IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 Uilli 12.5 HI lU u ■4.0 Hioliographic Sciences Corporation 23 WIST MAIN STRUT WIB.«TIR,N.Y. 14580 (7I6)S72-4S03 ^^ SJ % '^^^^4 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadiair Institute for Historical Microreproductions / Institut Canadian da microraproductions historiquaa Tsehnieal and Bibliographic Notaa/Notaa taehniquas at bibliograpliiquaa Tha Inatituta liaa anamptad to obtain ttia baat original copy availabia for filming. 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This item is filmed at the reduction ratio chaclced below/ Ce document est fiimA au taux da reduction indlqui ci-dessous. 10X 14X 18X 22X 26X 30X y 12X 16X aox a4x 28X 32X I tails I du odifier una maga Tha copy filmad hara has baan raproduoad thanks to tha ganaroaity of: Ssmirary of Qusbte Library Tha imagas appaaring hara ara tha bast quality possibia considaring tha condition and lagibiiity of tha original copy and in Icaaping with tha filming contract spaclfkationa. Original copiaa in printad papar eovara ara filmad baglnning with tha front oovar and anding on tha last paga with a printad or lllustratad impraa- sion, or tha back covar whan appropriata. All othar original capias ara filmad baglnning on tha first paga with a printad or liluatratad Impras- sion. and anding on tho laat paga with a printad or lllustratad Imprasslon. Tha last racordad frama on aach microflcha shall contain tha symbol — ^- (moaning "CON- TINUED"), or tha symbol y (moaning "END"), whichavar appilas. L'axamplaira filmi fut raproduit grica i la g^nArosit* da: Mmirairs ds QuMmc BiMiothAqM Laa imagaa suhrantas ont At* raproduitas avac la plua grand soin. compta tanu da la condition at da la nattat* da l'axamplaira f ilm«, at an oonformltA avac las conditions du contrat da filmaga. Laa axamplalraa orlginaux dont la couvartura an papiar aat ImprlmAa sont fllm4s an commandant par la pramlar plat at w* tarminant soit par la darnlAra paga qui eomporta una ampralnta d'imprasslon ou dlllustration. soit par la sacond plat, salon la eaa. Tous las autras axamplairas orlginaux sont filmte an commandant par la pramMra paga qui eomporta una ampralnta d'Impraaaion ou d'illustratlon at an tarminant par la damlAra paga qui eomporta una talla ampralnta. Un das symbolaa suhrants apparattra sur la darnlAra imaga da chaqua microflcha, salon la cas: la symbda — ^ signifia "A SUIVRE". la symbola V signifia "FIN". Maps, piatas, charts, ate. may ba filmad at diffarant raductlon ratios. Thosa too iarga to ba antiraly included in ona axposura ara filmad beginning in tha upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Lea cartes, planches, tableaux, etc., peuvent itre filmAs A des taux da reduction diff Arants. Lorsque ie document est trop grand pour Atre reproduit en un soul ciichA, 11 est filmA A partir da I'angle supArieur gauche, de gauche A droite, et de haut en bas. en prenent Ie nombre d'Imagej nAcessaira. Las diagrammes suivants illustrent la mAthode. 'rata o lelure, I A 32X 1 2 3 1 2 3 4 5 6 ! i ■'ifn ' ♦■' ■•' ji' ''.'tie'" l- ■'•■'■' ' • 'i* , /^jWWW v-fc;i v., ;!«■*■■«»*•. v< * , f » * ' ,i i:. ■f ki Ljs^iTs.*'! I #" * if'^^Tr ■;l(4 ( r P I .#,.*;, r f THE CASE Of GEORGE ARNOLD, JOHN BOYLE AND OTHERS, « AMVMD AND DBTBRMTMBD IK Tni COURT Of KINO*! BBKCK fo» m DISTRICT OF QUEBECl nr nu TERM OF APRIL 16SS. rajVIIS was an Action upon a Note of hand ■ made by the Defendants in favor of the naintiff, for the Sum of Three hundred and twen- ty six pounds fifleen shillinffs and two pence, to which the Defendants pleaded the general issue,' and also a Plea of Temporary Exception, and a Flea of Peipetual Exception. By the Flea of Temporary Exception, the De-' fendants pleaded " that the promissory Note and ** supposed promises and undertakings in the said ** Declaration, mentioned if any such were atany ** time made, were jointly made with one Ridtfbrd ** Annett a Copartner m Trade with the l^re ** named Defiendants, who was still livinc to wwat Gasp6,- in the Inferior District of Gasp^, and not by them the said John Boyle, George Boyle, Felix Boyle and James Boyle alone*'° A 2 By «« « ■■■m ■ *J' *\ ^i « «l «l (C <« «< 'Byfh#|r Flea of Perpetual Exception, the De- fendants pleaded that ** heretofcre» to wit on the ** seventeenth day of November one thousand ** eig^t hundred and nineteen, at the City of « Quiebec aforesaid, they, the said John Boyle, Gebrge Boyle and Felix Boyle acting as well for themselves as for the taid James Boyle and one Richard Annett, their Copartners in Trade, carrying on business under the firm of John Boyle & Brothers, by a certain Notarial Act or Instrument in writing, (an authentic Cm>y *< whereof was therewith fyled, bearing date tne ** day and year aforesaid at Quebec aforesaid, du* ** ly made and executed before M*Pherson and " Confrere, Notaries Public, for the causes and ** considerations therein mentioned, did acknow- ** ledffe themselves to owe and be indebted to the *< said George Arnold, and did also then and " there by reason thereof, undertake and promise ** and did thereby, then and there bind and oblige <* tliemselves and their said Copartners, the said ** James Boyle and Richard Annett, their res- ** pective Heirs and Assigns jointly and several- ty CSolidairementJ to pay to him the said Geor- ge Arnold, (then and there personally present and accepting thereof,) the sum of three hun- dred and twenty six pounds fifteen shillings and two pence current money of this Province, that is to say ; one just moiety or half thereof with legal interest tnereupon on the first day oi' No- *< vtmber, in the year one thousand eighthundred <* a|id twenty, and the other moiety or half there- ** OTontlie first day of November one thousand eight hundred & twenty one, they the said John Boyle George Boyle and Felix Boyle there- by «( CI <« « * 'For these causes the Fatntiff prayed that the aforesaid Instrument, alledged to nave been made and executed before IVfcPnerson & Confrere on the 17th Nov. 18i9> might be declared to have been falsely counterfeited and fabricated, and that the same might be rejected and not received as evidence, but be taken from the record in the said cause. For answer to the above moyens die faux ^q Defendants pleaded. The Respondents prayed in consequence" that the Moyens defaux of the said Complainant by him filed, might by the Judgement of the Court be declared irrelevant and altogether insufficient to enable him, the said Complainant, to have *' and obtain the conclusions of the said Moyens de faux, and that the said inscription en faUx might be dismissed with costs." -♦*. 1 ^4r^*> An exception to this rule is found in the Provin- cial Ordinance, ^, Geo. III. cap. 2, I, 10, wbich- provides that ** in proof of all facts concerning " commercial matters, recourse shall be had in all " the Costs of Civil Jurisdiction in this Province, " to the rules of Evidence laid down by the Laws ** of England.' f» The iuquiiT comes to be then whether the rule upon which the Defendants relv, be a rule of Evi* dence or not. It can only be held to be a rule of Evidence upon the ground of a variance between the Contract laid, and that proved. This doctrine was formerly adopted Carth. 