«»n is 
 1 ecu • 
 
 to cximiii my ob- 
 1 who Hi^iied thU 
 
 plaintltr And the <]«- 
 iiJreinarkaMo ability 
 ir respective pratsii- 
 mre been so nuch