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Las diagrammes suivants illustrent I3 mdthode. 1 2 3 1 2 3 4 5 6 ■ ■» I THE BEAUTIES OF THE ADMINISTRATION OF THE LAW IN QUEBEC, AND THE BENEFIT CONFERRED UPON THE COMMUNITY BY THE SELECTION OF THE BEST JUDGES, AS KXEMPLIFIED IN THE CASE OF . ■■ - /"I* ■■-, WILLIA.M BROWN, : . " ■ vs. Plaintiff, BMITIIOLOMEW CONRAD AUGUSTUS GUGY, , Defendant. DURING UPWARDS OP FH^'EEN YEARS OF LITIGATION. ■'■^mp'lplp wmmtimmm 1 : *^ THE BEAUTIES OF THE ADimSTRATION OF TIE LAW IN QUEBEC, AXD THE BENEFIT CONFEERED UPON THE COMMUNITY BY THE SELECTION OF THE BEST JUDGES, AS EXEMPLIFIED IN THE CASE OP WILLIAM BROWN, vs. Plaintiff, BARTHOLOMEW CONRAD AUGUSTUS GUGY, _ Defendant. DURING UPWARDS OP FIFTEEN YEARS OF LITIGATION., DEDICATION. Dedicated to Hugh Allan, Esquire, who, as the projector and founder of the Montreal Ocean Steamship Company, is the benefactor of all the Canadas. My Dear Allan, By letter, dated London, 30th April, 1862, your obliging partner, Hugh Montgomerie, Esq., informed me that " bepobk dnbbrtakino the " prosecution of my case (he meant my defence in a contest with wealth and power) "any firm (of solicitors) of good standing would require £500 " sterling. I could not raise a tithe of that sum, and was in despair ; but with characteristic generosity, you came to my relief, and by furnish- ing me on credit with eight consecutive cabin passages in your steamers, you enabled me to defend myself. You are not yet fully paid, but you have saved me from ruin ; and while publicly acknowledging the -"^ery great service which I have re- ceived at your hands, I beg that you will read the following account of *ome of the sufiferings of Your obliged and very grateful friend, A. GUGY. I / I ^ tj' - — Re — WILLIAM BROWN, Plaintiff, BARTHOLOMEW CONRAD AUGUSTUS GUGY, ,, , Defendant. The litigation between the above named parties has been frequently noticed by the press, but always in a manner so brief and meagre as to convoy no accurate notion of its form and pressure. It would appear indeed that, to this hour, mul- titudes believe the plaintiff Brown to be a much injured de- fendant, and the defendant Gugy is daily compelled to affirm and explain that he is not the aggressor. No later than Monday, 13th January, 1868, the leader of the Chronicle newspaper contained a paragraph giving an erroneous impression of the conduct of the defend- ant. " An obscure stream" it was said, " had acquired a " European celebrity from the determined persistence with " which two neighbors upheld their conflicting ideas of the " rights derivable from its course and action." " The deter- ** mined persistence, " thus imputed to both parties as a fault, is ascribed to the defendant fully as much as to the plaintiff Brown, an inaccurate and offensive statement to which the defendant cannot submit in silence. Accordingly, hav- ing offered for pubUcation a few words of explanation, tending to show that the plaintiff Brown was the aggressor, which the editor rejected, the defendant is driven to the necessity of giving a much abridged — but he hopes an intelligible — ac- count of the facts involved in the case. Some of those facts may and doubtless will be deemed incredible. On reference, however, to the Prothonotary, or to the Clerk of the Court of Queen's Bench, who are both bound during office hours to ^ve the public access to the records in their custody, the veracity of the narrator can in a trice be tested. As to the Judges of whose misconduct some specimens will unavoidably find their place in the following narrative, should they be dissatisfied, let them endeavor to bring the writer before a Jury if they dare. Practically irresponsible, possessing the power while presiding in Court, to fine and imprison — without bail or mainprize, those great men feel that whatever may be the statements which they may hazard, no man, especially no counsel, having a due regard for his liberty or his fortune, dare contradict them. The Judges of the Province of Quebec who decide questions oifact as well as questions of law, may, therefore, with im- punity, when pronouncing judgment, shroud themselves in a mantle of darkness. They may ignore, overlook, or misre- present important facts, or for that matter the whole case, but the advocate who should make any attempt to correct them would probably be ruined. The following pages will be found to contain some conclusive proofs of this dangerous facul- ty — a faculty of which the writer of these lines has been the victim, as in the broad light of the jury box he could, and will if necessary, plead and prove. Crimes and criminal accusations aire in Quebec invariably tried by Jury ; but oa the the civil cide of the Court that form of trial is the exception not the rule. Now in the presence cf an intel- ligent jury the most truculent and drunken Judge dare not directly misre present any fact. As every Juror hears the evidence at the same time with the Judge, the Jury operate as a check upon the judge. He could not, therefore misrepresent undetected, and he would be restrained by the conviction that he couid not. But evidence taken by the ordinary course of Enquete may require as in this case, months or years. It is seldom taken in the pre- sence of an audience nor is any one interested in taking notesor even in remembering the language of the witnesses. Then when the Judge himself in his private apartn^ent deals with the testimony, he may put upon it, or aflfect to put upon it, any interpretation that he pleases. He may aflect to believe a witness evidently utterly devoid of intel- ligence and even of principle, or he may pretend to doubt one remarkable for both. He may supply or omit a negative or an affirmative at pleasure, and give to the words of parole 6 or written evidence any signification that he may choose or desire. Should he be accused or even detected, he would plead error in judgment which, whatever wrong lie had done, whatever ruin he had wrought, would cover all short- comings. Consequently, good habits, probity, impartiality, and moral courage, are qualities much more, infinitely more desirable and necessary in the Judges of the Province of Quebec, than in Judges of any part of England or Ireland or of Enghsh. America. Drunkenness, it is plain, is an absolute disqualification, nor could the kindred of a Judge found drunk upon the bench, jusUy complain were he hanged outright upon the nearest tree.* But for obvious reasons, that sobriety, that probity, that im- partiality and moral courage, are more desirable, more neces- sary to the minority in the state, wherever there exists a minority, than to the majority. Now, in this j)rovince, owing to the exisistence of two nationalities, two languages, and (lumping all the Protestant denominations) of two religions, the minority may be exposed to evils by which the majority can never be threatened. The minority, the exponents of whose opinions speak and print in a language not understood by the other class, are not only thus unable to disseminate their opinions among the majority, but are exposed to every descrip- tion of detraction and misrepresentation. Not only the mino- rity has no lever, but the leaders of the majority, the priests, possess the most powerful levers. One of these levers is the V ♦ No power on earth can compel a freeman — or indeed any man — to respect what i3 not respectable. As I can't respect, and will not respect, the Bench on which a drunkard may be sitting, so I can't be expected to respect the laws of a country in which no judge can be brought to trial and punishment for any possible crime that he can commit. It is to the despair incident to that fatal omission in the law, that the recommend- ation in the text is due. Intending to bring about results, I shall put a case — institute a com- parison between a drunken or bad judge on the one hand, and a high- wayman or pickpocket on the other. The latter may rob you, it is true ; but they can only take what you have about you — your watch — or the money on your person. They can't take your farm or your house, or your bank-stock ; but a bad judge can do all that. Then, as against the highwayman or pickpocket you can defend yourself with your fists, your club, or your revolver — your manhood enables you to contend against them. But how can you defend yourself against a bad judge ? Then, as against the highwayman or pickpocket you have the hue and cry, the police, the constabulary ; but you can't bring a bad judge before any tribuoal whatever. Act as he may, you can't do that. I've tried it. ecclesiastical right to absolve for perjury. Of this power it is enough for the present, to say that the contemplation of its existence, of the possibility of its use on all occasions, of the pro- bability, if not the certainty, of its exercise on certain occasions, must occupy the judicial mind cngaj^edin weighing evidence. Among the Protestants, this power is unknown, and Protes- tants are necessarily, were it only from their resistance to this clerical pretention, excluded from those sympathies which grow up in countries inhabited by a honiogeneous pop- ulation, and which enable men, on fitting occasions, by com- bining, to resist oppression. What interest, it may be asked, can Roman Catholics of the French race, take in protecting from oppression, an English Protestant ? Secure in their parUamentary majority, they may impL^'lch and punish, but the minority can only hope for justice, which is the best part of freedom from the independent, vigorous action of the Judi- cial Bench. Should the membera of a court (of any court) be hostile to an individual, as, for instance, to the writer of these lines, should they substitute their mere will for the law, as certain judges have done, he must suffer, but he will not suffer alone, for judgments become precedents which may be cited to the prejudice of multitudes. In this view of the case, society at large may be interested in the events which are hereinafter related, but the minority is doubly interested in facilitating the exposure of bad Judges, and in contribut- ing to the estabhshment of checks upon all Judges. It seems then to be undeniable that, as those who are des- titute of parliamentary influence, are the most exposed to judicial oppression, so they are the least likely to obtain re- dress. But when, in the assured progress of events, all the administrators of the law, from the Deputy Sheriffs, who sum- mons the jurors selected hy their principal^ to the Chief Jus- tice, who may charge and impel them in any direction, at his pleasure, are, as they certainly will be, members of the ma- jority, what will be the chance of the suitor or counsel, wha may belong to the minority ? Even now, counsel are oc- casionally selected, not because of their capacity or informa- tion, but because they are agreeable to the Court, and parties involved m litigation have not disdained to propitiate the summoning officer. In a community so divided, the influence of that official may be sufficient under cover of a regard for \ religion or a lovo of country, to create in the minds of wit- nesses and jurors, (who may all calculate on absolution), a dangerous bias. . . remedy for such evils can only bo found in the excellence of the judges; but those in whom the appointments are vested, are evidently unmoved by the desire to ensure the purity of the administration of justice. Recently, what is called a political necessity, occurred. A man of intellectually low degree, a member of the cabinet, haviflg lost his election, felt that common justice required that he should be provided with P; seat in pariiament at the public expense. lie accordingly proposed to a well known member of the bar, the resignation of his seat in the senate in exchange for a judgeship. They were both, of course, mem- bers of tiie majority, and here there was no question of fitness, no desire to secure a good judge. It was a mere bargain. So true is this statement, that the Cabinet Mhiister having, of course, sufficient influence to raise another man, a member of the Commons, to the Legislative Council, thus created the desired vacancy, and the embryo judge became an abortion. Had it been otherwise, the nomination would certainly have taken place, quite irrespective of the public interest. Now it would seem to be scarcely necessary to import, all the way from Ireland, a very big man, at a salary of $50,000, and pickings for relatives and dependants, merely to sanction such iobs, such desecration of what was once extolled as the Royal Prerogative.* • To indulge in any hope of success, it behoves me, in the first place, to neutralize those prepossessions, and to disarm those prejudices which necessarily flow from the respect in which the judges in Upper Canada are justly held. I would accordingly submit that no two classes can diflFer more widely, with some exceptions, than the judges of Lower Canada do from the judges of the Upper Section of the Province. That I may not appear to stand alone in this opinion, I would here cite that of an eminent judi- cial character, held in profound veneration in a neighbouring province. In reference to this subject, Judge Haliburton uses the folio, jg lan- guage : — " The present practice in Canada is, beyond compari on, the " worst that can be found in any country. A seat on the Bench is now " a political prize, and the dominant party claims it for partizans. None " of those high qualifications so essential to the efficient and respectable " discharge of judicial functions, neither talent, learning, nor integrity, " are recommendations equal to political services." In relation to what he calls " the mode of appointment which imperial folly, ignorance, or negli- «< gence, has permitted the politicians of Canada to adopt ; he writes noth- Bui, it may i>e said in future nominations, a due regard will always be shown to the minority. Should this improbability take place, the candidates will be selected from the class of hypocrites, dastards, and snobs, who have, in all ages, been found crouched at the feet of po$ver ready to propitiate it. Some judges may be take i from the ranks of the minority, but they will be selected with a view to prove the moral and intellectual inferiority of the class. Instruments will be chonen ready to carry out the favorite pi.'0Jects of the majori- ty, a policy in which the dominant ra'ce are so clearly inter- ested, that thoy cannot fail to adopt it. As has been noted, members belonging to the minority can expect little sympathy, and even when invited to give some account of th« causes of hi? difficulties and his long suffer- t 1 " iiig can be so ruinous, either to the respectability of the Bar or to the " efficiency of the Bench, as to make a scat on the latter dependant on " violent partizan conduct or coarse popularity, instead of eminence in •' the profession." To Lower Canada, inhabited as it is by two disiinct races professing diflFersnt creeds, the foiegoing remarks must be admitted to apply with peculiar force. Were either race to be convinced that the other was prefsrred, were the lawyers elevated to the judgment seat to be selected from one race, the other would assuredly feel alarmed, and some social convulsion might be expected to follow : nor would any ad- mixtiire of apostates from the other class lessen the evil. Justice is, however, the first interest of man. In the arrangement for its adminis- tration, it is much more easy to obviate than to repair evil, and the best guarantee that the community can have, is the rectitude of the judge. In the event of any measure unfavorably affecting commerce, Bc:rds of Trade in various localities would be ready to represent the evil in all its magnitude ; were the medical faculty, or the legal profession, but moaaced, corporate bodies charged with their interests would make the whole land vocal with their cries; were the Church concerned, touch but a single brick of the sacred edifice, and Right Reverend Prelates, attended by docile laymen, priests and choristers, without number, would rise to imprecme eternal curses upon the authors of so much impiety. Public sympathy extends its protection even to the very vilest criminals arraigned for felonies punishable with death : but who is there to repre. Bent the woes of the unfortunate . uitor ruined by judicial misconduct? Among til.' victims of judicial corruption there is, there can be, no bond of union. Each engrossed .jy the sense of his own wrongs and by the sor'-ows of his family, absorbed in the contemplation of the misery entailed on his helpless children, feeis th".t he owes too much t . them to take any interest in the fate of his fellow-sufferers. Accordingly al) those wretched fathers, and not a few no less wretched mothers, con- cealing their tears, weep in private in holes and corners, as rate die. The appointment of Monsieur Boss6, deprecated in the text, having taken place, the above written reflections may not be considered alto- gether inopportune. H :/.•-■ ing, the writer has found that he merely excited merriment. Some people indeed, like the editor of the Chronicle, affected to wonder that he should so long and so tenaciously have de- fended his property, the birthright of his children. But such wrong as by means of the abuse of the law he has endured, may be inflicted on others. He ventures to add that, had he been obliged to depend on professional assistance during upwards of fifteen years of litigation, he must have been ruined. It is this consideration — this conviction tJiat his Huffcrinys may be beneficial to others, which has compelled him to ap- pear over his own name in print. . ,- Let there be no mistake, Mr. William Brown ivas the Plaintiff. He brought his first suit on the SOth of Octo- ber, 1852. He, Brown, the plaintiff, represented " that he and the " defendant (Gugv) were neighbors separated by the River " Beauport. He alleged that he was proprietor in possession " of a mill on the South West Bank, and that the defendant " Gugy held the' Domaine Farm on tlie opposite or North " East Bpnk. " The plaintiff Brown, coipplained of the building, by the " defendant, on the said north east bank, in the course of the summer of that year (1852) of a wharf wl.vich " nearly tra- versed the whole of the River Beauport," which wharf " materially altered the natural course of the said river, " v;hich narrowed the channel — which prevented the waters ^' of the said river from running down the natural channel, " and confined the channel to so small a breadth that, when- *' ever the river became high, the waters receded and were " thrown back upon the mill, so that the mill could not be "turned or worked." On the day of the return, (12th of November, 1852,) Messieurs Holt and Irvine appeared as attorneys for the defendant. Owing to subsequent events this appearance of those two should be noted. Met;sieurs Holt and Irvine, having so appeared, pleaded as follows (( (( attorneyi 1st. That the wharf so built by the defendant " did not traverse or project into the river," but jvas " situated \\ holly upon his own property." 10 li! i if in 2nd. That the plaintiflF himself having previously " erected " a pier or wharf upon his, (the plaintiff's) side of the river, " -which -wharf extended into the river to a great distance, " and forced the waters against the land of the defendant, " it became necessary for the defendant to erect the wharf "which he so built, /or his own protection."" 