56 ; Boson vs. Sanford; 2 Salk. 440 3 Mod. 321.— S. C. 6 Term Rep. 329, Shepperd & Baillie — However in Rice & Shute 5 Burr 2611 — ^it was adjudged that if an action be brought against one partner or a partnership account, the Defendant must plead it in abatement and cannot give the partnership in evidence ; the same point was afterwards adjuoged in Abbott and Smith 2 Blac, 947.— The same rule was afterwards extended to all cases of joint con- tracts — Cowp. 832, Rees & Abbott per Buller J. This rule is clearly established by the a- bove and other authorities collected in a note of Mr. Searjeant Williams to the case of Cabell & Vaughanl. Saund. 2916. !''..r.-» Now, nothing is more clear in the Law of this Country than that on action may be brought by the « Creditor H; i I u /\- I M k i i-: Creditor against one, several or all of his joint, se- veral debtors at his option. . iu ' «*"'^' i^nn-m '■ €t €t <( (( (( it tt The effects of solidity between several debt- or are 1. That the Creditor may recover from which of the debtors he pleases by action if the' debt lies only in action, or by distress if it lies in Execution, the whole that is due ; this is a necessary consequence of each of the debtors being such for the whole" a little lower down " observe," that the choice which the Creditor '* makes of one of the debtors against whom he '* exercises his pursuits does not liberate the others " until he is paid : he may discontinue his pur- ** suits against the first, and proceed against the " others ; or if he pleases he may proceed against " them all at the same time, I. i28 Cod. de Fedes, " Evans Poth. Obi. N. 270. I. Authorities might be multiplied without end to the same effect. The whole of the doctrine of Joinder as treat- ed in the English Law Books is unknown to the Law of this Country. But 2. — If the Law of England be taken as the rule of decision, then it was the duty of the De- fendants to have filed a Plea in abatement, or as it is here called a peremptory exception to the form. He cannot avail himself of this matter under the present Plea, which is a Plea to the merits. By the Law of this Country, matters touchi ng the form of the action and those relating to the merits of the demand, are carefully distinguished, and the former disposed of before proceeding to the lat- ter. Indeed this is a rule of sound sense which -r obtains Mr obtains no less in the Law of England than in the Civil and French Laws. Over and above these fatal ol^ections, the Flea is not made out in Evidence. The alledged par- tnership was in the cognisance of the De' endants. It was their business to ofier the best Evidence that the nature of the case admitted of — such as the articles of Co-partnership — ^the books of the Cu-partnership — evidence of public and unequi- vocal acts done by Annett as Co-partner in this particular trade, The only Evidence that the De- fendants offer is that of hearsay. They carry on various branches of Trade at Quebec and at Gas- p6. Is Annett a partner with the Defendants universorum bonorum ? If not, and that he is not, is manifest from the Judgment in other Cases which were filed at the Trial, in two whereof his name is not at all included, and on the other his name having been erroneously introduced, he ob- tained relief in the Court of Appeals by a judge- ment of this Court, which had awarded judgment as well against the said Annett as others, the Defen- dants ; then, in which of the particular trades and business of the said Defendants, had the said Annett an interest ? had he any interest in the transactions which constitute the subject matter of the present contestation ? If the Defendants refer to the instrument which has been impugned in the present Suit, it will be shown when we conie to the consideration of the Plea thereby pleaded, that thia instrument is null and void, ana can therefore not be evidence, for or against any of the parties to this Suit. Fides Scriptures indivisi hilts est. The PlaintifFknew the Defendants at Quebec only, and the \ ' I < f Id fh6 simple inquiry is whether the Evidence in this Suit would be sufficient to' charge the Defendants in the present action if he had been made a party to it. The third Plea of the Defendants being founded entirely upon the alledged deed, stated to have been executed by the Plaintiff and other Creditors of the Defendants, to and in favor of the Defend- ants, granting unto them a term of payment, it is here that the inquiry arises, whether the Plaintiff has succeeded in establishing the falsity and nulli- ty of that instrument, under the incidental issue on the Inscription en faux. Upon the sanctity of notarial instruments de- pends the lands and goods of the people of this Province. Miliatever in the slightest degree touch- es their purity, tends to render property precarious, the administration of the Laws uncertain, and all the acts of civil life Insecure and fluctuating. Where the Notary violates his doty direct and po- sitive testimony cannot be expected, presumptive evidence can alone be resorted to, for in proportion to the dangerous consequences of the onence, and to the temptations for committing it, will be the care and precautions taken for its concealment. Upon this occasion the presumptions are so weighty and multipliedi as to be equal to the mo&t direct evidence. •• « le first presumption is derived from the differ- ence of the colour of the Ink with which words are obliterated and added, and that with which the body 17 liod^rofthe Instrument is written, tbe former being much fresher than the latter. Secunda est Cortjeo* tura (says Menochius) quando adestapostiUa 4iKjeru utramenti in loco subftantiali ipsius Scripturas, Ita Anchor , in Cons, ^\, Col. 2, Vers, descendo. Ru- inus in Cons. 68. n 5, lib. 4. Cur, jun, in Cons, 59, irjfi: Parisiusin Cons. S8. nu, 1. lib, S. Soc, Jun, in Cons, 41, nttmb, 7. lib, 1. 4* Crau. in Cons, 134» 27, guos Secutus sum in Cons, 199 n, 8, lib, 2, Et diversiiatem atramenti cum alia corijectura ar- guere falsitatem decidit Rota in decis, 137 in Se- cunda parte, Menochius de Presumptionibus ': lib, 5, Pres. 20. s, SiJ 9. The second presumption is derived from the cir- cumstance of important parts of the instrument having been obliterated. These are 1. The names of divers persons who purported to be parties to the said instrument, con- sisting of as many as four names. Q, The sum of money for which the instrument purported to have been originally drawn. Idem est ^Says MenochuisJ quando acta publicaia sunt cancellata — Bal. a Cons. Q^O-^Marcius in 9» 151— .Crau. in Cons. That these are material parts of the instrument, it will be necessary under another branch of this enquiry to establish. Thei third presumption is derived from the cir- C ««cums- / 18 cutnstance of the substitution of a principal sum in the body of the instrument, different from that which was originally written, and this in a hand writing different from that of the body of the in* strument, and also from that of the Notary. Et quando apostilla est facta diver sa manu quod Jldemnonjaciatcopiose repUcat Ruinus, Menoch lb* The fourth presumption is derived from the cir- cumstance that the number of words which are stat* ed at the end of the instrument to have beenob-^ literated, are partly written between the lines not in the margin with the initials oi the parties subscribed as is customary, when it becomes neces- sary to Writef out of the ordinal lines, and that these words, are written in ink difierent from that of the body of the instrument and of the same same shade and freshness as that with which the obliterations throughout the instrument Were made. It sane scripserunt (says Menochius, whom we are obliged again to cite,) apostillam diversi atrimenti non arguerefalsitatem : sed solum quando apparet factam diversa, manu S^ non observatis Jure requisitis. Idem sensit Curtius Jun, in Con^ 145.