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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