8rd. That if the current or channel of the river, " had " been changed in any way to the prejudice of the plaintiff, " that such change and prejudice had been caused by the " plaintiff himself and not by the defendant." Such were the questions submitted for the decision of the Court. The action was pending in the Superior Court seven years and three months, and on the 1st February, 1860, it was dis- missed. But on the 27th of September, 1854, Messieurs Andrews and Campbell had been substituted to Messrs. Holt and Irvine, as attorneys for defendant. And on the 8th of May, 1856, Mr. T. R. Smith had been substituted to Messrs. Andrews and Campliell, as attorney for defendant. The defendant thus had been represented in the ccuse by five different attorneys — a fact which should be remembered. The plaintiff produced twenty-five witnesses— the defen- dant thirty-nine. But the Court not being satisfied, prepared certain questions and referred them to three experts. Messieurs Baillarge, Wal- lace and Stavely. These experts required evidence, and be- fore them the plaintiff produced nineteen witnesses — the de- fendant six. Thus the record contains eighty-nine depositions. The parties also filed a nearly equally ponderous mass of documentary evidence. No abridgement which could be made would be sufficiently succinct to ensure the attention of the general reader, but two fp'jts may be cited at a venture. The defendan.. resided during seventeen years entirely in Montreal. His farm at Beauport, was in the hands of ser- vants. They were not all perhaps equally indifferent or un- observant, but it was only after a considerable interval, that the defendant was informed that the plaintiff Brown , having 11 acquired the above described mill, had in the year eighteen hundred and fifty (during the absence of the defendant) built a wharf on his side, (on the South West side) of the river. The defendant Gugy might no doubt have brought his action for the removal of the wharf so built by his neighbor, but fearing the law's proverbial delay, and having no confi- dence in the judiciary, he decided on building for his protec- tion entirely, and did build two years afterwards a defen- sive wharf. Of this defensive, this protective wharf, the plaintifi" Brown complaijied immediately. The late John Racey, Esquire, grandfather of the present Dr. Racey, who had lived thirty years at Beauport, twelve of them on the very spot, (a witness produced by the plaintiff" Brown himself) declared on oath, the wharf so built in 1850, by *h.e plaintiff" Brown, to be " an encroachment on the River " Beauport, of about twelve or fifteen feet." ; To compress this statement within readable bounds, the defendant will restrict himself to one other citation from the evidence. Etienne Langevin, deposes : TEXT. TRANSLATION. " J'ai connaissance que dans I'^t^ " de 1850, le dcmandeur a fa'.t faire " un quai de son cdt6 de la riviere " Beauport, c'est-a-dire du cote Sud " Quest. C'est moi qui ai commen- " c6 le quai avec fitienne B^dard " et Chamberland." " Le courant de la riviere passait " dans la place ou nous avons bati " le quai, de sorte que le quai a 6t6 " btlti dans le chenail de la riviere. " Au meilleur de ma connaissance, " le quai empiete sur le chenail de "la riviere, environ de douze a " quinze pieds. Dans le milieu il " y a plus d'empi^tation qu'ailleurs " parceque le quai fait un rond. " L'eflFet de ce quai n'est pas bon " pour le d^fendeu.', car ce quai " envoie I'eau de la riviere sur la " propri^t4 du d^fendeur. " Je suia positif a dire que ce quai "est plus au nord-est, c'est-a-dire I know that in the summer of 1850, the plaintiff (Brown), caused a wharf to be made on his side of t^e River Beauport, that is on the South West side. It was I who be ■ gan that wharf with Etienne Bedard and Jean Chamberland. The current of the water flowed on the place where we built that wherf, so that the wharf was built i". the channel of the river. To the best of my knowledge the wharf enroaches upon the channel of the river from abo' * twelve to fifteen feet. In the centre there is more enroachment than elsewhere, be- cause the wharf bulges out. The ef- fect of this wharf is not good for the defendant, because that wharf di- rects the water of the river against the property of the defendant. I positively say that this wharf is more to the north east, that is to 12 say, more towards the side of the defendant than the channel of the river was before the building of that wharf. While building this wharf, I re- marked that it encroached upon the channel of the river. I then had occasion to see the plaintiflf. He came every day to see us making the wharf; it was he himself who directed us. On commencing the wharf, that is to say, while laying the lowest floats, I spoke upon the 8ubject»to the plaintiff. I said to him, Mr. Brown, we are a little to the north east of the river, and there- upon, he answered, I do this to drive away the water. He directed me to take some boulders which were in the river, and to put them into the wharf to drive the water over to the side of the defendant. By thus driving the water over to the side of the defendant, the plaintiff retaoved the channel of the river farther awayfrom his, (the plaintiff's) property. By thus removing the ■ft ater from his property, and driv- ing it to the side of the defendant, the plaintiff caused the land of the defendant to be eaten away. I also remarked that large stones were piled along this wharf, on the out- side of it, and also behind the stone store, which had tlie effect of driv- ing away the water still more over against the side of the defendant. When I said that we had filled the wharf built by the plaintiff in 1850, I mean to speak of " stones." We filled it with stones which Ls. Grenier, carter of Beauport, carted. The foregoing words, recorded as they fell from the mouth of the witness, justify a few lines of explanation. That the plaintiff Brown did encroach by the building of that wharf, would seem to follow from the words : " We filled it with stones." The same Mr. Racey adds, " I positively state that the wood work (of that wharf) was filled with stones and rubbish, part of which was taken off my property." Now, had the wharf been built close to the bank, no filling in no stones or rubbish would have become necepsaiy, but such a " plus du c6t6 du d^fendeur que " n'^tait le chenail de la riviere " avant que ce quai fut bati. " En ba.tis3ant ce quai j'ai remar. " qu6 qu'il entrait sur le chenal de " la riviere. J'ai eu occasion de " voir le demandeur alors. II venait " nous voir tous les jours, c'dtait " lui-meme qui nous conduistut. Au " commencement de la batisse de " ce quai, c'est-a-dire eu pla^ant " les plus basses des flottes, j'en ai " parl6 au demandenr. Je lui ai " dit, M. Browa, nous sorames un "pen au nord-est de la riviere, et " la-dessu?, dit-il, je fais 9a pour •' chasser I'eau. II me dit de pren- " dre des cailloux qu'il y avait dans " la rivi6re et de les mettre dans le " quai pour ch:. TEXT. - ^' Notre jugement reconnalt que " M, Gugy a droit a des honor aires " en Cour de premiire instance, car " Id il a comparu par un autre avocat " et procureur, mais il lui refuse " des honoraires dans cette Cour, " parce qu'ici, ayant comparu lui- " meme, il n'a comparu et n'a pu " comparaitre que comme partie. " Le jugement est r^dig6 de ma- " niere a etablir une regie qui puisae " s'appliquer d tous les cas, que la " partie a un proces ait agi elle- " raeoie dans une partie de ce proces " ou qu'elle ait api par avocat ou " procureur dans une autre partie. Le jugement est comme suit : i . * TRANSLATION, r -v ^ Our judgment acknowledges that Mr. Gugy is entitled to fees in the Court of first instance, because in that Court he appeared by another advocate and attorney, but it refuses fees in this Court, because here hav- ing appeared in person, he has ap- peared and could only appear as a party. The judgment is so worded as to establish a rule which may be applicable to every case, whether a party to a suit has appeared in per- son ic a part of the suit, or has ap- peared by attorney in another part. The judgment is as follows : " Seeing that in the judgment of dismissal of the action of " the appellant, in the Court below, with costs, from which " the present appeal hath been brought, there is no error, it " is considered and adjudged by the Court, now here, that " the same, to wit, the judgment rendered in the Superior " Court sitting at Quebec, on the first day of February, one " thousand eight hundred and sixty, be, and the same hereby " is, affirmed with costs in both Courts ; m the taxing whereof " no attorney's or other fees, upon any of the proceedings or '* hearings had in either Court, shall he allowed to the res- ^^ pondent hy reason of his being a practising attorney, and " of his having personally conducted his own defence.^' * „ The reasoning of the Chief Justice and the text of tfie judgment comprehend two propositions. The merits of the controversy between the parties which had been decided by the Court of first instance is the first of these propositions. * The italics not to be found in the originals have been resorted to for the purpose of directing the attention of the reader to the contradictory affirmations contained in the documents above cited. 15 The judgment dismissing the action of the plaintiff Brown is confirmed. He failed in the first court, be fails in the second. It must be admitted too, that this question had been regularly submitted in due course of law. The appellant Brown had been heard in support of his appeal according to the practice of the Court. The other proposition that the respondent was not entitled to fees, did not, ii^ost certainly did not originate with the Bar — it had not been — it was not raised — it was not even men tioned by the Counsel of Brown, the plaintiff and appellant. This is a question which the Court submitted to itself, or which some Judge of the Court submitted to the Court. As all lawyers know judges are prohibited from supplying ex- ceptions, and as the conclusion — the claim for costs (includ- ing fees) formed part of the very first document filed by the respondent Gugy, upon the institution of the appeal by Brown, it was naturally to be inferred that the appellant JBrown acquiesed, or at least that he did not object to the claim to fees. He had time and opportunity to object, and being represented by three Counsel, the two Messieurs Pentland and Mr. Boss^, it is not too much to say, that the personal, spontaneous, ex mero motu interposition of the Court, or of any member of the Court, was not called for. Such an interposition on the part of a Court or of any one of its mem- bers, always savors of a preconceived opinion, of a foregone conclusion. The Court should at least have allowed the res- pondent Gugy an opportunity to defend himself, and it should have assigned a day for hearing him. The Court omitted this part of the ordinary programme, for it condemned the attorney to lose his fee without hearing him. The Court too, violated a rule as old as civilized Society, foi il went out of its way to know a party to a law suit. In every statue, every representation of justice, a bandage over the eyes originally conceived by classic taste, indicates that judges — honest judges are not to know — are absolutely to ignore parties. The decision of every question is to be governed by the fact and the law, irrespective of the rank or quality, of the wealth or poverty, of the power or weakness of either of the parties. That's the rule. Now every part of the record which was filed by the respondent was subscribed A. Gugy, Attorney for respondent, and it surely did' not follow that 16 |ii. 9 Ui\ \ the respondent and the attoruey were one and the same person. But as the Court dealt with the subject unfairly in matter of form, so it decided illegally, decided contrary to law. llie Judicial Committee of the Privy Council, Her Majesty the Queen in Council, has since judicially formally declared that the attorney who brings an action in his own name is entitled to fees. To speculate upon probabilities would extend this report too far. Either the three judges, Lafontaine, Aylwin and Duval, knew what the law was or they did not. They have no enviable choice of alternatives.* llefeiring now to the reasoning of the Chief Justice, the reader will remark at page 407, an admission that in the Court of first instance, that is, the Superior Court, the de- fendant Gugy had been represented by another Advocate — the words are " un autre Avocat et procureur.^' As the Chief Justice, although he mistook the law, evidently meant to be honest, he need not be reproached for misapprehending the fact — that the defendant had been represented by five differ- ent attorneys. But the respondent complains that the Chief Justice allowed a judgment to be entered, and actually concurred in a judgment which in terms pronounced the very reverse of what he stated. The judgment in which he concurred donied to the attorney fees in both courts, on the ground " of iiis having personally conducted his own defence." But this is not all. The Chief Justice uses these words : " Our judgment acknowledges that Mr. Gugy is entitled to " fees in the Court of first instance, because in that Court he " appeared by another advocate and attorney." Now the judgment in question does no such thing, but it, on the con- trary, contradicts the Chief Justice flatly. Did he ever read the judgment ? Do honorable judges deal in that free and easy way with judicial proceedings ? If he believed what he wrote, who introduced in the judgment the words " na " attorney's or other fees upon any of the proceedings had in " either Court ?" Who gave the lie to the Chief Justice and committed a forgery in a legal document of such high au- thority as a judgment ? In open Court, seated between the two above named yi>. • See Vol. 17, L. 0. R. page 33, and Appendix 0. 17 )> Judges, Chief Justice Lafontaino stated plainly and distinctly that they both concurred in his judgment. That judgment rested, as he declared, upon the fact that 3Ir. Gugy liad been represented in the Court of first instance by anothe.r advocate or attorney ! A? those two other judges had cho- sen of their own accord to raise the question of the right to fees of an attorney who conducttd his own defence, they were bound to enquire, to ascertain whether the defendant had appeared in person or by attorney. Had they enquired they would have ascertained that the Chief Justice was right, and that the defendant had not conducted his own defence in the Court of first instance, but had, in fact, been rej;re- sented by five attorneys. Those judges, it would seem, found it more easy to decide the question than to verify the fact upon which it rested, and accordingl" the; agreed upon the judgment herein above cited. Hence, as has been seen, fees are denied to the defendant in both Courts, upon the unfounded pretext that he had, in both Courts, conducted his own defence. Presuming that Cliief Justice Lafoiitaine spoke the truth, the undersigned has a right to enquire and to know when these two judges retracted — why, that is, with Avhat design — for what purpose they changed the nature, the words, the sense of the judgment, and by what arguments, by what persuasion they imposed upon the Chief Justice so far as to induce him to concur in a judgment based upon a statement which he knew to be false. But if the Chief Justice did not so stultify himself as to sanction a judgment affirming and deciding precisely the reverse of what he had officially and publicly declared from the bench, that his judgment did acknowledge, affirm and decide, how, and by whose orders was it published, entered and recorded as it appears in the Lower Canada reports, page 408 of the eleventh volume ? Admitting, hypothetically, the criminality of the exercise of the right of self-defence — granting that it behoved two men of the moral status, of the fastidiously delicate morai sense of Messieurs Jean Francois and Ayhvin to decree and inflict an instantaneous punishment commensurate with the enormity of the oifence, it does not follow that these most worthy custodes morum could in their zeal justly base their two decrees upon "two distinct falsehoods. Judges have been B 18 seen drunk on the judicial bench in the Court of Appeal, the supreme criminal and civil Court of Lower Canada ; but it does not appear that on the above-mentioned occasions the two judges in question could take shelter under that conge- nial excuse. '' At this point, then, this narrative, begun in the third person, must be continued in the first, and I, Gugy, who write these lines as a warning to other judges, and in the interest of my posterity, hereby tell those two judges that in both those judgments of which they have assumed the pater- , nity they have lied ! And if the British flag be not a mere bit of bunting, idly flaunting in the breeze, but the real emblem of liberty, of free institutions administered in an Enghsh spirit, those two judges must be hurled from the bench. Let those who dread the advancing tide of annexation look to it ! As a man of action, and somewhat of a horseman, at much sacrifice and amid many perils, I certainly have labored to preserve British connexion. But what have I now to fear from Yankees or from Fenians ? They can't use me worse . than the trusted functionaries of an English monarch have done. ■'■ .;.'■■: ■■"'■■-r--' ■'■'• ■-■.- •.-^,. v.-, -,,,,.. ...,-;^^.. . No intelligent reader can fail to observe that the two functionaries Avhom I thus deliberately and intentionally brand, performed the three several parts of accusers, of wit- nesses and judges. It might also be asked why they were allowed to record falsehoods without contradiction or pro- test ? But they had, and have still the power to fine and imprison fur any real or imaginary offence against their dig- nity committed in open Court, a risk to which no man is bou:id to expose himself. And they calculated on the silence of their victim, for they knew the terror which they inspired. But they forgot that men will occasionally borrow courage from despair, and that having done me all the injury in their powei, I have . now, in my 72nd year, the less cause to fear them. It is ' thus, then, that in the above-mentioned and other causes, they deprived me of some thousands of dollars, thereby . necessarily offering great encouragement to my oppressor. Now, costs are intended to operate somewhat as a compen- sation to the successful party, and somewhat to the discour- 10 :agcmcnt of unjust litigants. In these causes the plaintiff Brown, however, vvas much clioerecl and encouraged, for he got law cheap, and though he tailed, he has worried mo for upwards of fifteen years. And I, his victim, suffered be- cause I was able to defend mjself ; when, had I employed other attorneys, the expense must have wrought my ruin, a FRIGHTFUL PREDICAMENT. ..;.,., But the same question presented itself in another cause, in Avhich one John Ferguson, a miller, had been plaintiff" in the Superior Court against the same defendant. This Ferguson had been examined in the first mencioned cause as a witness on beha'f of the plaintiif Brown, Ferguson's employer. During his examination circumstances occurred which had induced him to bring an action for defamation — for being, as he alleged, charged with the commission of perjunj by the defendant Gugy. Upon this appeal Ferguson failed, and was condemned to pay costs. But hero again, as in the former case, the judgment contained the following words :— " in the taxing whereof no attorney's or other fees upon any •of the proceedings or hearings had in either Court, shall be xillowed to the appellant by reason of his being a practising . attorney, and of his having personally conducted his own defence." See vol. xi, L. C. Reports, p. 420. In this case the snuff'^aking, somnolent Chief Justice does not appear to have made any remarks. Never- theless, the words " personally conducted his own defence," can only apply to the Superior Court, to the Court below, or Court of first instance. Now the record, open to the inspec- tion of all the world, can, and upon reference thereto will prove that in this last, as well as in the first mentioned case, the defendant Gugy appeared not personally but by attorney. Here again — hap what may — I brand the two same Judges as intentional liars. ' Thus far I have dealt with the fact alone. The decisions depriving me of fees were, however, supported by no law. In addition, therefore, to the foregoing imputations on their veracity, of which every man, in a free country, has a right to judge and speak, I now charge those two Judges with profound ignorance of the law upon the question which they so summarily decided. When the first of the above mentioned judgments was pronounced, and the appellant Brown had appealed on tho ineiits to Her Majesty the Queen in Privy Council, I was desirous of instituting a cross-appeal from that part of tho judgment which denied me fees. But Brown had then sued me several times — he was known to have become my creditor — his servant, Ferguson, had also been induced to sue me — my goods and chattels were all under seizure, and desperate attempts were made to sell them. Brown's wealth Avas known to be immense, and his hate implacable, and I had incurred that hate by pertinaciously resisting his attempts to deprive me of my property ! But, above all, two of the Judges of the Supreme Court were evidently unfavorable to me. Discouraged by the unpromising aspect of my affairs, all the friends upon whom I had any claims refused to be- come my