— A/e«oc/< ibid. In stating the above as presumptions only, it is conceived that the case is put weaker than it really stands. The instrument it is manifest by inspectioA has been altered^ Itis for the party producing it to shew how it • has , A ■m A^^~ 'h' 19 has been alteried, and that it was done with the knowledge of the Plaintiff and previous to hi» signature. . ■ * .» .1 This could only be done, and is uniformly done, by causing the party who signs at the foot of the instrument to sign his initials to whatever is writ- ten in the margin j — to write in the margin what- ever does not come into the ordinal^ lines,—" in other words to have no interlineation,"— and to specify particularly in the body of the instru- ment, wnatever has been obliterated. If to all this be added the direct testimony of divers of the Witnesses examined in the Cause, it seems impossible to entertain any doubts of the instrument having been falsified and fabricated. But the Defendants themselves in their an- swer to the Moyens de faux, almost admit the al- terations to have been made, and insist that they are immaterial. They pray not that the Moyens de faux be overruled, m false, but only be declared irrelevant and altogether insufficient. The instrument in question until it had receiv- ed the Signatures of each and every the persons who purported to be parties thereto, was merely an inchoate and imperfect instrument conferring no rights and creating no obligations. i This w^ould have been true if the instrument had been one ^ous seingprivi, and dfortiori must be soas to a notarial instrument. ** Where there is an ins- trument (says FothierObl. n. 11,) under private C 2 « Si- cl ^ ♦ I* «< « it 90 " Signatures which has not received its intire per- "/fection by the Signatures of all the parties, some *^ of them having withdrawn without Signinffr <* those who have Signed may recede, and are al- " lowed to alledge, that on entering into the a- " greement, they intended it should depend up- on the entire completion of the instrument.— Upon this principle the sale of an office made by a widow as well in her own name as in the <* cnaracter of Guardian to her Son, who was a Mi- <* nor, was declared imperfect and the person ** who had agreed for the purchase was discharg- ** ed, because the instrument had not received ** its completion by the Signature of the Curator ** of the Minor, who was named in it, as assenting '* on behalf of the Minor though that 'was unneceS" " sary," By obliterating the names of the parties which were in the body of the instrument when the Plaintiff Signed it, and giving a certi- fied copy of it without any notice of those par- ties, the Notary gave to an instrument inchoate and imperfect, the outward form and figure, and with it the substance of an instrument, perfect and obligatory, upon all the parties thereto. There is no difference between the rendering of an instrument perfect, and binding upon the parties by obliterating words, or producing tho same effect by adding words. In either case the instrument is not that which the party executed or commenced the execution of. It "f ■N # ^^V> 21 It is then not a true but a false instrument Its validity or invalidity is made to depend not upon the will and act of the parties thereto, but upon the will and act of the Notary, before whom the same is executed. ...;... ., ^ Whilst these names remained in the body of the instrument, the Plaintiff was not bound ex- cept conditionally, and the condition was that all the other creditors should siffn. The act of the Notary alone has converted this conditional obli- gation into an absolute one, and this without the consent of the party to be bound-Can this be Law! But supposing this Instrument to be a good and valid one, it forms no bar to the Plaintifrs action. The Defendants being indebted to the Plaintiff grant their obligation for the amount thereof pay- able in two equal annual Sums of money, and James McCallum becomes surety for the fulfill- ment of this engagement. Two days subsequent to this the Defendants make their note of hand for the same sum payable in one year. This note is in the nature of a Pactum ConstU tuto! pecuniai And there can be no doubt, that it was competent to the Defendants thereby to abridge the term of payment. By the Law of England if a Bond be taken for a simple Contract debt ^e latter is mer- ged ^-v i! S ged in the former, but the converse of this pro- position is not true. Nor is it believed that this IS a rule of the Law of Canada. It will be for the Defendants to shew that it is. It is true that if all the Creditors of an insolvent, consent to accept a Composition for their respec- tive demands upon an assignment of his effects by a deed of Trust, to which they are all parties, and one of them before he executes, obtain from the insolvent a promissory note for the residue of his demand, by refusing to execute till such note be made, the note is void in Law, as a fraud on the rest of his Creditors. It is also true that the de- cisions of the English Courts upon this Subiect, have been held to be Law in this Country, (Black- wood & Chinic K. B. Quebeo and in Appeal.) But the Defendant's Plea contains no averment of a fraud of this nature. And the evidence ex» eludes every idea of such a fraud having been even contemplated still less carried into effect, For the Defendants ; It was contended that the Plaintiff having ta- ken two Securities for his debt namely, a Nota- rial Obligation of 17th November 1819> and the promissory note (upon which the present action had been instituted,) of the 19th of the same month, was bound to proceed upon the higher. That the promissory note could only be consider. ed as a Collateral or double security. No Novation had taken place, because such is never presumed unless expressly stipulated by the parties. The former its former obligation >s is thereford not extinguished by the promissory note in question, which seems tu have been intended only to abridge the delay grant- ed by the first obligation, for there is no dispute about the identity of the debt for whicli these acknowledgments were given. If an extinguish- ment of the former debt and a Novation had been intended, Mr. Arnold would have discharged the Notarial Obligation of the 17th November, which he might have done by calling upon the Notary before whom it had been passed, and entering sa* tisfaction on the original minute. Nothing of this kind had been done or spoken of, if anv thing of the kind had in fact taken place, the Plaintift* was bound to make it apparent, otherwise the Law was opposed to his recovery of a Judgment for a debt upon a minor security, while he retained in his pocket a higher one, and upon which at some future period the Defendant mi^ht experience trouble. A Judgment is the highest security which the Law can give to a Creditor. To ob- tain this he must bring in and relinquish, as it were in exchange for it, all others. This cannot more effectually be done than by proceeding upon the highes the holds, in which dl others of an infe- rior nature are merged. Secondly — If the objection above taken were even overlooked, the omission to join all the De- fendants must be fatal, the Defendants having taken advantage of the omission by their Tempo- rary Exception or Plea in Abatement.— (Rice vs Shute 5 Burr,) — The Debt for the recovery whereof this Action had been brought, was a Co- partnership debt, and the Copartners were soli- dai" ^ Sf^l^^.'' 24 dairement bound. — ^The Plaintiff might therefore at his own option sue them all separately by sepa- rate actions, or he might sue them allm one action. But the obligation being joint and several (^oU- dairej must necessarily be treated as wholly joint or wholly separate, no action being maintainable against two or more of a greater number of Co-o- bliges soUdaires (Evan's translation of Pothier, vol. 2, page 62.) In this instance he professes to treat it as Joint and to sue all the Co'obliges so- lidaires namely, John Boyle, George Boyle, James Boyle, aud Felix Boyle, as constituting the firm of John Boyle & Brothers, whereas there is Evidence that the firm consists of those persons and of an another person, namely, Richard Annett, their brother in law, and also that the Plaintiff was conusant, that the said Richard Annett was a partner in that firm. Further if the Plaintiff had chosen to treat the obligation as several, and to have proceeded but against one of the partners, stili it would have been incumbent upon him to declare upon it properly, by naming all the persons constituting the firm, for the debts of which he was sued, it being essential, that the Defendant should know the quality in which he was summoned, his liability by reason of that quality, and his recourse in consequence of it. This would equally hold were it even lawful for the Defendants to sue two or more of a greater number of joint and several Debtors. In actions by or against several persons, whose interest and qualities are the same, each of them, must be na- med without indicating them by the vague expres- sion of Copartners Consort, In this case the Plaintiff had erred in two ways y first m professing to .J 25 to sue all the Copartners in the firm of John Boyle and Brothers, he had in reality not done so, having only sued four out of five of them — Secondly supposing that by Law it was compe- tent for him to take his recourse against any four out of the five, still he had omitted to define the firm with proper precision, by not naming all the persons who composed it, which is essential, it being only as partner of a// the persons constitu- ting the firm, that the liability to answer for its debts is incurred. The omission of a Copartner might cause the Defendants much inconvenience. They might set off against this Action a debt due to him by the Plaintiff. He might even have a discharge. No matter what might be the Defen- dant's motive for insisting that the fifth Copartner be put in Cause — ^this they were not now bound to explain. It was a legal right which they thought proper to insist upon, probably for good reasons and insisting upon it, the advantage could not legally be refused them — Finally, with respect to the issue raised upon .the inscription en fattXi there is in fact no evidence or record, that the oblite- rations or the original Minute of the Notary, filed in Court, tookpiace subsequent to it's execution by Arnold. The impropriety of the least oblite- ration of an authentic act afler its execution, will not admit of an argument, but there may be cases in which it may not only be excusable, but even proper. In this instance admitting such to have been the Case, yet there is no faua: in the act with respect to the Plaintiff, nor does his interest in the least suffer, his security not being by it in the least altered or diminished. This so happens from the peculiar form of the Instrument, in which D there ^■IK- v..-^- 26 there are as many distinct and independant ack- nowledgments, as there were Creditors, each ack- nowledgment or obligation, totally independent of the other. So that if any number of the Creditors had refused to accede to the simple terms of the instrument, the obliteration of their names, and the sums due to them respectively, so far from operating any injury to those who had become par- ties to it, became even the duty of the Notary in order that the names of those persons loho 'were no parties to the act, should riot stand upon the face of it, as if they were so. The Plaintiff's Counsel was heard in reply. And on the 17th of April 1822 the Court pro- nounced the following Judgment.' April 17th 1822. La Cour apres mure deliberation sur la deman- de en faux incidente en cette cause, la rejette a- vec d6pens. La Cour faisant droit sur les issues leves et parfaits par les plaidoyeries des parties, sur la de- mande principale, deboute ladite demande prin- cipale, quant a present, avec depens. La Cour sur la motion de Mtre. Christie, Procureur des Defendeurs, lui accorde distrac- tion de frais. The Honourable the Chief Justice stated the reiioni of the Court, the head* of which are as follow : That the present Case embraced several questions, some of fact, others of Law. That the facts were simple, the action was upon a note of hand, and one of the Flea* «7 % lourt, the heads , others of Law. Pleas that a higher security had been taken— This Plea was founded upon a Notarial Instrument which bad been impeached by an IiiscripHon enjauxt and the first inquiry would be concerning that inscription—the court could not see that any erasiure had been made of a nature to render the Notary responsible. The Boyles appeared to have been insolvent. An agreement is prepared and the act left at a Notary's for Signature. Apparently some mistake had taken place. Some of the Creditors did not choose to come into the arrangement. The Notary strikes out the names of those who did not execute the instrument and makes the deed conformable to the facts of the case. Perhaps it had been better if he had taken another course, and had not given any copy until a Com- pvdmrei but that the Notary had not acted fraudulently. The inscription en faux was therefore dismissed, and the next enquiry would be what was the effect of this instrument. On the second day after the Execu- tion of this instrument the note of hand, in question in this cause, is given.