sureties, and even advised me to submit. Yielding to necessity, I crossed the Atlantic six times, and at lengthy , when the hearing of the cause could no longer be deferred, having the good fortune to appear in person before the Judi- cial Committee, argued my cause, and won it. It was so argued on the merits alone, and as there was na cross-appeal, the question of the denial of fees was not mooted, but as the sequel will prove it was eventually de- cided in another cause. :..;:> '< Editors of newspapers, who have refused to give publicity to my complaints, have led me to believe that lawyers can't justly expect any public sympathy. Admitting that there may be cause for the exhibition of indifference to the suffer- ings of one of the class— the public may be expected to feel for itself. JNIy claim to fees was as well founded in right and justice, as the claim of the baker for bread furnished to a family. If the judges can be so independent of public opinion as to break the lav/ by denying, on false pretences, the claim of a lawyer, they may hereafter ignore the baker's bill, or the grocer's, or the butcher's, for they all rest upon *lie same principle. Then it ought to be remembered that it )ot as a lawyer, but as the proprietor of real estate, that . was thus entangled in litigation ; and, in fact, that I have jeen for upwards of fifteen years, standing sentry, as it were, on my property. The judgment of which I complain, in- volves the admission that had I been defended by any other, that other would have been paid. He might, or he might iii >» m- 21 Slot, according; to tho impression produced at the moment on the judicial mind. But A, B, or C, who feel that they may have a lawsuit, and, if successful, would naturally desire that their professional defender should be paid by their adversary, may well pray that the decision of so important an incident as the costs of the action, should be put out of the reach of judicial caprice. Purse-pride may sneer at the enunciation of a proposition, in which the rich may take, or affect to take, little or no interest, but to the poor it is a vital (question, A man — a family in humble life exposed to oppression — would frequently be unable to find a defender, were it not that that defender could justly hope for remuneration out of the pocket of the rich wrong-doer. If, however, the judges have tho power to break tiie law— as they have done in my casu — where, unless it should please God to bless these my humble efforts -where is the limit to that power ? But if all lawyers are expected to be and remain more servile sneaks, and all judges to bo arrogant irresponsibles, there can be no limit to that power. Nor can the most successful suitor be certain that all his disbursements will, under the most favorable circumstances, le refunded. Thei'e are always, or at least there generally are, what the French call " faux frais,'' costs taxable against the successful party. For example, his attorney by mis- taking one date or document for another, assumes an unten- able position, and is obliged to amend. Mistakes will occur, but the adversary, however unjust his original proceeding in bringing the suit may have been, is not bound to pay the costs incident to such mistakes. On the contrary, he has a claim to costs on the incident, and though the eventual decision on the merits should be unfavorable to him, his attorney can exact the costj on the amendment, and the suc- cessful suitor must pay them. Or witnesses may be pro- duced, or plans, deeds, or other documents may be filed, which, after the event, a judge who took no part in the de- cision of the suit, may consider superfluous or unnecessary,, and on that ground, tax the costs thereof, not against the wrong-doer, but on the injured party, the successful litigant. It will be found that in this way I have lost many hundreds of dollars. Then disbursements are unavoidable. Suitors mast pay for copies of documents — must satisfy the prothonotary, m III i! |l ■: i m w .■t sheriff, bailiffs, and the amount allowed to Avitnesses— fre- quently, as in the cases in question, a considciable sum. The case may last sixteen years, and the disbursements, ac- cording to the legal rate of interest, be doubled. But, although I hold and feel that the law justifies a claim for interest on costs, I have tried it, and found the Court against me— on what grounds I was not informed and can't guess. The public then, if it hap 'jes to see and ears to hear, must perceive that it has an . .terest, or at least that thousands Lave an interest in the immediate adoption of remedial mea- sures for the removal of the evils thus brought under its notice. A celebrated moralist has, in immortal verse, enquired — ''What can ennoble knaves, or fools, or cowards ?" ■ Si^: and necessarily answered the question in the negative. This quotation has been suggested by a port of idolatry which is as extravagan- aS it is pernicious. People who are not con- fined in lunatic asylums are to be met with in multitudes who absolutely worship a bit of sheepskin twelve inches by nine. It is called parchment, it is true, and it is also true that it is used for the purpose of writing the com- missions of the Judfros. Take the meanest wretch whom wealth and whiskey have enabled to purchase a seat in the Legislature— an habitual drunkard — or an h ibitual liar— let his name be but inserted in the blank left on such a bit of sheep- skin and high cocolorum, he becomes an object of veneration. He is absolutely worshipped — and the bit of sheepskin proves to be. possessed of a powor denied to all the blood of all the Howards. This idolatry, this reverence for what is figuratively termed *' the Bench.'' will doubtless militate against me in my present effort to bring about some salutary cnange in the manner of naming the Judges, and to place their nomination, in the Province of Quebec, upon the ground of fitness alone. The first step in the cure of disease, is the assurance of its existence and some knowledge of its causef Hence it was necessary that I should give some account of the evils, to the existence of which I could bear testimony. Thus, then, 1 complain of the conduct of some of the Judges, of the grounds upon which persons have been selected to fi.l that office, and conscious of the difficulties by which I am surrounded, I have offer an explanatory extract from a peti- tion to the Legislature, which I never could induce a'ly mem- ber to present.* ^...v. / Wealth ensures many advantages, and the possession of more or less of power. In England, the appellant Brown was represented by che three eminent solicitors, Messrs. Pischoff, Cox, and Bompas. The Attorney-General, Sir Roundel Palmer, was his leading counsel. Counsellor Bompas the junior. Being too poor to obtain professional assistance, I filed a personal appearance, of which I now hold a certified copy. I also prepared my case in this country, and proposing to defend myself as best I could alone, I myself exchanged cases with the solicitors of my adversary. But a London solicitor, of his own accord, con- trived to substitute his appearance to mine : and as I could not inaugurate my appearance in the Royal Court by a dis- pute with one who called himself my solicitor, nor, if so dis- posed, had I the time, I was obliged to submit. That solicitor made a good thing of it, charging, £84 and being allowed, £Q1 6s. sterling for perusing eighty-four printed sheets ! But, although I had in person, arrayed in gown and wig, addressed the Court, the taxing officer allowed me no fees — no, not even a viaticum ; although I had crossed the ocean six times for the express purpose of arguing my case. The judgment was confirmed, as is herein above men- tioned, in March 1864. •■>>,. . The account of this first cause, which bore the number 533 and which then had been pending upwards of eleven years' must now bo interrupted to notice other but eimilar events. Quite confident of success, the plaintiff Brown, in January 1854 i brought a second writ against me for the same cause of action. The same stream, the same wharf, the same pre- tended damage formed the burthen of his second suit, which bore the number 183. In the first suit the plaintiff Brown demanded the demohtiuu of my Avharf ; in the second, c£500 damages, " without prejudice, however, to any right of " action which the plaintiff Brown might thereafter have « for future damages should the defendant (Gugy) continue (' to obstruct and impede the current of the said river by " contiuuing the said wharf," &c., &c., &c. • Yide note at page 7. 24 Thus it became necessary to plead to this secoud action — - to go over the same grourxd, to subpoena witnesses, to seek for them, bring them up, pay their respective taxations, to examine them, to cross-question those of the plaintiff, to pro- cure deeds, documents and plans, and eventually to argue the cause. - •> - :'^f; All this labor was performed, and on the first of February 1860, this second action of the plaintiff Brown was dismissed with costs. Being wealthy, and having the means to give security, bo appealed. - ; ^'•>■i■^■^'vr^'"i^'•••■■'-''^- - .t^m ' ^ iml Upon that appeal the respondent necessarily expended more money, prepared another factum, and once more sub- mitted his case, and once more the original judgment was affirmed, with costs. The respondent Gugy, however, was denied fees upon all the proceedings taken by himself pciv sonally . ' '-^^c •'•^^' ■ -'^''' ■'' , a -^^.r^v^ The judgment in appeal was pronounced on the 13th December, 1861; but (such is the influence of wealth) the appellant Brown on the 16th obtained leave to appeal to the Queen in Her Privy Council. It was not until the 17th March, 1862 — upwards of eight years after the institution of that second suit — that it was finally decided ; and it was so decided only by proving that he had not taken proceedings on the appeal to Her Majesty the Queen. But the reserve of the ri'i'irnixt;^iil^j,ii;:~m'- Nevertheless, the appellant Brown (blessed or cursed with immense wealth) a third time applied for and obtained leave to appeal to Her Majesty the Queen, in her Privy Council. Hence the contestation in this third suit could not be brought to a close until the respondent had proved to the satisfaction of the Court tLat the appellant Brown had not proceeded upon this last appeal, namely, upon the 12th March, 1864. This third cause had < then been pending upwards of eight years T!ie plaintiff Brown had now failed seven times — including one judgment pronounced by Her Majesty in Her Privy Coun- cil — dated in March, 1864. ? He wafl, however, " of his own opinion still," and on the 25th of May, of that very same year, that is, about two months after the date of the Queen's decision, the plaintiff Brown brought another action against the same defendant. It is scarcely credible, but true. The suit bears the number 681, and this time the cause and subject of the suit were pre- cisely the same as in the first action 533 — decided in England only two months before. Thore was, however, a pretended additional grievance, namely, that a part of wharf of the :•£*' tK/ defendant Gugy, had slipped. Two pleas were consequently filed : 1. That the slipping of the wharf was caused by the perse- yering efforts of the plaintiff Brown, in intentionally forcing the water against the defendant's property and thus wearing away his land. i^ . ''^u^^v t;;v Uf. 2. That the question raised by thi3 new suit had been ad- judicated upon and settled by previous judgments of the Courts in Canada and in England. This is the plea known to law- yers as Itea Judicata^ or cho8e jngee. Here again a painful task was imposed on the defendant, and he was compelled by documents, plans, and parole, as well as written evidence, to prove the identity of the causes of ac- tion set forth in the two suits. Accordingly he labored, and eventually the question was submitted for decision to Mr. Justice Stuart. Having heard the parties, on the 4th of February, 1865, he pronounced judgment dismissing the action of the plaintiff Brown. Here again, however, the defendant was made to feel the power of wealth, and the plaintiff Brown, who had retained Mr. Parkyn, a lawyer of great ability, brought this judgment for revision before a then recently constituted Court composed of three judges. This proceeding entailed on th»i defendant, who continued to conduct his owirdefence, considerable additional labor and anxiety. However, that Court, composed of Messrs. Justices Badgley, Stuart, and Taschereau, by a majority of two, reversed the previous judgment, and condemned the de- defendant Gugy to pay costs. This occurred on the 5th of April, 1865. The parties being thus directed to proceed de novo, the defendant re-commenced the task which he had already per- formed three times. Here, however, an incident, not abso- lutely unprecedented, but an incident worthy of record, oc- curred. Brown, the plaintiff, had specifically alleged that he had built in the year 1850, the wharf which compelled the defen- dant, acting in self defence, in 1852, to make another wharf on his own side. Examined, on oath, the plaintiff Brown had admitted that upon the spot, on which he had so built in 1850, there had not existed — there had not previously existed — any wharf. He, however, was always well suppUed with witness- es, and in the teeth of his own declaration, he produced four witnesses, two of whom swore that the wharf which he de- clared that he had so built, was " very, very old, and had been built by his predecessors." The two other witnesses described, with great circumstantiality, an old wharf, upon the line of which, they positively swore, that they had erected the new one. Against these two last a Grand Jury found true Bills for perjury — a just conclusion, but one entailing on me additional labor. Briefly alluding to this subject, merely to illustrate the diffi- culties of my position, and to prove the unavoidable anguish which I must have suffered. I proceed to state that on the 10th of October last, Mr. Justice Taschereau, before 27 "whom the merits had been argued during four days, finally dismissed this action. As I have said, it bears the number 681. Pausing for a moment to count the cost, I would note its progress. It lasted uipv, ' "ds of three years. It was first dis- missed, then maintained, then dismissed again. — Fact. On the first dismissal, a bill of costs to which I was entitled, ■was incurred, but owing to the judgment in revision, I lost . the amount. * On the Judgment in Revision, another bill of costs was in- curred. This time my adversary was entitled to it, and I was compelled to pay his bill losing mine. On the third judgment there Avas nominally another bill of costs. But it did not cover more than two-thirds of my claim, irrespective of the first above mentioned amount which I lost, of the second which I paid, and of the third which I could not recover. But the plaintiff Brown, had in the interval, bought up my debts, and upon one which he had acquired from the late Archibald Campbell, Esquire, notary, he obtained judgment, seized, and was about to sell. Here, however, he was foiled, and upon an opposition signed and conducted by myself, he was condemned to pay costs — including a fee of forty-six dollars. At his instance, the Prothonotary — citing the precedent of the Court of ' Appeal — that is, the decision herein above first mentioned, denied me that fee. But Mr. Justice Taschereau, to whom the question was submitted, reversed the decision of the Prothonotary, and allowed the fee. An opportunity for an appeal to the Court of Queen's Bench, whose opinion tvaa well known to be unfavorable to me, was thus ofiered and instantly availed of. Having no kind of respect for the majority of that Court, I expected from the first to be obliged to appeal to Her Majesty the Queen in Council, but I argued my case carefully, submitting many books, ancient and modern, of great authority. As was to be expected, those book& produced no effect, and Mr. Justice Taschereau's judgment was reversed. That reversal was the subject of a judgment altogether unique, a perfect gem in its way, containing so many proofs of the intellectual superiority of the Judges of the Supreme Court of the then 28 *,*' Province of Lower Canada, now Quebec, that it ought not, ' and will not, be withheld from an admiring community. Here follows an exact copy of that judgment, word for word, as it was written by his Honor the Honorable Judge Aylwin, and duly recorded. Province of Canada, Loiver Canada. yj: COURT OF QUEEN'S BENCH, mm'"'^ - ,' ■-.4 (appeal side.) Friday, the nineteenth day of December, One thousand eight hundred and sixty-two. ^it.. r ^ y ' .^.v ;.-,.-..,-., - present: • a; : ;, ■,,:,.«;- ] . The Honorable Mr. Justice Aylwin, <-v - ^ife, 4it >* Mr. Justice Meredith, '^^ryyrvz ',.., ^; '^ '** : ' Mr. Justice Mondelet, U ,;:y , ,.** , Mr. Justice Berthelot, Suppleant, " ' ,. ** ' Mr. Justice Badgley, ac? 7ioc. No. 89. ' ■' -■- -' WILLIAM BROWN, of the Parish of Beauport, in the Dis- trict of Quebec, Merchant, , Plaintiff in the Court below, ' 1 . x , i!,u 'i- , *. and ■" ^ L. . - . ^ BARTHOLOMEW CONRAD AUGUSTUS GUGY,ofthe said Parish of Beauport, Esquire, Advocate, Defendant in the Court below, ?, . * .;': and the said WILLIAM BROWN, o .i,t,- - . }iA and • '-i .ij '■; Apellant, the said BARTHOLOMEW CONRAD AUGUSTUS GUGY, opposant ajhi d'annuller, and the said Bartholomew Conrad Augustus Gugy, as such opposant, appellant, to the Superior Court, from the taxation of the costs of the sa d opposant in the said cause, by the Prothcnotary of the said Sup'^rior Court, had and made in the said cause, :■.,.,;■.'... ,-.,,• Respondent. ■V ,-sjyjj.tj - 28 « t i e he d dd u il " The Court of Our Lady the Queen, now here, having heard the parties by their Counsel, respectively, examined as well " the records and proceedings in the Court below as the rea- *' sons of appeal filed by the appellant, and answers thereto, *' and mature deliberation, on the whole, being had : Seeing " that, by law and practice, no fees can be allowed to Counsel " and Attornies, in cases in which they act as attornies of '* record in the cause, and that, therefore, there is error in the " judgment by which the respondent has been allowed costs *' in his favor: It is considered and adjudged that the said " judgment, to wit, that rendered by the Superior Court at " Quebec, on the second day of November, One thousand eight " hundred and sixty-one, be reversed, set aside, and annulled ; " and, proceeding to render the judgment which the Court be- " low ought to have rendered : It is considered and adjudged " that the bill of costs by which the sum of eleven pounds and " ten shillings currency be rejected, from the costs claimed by the said respondent ; and included in the opposition ; and " that the taxation of the Prothonotary be affirmed, with costs " to be borne by the respondent in favor of the said appel- " lant, as well in the Court below, as in the Court here, and, " lastly, it is ordered that the record be remitted, to the intent " that it may be done what to law and justice may appertain in *' the premises. Mr. Justice Mondelet dissenting, and the " Court, on motion of Messrs. Parkin & Pentland, grant them " distraction de depens in this cause." The very first proposition enunciated in the foregoing judgment is false, or it is nonsense, or both. If it could be true, " that no fees can be allowed to counsel or attorneys in cases in which they act as attorneys of record in the cause," on what occasions are fecR to be allowed ? Are fees to be allowed when they do not act as attorneys. But changing one preposition and one noun, I shall put a case which will go deep into the judicial pocket. Suppose that a majority of hilarious legislators should enact that " no salary .juld be allowed to judges in cases in which they act as judges of the cause," what a barbarous, cruel, and detestable statute that would be, judicially considered ! But men in humble life, men who saw wood, and remove snow, and feed pigs, and ■who, when attacked, plead their own causes, are fully as much entitled to the fruits of their labour as judges are to their salaries ; and sometimes a great deal more. so II That sny man with a common English education should have subscribed a document couched in such terms as this judgment, is impossible. It would seem to follow that neither Judges Meredith nor Badgely took the trouble to read a deci- sion not merely depriving me of a large sum to which I was justly entitled, but involving a principle affecting every mem- ber of the profession. Looking upon this sort of negligence or indifference as a proof of the perfunctory manner in which judicial functions are performed, I can't affect to conceal my regret and alarm. Judge Mondelet, ever sturdy and true, having openly dissented, is not obnoxious to censure, but the concurrence of Judge Meredith is a painful event. That estimable man and able judge had previously recorded an opinion, couched in lucid and convuicing language, sustaining my pretensions. He adhered to that opinion — but bowing to the authority or yielding to the persuasions of men very much his inferiors, or at least upon grounds evidently qiiite untenable, he acquiesced in a judgment which was contrary to his opinion. In the presence of the Lords Justices I took some pains to draw a distinction between him as a gentleman, as a s<.ber, hard working Judge, and the others — and I added what I must not now conceal, that to be a perfect Judge he has only to rely more upon his native worth — his sound judgment and happy instincts. Judge Badgely, being deaf, is utterly disqualified (on that ground alone) for the Judicial office, and I invite him openly (as hundreds do secretly) to retire forthwith. Here was a judgment condemning me to pay costs amount- ing to more than two hundred dollars upon the decision of a question involving only forty-six dollars. That, at least, was intelligible. Judge Taschereau had net allowed me costs upon the decision in my favor ; but whether the reader can or can not understand the whole of the' above written judgment, he can't fail to comprehend that extra particular care had been taken to emphasize the words expressive of my condemnation to pay the costs — in ALL the Courts. ■^. Two friends who had somewhat regained their composure, having become my sureties in Appeal, this last decision was eventually submitted for the consideration of the Judicial Committee of the Privy Council. On this occasion I crossed the Atlantic again twice, and argued, as on the former occa- 31 :>• .■ i • A Bion, my case in person. The Lords- Justices did not blame me for so defending myself, nor was the result for a moment doubtful. The judgment herein above carefully reproduced ' for the edification of those who have a taste for gibberish, " was of course reversed, and my right to fees affirmed. Thus, then, was an authoritative decision pronounced, which proved and proves that the Canadian judges above named, who denied me my fees in a case against myself, which I de- fended in person, were ignorant of the law. I take the most charitable view of their conduct : for if they knew the law - to be favorable to me, and from mere personal animosity, decided against me, they are great criminals. Many have been immured in the Penitentiary who deserved it less than those Judges would have done, could they have been actua- ted by mere personal hostility.* . w; 4; *• ! ?::i .. K By way of illustration, and adverting to the fact that the Judges of the Court of Queen's Bench are members of the highest court having criminal jurisdiction In the Province, it may be fairly assumed that they are aware of the existence of some diflference in the eye of the law between an attack and a defence, between an assault and a, parry, between aggression and repression. Now, to put an intelligible case, suppose that, without provocation, I knock down Smith (for I here re- frain from using the word Brown) and then prosecute Smith, . this prosecution, whether by the ministry of another, or con- ducted by myself, might justly be considered an aggravation of the offence. But suppose that Smith, as is proved on the Hrial, without any provocation, knocks me down and then prosecutes me, how can I be blamed for defending myself? If I avail myself of the ministry of another. Smith must be condemned to pay to that other a certain fee, fixed by the tariff. But if I charge no more than that fee so • Nevertheless, impelled by a love of truth, I must here admit, that on the 9th of November, 1854, a petition was presented to the Legis- lative Assembly, containing charges of misconduct aji^ainpt Judge Ayl- , win ; and on tbe 5th of April, 1861, another. I subscribed both, and in sight of the British flag, which then waved, as it does now, on the Cita- del, within five hundred yards of the House, both petiuons were con- temptuously overlooked. It seems to be thus proved, that for sufferings caused by judicial mis- conduct, the law affords no redress — does not, indeed, condescend to enquire — or even to listen to complaint. 32 fixed by the tariff, Smith has no interest in preferring another to me. lie was wrong from the first ; the Court holds that he is wrong. Being wrong, he deserves punishment for having broken the law ; and he who vindicates the law, is entitled, be he who he may, to the compensation fixed by the tariff". This is exactly my case ; and to pretend that being able to defend myself, I become guilty of a serious offence, to be visited by a heavy fine, because I don't employ another, is wicked nonsense and perversity — or possibly incipient imbe- cility. I com))lain because I suffer, and what with the fees denied me, and my eight sea voyages, that suffering amounts , to several thousands of dollars. Nevertheless, it is so natural to defend oneself when one can, that the very Judge who was most active in imposing upon me that tine — in subjecting me to that crushing loss — was recently seen to descend from the Bench of the Court of which he was and still is a member, to take his place at the Bar, and there, as an ordinary barrister, to sustain by oral argument, pretensions which, as a suitor, he had submitted to that Court — his own Court. v-^:^,'''^{^--,-'>\ir'i:;^:'/':^fh^-:'j^u' Vi.i*/- And, when he did so — in his own behalf— address thu judges of the Court of which he was a member, he had been — not the defendant, but the plaintiff" in the Lower Court, from whose judgment he had appealed. Under a standing rule of the Judicial Committee of the Privy Council, every Judge from whose decision an appeal has been instituted is bound to transmit to the Registrar of the Court a statement of his opinion — as he delivered it ill Court. The propriety of the rule ia manifest, and it must be evident that a correct opinion correctly expressed would have a sedative tendency, productive of a disposition to re- frain from appealing. The most furious of unsuccessful suitors would unavoidably ponder every opinion adverse to his pretentions. Eventually, however firm in his convictions, he would be compelled to admit, that some learning, some argument, could be brought to bear against him. This self-evident fact, and the expense attending every appeal to a transatlantic tribunal, would sooner or later lead to submission — at least as a choice of evils. But as a proposition may be sustained nearly as much by futility of the grounds of an attempted refutation, as by the 33 i -f force of the reasoning in its favor, such opinions as Judges in Appeal may have formed, should always be fully expounded for the guidance of the suitor. Judge Aylwin, and Judge Badgely, and Judge Berthelot, having omitted to perform this duty, were enjoined, or at least requested, through the Registrar of the Judicial Committee, to transmit their opinions. They complied so fp.r as to transmit printed books, to which it is unnecessary to refer. But Judge Berthelot, for reasons which he has not condescended to specify, did not take the trouble to state his views in his own words. He merely wrote at the end of Judge Badgely's book, " I concur in the foregoing opinion," or words to that affect. Judge Badgely must have been highly flattered by this comprehensive assent, but the Lords Justices were not so complimentary. At page 36 of the above cited 17 volume of Reports, their Lordships, having given an abridged account of Judge Badgely's reasons, will be found to have deliberately administered to Judge Aylwin and him, a salutary and well deserved rebuke. ^' But their lordships are constrained to observe ** that they cannot understand how these are good " reasons for disallowing to the attorney his fees *' for services performed in the courts as an atior- ^' NEY." Such are the very words. The rule by which all Judges are held to treat all other Judges with an appearance of respect, was not broken in this case without very cogent reasons. The Lords Justices must be presumed to have sufficient ability to distinguish between good reasons and bad reasons, and as they affirm that they can't understand the reasons assigned by Judge Badgely to be good reasons, their Lordships clearly indicate— if they don't in terms declare — that "those reasons" are bad reasons. Writing for laymen^ desirous of stimulating public opin- nion, anxious to dissipate the cowardice of the multitude, to urge them to overcome their fear of the Judges, to deal and to talk of those public servants exactly as they deserve, I shall now give a sample of Judge Badgely's opinion taken from the same 36th page. — Here, however, a prehminary 84 ii explanation may bo necessary. — When an attorney has Piic cessfully defended a poor man, or a man of whoso ability or disposition to pay him, the attorney entertains doubts, he has- recourse to a measure called distraction de dSpens. Ho thus obtains from the Court an order amounting to an assignment > to the attorney of the costs due to the successful suitor by •; his adversary, which costs, by that order or assignment, be- come vested in the attorney. This distraction or assignment, 90 vesting the right to the amount in the attorney, deprives the successful suitor of any claim that he might previously have had. The unsuccessful suitor must pay the amount not to the successful suitor, but to the attorney of the successful suiter. '" Bearing this process in mind, the reader will notice that at , the top of that 36th page, Judge Badgely is said "to rely on " the circumstance that in the case of an attorney appearing " for himself, the proceeding by way of distraction de depens would not be practicable because the occasion for it could " never arise." As I possess none of that kind of talent, which in the Pro- vince of Quebec is the peculiar attribute of the Judge, I can't understand how there should arise any cause for lament- ing the impracticability of the exercise of a power, for the ex- ercise of which there could never, by any possibility, arise an . occasion. To my feeble intellect, that really appears to bang Ba- nagher ! Referring now to the proceeding by way of " Inscription enfaux,''^ mentioned in the third line of the same page, which it is unnecessary for my present purpose to define, the^ lay reader will perhaps find it diflficult to comprehend the grounds of Judge Eadgely's judgment. " He relies," it seems, " that in the case of an attorney appearing for him- . " self" and having occasion to " Inscribe en faux" a pro- ceeding, the foundation of which is a "special procu: .ttion from the party " to his attorney " there would be an il^^rdity in " taking such a special power of attorney from a man to " himself.''^ So there would, may it please your honor, so there would if you went to a notary to prepare such a special procuration, when yoa^owrseZf went to market to buy a leg of mutton. Should you send your servant or any messenger or other deputy to a grocer to buy a pound of tea or to tran- , ■." sact any other business for you, it might be necessary to give that servant or messenger a written order or authority of some kind to enable him to prove that ho was acting for you- — But should you go yourself to buy your leg of mutton or your tea, you i/iight safely dispense with a procuration. — So any man in his own person acting for himself, although ho be an advocate, requires no procuration. That's the fact ; and though with characteristic politeness, the judge taxes me with propounding an absurdity, I shall not retaliate, for I'm not a judge. Accordingly I make no remark. But such were the reasons which found favor with Mon- iieur Le Jiige Berthelot. The point of a comedy may be disclosed in a stage whisper, and knowing what sticklers come judges are for respectful, that is, servile behavior to the bench, I venture to make an enquiry, which the public must consider strictly private and confidential. The rule is, that no man can confer, by procuration on another, any power that he himself does not possess. E eonverso it is an undeniable proposition that the possession of the power and the right to confer, by procuration on ano- ther, the power and right to perform any act, to trans- act any business, implies the possession in the principal of the power and the right to perform that act himself, to trans- act that business in person. In one word whosoever can act by deputy can act personally. Now, how comes it that those judges could ignore so self-evident a proposition ? That's my question — put quite confidentially. It may be said that the judges were not so ignorant as such a question would seem to imply. It may be added that, in their opinion, there were good grounds for the course which they pursued. This subject has, however, fortunately attracted the attention of the Judicial Committee, by whom those grounds are stigmatized as grounds of supposed expe- diency. The Lords Justices express themselves as follows (see page 38) : The Lords Justices " think that it was the duty of the " Judges (Aylwin, Badgely, and Berthelot) to administer the " law. The Lords Justices think that the Judges (Aylwin, " Badgely, and Berthelot) could not alter the law, and de- *' cline to apply it on grounds of supposed expediency, as it m 36 & 11 ! " they appear to have done in the present case and the pre- " ceding cases on which that judgment was founded." This is a comprehensive rebuke, which applies to all — all the Judges who pronounced the decisions of which I complain. I shall wait a few days for an exposition of the grounds, if there be any, of the supposed expediency, the assumption of which has cost me more than .fifteen years of my life and thousands of dollars. But when the London solicitor procured the only authen- tic copy of the decision of the Privy Council, he transmitted it not to me but to Mr. Cassels, cashier of the Bank of Upper Canada as a kind of stake holder. This gentleman was strict- ly enjoined to retain that document until I should have paid the whole amount of the London solicitor's claim to Mr. Cas- sels. But the defeated respondent Brown could not be com- pelled to obey the judgment of the Privy Council until it was put upon the files of the Court of Queen's Bench in Quebec. Drained by twelve years of expensive litigation, without either credit or money, I could not raise the necessary amount ; but so long as the judgment remained in the hands of Mr. CasEc's, it could be followed by no possible result. — It might as well never have been pronounced. It happened, however, that the London solicitor had a son in the vicinity of Hamilton, in Upper Canada. Now being referred by the father to that son, and hoping to make some arrangement with him, I hurried up — not without expense — to meet him in Hamilton. That trip, that expense, however, were productive of no favorable result, and I returned to Quebec re Infe eta. The London soHcitor in the mean time threatered to cause the judgment to be returned to him in London ! He would in that case have been in a position to dictate to me, but I could not allow the prize for which I had so long contended, to be placed out of my reach. I accordingly attached the document (that is to say, the judgment of the Privy Council) in the hands of Mr. Cassels. Some otL'or incidents, which may without impropriety be omitted in this account, also occurred ; but the London soli- citor intervened in my suit against Mr. Cassels. It bears the number 1051. It was at length on the 7th of February, 1868, dismissed — not, however, without having subjected me to considerable labor, anxiety and expense. 37 Laymen will require to be informed that owing to that intervention, I stood as it were between two fires. As against Cassels I was a party to one suit, as against the London Soli- citor I was a party to another suit, and had I failed, I should have had to pay two sets of costs ! Having, however, another string to my bo^, and proving by affidavit that the judgment of the Privy Council was in the hands of Mr. Cassels, I moved the Court of Queen's Bench for a rule to compel Mr. Cassels to deliver the judgment. The order being made, Mr. Cassels obeyed it, but the Lon- don solicitor, through his agents here, having effected an arrangement with my adversary Brown, the latter playing into the hands of those agents, paid them for their principal, the London solicitor, the whole amount which tho latter claimed. He thus, as he no doubt intended, secured the £61 sterling allowed for the performance of an act which it was not necessary for him to perform, and which he probably did not perform Its performance devolved, in truth, on me. In his bill the charge appeared to have been made for reading eighty-four printed sheets, which he could only have been re- quired to do had he prepared the Case. But the Case Avas got up in Canada, and by me. It was printed at my expense by M. Desbarats, and so prepared from data contained in the 84 printed sheets, but extracted from the manuscript before its delivery to the Enghsh printers. The judgment being at length filed, a taxation of costs fol- lowed in the usual order. Plans illustrative of the position of the premises and of the pretentions of the respondent Gugy had been filed by me. Great expense and much time had been expended, and the skill of eminent upright survey- ors had been taxed to convey to the Court all the information which it behoved the respondent to offer. All the three Courts bad accepted the information and had considered the plans. The plaintiff and appellant Brown had not during the pendency of the suit in any of the Courts objected to the plans. On the contrary they were all referred to by both parties. Accordingly the Prothonotary allowed the defendant Gugy the exact amount which he had paid for the plans, less seven pounds. The plaintiff Brown appealed from the taxation, and Judge Taschereau disallowed or retrenched twenty-one pounds more. 38 Without admitting that the reasons by which the Judge TFas moved were good reasons, I feel that the Judge con- sidered that they were such. Nevertheless, had the unfor- tunate suit under review not been brought, I should not have lost £28. That loss, then, was entailed upon me because I dared to believe that I might legally resist an aggressive proceeding calculated to wrest from me my property, which aggressive proceeding, as the result has shown, I was fully justified in resisting. The consideration thus shown for the purse of the plaintiff Brown, at the expense of the defendant, must have sustained him under the mortification attending defeat, and not only emboldened him, but provided him with funds to renew the war, as in the sequel it will be found that he did. As has been said, the decision of the Court of Queen's Bench m Canada was the act of a majority. The Court stood three to two. Had the Court been unanimous, it is understood that there would have been no appeal to the Privy Council. That appeal then may fairly be ascribed to the minority. But on the day of the decision, those judges simply signified their dissent. Nevertheless, each of them long subsequently prepared what the Lords Justices describe as " long and very elaborate arffiiments, supported by a citation of numerous authorities, agaiiist the decision of the majority of the C^urt." Of this proceeding, the Lords Justices speak as follows : — " It was asserted by the respondent, without any contra- " diction on the part of the appellant, that these arguments " were not delivered by the dissenting Judges (Aylwin and " Duval) at the hearing of the cause^ but were first made " known to the parties by being printed as part of the Record " before us. If the statement thus made be accurate, we " must say, with all respect for those learned persons, that " the course so pursued by them appears to us open to great " objection. We think that their reasons for dissenting from " their colleagues should have been stated publicly at the " hearing below, and shoidd not have been reserved to in- "Jluence the decision in the Court of Appeal.