— The Plaintiff alledges Novation, which compels him to sue on the note of hand. There is a wide distinction between Novation, as between Debtor and Creditor and as between them and surety. Perhaps this note might dischaine M*Cal« lum, but is the debt discharged as between Debtor and Creditor? The note of hand and the instrument executed before the Notary are for the same debt with time for payment The Court .ook it up as if the note were mere matter of evidence. The Court thought that the action could not be sup. ported, and this on the ground that the fifth partner had not been made a partner to the suit. Whether the instrument executed before the Notary carried with it an hypothec or not as higher security, it was evidence of the state of the facts and shews the admission by the Plaintiff of a fifth partner in the firm of John Boyle & Brothers. A question had been made whether this should be consider- ed as a question of Evidence and whether it was to be delivered by the French or by the English Law. But by any Law it was a matter of fact pleaded by ex. ception and th; Court must notice it. The authorities all show that all the par. ties must be included— Denisart verbo Consors* is express. AVhat was the issue ? the Plaintiff says, Jour only are responsible, the Defendant denies this and ad- verts that the Contract was executed with Jive, That upon this fact the instru- ment was conclusive ; and though it were invalid it would be as good Evidence of the admission of the parties, as when a Judgement is set aside the Evidenc still stands good. * Une avsignation qui seroit donn^e a la reqiietc d'un particulier d^nommS, etde ses Consors qui ne seroient pas nommes, seroit nulle, relativement k ceux qui ne seroient d^ignes que sous la qiialit^ de Consors. II faut pourtant excepter de cettc regie, lea assignations qui se donnent A ni\ des intercss^s dans une M>ci£t6 de commerce, tantpour lui que pour sa compa- gnie relativement k la soci£t& L. C. Denisart verbo Consors Tom. 5, p. 337. ,,.,-•■ t f APPENDIX. Province of Lower- Canada, \ DISTRICT OF QUEBEC. J No. 34. George Arnold, PlaintiiT. John Boyle and al. : Defdts. James ROSS .of the city of Quebec, Mer- chant, being duly sworn doth depose and say — I am aged about fifty years ; I know two of the Defendants in this cause, and also the Plaintiff, I am not related to either of them, nor interested in the cause of this suit — I am acquainted with John Boyle & George Boyle the other two Defendants, I am not acquainted with them personally. The Defendants are reputed co-partners and traders, carrying on the whaling business at Gaspe, I have had commercial transactions with them from 1810 to 1816. In the year 1819, the Defendants were indebted to me in the sum of about or better than one hundred pounds Currency. In the year 1810 or 1820, George Boyle one of the Defendants in this cause, applied to me to suspend the executi- on of a Judgement whicii I had obtained against the Defendants. I never authorised the insertion of my name as one of the parties to an obligation or instrument executed on the 17th of November, 1819, before M*Pherson and confrere, Notaries, between John Boyle and Brothers, on the one part, and the Creditors of John Boyle and Bro- thers ' i I.:,: "If >■ '^' •v^----'^-^. ^ ! I SO thers on the other part. I think that the Notary applied to ine to sign that instrument, and if he did so, I declined signing it. Cross examined. The name of the firm of the Boyles has always been entered in my books under the name of John Boyle and Brothers, and in that name the bill of parcels in my dealing with them have been made out — I never knew Annett, and one and the principal cause why I would not sign the in- strument mentioned, was because I had then a Judgment against the defendants, which I consid- ered better security than offered by the terms of the said Instrument. The foregoing deposition having been duly read the deponent persisted therein, & signed the same. (Signed) JAMES ROSS. Sworn and examined this 14th February 1822. sitting Court. (Signed) F£RRAULT & ROSS. Jean Huot of the City of Quebec, aged 35 years, being duly sworn doth depose and say, I am a creditor of the defendants in this cause, I was present at the meeting of their creditors at the time of the imprisonment of George Boyle one of the defendants, at the suit of the Plaintiff in this cause. It is true that I am bound to remit to the securities in this cause, a (dividend of from seven to eight pounds, should the Plaintiff suc- ceed in his present demand. And .It And the said John Huot being duly sworn up- on the Holy Evangelists, doth depose and say— I know John Boyle one of the Defendants in this cause. I cannot possitively say that I am personally acquainted with the other Defendants. I know the Plaintiff. I am not related to either of the parties in this cause nor interested in the event of this suit, otherwise than in the manner I have already declared. In the year 1819 I was one of the Creditors of the Deiendants in this cause, they requested of their creditors a delay of payment — Mr. M^Pherson came to me to obtain my signature to an act of compromise between the Creditors and the Defendants I signed it. Th6 paper written marked A. A. No. 34, and now ac- tually exhibited as the act of compromise of which I have spoken. The foregoing deposition having been duly read the deponent persists therein and signed the same. (Signed) JOHN HUOT. Sworn and Examined in open Court, February, 1822. ( igned) PERRAULT & ROSS. Colin M*Callum of the City of Quebec, Clerk, aged twenty-two years being duly sworn doth de- pose and say— I know the Plaintiff and John, George, and Felix Boyle three of the Defendants in this Cause, I do not know the other Defendant. I am not related to either of the parties in this suit, nor interested in the event oi this suit. I am Clerk to James M'Callum and Company, carrying on gene< '■yf I half penny," were the words which were thereon written, at the time it was so signed. Re*cross examined, I did not read the instrument particularly at the time of its being so signed — I merely looked at it while it was signing— It did not strike my atten- tion that the name of Annett was in the Acte — I observed my father put his initials to most of the marginal notes upon the said Instrument — I be- lieve the piece marked ** A. A. No. 34" to be the minute of the said Instrument, which was by my father so signed, I believed the signature of my father was the first and the only signature to the Instrument at the time he so signed it — I did not seethe Plaintiff sign that Instrument, and do not know in what state the Acie was when he signed it. By the permission of the Court : Q. Do you know what persons compose the firm of John Boyle and Brothers ? A. To the best of my knowledge it is composed of John Boyle, George Boyle, Felix Boyle, and James Boyle. The foregoing deposition having been duly read, the Deponent persists therein and signed the same. (Signed) COLIN M«CALLUM. Sworn in open Court, l4th February 1822, (Signed) FERRAULT & ROSS. 35 *.• Martin Sheppahd of the City of Quebec, Stu- dent en Droit, aged nineteen years, being duly sworn, doth depose and say : I know the Plaintiff, and John George and Felix Boyle, three of the Defendants in this cause ; I do not know the other Defendant ; I am not in- terested in the event of this cause ; I am a Clerk in the Office of Mr. M'Pherson, a Notary Pu- blic in this City ; I entered there in 1820 } I know the hand writing of the said M'Pherson, having frequently seen him write and sign. The words " one hundred and thirty-three" written in and above the last line of the page marked Z. of the piece marked " A. A. No. 34," are to the best of my belief of the proper hand writing of the said Notary, Thomas Laughlin M'Pherson. The foregoing deposition having been duly read, the Deponent persists therein, and signed the same. (Signed) M. SHEPPARD. I^orn ia open Court, I4tb Febniaiy 1822. (Signed) FERRAULT & ROSS. George Whitfield of the City of Quebec Clerk, aged 32, being duly sworn, doth depose and say: I know the parties in this cause ; I am not re- lated to, or in the service of either of them ; I know John Boyle, George Boyle, and Felix Boyle, three of the Defendants in this cause ; I understand and always understood that the ^rm of John Boyle and Brothers, was composed E 2 of 8$ of the four brothers, Bovles ; I know of no other Partner to that firm ; I have been for some years in the employ of John White and Co ; they have had considerable dealings with the ^rm of John Boyle and Brothers, for five or six years past ; I never knew that Richard Annett was a mem- ber of that Firm. Cross-Examined, I have been upwards of eight years in the em • ployment of John White & Co. and since the dissolution of that Firm I have remained in the employ of Mr. Languedoc. They have not con- tinued to deal with John Boyle and Brothers since the Fall of 1819, when the accounts were cleared off. The foregoing deposition having been duly read, the Deponent persisted therein, and sign- ed the same. (Signed) G. W. WHITFIELD. Sworn in open Court 14th Feby. 1822. (Signed) FERBAULT & ROSS. John Rorert Robinson, Clerk to the Plaintiff, aged 18 years, being duly sworn, doth depose and say : I know the Plaintiff, and three of the Defend- ants, John, George, and Felix Boyle ; I do not know the other Defendant ; I am not interested in the event of the suit ; I am a Clerk to the Plaintiff, r- 37 Plaintiff, and have been for about four years and a hall ; I attend his shop and make entries in his book } I have seen the three Defendants at the Plaintiff's ; I have seen the account on the Plain- tiff's Books of the Plaintiff against the Defen- dants, copies of which accounts have been deli- vered tp the Defendants several times, for the payment of which is formed the consideration of the present demand; I know the hand wri- ting of John Boyle, one of the Defendants in this cause, also the signature of Edward Glacke- meyer. Notary, having frequently seen them write and sign their names ; the signature ** John Boyle and Brothers" to the exhibit marked A. to me now shewn, and in this cause fyled, is the proper hand writing of the said John Boyle, the signature " Ld. Glackemeyer," N. P. to the same exhibit, is the hand writing of the said Edward Glackemeyer, and was written in my presence, and the signature of " John Robt. Robinson" thereup- on, is my proper hand writing, and written there- upon at the time of the signmg of the same, by the said Boyle and Glackemeyer; previous to the making of that note, there had been a running account between the parties, which extended as far back as the year 1813, and continued down through the years 1814, 1815, 1816, 1817, 1818, 1819i and it was in liquidation of that account, that the said note was given. The char- ges in the Plaintiff's Books, were entered under the title of John Boyle and Brothers ; I never heard of the name of Annett, as being one of the co-partners of that firm. I Cross J .f "A .■ 11 i' i: ' 38 Cross examined. The account rendered in 1819> contained an account of all the dealings with the Plaintiff up to that time, and the note was for the whole amount due at that time. The foregoing deposition having been duly read, the Deponent persists therein, and signed the same (Signed) JOHN R. ROBINSON. Sworn in open Court, 14th Feby. 1822. (Signed) PERRAULT & UOSS. John Mount of the City of Quebec, aged 28 years, a Clerk, being duly sworn, doth depose and say. I know the Plaintiff, and John, George and Felix Boyle, three of the Defendants in this cause ; 1 do not know the other Defendant ; I am not related to either of them, nor interested in the event of this suit ; I have known the Boyles since 1814 ; I am a Clerk in the House of James Ross & Co. It appears from the Books of that Firm that they have had dealings with the Defendants from the year 1810 down to 181f) ; I never heard that during that period any other persons but John Boyle & Brothers were the co-partners of the Firm of John Boyle and Brothers. Cross Examined. What persons may belong to the concern at Gas- r^H 99 Gaspe, I do not know — I understood the prin- cipal establishment of that firm to be at or near Gaspe. The foregoing deposition having been duly read, the deponent persists therein and signed the same. (Signed) JOHN MOUNT. Sworn in opon Court 15th Fcby. 1822. (Signed) PERRAULT & ROSS. . • . Richard Dallow of fhe City of Quebec, Tailor, aged 43, being duly sworn doth depose and say. I know the Plaintiff and John and George Boyle, but I do not know the other Boyles, I am not related to either of them nor interested in the event of this suit. I have known the two Boyles since 1809, I never understood that there were any other persons partners in the firm of John Boyle & Brothers, than the said John Boyleand his three Brothers until and after the said George Boyle was let out of prison af- ter having been arrested by the Plaintiff- George Boyle told me then, that he had been confined at the suit of the PlaintifiT, but that the Plaintiff would probably lose his cause, as he had omitted to put into the demande one of the co-partners — he told me that one Richard An- nett was a partner of the firm of John Boyle and Brothers — I never heard before of his being aco-partnerof that firm — I had been in the ha. bit frequently of seeing the Messrs. John & Geo. Boyle Ill < I. ' il u 40 Boyle ; that was the only objection which George Boyle stated to me relative to the action. Cross examined I have never had any dealings with the Messrs. Boyles and co-partners, but on their separate and private accounts only, and that too, only in arti- cles of my line of business as Merchant Tailor. — I do not know that James Boyle and Felix Boyle belonged to the firm. — I know Annett. The foregoing deposition having been duly read, the deponent persists therein, and signed the same. (Signed) RICHARD DALLOW. Sworn in op«n Court I5th Feby. 1822. (Signed) FERRAULT & ROSS. E. B. Lindsay, of the City of Quebec, Stu- dent en Droit, aged 23 years, being duly sworn, doth depose and say. I know the Plaintiff and John Boyle, one of the other Defendants in this cause — I do not know the other Defendants in this cause — I am not related to either of them, nor interested in the event of this suit — I am a Student en Droit at Lauchlin Thomas M*Pherson*s, Esquire, a No- tary Public, residing in the City of Quebec, The body of the piece now shewn to me, and marked A. A. No. 34, is not in my hand writing — I