^ ^ Being a humble individual exposed to persecution, I should not have dared to whisper what the Lords Justices have pro- 39 claimed and printea. Read — learn— and ponder, ye people of the Province of Quebec : The Lords Justices charge the Judges Aylwin and Monsieur Jean Fraii9oi3 Duval, with hav- ing " RESERVED THEIR REASONS FOR DISSENTING IN ORDER TO INFLUENCE THE DECISION IN THE COURT OF APPEAL." And how many more oflfence35ruinously aflfecting other suitors, widows and orphans — oflfences not so easy of detection — may they not have committed, — how many may they not yet com- mit ? Those " long and very elaborate arguments " were certainly not printed until long after the date of the judg- ment which tbey were intended to support. Those of Judge Duval, were printed here in January 1862, by Mr. Cary, pro- prietor of the Quebec Mercury. They were so printed for my adversary who paid for the work. Those of Judge Aylwin were, in like manner, as I have understood, delivered in Montreal to my adversary, who caused them to be printed. I must do Judge Duval the justice to admit that his " long and very elaborate arguments," however trivial and incon- clusive, have at leasit the merit of being as intelligible as any nursery rhyme . A severer censor would no doubt offer that effusion as a proof of the facility with which mere mediocrity, not to say absolute intellectual inferiority, can wriggle itself into high places. ^ . .- . ; To me, however, the production which the Lords Justices satirically named " arguments," appeared so funny, that I could not resist the temptation which it offered to excite the merriment of " the boys of the High School." The so called arguments were accordingly made the subject of a serio-comic letter dedicated to those boys — and reproducing that letter in the appendix, I dismiss the subject and the man. Impelled by his peculiar idiosyncracy, ani^ perhaps by anotb'^i cause, Judge Aylwin indited, what he flattered him- self ' *';= an exhaustive treatise on the subject, in 24 pages folif ' AuV, probably, to 120 of these pages. Kk -i' ^ the author I felt that I could safely dispense with the peruBal jf that treatise, nor in fact could I overcome the nausea which it excites. Justly stigmatized by the Lords Jus- tices, it need be no further noticed. 40 RECAPITULATION. ♦ The plain tiff Brown began by suing out action No. 533. It was equu! to two actions, for, after argument, the Court ordered a reference to experts. This step the Lords Justices stigmatise as " unnecessary, and to have led to no satisfac- " tory results, but rather interposed difficulties in the way of " the decision, and to have occasioned crimination and recri- " mination amongst persons acting as officers of the Court " little creditable to the administration of justice." In this cause Brown having failed, and twice appealed, three judg- ments were pronounced. Eighty-nine witnesses were examined at great length, one examination extending over four days. It lasted upwards of twelve years. f ■ To enforce the judgment to levy my disbursements I was involved in litigation, had to contest an oppositlou. I wag denied fees, crossed the ocean six '^nes, travelled up to Lon- don and back, as well as once ' ..ih Ireland without compensation, and £28 of actual at tcments tvere taxed off! .k-:....^.;.--- V-..: ' ■. ■ . ■---;^ . - Then he brought a second action, No. 183. In this cause the plaintiff BroAvn having failed and appealed two judgments were pronounced. Forty-seven witnesses were examined. It lasted eight years. : He brought a third action, No. 325. ' ' 5^-'"- t'-" ;''■ In this cause the plaintiff Brown having failed and ap- pealed, two judgments were pronounced. Thirty-six witnes- ses were examined. This suit also was referred to experts. It lasted eight years. Thus the question relating to the real property was decided in my favor seven successive times, including the decision of the Privy Council. But in arguing the case No. 533, 1 used expressions at which one of the witnesses, Ferguson, took umbrage, and to obtain compensation he brought an action suit No. 873, for damages, 14th April, 1859. In the Supe- rior Court he succeeded, but I appealed, and his judgment was reversed. The cause, however, is still pending. Then the London solicitor having intercepted the Queen's judgment and transmitted it to Mr. Cassels, the latter refused 41 to deliver it to me. Hence, in July, 1864, 1 sued for its recovery, No. 1061. Inaamuch as the London solicitor intervenet^ this suit also should count for two. The intervention, it is true, was dis- missed on the 7th of February instant, but the original action is still pending No. 581.— But on the 25th May, 1864, when the judg- ment of the Privy Council had barely been published in this country, the plaintiff Brown brought, as has been said, a fresh suit, exactly for the same pretended cause of action as the suits No. 533 and 183. In the meantime, for obvious reasons, and from perfectly intel ligible motives, my adversary Brown had bought up my debts' and on thus becoming my creditor, he had, in every case, sued instantly for the recovery of the claim. He so proceeded by suit No. 463, by suit No. 235, by suit No. 1548, by suit No. 789, by suit No. 1713, by suit No. 368, by suit No. 1414, by suit No. 361, by :uit No. 1200, by suit No. 2156, by suit No. 367, by suit No.' 907, by suit No. 356, by suit No. 1191, by suit No. 47, by suit No. 255, by suit No. 68, by suit No. 695, by suit No. 2603, by suit No. 193 ; making in all, errors and omissions excepted, in the Superior and Circuit Courts, twenty suits 20 And the suits relating to the River Beauport, 533 and ^ " 325, counting for two each, six suits 6 Then Ferguson's case, as a direct consequence, one. . . 1 Then Cassels, two 2 No. 53. But Mr. Wm. Bell had been one of my sureties in appeal and my adversary, has of course sued him. ^ " It was in fact a suit against me, and I have paid the amount £74 1 Making thirty suits. ..;.. ..*.i,^..',i ..'. 30 The plaintiff, as has been seen, failed in all the suits which related to the real estate, but as I was impoverished by the expenditure inseparable from the litigation in which he had involved me, he necessarily obtained judgments in all the others.^ • „,-, .,, .,^, ;; ^^, s..n-^.>..^^^.-.. . . He has retained or employed against me in this country, sixteen lawyers, and in London, six solicitors and three Counsel, including an Attorney General. 42 4 i T I fr; . He has sued out against me, fourteen executions. He has often seized, often advertised for sale, my goods and chattels, at the church door. The age of miracles is not passed ; for I have still a few chairs and plates and cups and saucers. I submit an account in detail of one series of executions : They were all sued out in one single suit to recover the amount assigned to my adversary Brown by the late Mr. Campbell, which is herein above mentioned. The suit bore ^nd bears the number 789 : — 1859. _ ^ y:h-rv:--.'^:^:'j:. 24th Feb. — A writ ^t:n/ac2as issued, i^r-.v > 26th Feb. — Seizure was made of 12 horses, 6 cows, and , 2000 bundles of hay. 2nd June. — A venditionis exponas issued. 4th June. — A saisie arret issued in the hands of Mrs. Steele, my tenant. 23rd July. — A second saisie arret issued, in the hands of the City Bank of Montreal, and of one Francis McCul- loch. 25th July. — A third saisie arret, in the hands of George Caron, Esquire, M. P. 27th July. — Another/m/acms issued; this time to seize hay as it was making in mi/ fields. , ♦,. , . , . 1860. 31st Jan. — A fourth saisie arret issued (a second time) in the hands of Mrs. Steele. 1st March. — A fifth saisie arret issued, addressed to the Fire Assurance Company, for my stable had destroyed by fire a day or two previously. i. ,,;.,. 17th Oct. — AxiO^ev fieri facias issued. Lastly, another saisie arret issued, addressed to one John Donoghue. This makes, in that one case, eleven writs of execution ; and while he insisted on being paid, my adversary carefully " closed the channels through which he expected that funds ' would flow into my treasury. I had contested because twice over the Plaintiff Brown, had seized for a larger sum than he could justly claim. In support of my pretensions I had been compelled to resort to the testimony of the Plaintiff himself. Now he appeared, it is true, and testified, buthe insisted on being taxed, and on one 43 .1?^ ■'«.'' occasion he was allowed, for attendance as a witness, nine shillings and three pe ace half penny. He thereupon unne- cessarily took out a certificate of taxation at a cost of one shilling and six pence, and compelled me to pay the whole. But on another occasion he contrived, in the same cause to be taxed forty-five shillings for st nding as a witness. He again, unnecessarily took out z certificate at an expense of one shilling and six pence, and again he made me pay him the whole amount, " say forty-six shillings and six pence. And this occurred in the above mentioned cause No. 789 in which alone he, Brown, thus oppressively sued out against me eleven executions, and compelled me to resort for redress, to Her Majesty The Queen in Her Privy Council. Any civil man, free from the stench of spirits, and the stink of tobacco may upon apphcation to me examine the proof of the foregoing statements. As the result has proved, my adversary had sued out the executions above enumerated, for a greater amount than he was entitled to claim. On my opposition, a judgmeno to that efiect was pronounced. An appeal followed, which ended in the favorable decision by Her Majesty the Queen in Her Privy Council herein above mentioned. Here follows a hst of the cases in appeal between my ad- versary and me : — ' No. 81. Brown vs. Gugy, confirmed and again confirmed in the Privy Council. ■ ^ " ^ ji Brown vs. Gugy, confirmed. J -[._''- '^'^'^t Brown vs. Gugy, confirmed, reversed. This was again re- No. 82. ^ No. 12. No. 89. Brown vs. Gugy, versed in the Privy Council. No. 28. Brown vs. Gugy, confirmed. ;'* i;,^''^ \'-^^ No. 16. Gugy vs. Brown, reversed. ::; * - iJi ■ No. 94. Gugy vs. Brown, confirmed. J- '\ No. 46. Gugy vs. Brown, confirmed. ' ' No. 49. Gugy V8. Brown, confirmed. , .; . • No. 75. Gugy vs. Brown, confirmed. : : r .^ No. 41. Brown vs. Gugy, reversed. As Gugy, appellant, and Ferguson, respondent, in which 1 succeeded, may be fairly added to the number, I have thus been engaged in twelve appeals. I Three of the appeals herein above mentioned arose out of a single cause. Exhausted by a series of persecutions under color of law, evi- dently intended to bring about my ruin (by action No. 691). I sued my enemy in damages — for fifteen years of persecu- tion. I claimed X 30,000. The progress of this suit brought in 1864, is as follows : 1. The defendant Brown demurred, and by judgment on that demurrer my action was dismissed with costs. • 2. I appealed and that judgment was reversed. , 3. The record being returned to the Superior Court I claimed a trial by jury which was denied. 4. I appealed again and this time the judgment was so worded as to indicate that I was entitled to a jury trhl — but I was condemned to pay all the costs. 5. The Record being a second time returned to the Supe- rior Court, the trial by jury, which I had claimed, was in con- sequence of the liist mentioned judgment, allowed. Then on my application it was ordered that the jurors to be summoned should be composed of men who spoke or at least understood English. 6. But that sort of jary not suiting my adversary he prayed that six of the jurors should be French Canadians. He therefore now appealed and the judgment being reversed I was again condemned to pay all the costs. See Appendix B. 7. I then moved for leave to appeal to Her Majesty in Her Privy Council. On this occasion the Court of Appeals being divided, two for me and three against me, I failed — being again condemned to pay costs.* All these attempts on my part then to obtain redress — were followed by no other result than so many condemnations to pay costs. The costs must be paid but the most unobservant and stolid of men must perceive %at the judges composing the Courts who differ in opinio.* so widely cannot be all right ; and while many of them must necessarily be quite wrong, they may all be and doubtless are more or less wrong. * Mj adversary Brown, howerer who is a defendant in this case has on the second of March been allowed to file what is called a plea " puis derreia continuance" — this plea being pending I can now make nO' further remark relative to it. * 13 d r li The average of costs in appeal 13 about $140 on each side. Hence, to fail in appeal generally entails a loss of about $240. It must, however, be remembered that in the cases in which I was denied fees, I could claim only my disbursements (about $20) ; but when I failed, I was always compelled to pay the whole sum. The pecuniary amount alone involved in these cases is thus certainly not less than $2,880. My eight sea voyages — with the incidental land travelling — and other unavoidable expences can't be estimated at less then $1,200 ; irrespective of loss of time. Having neither data nor time for calculation, I cannot specify the exact amount involved in litigation in the other cases : but I suppose that it must exceed the aggregate of the above mentioned bums. Cases originating in the same motive could no doubt be cited. Naboth's vineyard is one on which I have meditated for years. In this memorable record of a covetous disposition, it is in Holy writ related that the King Ahab was willing to pay for the land. Now, my adversary was determined to wrest my property from me on unfounded pretexts, by sheer dint of money and of the abuse of the law, not only without offering me any compensation, but by effecting my ruii! " Man's inhumanity to man " often exhibits itself in that manner ; but as far as I am informed, an enumeration of such a multitude of suits is not to be found in any book , and the conduct of the Judges in the encouragement given to perse- cution, is quite unprecedented. The writer who recounts the fate of Jezebel was certainly inspired, and our Judges as certainly are not ; but as mere men of average capacity, they might, from the facts with which they had to deal, have arrived at the conclusion which the inspired writer assumed from a single instance. Had the Judges in question but en- tertained some respect for their order, they would have felt that their evident leaning against me must have entered into the calculations of my adversary, as a considerable item — a fact most discreditable to the Judiciary ! The last document published in this " strange, eventful history" of a freeman complaining of persecution, is a petition to the Court of Queen's Bench. I offer for the perusal of the public, an exact copy of that petition. Those suits have cost me upwards of fifteen years of my 46 . i J.'' > I' 1 f^ ^ i No. 81, Brown, Appellant, and Gugy, Respond- ent; Judgment dated 7tb May, 1860. No. 89, Brown, Appellant, and Gugy, Kespond- cnt; judgment dated 19th De- cember, 1862. No. 86, Gugy, Appellant, vs. Fergusson, Res- pondent; Judg- ment dated 7tli May, 1861. life ; nor (my attention being unavoidably absorbed in the performance of the task, and the duty of self-defence) have I been able to devote myself to any profitable labor. Hence, I have been subjected to most painful privations of all kinds. Then, by the act of an incendiary, my stables and barns were consumed by fire, and I lost, in a few hours, certainly not less than eleven thousand dollars, how much more I shall not venture to affirm. I say lost, for, owing to the treat- n ent of which I complain, on the part of the Judges, I had not the means to pay for insuring. This fire, and the charge which I preferred on oath, neces- sarily made some noise, and my misfortune, being much talked of, could not but become, and was, doubtless, known to the Judges. The late Judge Panet had once, it was said, refunded a sum of money of which a litigant had, by an erroneous judg- ment pronounced by him, been deprived. I thereupon re- solved to aflford the Judges of whom I complain an opportu- nity to behave as conscientiously as Judge Panet is said to have done. I therefore read in open Court, and presented from my place at the Bar, the underwritten petition. It was " fyled on the 14th March, 1867," and is so endorsed. .;Y '^ ' ••■••• QUEEN'S BENCH.-' ■■"^' • ;^'; ' LOWER CANADA. To THE Honorable the Justices of the Court of Queen's Bench : The Petition of Bartholomew Conrad Augustus Gugy; an Attorney of this Court, Respectfully sheweth, — ■%:;- y^^^ry, v- •-, -'i— fvr >>;<•>:■,- Thai in three cases mentioned in the margin, your Peti- ' tioner was denied fees by the judgment of the majority of this ,^ Court; That in each and all of these cases, your Petitioner was engaged in resisting agression, was both defendant and res- pondent in two cases, and defendant and appellant in the third, and in so exercising the right of self-defence, was ulti- mately successful in all three ; That your Petitioner brought the last of the Judgments, pronounced on the 19th of December, 1862, by appeal, be- fore Her Majesty in Iler Privy Council, and that the right of your Petitioner to fees was maintained ; That your Petitioner submits .ere with, a printed copy of the reasoning of the Lords Justices, for the information of this Court ; That your Petitioner, by the series of Judgments of which he complains, suffered ruinous loss ; and that, under the cir- cumstances, he has ventured to appeal to the magnanimity of the Judges of this Conrt who concurred therein, to repair the evils which thei/ have caused, and he has suffered. Quebec, 14th March, 1867. A. GUGY. On the ensuing day, the fifteenth, the Petition was " ordered to be taken off the files," and is so endorsed. The oflficer of the Court, being so ordered, simply " in con- sequence returned my said petition to me in open Court,'" and the original now in my possession, is so endorsed. Thus vanished all hope of redress. Moved by a sense of duty a government equally enlight- ened and paternal would of course make, as it is called, ample provision for the worthies who figure in these pages — irrespective of the public interest. That is intelligible and it follows that in my own country I should be excluded from every career — but being in earnest I complain that men who prate of British connexion, of the English constitution and of English principles should have deemed it rigorously proper and just to contenance I shall not say connive at the oppression of one who has done more to maintain British connexion than all the members of each successive ministry by which the J udges of whom I complain were appointed. Great men generally bear th6 misfortunes and sorrows of their inferiors — all the misfortunes and sorrows, indeed, to which they are not themselves exposed — with great stoicism. 48 3:1 And so Monsieur Jean Francois, who had then become Chief Justice Duval, summarily disposed of my petition. Notwithstanding the part that he hat aiTected by my wharf, but governed by the level of the tide hi the St. Laivrence. I was enabled to go much farther, some of the witnesses condescending to particulars, affirmed that at that particular period my adversary had in his mill a large quantity of wheat belonging to a Quebec merchant, which he had contracted ti grind for the merchant. It was pre^-ended thaL by stoppin<], my adversary's mili, as aforesaid, I had prevented him from grinding that particular wheat, thus doing him great damage. But I ascertained that the merchant was Mr. Michael Con- nolly, who has, in the interest of truth and justice, permitted this use of his name. Examined as a witness, he testified as follows : " In the summer of the year 1854, I sent to the " Plaintiff's (Brown's) mill, at Beauport, to be ground, some "six thousand bushels of wheat, or it may be more. The " plaintiff contracted to grind that wheat into flour, and deli- " ver a certain amount of flour in barrels weekly. He did " not do so, but on the contrary, delivered a very small part " of what he had promised. I complained, and frequently *' went there myself r-rsonally. The reason that the plain- *' tiff assigned for not grinding the wheat according to con- " ti-act, was, that the ivater was knver thaii he expected it " would he at the time at whicn he made his contract. The " only explanation that the plaintiff gave, was, that the ivea- " ther had been dry^ and that a sufficient quantify of rain " had not fallen to enable him to fulfill his contract. I be- " lie\i that he disappointed us in grinding our wheat iV?- jjari " hy grinding for himself, but in greater part/or the want of " water, and I happen to Iniow that both the mills on the same '' stream, I mean Hendersow s as tvell as the plaintiff^ s, were " p>crtially in ivant of ivater .^^ The Judge to whom the evidence was submitted, did not believe the witness whose testimony was contradicted by Mr. Connolly; but he gave no sign. And yet were Judges from the bench audibly to name the witnesses who give, evidently, false, or at least, incredible tes- timony, the number of witnesses, the expense and duration of enquetes, would be much diminished. Falsehood and perjury would be brought into discredit, and'the cause of truth, honor, and justice Avould be proportionally subserved. ,..,.. , . .* 51 I must not be understood to recommend any hasty remark. Until the hour of judgment, all comment upon the testimony would be premature,, but when a Judge pronounces ajudg- ment in a suit, both sides of which are supported by testimony, by testimony which conflicts, which clashes, he may be pre- sumed to have determined the question of credibility. Should he, in such a case, have met with evidence of a reprehensible description, and Judges, no doubt, often do, it seems to me that he should take some notice of it. I cannot resist the temptation to cite another instance of a pregnant fact. My adversary found some six wit- nesses ready to swear that previous to the building of my wharf, there were two channels to the river Beauport. Of couxse, these witnesses were prepared (I need not describe the process) to swear to the exact course and direction of the channel, which it was alleged that I had interrupted. On the cross-examination, however, putting a pen into the hands of each witness in his turn, I requested him to draw upon the plan the exact line of the scconi channel. Some six witnesses attempted to describe the exact line, but as no two of them agreed, the plan is covered with lines describing many rivers. However, there were, and are to this hour, on the spot, mute witnesses incapable of falsehood. They arc trees, fifty or a hundred years old, a clump of trees all Avithin two or three feet of each other, whose roots are visibly interlaced. These trees conclusively establish that no river could, by any possibil- ity, have passed through that spot. But ^^ is precisely at that very spot, through that very clump of trees, that all the witnesses drew the exact lines of their pretended channels. There was an attempt, by parole testimony, to contradict the immutable laAvs of nature, but no Judge ever made any re- mark upon the subject. Yet, to discountenance such attempts to impose upon the court, seems to me to be w'ithin the Pro- vince, and to fall within the appropriate duties of a true Judge. An example of the expression of judicial indignation, is to be found in a late report of an English cause to which a black- guard lord Avas a party. Such of our Judges as feel Jiat they are moved by a sense of honor, might imitate ttat example with advantage. Any atttempt,any kind of attempt to impose upon the Court by false evidence is an insult to the Judge, as well as an offence against God and society. In support of my view my 52 1 1 experience enables me to give another example. An English- man arrived in Canada for the first time in 1854, and enter- ing my adversary's service reached Beauport in December of that year. lie could not possibly have seen the banks of the Beauport free from snow, or the water free from ice until the month of May 1855. Yet he ventured to swear (I give his very words) as follows : — I am an Englishman. I left England in the summer of the year 1854. It was on the first of December 1854 that I reached Beauport. There is a wharf that is built across the river — at the end of the tail race — I mean the Avharf on the defendant's side of the river marked " wharf built in 1852." If the course of the river were not stopped by that wharf no harm would be done — not in the least. I mean to say that the water would but for that wharf flow down in its natural channel. I am quite positive of that. I am quite certain, of it. Itisafactforivhichlpledge myself. I did not see the wharf built. Of course 1 never saw the river flowing in that channel. Of cowv&q I could not see it when it when it was shut off by the wharf. I have marked upon Ware's plan in the presences of the experts the line of that natural channel of the existence of ivhich I .speak as a fact, commencing at the point F as marked by me and ending at the letter G which I have also marked.* Now the wharf of Avhich he so spoke had then been built and finished full two years and nine months. It was in sup- porting by argument my defence in this cause that I was be- trayed into an energetic expression upon which a law suit was fastened on me and I was condennied to pay damages to the tune of $100 with costs amounting to as much more— That expression has already cost me at least four hundred dollars — but as the action of damages is still pending I refrain from adverting to it. As, however, I may speak of the principal case in which the evidence was given, I must add that the Judge did not beheve the evidence which I unhappily so at- tempted to characterise. He did not believe it, else he must have decided against me. lie did not believe it — neverthe- less he passecl it over in silence. What is more — that very , * It will surely be gitieivilly ailmitled that to defend oneself wlion per- tinaciously, perseveriugly attacked by an implacable ricli enemy wlio can at pleasure procure such witnesses can be no common tusk. ( Judge condemned me to pay damages upon the evidence of my adversary — who hud reported my words, and who as a witness for his servant testified against me. It was in my apprehension, I respectfully submit, a mistake on the part of the Judge — a mistake which lias cost me dear, but only a mistake — and not such a mistake as to diminish my regard for him. I am, however, convinced that it was his duty to have com- mented upon the testimony which I had the misfortune to characterise ; and had he done so, I should not have been Bued. '■- . Another salutary result would follow, the Bar at least would be made to feel that the Judges read the evidence, and read it in a discriminating spirit. In the order of time and logic that is the first as well as the most important of Judicial functions, for all law is ancillary to fact. The Judges too, it seems to me, should give an example of obedience to the law ; they should assign, intelligiV)ly assign, the real grounds of their decision. The sovereign can do no wrong, but tlie duties of protec- tion and allegiance are corelative and the sovereign Avho is the fountain of justice, should never be represented by low caste pothouse politicians. From the facts thus disclosed from what he knew of the law, my adversary reasonably believing that he could wear me out, vowed that he would do so. Yet in his estimation the land which he thus determined, and has during ^ ^ many years by the abuse of the law attempted to wrest fro'u-me, is not worth more than twenty-five cents. He h'i^ said so and I have it it in my power to prove the fact by fir^^t class unimpeachable witnesses. Had he civilly ren;Tested a gift of the land I might '■ •.'« complied ; but he prof^ rred to worry me, to harass me, an his first step was a suit at law. Should there be any man disponed to maintain that I ought to have yielded to compuli=:ion, I would enquire whether I could be sure that it would cud there. Increase of appetite luav giow with what it feeds upon, and if my adversary could by force have got a bit of my farm he might soon have claimed the whole, and eventually have ex.- pelled me. Had I given an inch he would have taken all. That is the cause of my resistance. A. GUGY. mim !i - ■ APPENDIX A. As this publication -will most assuredly tempt power to use the lash, I shall make a clean breast of it. It will cost no more. The Judges are great sticklers for respect, and, truth to say, respect often takes the form of adulation and servility. Our Courts ring with the perpetual iteration and reiteration of the words " Your Honor," so dear to judicial ears. Yes, your Honor, No, your Honor, Of course, your Honor, Just so, your Honor, Surely, your Honor, Doubtless, your Honor, and to on, to an extent absolutely nauseating. Then, visible efforts are made to " laugh with counterfeited glee " at she most threadbare antediluvian Joe-Millorisms ! Invariably and unaffectedly respectful when it is possible to feci respeet,I go through the motions on all occasions with great care. It is, nevertheless, perfectly clear that the Courts are unfavorable to me, or are, at least, tired of me and of my cases. Monsieur Le Juge en Chef, Jean Francois Duval, has dared to describe my wharf, built in self-defence on my own property, as " an open violation pf the laws of the land and of neighbors' rights." He also had the assurance to stigma- tise my defence of myself in person as " zeal carried to ex- cess." His temper and his manners, like his appearance, it will be said, are peculiar. So they are ; but other Judges, men Avhom I feel inclined to respect, and whom I should beg to allow me to respect them, appear to blame me for being draggpd into Court, and for resisting my enemy's attempts to ruin me. Possibly, devoured by care, and suffering under a perfect avalanche of actions, appeals and executions, I may have occasionally appeared to be more in earnest than was quite agreeable to men who, having nothing to complain of are not prepared for the contortions of a man in agony. I have no doubt failed to emulate the captive warrior tortured at the stake. The Judges might, however, consider that replying to an intentionally gross insult, a friendly tomahawk sunk deep in.o the martyr's head, soon ends at once his life and his sufferings. But, as my sufferings have endured for nearly a quarter of an average life, and as it is evidently intended that those sufferings should continue, were it not that, by Gods blessing, I have always been abstemious, 1 must have ' "'-.■,./•'■.■ i- i- been driven to madness. Indeed, indeed, had my adversary, instead of suing, shot mo through the heart in 1852, he really would have behaved with great comparative humanity. Yet, it would appear that I am thought to deserve punishment for defending myself. So the poor child of a vicious mother, instead of being soothed for deploring its fate in tears, is often (as I have noticed) cruelly beaten, " to give it (as the phrase is) something to erg for^ Hence, expecting to get plenty to, cry for, I shall proceed. Judicial arrogance can only be restrained by professional men of character, of abiUty, and firmness. In the absence of such professional men. Judges would, by an easy transi- tion, become tyrants. The degi-adation of the barrister tends to the corruption of the bench. As it is inflated by a sense of irresponsible! power, the Judge, accustomed to submission, will occasionally be tempted to sacrifice to his self-love the fortunes of suitors and the hopes of families. From the Avrongs inflicced on me, some conception may be formed of the evils to which laymen are exposed. Then the common herd of mankind generally side with power. They generally overlook this simple fact, that it is the lawyer who is, under the constitution, the expositor and protector of the rights and liberties of his fellow-men. I have known respectable indi- viduals, not devoid of education and experience, exult in what they triumphantly described as the glorious snubbing given by Judge A. to Lawyer B. Now, in their own cases, each of those individuals would have been loud in the praise of counsel who had exhibited manhood and independence in endeavoring to correct the hasty, erroneous views of a Judge, or to. recall him to a sense of duty. Such efforts are often necessitated by the assertion of crude notions. Then, since Monsieur Le Juge en Chef, Jean Francois Duval, a low-bred man, has introduced the fashion of interrupting counsel, of snappishly taking the case out of their hands, and of affecting to listen with an air of undisguised contempt many barristers, who appreciate the dignity of their calling, have, to ray knowledge, been much disturbed. Some have been incapacitated from the performance of their duties, and one, who would have been perfectly justified in flying at his tormentor and tearing him to pieces, in my presence burst meekly into a flood of tears. It is as the sworn, the hfe- II- § long enemy of terrorism, not as the panci^yrist of the bar, that 1 indite these hnes. I know my brethren, and am not blind to tlie worth of many among them ; but I notice with dismay the indifference with which the best among them regard the pretensions of the bench. In the interest of the commnnity, the Judiciary should not engross, as it threatens to do, all the moral power which the profession must always possess. The odds are in favor of the Judge whose position is fixed and permanent, whose salary is large, -whose power is great. But, though every man can choose his lawyer as he may choose his baker or his butcher, he can't choose his Judge. It is upon compulsion that the citizen addresses himself to a particular Judge, theoretically selected, it is true, on the sole ground of fitness, but practically appointed — in most cases appointed upon grounds altogether irrespective of his worth. The only check upon such functionaries is the able, indepen- dent lawyer, precisely the class which is likely to be most unpopular with the Court. Such laAvyers are, however, in- dispensable, for the possession of irresponsible power has a tendency to culminate in tyranny ; and in resisting tyranny, revolution, if not absolutely justifiable, may at any time super- vene. Prepared for most contingencies, I anticipate comments, by no means flattering. It will, no doubt, be thought and said that I am no better than my neighbors. Granted ; but Luther could not have become a reformer had he not been a monk. Written on the evening of "Wednesday, 4th March, 186S. APPEJSDIX B. Here an explanatory note seems to be needed. It is natural that persons of the same class, speaking the same language, when engaged in a law-suit to be tried by jury, should wish the jurors to be all of their class. Thuc, zi a general rule, men whose mother- tongue is English would be presumed to be desirous that " the jury should be composed exclusively of persons speaking the EngUsh language. But the present Honorable Judge Badgely,when Attorney-General, in- troduced and carried a measure which has been incorporated i in the Consol Statutes, chapter 84, page 780. This Is the J' act respecting the selecting and summoning of jurors." It is the 41st section of this Act (page 792) which has para- lyzed the whole system, or at least surrounded it with insur- mountable difficulties. It was thereby in effect enacted that no proposal made by either party to have an English jury could be sanctioned by the Court unless the other party consented ! This Avas a very popular measure with the French Canadian leaders, for the opposition of either of the English suitors enabled six French Canadians to take part in the determination of the controversy, and to decide upon the fate of the parties. One of their leaders, the late Mr. Viger, had often tried it. But, as he failed, an Anglo-Canadian contrived to carry the point; and verily he has had his reward. It followed that any Englishman who had no par- ticular confidence in the justice of his cause, could always, by putting down the brakes, stop the Avhole machinery, or at least so encumber and lengthen the proceedings, by means of translations, as to multiply the proverbial uncertainties and delays incident to litigation. Before I had moved for an English jury, my adversary. Brown, gave me notice of his intention to apply for such a jury. But he was not sin- cere, for on my acting on that hint, and moving for a jury to be composed of persons speaking the English tongue, he, citing the above-mentioned statute, successfully opposed me. In the meantime, however, the Act 27 and 28 Vic, cap. 41, " respecting Jurors and Juries," was passed. By the 8th sub-section of the 9th section of this last statute (page 259), so much of the statute herein first cited, as enabled either of two English suitors to defeat the claim of the others to obtain an English jury, was repealed. It was on this ground that Mr. Justice Taschereau granted my application. But my adversary, a copy of ivhose notice of his intention to make the very same application for a jury entirely composed of Englishmen, was on the files, and ^v as actually exhihired to the Court of Appeal, succeeded. Wherefore, I was again condemned to pay costs. .^-.^'...ii- -i'-r-f'- '7^ • •I'w; ..ii'twi/'-Ai?,.',' mm 68 - APPENDIX C. A Letter to Judge Duval oj^ his OpiNiOfr, as piiinted by ; G. T. Gary, for William Brown, Plaintiff, in a Cause against Bartholomew Conrad Augustus Gugy, BY THE Defendant. rif ,1 1 I ' Dedicated to the Boys of the High School. To THE Honorable Mr. Justice Duval. Sir, — It is now upwards of nine years since William Brown, of Beauport, miller, brought against me an action, in which he claimed to have suftercd at my hands damages, to the tune of X300. Having failed in that action he appealed to the Court of Queen's Bench, of which you are a member, and by its decision the judgment in my favor was confirmed. The Chief Justice, with Judges Maredith and Mondolet, con- curred in the confirmation, but Mr. Justice Ayhvin and your- self were, as usual, vinfavorable to me. Emboldened by the dissent ot two judges, my adversary has appealed to the Queen in Council ; a vexatious, if not an absolutely ruinous result, which could not have followed a unanimous judgment. Your opinion, then, is not a matter of indifference to me, nor, indeed, to any suitor. On the con- trary, my interest in it may be estimated, in this case, at £1000, an amount which it will probably cost me to repair to England to sustain the judgment of the majority of the Court. I propose, therefore, to exercise my undoubted right to dissect your printed opinion, nor shall I hesitate to remon- strate, after the manner of the frogs in the fable, against a proceeding which, however pleasant to you, is or may be death to me. On the occasion upon which the judgment was pronounced, you made only one remark, that I can remember. You re- ferred to a period at which you and I were students in the office of Mr. Vallieres. You said that he had been denied his costs in a suit which, being plaintiiF, he had conducted in person. I care not about the accuracy of the statement, nor is it, in my apprehension, of the least moment whether it be :Sf>'- or be not true that he was so unjustly dealt with about forty years ago. Mr. Justice Aylwin, always full of " wise saws and modern instances," always ready with a dictum to sup- port an act, was pleased, in one of my cases, to declare that an " adverse practice of seven j^cars was sufficient to defeat the express terms of an act of Parliament." It seems to me, a fortiorij thai ^judge-made practice, not only founded on no law, but contrary to law, can be abolished by an uninter- rupted series of adverse decisions pronounced by the highest judicial authority and a full Bench, without a dissentient voice, during a period of three times seven years ! Now this, inter alia, is a fact of which you ought to be informed, more especially as you yourself so decided, at least in one cause, that of Cannon vs. Henley. The sole remark which you thus made related to the costs, and my comments, published in the Mercury, were neces- sarily confined to that subject. In the presence, however, of the judicial committee of the Privy Council, sic volo, sicjuheo, Avould be indecorous, and although you evinced no regard for the suitor with whose rights you dealt, you have since com- posed and permitted the plaintiff to print an elaborate opi- nion. Able, educated, ingenious, and fluent Mr. Justice Ayhvin thought that he could afford to admit his inability to pronounce an oral judgment. You may have been restrained by other considerations, but how deplorable the condition of a country in which two judges of the Supreme Court are in- competent to assign orally the reasons of their decisions. - ■ Mr. Justice Aylwin caused his opinion to be printed, at his own expense, and from whatever motive he sent me a copy. He thus disarmed criticism, but having, like Gilpm's wife, a frugal mind, you pursued a different course, and I obtained a printed copy of your work by mere accident. You will find it reproduced in one kind of type ; the commentary appears in