have frequently seen it in the office of M'Pherson — I saw 41 * m saw it shortly after it was signed by the parties which appear to be annexed thereto ; I think it was in the autumn of 181 9 — I have no knowledge that any copy of that instrument was given earlier than the winter of 1 820-1821 . I think that I was not present when any of the parties to the said in- strument signed it — I looked through it suffici- ently to say that it was signed, but I do not recol- lect whether I noticed that there were an unusual number of obliterations in the said instrument at the time or not. — The words " one hundred and thirty-three, " in and above the last line of the page marked Z. of the same piece is in the hand writing of M'Pherson, the words " six hundred and eighty six pounds fifteen ** on the fourth page of the said instrument are in my hand writing ; the following word is in the band writing of M'Pher- son. — The body of that instrument is in the hand writing of one Dumais, who was then a Clerk in the office. — I think I saw the instrument while it was drafting ; I think that I saw it lying every day upon the desk, until the signatures to it were completed ; I am certain that I saw the signa- tures, but am not positive whether I read them or not, but I think I did ; I cannot state the pro- bable time that may have elapsed from the time of drawing the instrument, to that of signing it ; I do not recollect of seeing any of the parties sign that instrument. The figures in the fourth page of the said instrument " £686 15 0. ** are of my hand writing. '1 Cross examined. I think that there were about three weeks from F the 42 \ f ■ I: the time I saw the instrument drafting to the time that I saw the signatures to it ; I do not recollect that at the time I saw the instrument signed, there was an impression on my mind that there were any unusual obliterations on it. I am certain that I saw the present obliterations on the instrument the first time I saw it after it was signed, which might have been one day or it may have been three weeks after it was signed ; I made the al- teration which is in my hand writing in the pre- sence of M*Pherson, Re-examined in Chief. \n I did not observe what number of obliterations, or whether there were any or not in the fifth page of the said instrument ; I do not recollect on which page the obliterations were ; I do not re- collect having read the instrument all over the first time ; I saw it after it was signed. Q. What part of the instrument did you read ? A. I do not recollect what part ; I did not count the number of words obliterated ; I do not know the number of lines obliterated on the in- strument, as near as I recollect, the obliterations are of the names of some persons who are inscri- bed in the body of the instrument. Re-examined. The instrument being now shown to me, I think from the general appearance of it. that it is now m 43 in the same state that it was when I first saw it with the signatures to it in the autumn of 181 9> The foregoing deposition having been duly read, the Deponent persists therein, and signed the same. (Signed) E. B. LINDSAY. ; Sworn in open Court, 15th February 1822. (Signed) PEURAULT & IlOSS. Benjamin Racey, of the City of Quebec, mer- chant, aged 32, being duly sworn, doth depose and say. 1 know the Plaintiff, and John and George Boyle, two of the Defendants in this cause ; 1 do not know the other Defendants ; I am not re- Jated to either of the parties nor interested in the event of this suit. — I know the firm of John Boyle & Brothers from about the year 1816; I never understood that any persons were co-partners in that firm except John Boyle and his brothers. The foregoing deposition having been duly read, the deponent persists therein, and signed the same, (Signed) BENJAMIN RACEY. Sworn in open Court, 1 5th February 1822. (Signed) PERRAULT & ROSS. Robert Richardson of the City of Quebec, merchant, aged 29 years, being duly sworn, doth depose and say. F2 . I ii 1^. :| \ I! ( ( it » I il.: U I know the Plaintiif and John and George Boyle two of the Defendants in this cause ; I do not know the other Defendant ; I am not related to either of them, but consider myself interested in the event of their suit, being one of the credi* tors of the Defendant in this cause, and as a coun- ter security for the Defendants, shall be obliged to refund a certain dividend which I have received from them in part, as satisfaction ofmy claim a- gainst them, should the Plaintiff succeed in this ac- tion ; I am the same with and am the one mention, ed in the piece now shown to me marked " A, A. No. 34," in this cause ; I signed that instrument, and therefore consider myself doubly interested in the event of this suit. The foregoing deposition having been duly read, the deponent persists therein and signed the same. (Signed) ROBERT RICHARDSON. Sworn in open Court, 15th February 182S. (Sgned) FERRAULT & ROSS. DEFENDANT'S EVIDENCE. James Lampriere Marett, Merchant, of the City of Quebec, aged 49 years, being duly sworn, doth depose and say, I know the Plaintiff and John, George and Felix Boyle three of the Defendants in the cause j I do not know the other Defendants, I am not related to either of them nor interested in the e- vent i I n 1^ 45 vent of this suit ; I know also one Richard Annett ; I have been in the habit of doing business at the Bay of Gasp6 to a considerable extent since the year 1792 ; I have known the firm of John Boyle and Brothers, since the year 1814 ; I have dealt with them to a considerable ex: ent ; I know that firm to consist of John Boyle, George Boyle, Felix Boyle and James Boyle and the said Richard Annett ; and I think it has consist- ed of these persons since 1814, Annett is a bro- ther in law of the Defendants ; he has taken an active part in that firm since I have known him to be of the firm, I think 1 have seen him in Quebec once or twice, but I do not recollect of having transacted business with him ; I have always con- sidered that they were Copartners since 1814, and I dealt with them as such. Cross examined. The Boyles, and Annett himself informed me that Annett was a partner of that firm more than three or four years past. I have been in habits of friendship and personal intimacy with the Defen- dants ever since they were children. I never saw the articles of co-partnership between the Defen- dants, nor was I ever present at any verbal agree- ment between them, on that subject, neither do I know the share of each in that co-partnership, nor from what period the co-partnership began, or what is its duration of. — The four Boyles live together with their mother on a farm which I be- lieve is their joint property in Gaspe and is cul- tivated by them jointly. They build boats & schooners for themselves, fish for the whale, cod- fish Ij-I • ; I. I 1 ^1 46 fish & salmon which is their business. The pro* duce of the fishery is generally brought to Quebec^ >vhere they generally provide themselves with their outfits and in purchasing goods, which they take down, and^sell to their neighbours. I think the conversation which I have had, that induced tne to believe Annett a partner, 1 had from John and George Boyle and also from Annett. I have not had frequent conversations with those indivi- duals upon that topic. The conversation which I had with them on the subject took place previous to, and more particularly about 1819. They are also employed in the wrecking business. I think the first conversation was in 1814 and am led to think so from the following circumstance, to wit, that they were concerned that year in taking goods out of the Minerva, Jackson master, and from another wreck coming to Mr. Brown, the same year. The Boyles were then in Quebec, and I observed to them and others that it was a pity that they were not there to render assistance to that vessel ; when I was informed that Felix Boyle and Annett were there, and were perfectly able to do what was necessary being the partners of Boyle. 