another, and they arc meant to be read together. For obvious reasons I have added a number to each para- graph. I. Pivragraph. " The Appellant, Brown, instituted this action to cora- ' pel the Respondent to demolish and ri'move a wharf erected " by the latter in the River Beauport, causing Brown very great damage, as he - - explains in his declaration, filed in the Superior Court." v The site of my wharf was the principal question. I main- tained* that it was erected on a hanh part of my own pro perty. I alleged that it was intended to protect that bank from the injurious effects of the current of the Avater impelled against my land by a wharf built two years previously by my adversary. Such was the main question, the damage could only be a consequence of the act. If the act was illegal, if I built a wharf in the river, damage might ensue. Now this is the state of the issue, a principal question and consequential question, and you decide both' in the outset. You atfirm that my wharf is built in the river, and that it causes Brown vertf great damage. These superlatives are yours, not Brown's. The able Attorney, who framed the delaration, judiciously refrained from the use of terms so extravagant. Had they appeared towards the conclusion, had they followed the narrative and an intelligent statemont of fact, they might have been overlooked or condemned, at most, as at variance with good taste. But if I understand English, your convic- tion is the result of the explanations contained in the decla- ration. You say, as he explains in his declaration^ words which remind one of the letters Q. E. D. at the end of every problem in Euclid. As a judge, you are presumed to know something of the language in which you write. Had you said " as he complains," '^ as he alleges," you would have been understood to mean that the statement was Brown's statement. But to explain is " to make plain, manifest or intelligible, to clear from obscurity, to expound." Your use of the term explains^ then, implies the existence of a fact made manifest (not by the proof at which you have not ar- rived, but) by the declaration ! It is as if you had said, Brown has demonstrated hy his declaration, and you seem to assume that he is right Avithout any enquiry. Thus the statement touching the site of my wharf, and the effect of its erection, is made, in your opinion, to rest, not on the autho- sity of Brown, but on your authority. This will doubtless have struck every lawyer who read your opinion ; but most laymen, judging by your language, would have formed a very erroneous estimate of the effect of the explanations contained in a declaration. It is a compendious method of arriving • I did more thaa explain, for I proved. at a conclusion, which may account for many painful events, for the avowal of which, however, I was not prepared. Allow mc to refer you to the maxim secundum allegata et probata^ and to enquire whether the necessity lor proof has been dis- pensed with by any recent statute ? Poets habitually com- mence in mcdias res, but you have begun with the end. 2. " This action, well known in our law by the name of di none ia lion de. '^ noHvel ceuvre\s mken from the Romun Law. The principles on which " it is founded, and the rules by which Courts of Justice are to be guided "in adjudicating on the cases submitti'd to them, are clearly laid down " by the several jurists who have written on the subject.'' 3 " It is unnecessary for me her Canada, and obtained my first commission in the armyeaiyin 1812. Judge Duval, since this palpable misstatemenr made no impression, upon your mind, what are we to think of you ? But he adds : " Although on the occasions already refer- " red to I have not gone up as far as the mill, I have gone to " a distance within five hundred yards thereof. It altogether " depended on the state of the tide. From that point I could " see the mill and both sides of the river ; my object in going " was in performance with my duty, and to see that there " were no obstructions in the river." I shall presently notice your judicial declaration that 67 I g " schooners" have sailed up as far as the appellant's mill, meantime I would remark that the witness himself never \yent up that far. On the 28th June, 1855, your Harbor Master deposes inter alia as follows : " I shall be eighty-four years next August. I find that my *' memory is failing. I can remember occurrences which took " place when I was a youth better than those which are more " recent, I do not exactly remember the date of the last time " that I visited the river Beauport ; but I used to visit it al- " most every year Avhen I was Harbor Master, without hoiv- " ever going very far vp, for instance, not farther up than " the point at which you can see the middle of the stream ;" (To see the middle of a stream one need not be in it, and this expression seems to imply that he saw the middle from its mouth, or perhaps below it ;) " I had never been on Mr. "Brown's wharf until the period when, as I have stated in " my examination in chief, I went there to oblige him. It *' was very lately that I went there, but my memory does " not enable me to specify the tirne^ Since the period when " I ceased to be Harbor Master, I had never visited the " river Beauport until I went there to oblige the plaintiif. as " I have said. I am unable to say when that was. I must *' be stupid to forget it, but so it is, I have forgotten it." These admissions were assuredly sufficient to have neutral- ized that intimate acquaintance tvith the locality of Avhich you saw fit to make such a parade, but you affect to rely upon that sort of evidence, and upon that sort of evidence I find that you would have ruined me ! ! ! Lambly had previously deposed as follows : " The plaintiff " is my neighbor, I now see his house from my window, I " have known the family of the Lady of Mr. Brown for a " great number of years." Here we have the disclosure of a fact pregnant with con- sequences. It afibrded my adversary daily opportunities for talking over an old man of 84 and moulding him to his pur- poses. The use which was made of those opportunities, were it only in the drive in my adversary's carriage, is a matter of in- ference. Now for the particular facts, the basis of your judgment against me as reported in your opinion : J [ 1, 68 Istly. " That this part of the river (meaning the part along my wharf) was before the erection of that wharf navig- able." This is your judicial statement implying that owing to that wharf it has ceased to be navigable. 2ndly. That schooners have sailed up as far as the appel- lant's (Brown's) mill. 3rdly. That it is doubtful if (whether would have been a more appropriate word) " a skiff of the very smallest size " could at this day be brought to the mill." You pin your faith upon Lambly, and can have no objection to my citing in relation to the navigation, his very words. " The river Beauport I look upon as little more than a creek, " the same as the river St. Charles. I consider all rivers " creeks which are dry at low water." Bearing in mind that Lambly was an Englishman, the word "creek" in his mouth has an English, not a Yankee signification. " The river " Beauport, he adds, is a small river, but is navigable at high " water to near the mill for bateaux, small schooners and " so forth." You have a genius for amplincation. The plaintiff com- plains only of damage, but you set the judicial seal to it and it becomes very great damage. The Avitness upon whose tes- timony your judgment is founded indicates the size of the schooners, he used the word small: but unless tlie possession of judicial power places you above %e reach of criticism, I may remark that you omit, of course, purposely omit, the qualifying adjective. You probably know too that bat(\iux, a primitive sort of lighter or diminutive craft, draw at most, when fully laden, from three to six feet of water. It was propably intended to represent them as beiuii; larger than the small schooners, in whicii case be intended to cover anything down to a canoe contrary the witness be understood to have meant to depose in an ascending climax, the "and so forth" may apply to a hundred and twenty gun ship ! It was the business of my adversary to have proved his case by clearly intelligible and credible testimony, nor need I now speculate upon a part of his evidence not intelligible and therefore not likely to bo taken into consideration by an impartial judge.' "Schooners,'* you say, "have sailed up as far as the appellant's mill," and you cite no other witness than Lambly. Now begging your larger the "and so forth" might If on the 1 . h 69 a pardon, Lambly does not say so. What Lambly says is that, " the river is navigable to near the mill for bateaux, small " schooners and so forth." But he himself on his own admis- sion never ^yas as high up as the mill. Tie therefore never saw any craft whatever sail up. His evidence then is mere- ly inferential and not that of an eye-witness. Then inferen- tial as it is, he does not say Jiow near he infers that the small craft he describes did sail up, or could sail up. This is a point of which you make a great deal, and it was the interest of- my adversary t« have proved it if he could ! If any craft Avhatever, to use your words, sailed up as far as the mill, they could scarcely be phantom ships, they must have been manned by living men, and have been seen by some one or more of the multitudes daily resorting to the mill. Now any one of any crew, or any single spectator could have testified to the fact. In your view of the case this fact is decisive. It was not my business to prove it, why did not my adversary do so ? You are pleased furt'.ier to draw an inference which seems in your estimation to be' conclusive. " It is doubtful, you say, if a skiff of the very smallest size could be brought (that is floated) up to the mill." The use of superlatives in the preceding sentence, unluckily for the plans to which you so triumphantly appeal, show that at the spot in question, the channel is 19 or 20 feet wide.' You speak of a skiflt' of the smallest size, and are evidently ignorant of the signification k.l the term. A skiff is a little boat so narrow that one man can pull two oars, one in each hand. They are, indeed, often made so narrow that the rowlocks are unavoidably attached to outriggers. Any one so inclined could have lately seen one in the harbor of Que- bec, sixteen inches wide. As I believe it to be still within reach, I shall, whenever the necessity arises, produce it as art exhibit. Now, sir, you have, upon my authority, the breadth in inches of a skiif of the smallest size. Do you doubt that it could pass through a space 19 or 20 feet wide ? You distinctly and positively affirm that the evidence of Lambly excludes all doubt that I have erected a wharf in the river Beauport. Lambly avows that (until he visited the spot to oblige his neighbor the plaintiff) he " had never been 80 high up as the mill.'' He specifies a particular distance 70 >l i Hi it to which he did go, and that distance is ** within five hundred yards thereof." Now Judge Stuart is not the man to look at plans affecting the rights of parties, as a little girl gazes at Punch and Judy in a puppet show. He doubtless stretched the legs of a di- vider over the plans of which you speak ; he thus found that 600 yards extended to low water mark, a distance of 200 yards from the mouth of the river. If Lambly's evidence in reference to the distance, was correct, he never had even entered the river Beauport, but, as he said that he had en* tered it, we will suppose the judge to have made an allow- ance of half the distance. This is certainly doing a great deal for Larably. Lambly then, who admits that he had " never been as high up as the mill," may be supposed to have enter- ed the river (as he says, in a boat) as far as a spot situated some 250 yards below the mill. Now, between that spot and ihe mill, there is, as you know, a sharp angle or turn in the river, making it quite impossible that Lambly could have ever seen the " locality " as you call it. The edifice which you have thus erected upon the evidence of Lambly, is demolished by reference to the plans. But, incapable of yielding, you will require more demon- stration. Lambly says from that point (at 500 yards) " he could see the mill and both sides of the river." " Now let us look at the plans ;" Lambly never could have seen both sides of the river at the locality, nor indeed either side, at 600 yards or even at 250 yards. What would you think of a tailor who should undertake to furnish you with a nether garment without taking your measure ? Had you in your judicial capacity in a suit involving thousands, measured the spot as you would expect a }joor tailor to do you in a suit of no kind of importance, you would have ascertained that no confidence could be reposed in the evidence of Lombly ; I make this remark without impeaching his character, and solely because he had reached an age before which " Swift had become a driveller and a show." Permit me to submit another view of the subject. In your contrast between a skiff of the very smallest size, and a schooner, you intend to exhibit on the one hand exigui- ty, on the other, bulk. You define, it is true, only the skiff, but you expect the imagination to do the rest, This is your 71 idea, made manifest by the suppression of the adjective small. But, as you are evidently ignorant of the possible proportions of a skiff, you are not informed of the characteristics of the schooner. It is not a question of tonnage, as you probably, •\vithout inquiry, assumed, but of masts, spars, and cordage ; it 13 not the size, but the rigging, which congtitutes the schooner. Now a schooner may be a large vessel of 300 tons, and it may be a small vessel of ten tons. A small schooner may very well be only ten feet in breadth. The channel then in front of the natural bank upon which my wharf h built might possibly have been, and at high water may still be, navigable, as Lnrably says, for small schooners as far as the mouth of the tail-race. But though a .^mall schooner should sail up to near the mill, it could not sail up (as you say) as far as the mill. Larably may have known that the tail-race, only five inches wide, and the rise in the land, would prevent it. Thus then, dealing with the testimony of a man of good character, tottering on the brink of the grave, 3''ou have imputed to hira, negatively, one untruth, and affirmatively, another. By sup- pressing the word small, you expose him to a very serious charge, and by substituting the words" as far as " for " near," you subject hira to another. The good old man deserved better treatment. Lambly, avowedly too old to remember, who had never been as far up as the mill, was assuredly no authority. Had he been in possession of his faculties, he could not have over- looked the bank upon which my wharf is built, nor could he have failed to remark that the bank, the natural bank, was the lateral limit of the navigation as much as the wharf built on it. It is, however, upon such ground that you venture to add that owing to my wharf the " appellant must resort to land *' conveyance, and that the expense would be almost ruinous." You thus assert, by implication, that he had before that pe- riod used water conveyance, for which there is no authority, and could be no authority whatever. He has always used land carriage in that locality, and found profit in it. In the ninth paragraph you manifest a most alarming ig- norance of the appellant's mode of transporting his grain and flour, and you ascribe to the plans a power, effect, and in^u- ence, which I dare not characterize. The appellant has L^. :;ii-,. i: hi h \\> J i r1 .11 i!( 72 never moved grain or flour in that direction, nor has he any occasion to do so, or any interest in doing so. 11. " The Respondent at one time attempted to justify these cncroach- "m.'nts bj claiming title to the bed of the Rirer, which, he said, he nc- " quired from the late Seigneur of Reauport." 12. •' On reference to the Respondent's deed, it will be found he did " not acquire his projierty from the late Air. Duchesnay, as Seigneur of " Beauport ; he therifore can claim none of the Seigneui's right of pri- "vileges. Jloreover, the Judges of Lower Canada have decided the " Seigneurs never had such a right, See Lower Canada Reports. Ques. " iious Scigveurialcs, vol. A, page 130, a des Rivieres Navigables." Questions of law are not to be discussed by the profane, and I grant your infallibility in matters on which all the Courts and all the Judges are proverbially unanimous. I complain, however, of a mistake or misrepresentation to ray prejudice, contained in the 11th and 12th paragraphs. You say " that at one time I attempted to justify my encroach- " mente by claiming title to the bed of the river, as having " acquired it from the late Seignior." You mean, of course, against all the world. Now I certainly did not do any such thing. My position was this, that in my adver- sary's own title in the deed of conveyance to hira, there was a reserve in my favor. In the third page of my factum I intimated that it might not he well founded against the rest of the world ; but that, being a reserve in his own deed, in which I was named as being m the rights of the late A. J. Buchesnay, Seignior of Beawport, he, my adversary, who bought upon that condition, was estopped from controverting that position. If this should be, as I hope, in- telligible to laymen, they will perceive that I thus raise be- tween you and me a serious question, and that I distinctly deny having, in the remotest manner, admitted encroachments • on my part. In the second page of my factum you will find the above mentioned condition of his deed quoted to establish this proposition, that ray adversary could no more encroach on me than he could encroach on Mr. Duchesnay. In case you should revise your opinion, I submit this statement for your guidance. 13, "As to tho allegation that the Respondent Tas forced to erecf " this wharf to protect himself against the works of tht Appellant, on the " opposite side of the river, it shows a clumsy attempt to justify an act " done in open violation of the laws of the laud, and of neighbor's ' rights." ■ , 78 ' You condemn not the attempt alone, but the manner of it. Had it been ingenious instead of chimsj, would it have pleas- ed you more ? But in your mouth the word clumsy amounts to a compliment as denoting incapacity or inexperience, or both, in wrong doing. It was clumsy, you triumphantly de- clare, and of course instantly detected by you. You deal, as is your wont, quite unceremoniously with four judges, who thus receive under your hand a certificate of character for comparative obtuseness. This is surely an unnecessary "lift- ing up of your horn." But if the attempt .Avas so clumsy, why could not the three first judges who heard the cause, detect it ? Why did they order an expertise, and in despite of my remonstrances founded on my opinion of you, refer the question to your step-son, as an engineer and a practical man? How was it that forty-seven persons, half of whom are men of high social position, men of education and principle, men dis- tinguished for scientific attainments and professional ability, all of them in every way unconnected with and independent of me ; how was it, I say, that so many persons could be so blind or so wicked as to give the evidence of record ? You have thus forty-seven witnesses, three experts, and seven judges, who could not see the clumsy attempj; which is to you so very plain. The odds are great, but that is not all. I argued that the plaintiff could stop his mill at pleasure, and ascribe the stoppage to me. I added that as I could not place any person in the mill to prevent his resorting to trick- ery or artifice in order to deceive the Court, I was in his power. " Now let us read the testimony of one who had " been four vears his clerk in the mill." Patrick O'Brien deposed as follows : " The plaintiff has " not to my knowledge suffered any damage in consequence " of the erection of the defendant's wharf previous to the 29th "October, 1852," the day of the institution of the action. He adds : " In my examination in chief I stated that the " building of the Avhari' had caused a rise of the water which " threw it back upon the mill race and put the wheel in the *' water. I have since ascertained that this was an error, " and I now know that this was produced by a quantity of " stone and rubbish that were in the mill race. These stones " and rubbish have since been removed and the mill race " cleaned out, since which the evil has ceased." ''^••-''.''■j? ■'-.-""'■ / li ,1 ! u The foregoing declaration covers the period from the date of the erection of the wharf down to tlie day of his cross- examination (March, 1856). Here, too, is proof of the stop- page of the mill by means of rubbish, which, but for an after thought, would have been imputed to mo, but the clumsy attempt which you see, is invisible to the witness. Here, also, is proof of an attempt to my prejudice, against which I was perfectly defenceless, nor will you consider it clumsy. It is nevertheless the plaintiff who intentionally elicited the evidence in chief, which, but for the conscienti- ous scruples of his clerk, would, by means of a falsehood, have established, iucontrovertibly, his right of action. But the clerk, who speaks like a man of intelligence, who was clearly interested in supporting, and bound to support, his employer, whose attention was doubtless on the stretch, could not see the clumsy attempt which you so instantly detected. 14. *' I have abstained from adverting particularly to the facts, be- " cause they are so minutely noted down and ably commented upon in " the report of the experts, Baillarge and Stavely, that I could do no " more than uselessly repeat what they have well explained." .You declare in the 14th paragraph that you have abstained from adverting particularly to the facts because they are noted doivn and ably commented upon by the experts. ' m have thus tliree reasons for ignoring the facts, firstly, ti- .actums of the parties ; secondly, the opinions of some of the judges, and thirdly, the noting down of the experts. What you mean by noting down, unless there be be in your judicial opinion a noting up which has a different signification, I shall not pause to consider. That you should compliment your step-son Baillargd, whom you evidently believe to have been unfavor- able to me, is natural, but notwithstanding his relationship, to you, I hold him as a man of rare talent, in great comparative respect, and feel strong enough to overlook the abortive ef- forts to which your commendation is to be ascribed. Your step-son specifically admits that the bank (on which -my wharf is built) forms a natural obstruction to the flow of the water. He reports that my wharf has not obstructed any channel, canal or passage, for none existed when my wharf was built. He adds, that the trees growing upon the above mentioned natural bank (on which my wharf is built) are pretty good evidence of themselves of the truth of the fore- 76 going assertion, that my wharf does not (as the plaintiff pre- tended) traverse the river or any part of the river. What could you have more ? 15. "For the above reasons I must dissent from the ju</is. Jiutremcnt sintit astreindre les advocats de commettro. leurs af- "jaires entre les mains d\iul res i>crsonn^s de semblable qualili, qui, vraysem- " blublement ne prendrait rien d'eux, ou defaire signer les icrilures par cux ; " car de remettre leurs salaires en lic^ne de kommagcs et interels ce serait une " chose infinie et qui d'aillcurs ne s'cst jamais praliquie. "La ruisDu de Maistre C lament Vtiillunl est, que quipeut et veut nedoit " eslre cmpechi d'icrire et de plaider pour soi. LA JURISPRUDENCE DU CODE. Les coutumes et les decisions das cours. Par M, C. Ferridre, Livre VI f, Paris, Edition 0/ 1684. " Quoique celui qui a ohtenu ^itin dc cause ait fait lui-memc toutes les "icritures, toutefois il oldienlra la condamnation de dipens contre sa partie, "parce quit n'est pas juste que sa partie, qui a succombS, profite tie son tra- " vail, et il faut qu'il ij suit condamni cumnie si c'itait un autre qu i les ciit "fait. Outre que cela serait injuUe autremeni, parce que ct;lni qui aurait " obtenu gain Jo cause, aurait pu employer son temps pour d'autrcs et " faire le lueme gain qii'il doit avoir Hiit ea travaillant pour lui-ni6me, •' s'il ne pouvait pas en exiger le salaire." Code Civil ou Commentairc sur V Ordonnance de 1667, par M. Serpillon, Conseiller'Vlvil, etc. Titre 3le [Des Dipens.] Edition of Ilia. " Toute partie soit principalo ou intervenante, qui succouibera mema d " un renvoi d^clinatoire, evocations ou rogleraents de jugessera condam- " n^e aux d^peiis ind6linimeat, nonobstant la proximild ou autres qiali- " t^s des partie!, sans que sous pretexte d'dquit6, partage d'avis, ou quel- *' que autre cause que :<} soit, elle en puisse etre decbargee; Ddfendona " a no3 cours de Parloment, Grand Goiiseil, cours des aides et autres, " nos cours, Requdte de noire Hotel et du Palais et a tous autres Juges, " de prouoncer pur bors de cour sans ddi»en3, Voulons qu'ils aoient taxda "en vertu de notrc pr6ieiite ordonnance au profit de celui qui aura ob- " tenu d^finitivenient, encore qu'ils u'eussent 6te adjug^s, sans qu'ils puis- " sent etre raoderes, liquides ni reserve:}. " Quoiqu'une partie ait fait elle-meme les 6criture de son prods, les depens " ne lui tn sont pas moins dus, parce qu'il ne serait pas juste par la partie " qui a 8uccorab6, profiat de son travail. D'ailleurs, celui qui a obtenu " gain de cause aurait pu employer son temps pour d'autres et faire le "meme profit dont il serait priv6, s'il ne pouvait exiger aes vacations." Procidure Civile du Chatelet, Paris, Edition of 1779, de I' Instruction, liv. IT, partie If, par M. Pigeau, Jvocat. " Les procureurs peuvent ex-'rcer leur ministere pour eux, leurs femnies, "enfants, et parents, a la difference des buissiera et autrea officiera de "justice." ■'.S.-,,: ;^'7?'- ''.jX- 11 N f ' iii I! H If! m II 78 Confertnce de Bornier, Tome ler, Edition, 1729, Titre XXXI, Des Dcpent *' II fant encore observer, que quoique la partie ait omis de demander " la condamnation den d^pena, cette omiss>on ne donne poiut d'atteinte " a la seatence, et n'empfiche pas que la partie qui sucrombe n'y doivo "Stre condamn^e, tout de meme que si I'on les avait demandez. La '• raison est, parce qu'en niatiere de contrats et de sentences on suppl^e " aux choses, de quibus verissimile est partes co^itasse, Gloss, in Z. 3 § si ''rem, verbo Fortiissis, de leg 3. ^nfrer. dccis. 5. Mattesil, Singul 81, Re- ''buf. trait, de Expens. art. 2. Gl. un. num. 49. Boer, decis. 18 G. P. qu. " 55. 4- ibi Bamh\" " Cetto condan-uatiou 6tait si indispensable, que si le juge n'avait pas •' prononce sur ieL> d'^ppns, il ^tait oblige de les payer en son nom propre *' a celui qui avait gagn6 le proctis par son jugeaaent." The Judges of the Court of Queen's Bench being divided on the question of costs, directed the Prothonot ry of the Superior Court to certify the practice. That officer accord- ingly certified that since Sir James Stuart became Chief Jus- tice in October, 1838, the uniform practice had been to grant C03ts to Attorneys who conducted their own causes. In proof of this practice during a period of twenty-three years, I would crce the cause No. 846, decided upon the 2nd June, 1846. The plaintiff, " James Motz^ Advocate" on that day obtained" judgment agamst the two defendants, Lampson and Arnold, and although he had conducted his o\Yn case in person, the Court granted fees. That Court was com- posed of the four Judges, Chief Justice Sir James Stuart, and Justices Eowen, Panet and Bcdard. A difierent course may have been previously pursued, but the practice was thus set- tled and adhered to from the above-mentioned date. It is inconceivable that you should ignore the existence of that practice. To prove it, the case of Motz ought to suffice. But in April, 1839, three similar judgments were pronounced — Firstly No. 632, in which J. U. Ahern was plaintiff, another, No. 613, in which J. W. Lloyd was plaintiff, and a third in which F^lix Fortier was plaintiff, all three practising attor- neys, as you know. I submit further that the case of a de- fendant is more favorable than that of a plaintiff. Then there were in 1856, No. 2133, Alleyn vs. Gilbride ; in 1857, No. 1417, Pentland vs. Smith ; in 1859, No. 1959, Pentland vs. Bell, and No. 2147, Pentland vs. Bell. The series you see is unbroken, and, as Judge Mondelet intimated, in the District of Montreal, the question has never been raised. 79 t In conformity vrith that practice, you yourself, Mr. Justice Duval, have granted costs in such a case. It bore the No. 1085, and by the judgment dated 28th June, 1851, which you pronounced, fees were allowed to the plaintiff, Lawrence Ambrose Cannon, who, suing as advocate and attorney, had appeared in person. In that ease too the attorney for the defendant, a widow, had compassionately made the objection. The reason assigned for denying me fees was, however, that I conducted my own case — a point relative to which no kind of evidence was adduced. I am in possession of office copies of yonr judgment, nor am I aware of adverse decisions, and the Court certainly cited none. Judges who adjudicate upon the fact are apt to sneer at Juries. Jurors are certainly not perfect, but they are a check upon Judges. The latter are no better th^n other men, and I have known Judges much worse. To g- ait or deny costs at pleasure was in France a common m'\[e of favoritism, and in that country the Legislative pow^r seems to have been in- cessantly engaged in promulgating edicts for the repression of that abuse. You will have noticed that the successful suitor who was denied his costs had a right of action against the un- just Judge who pronounced the judgment, and it is my inten- tion to institute against you such an action. Of course, we shall then hear a great deal of the immunities and privileges of English Judges, but on that occasion I shall have a word or two to say, and won't anticipate. You rely upon Jousse, and make light of Serpillon. The difference between them is this, that Jousse gives his own opinion, Serpillon the opinions of earlier writters confirmed by his own. But Jousse speaks only of the Avoc4C ? How does chat apply to wiiat from your judi nal eminence you call a " Practising Attorney." Then Jousse admits the right of the Avocat to sue for compensation by a distinct action. The two authors then only differ as to the manner in which the claim should be enforced. According to Jousse I could briag an action to recover '• des dommages d interets a cd Sgai'd,'" against my adversary. According to all the other authorities I am entitled to recover in the original action. Which course do you prefer, n single action decisive of the whole controversy, or a series of t/.\em ? 80 ¥>■- 17. " Were it required to cite any case to show tlie wisdom of the Rule, " the present might very properly be selected. Tha zoal of the Respoa- " dent, carried to excess, has not only caused angry discussions between " him and the Experts, but it has led to violent altercations with at least "one witness, who has instiuited against tlie Respondent an action of " damages for slander, lately submitted to this Court." An Englislimo'^. arrived in Canada for tho fir3t time in 1854. lie reached the Parish of Beauport in December, and probably never saw the river free from ice and snow until May or June, 1855. Nevertheless, produced as a witness by my adversary, this man undertook to describe the condition of the river in September, 1852, two years and three months before his arrival : and in your judicial capacity you would have interdicted such remarks in the exercise of the right of self-defence, as would bo naturally wrung from any defendant on such an occasion. " And if," says the Lawyer, " had the case been yours would that have been your opinion ? Your son-in-law seems to have imbibed some of your views, and he evidently imagines nimself to be invested with some of your authority. He has accordingly made a report which has been severelj-- animadverted upon by all the Judges, yourself only excepted. I am not, however, aware that he complains of my personal deportment, and on the contrary 1 have understood, that ail the experts had used in reference to my conduct in their presence complimentary language. It is certainly my earnest desire, and invariable custom to be civil. It is indeed Tvith me a constitutional necessity, but then one occasionally meets people so coarse and swinish!" ly. "Had tlie judgment awarded costs to tho Respondent, how could " a Judge in vacation have taxed, in favor of tho party, the fees of office " allowed to the Attorney ? Let it be remarked thut the Provincial Sta- " tute authorises Courts of Justice to make a Tariff of Fees, in favor of " pructising Attorneys, but does not authorise them to grant them to " either party, IMnintiffor Defendant. The Court therefore could not *' grant the Respondent any mori> than it would have awarded had he " been a trader or a mechanic. This appears reasonable. Were adifFi*- " rent rule laid down, a practising Attorney might become the terror of " his neighbors." A practising attorney waging an aggressive warfare might be obnoxious to the suspicion of terrorism which you suggest — but it cannot apply to an unhappy man, acting as I do, purely on the defensive ! Then you know that there is a canon which settles the point, cessante ratione cessat lex. The rule that you have laid down is. however, as a measure 81 le of precaution, so easy of evasion as to be quite inoperative. A practising attorney who should desire to flourish in history as a " terrorist," would always find an accomplice ready to lend his name, and to sign all the requisite papers — the very case supposed by Gastier in 1665. Could you but " lay down a ruW^ to prevent the rich suitor from giinding the poor — could you but interpose, by any means, between the pettyfogger and his victim — what a pubUc benefactor you would become. IS. "Serpillon'e opinion (cited by the Respondent), is of little weight. " He refers to no decisions of the Courts, and his reasoning is strongly '* against his opinion. He says a lawyer ought to be paid for his work. " This granted, what answer could be given to a shopman or mechanic, " claiming to be indemnified for loss of time ? What amount could the " Judge allow? Certainly not the fees given by the tariff, which were '• never intended to indemnify a party to the suit for his loss of time." Your above written reasoning is not convincing nor indeed quite intelligible. Does the Statute exclude an attorney from being plaintiflf or defendant ? Is he less an attorney because he is plaintiff or defendant ? Is there not a tariff of fees for attorneys, and is there a like tariff for traders and mecha- nics ? Is a practising attorney prohibited by law from holding real estate ? And should he, as holding real estate, be drag- ged into Court, and be kept there for nearly ten years, is he to be stigmatized as " the terror of his neighbors" because he defends himself successfully ? Mr. Justice Duval, the power of an attorney for evil is controled by the power of the Court for good. The attorney can be at all times restrained by the Court, always promptly and effectually restrained : but the Judge is scarcely within the reach of any human tribunal. Without the intervention of the Royal prerogative of mercy. Gray, whom you condemn- ed to death at Montreal, would have been hanged ! And the enquiry into the failure of justice in the case of Corrigan hav- ing been effectually stifled, the manes of that martyr are not yet appeased. Your eyes then '^ight have been profitably turned in another direction, bu, had I been a practising attorney I durst not have compromised the interests of my clients by such an enormity as in dissecting your opinion you will hold me to have committed. 1 am not at all insensible to the losses, the difficulties and the dangers attenduig the vindica- F 82 tion of my rights, bat I am ashamed of the fear of the Judges exhibited in so many quarters, and having suffered prodi- giously, being indeed without hope, I borrow courage from despair^ A. GUGY. APPENDIX D. The late Simeon Leliuvre used to relate an instructive story. He was it seem^ entitled to remuneration for some pablic service. It was necessary to undergo some examination, some process to fix the amount, and it was fixed by a com- mittee. A member of the government was eventually select- ed to give effect to the recommendation of the committee. He had been a member of it, he had concurred in its decision and report ; but he eventually reduced the item considerably. When reproached for this act, he is understood to have ad- mitted that tlio original amount allowed was reasonable ; but I diminished it, added he, (as I was known to be your friend) to show my impartiality. Here was a wrong done under the influence of ^elf-love ; but of course that functionary Avas not promoted, nor had he ever the power to do any other wrong, nor would he under the influence of self-love or of envy, or of any kind of uncharitableneas have availed himself of his power to do wrong — not he. - APPENDIX E. The temptation to submit for the consideration of the pub- lic a copy of a letter written by me, and at my request delivered to my adversary Brown, being irresistible, I offer it as follows : Mp. Wm. Brown, Quebec, 21st May, 1867. Sir : — Unaffectedly desirous of buying my peace I venture to address you directly, because that course seems to me to be more conducive than verbal communications to the desired result, nor am I afraid to write what I should be disposed to say, for on me spoken words are as binding as written words. I thus address you because Mr. William Bell infcrmed me that you Avere at last disposed to cease from persecuting me, . as you have done incessantly for now nearly fifteen years. • '^ ' 83 Should you happily be in that frame of mind, I beg that you will suggest in writing, in detail and in the form of a no- tarial agreement, the terms upon which you are willing to allow me to live in peace. The foregoing words must be un- derstood to imply that every subject of difference between us should, without any manner of exception, be included in the proposed deed. It behoves me, however, to be perfectly plain with you. Ac- cordingly I insist on it, as a preliminary condition, sine qua non, that jou cause your Attorneys, Messieurs Boss6, to cease, pending negotiations, from worrying me with executions, end- less, and to me ruinously expensive, but to ihem exceedingly profitable, proceedings. Secondly. — In view of my age and approaching demise, I shall claim the insertion of a clause binding you to refrain from renewing the attempts, in which you have been defeated, under a heavy penalty, in favor of ray successors. If it please God, they shall be exempt iVom the torture which your great wealth has enabled you to inflict upon me. Tldrdly. — I should wish you to bind yourself to refrain from buying my debts. It is not my intention that the enquete in the case No. 581 should be postponed, nor until the execution of the proposed deed shall I pause in the exercise of the right of self defence, the first law of nature. I have no manner of objection to your selecting your own notary whoever he may be to prepare the deed, of which the draft must be submitted to me. Should I approve, I sliall instantly subscribe it. Should I be desirous of adding, retrenching or modifying, I reserve the right of conveying my views in the margin. It should therefore be wide. I remain, Sir, Your obedient servant, A. GUGY. I am not so constituted as to carry, still less to use a revolver ; but I liacl seen my adversary's servants, and on one occasion himself, engaged in working in the bed of the river in a man - ner whicti would have induced many to resort to fire arms. ' 84 On two distinct occasions I had therefore employed a most respectable notary (Mr. Huot,) to protest against my adver- sary, Brown. My statements of the wrong done me by his diversion of the channel of the river have been since fully proved, among others by Mr. James McCorkell, a man of ' sterling worth, who would do honor to any community. He among others swore that by heaping stones in the river half of its breadth had been taken up. It was to prevent that result that I protested. Yet to one summons to desist, my adversary Brown replied that I was an " infernal liar T' to the other that my statement was a pack of lies throughout ! Thus he made no ceremony with me. But on the morning subsequent to his receipt of the foregoing letter, I received at the Post Office a dingy envelope and on opening it, found my letter returned by Mr. Brown, without a syllable ! He has since admitted the fact on oath, and it seems that he considered that communication an insult. I refrain from dilating on the circumstances. ■J