1 cannot say that it was by Boyle or some other person that this observation was made I understood this myself before that period, and this circumstance brought it to my mind. I Think that 1 had at different periods from 1814 to 1819> conversations with the Boyles about their copartnership. I have not seen Annett for many years past, I cannot take upon myself to state when the conversation between me and the Boyles about their copartnership took place, but that they more particularly took place in 1819i about 47 about the time of their difficulties, I catinot say whether they were copartners in any one brancn of their business exclusively, or whether they were so in all their business generally. Goods were shipped to John Boyle & Brothers and it is only since the time of their difficulties in 1819, that it has been a matter of more general consideration Annett's being a copartner in that Arm j my com- mercial transactions with that firm, in this Arm have always been with George Boyle and the firm of Boyle and Brothers are debited with tho accounts of those transactions. The foregoing deposition having been duly read the deponent persists therein and signed the same (Signed) JAS. Ls. MARETT* Sworn in open Court 15th Feliy, 1822. (Signed) PERBAUI^T fi HOSS. Louis Brulot, of Point Levy, Mariner, aged 31 years being duly sworn, doth depose and say^* I know the parties in this cause I am not related to, nor a servant of any of them, nor interested in the event of this Suit, I know one Richard An. nett. I am master of a Schooner belonging to the last witness examined in this cause^^I have for the last ten years performed voyages yearly from this to Gasp€. I often saw all the Defendants at Gas. pe, and also the said Richard Annett — There were five, John, George, Felix, and James Boyle, and the said Richard Annett, partners there, Mr» Annett told me that he had been in partnership with the Boyles since 1815, and that he was so still / r k t i. 1 ■ !• 48 still. That firm has been there generally known for many years and even previously to 1819. — its trade consists in the Whale, Cod, and Salmon Fishery. Mr. Annett in the name of and for the firm, has every year since 1818, put on board of my schooner oil for Quebec, some of which I de- livered to the Plaintiff and G. Boyle — I think it was sometime between 1819 and 1820, but lean- not say particularly at what time. I cannot say whether the goods I brought for the Plaintiff were the property of the Defendants or not, but I think that it was Annett who put them on board in the name of the said firm — Annett is a brother in-law of the Messrs. Boyles — The name of the firm below is Boyle & Brothers — Whenever I had goods or letters for that firm I delivered them to either of the parties without distinction — They transact their usual business in the same chavffaux and signeau, and they have two vessels which go upon the whale fishery — Mr. Annett is in the ves- sel called the Annabella which belongs to the firm and which I think was built by it. — I was former- ly acquainted with Thomas Boyle now actually de- ceased — I cannot recollect in what year he died — There is no Priest in the District of Gaspe where the defendants live nor was there an English Minister at that place — I do not know whether James Boyle and Felix Boyle were partners of the firm at the time of the decease of Thomas — I do not know whether Annett was then one of their partners, but he has been a partner since 1815 — Before the last year, Mr, Annett lived with the Defendants, at least three years to my know- ledge. Cross Examined, An- "'."Wf j* y known 1819.— i Salmon i for the board of ich 1 cle- [ think it lut I can- nnot say itifF were t, but I on board Ei brother le of the ver I had them to n— They ihavffaux Arhich go 1 the ves- the firm } former- ually de- died — Gaspe English whether rs of the IS — I do of their 1815— with the know- 49 Annett, Felix and John Boyle told me last fall and the year before that they were in partnership —I have no knowledge that these Gentlemen ever spoke to me of this before — During three or four years that the vessel whereof I am master has been in that trade, several Gentlemen told me that those Gentlemen were partners — I have no other knowledge of the partnership in question but what I have acquired from hearing as aforesaid — I do not know the proportions which the several partners have in that partnership — The Gentlemen who spoke to me of it, did not say when the firm had commenced nor when it would expire, nor the trade it was to carry, nor did they explain the conditions of such trade, nor the names or firm uader which it was carried on — I know that tlie Schooner Anna-bella belongs to the said Partner- ship, and I was told so last fall ; I do not know that Mr. Annett was a partner of the Messrs^ Boyles at Quebec — I do not recollect whether the oil which I delivered to the Plaintiff in 1819 and 1820 came from Messrs. Balnor and Patterson ox from Mr. Annett or not, I do not know whether Mr. Annett is interested in the trade which they carry on at Quebec or not. The foregoing deposition having been duly read the deponent persists therein and signed the same^ (Signec) LOUIS BRULOT. Snrorn and Examined in open Court the 15th February, 1822. (Signed) FEKRAULT & BOSS. An- G Pro- 50 Province du Bas Canada, 7 Dans le Banc du Roi, District de Quebec. ) 19 Fevrier 1820. James Ross, de la cite, comt^ et district de Quebec, Marchand, faisant commerce sous le nom et raison de James Ross & Co. Demandeur. Ko. 1859. Vi John Boyle et George Botle du district de Gaspe dans la province du Bas Canada, de present k Quebec, marchands, associes, Defendeurs, La Cour, aprds mure deliberation sur les produc- tions et preuves du Demandeur en eette cause, vu la demande pour le profit des defauts faute de comparution de la part des d^fendeurs, demande ia f)ermission de proceder ea: parte, et tout consider^, a Cour a declare et declare les deux defauts faute de comparution bien et valablement obtenus contre les defendeurs, et adjugeant le profit d'iceux, con- damne les defaillants a payer au Demandeur la somme de soixante-quatorze livres quatre chellins et sept pences courant, valeur en marchandises, avec interet a compter du trois de novembre der- nier, jour de la signification de la demande judici- aire, jusqu*au parfait paiement, etlesdepens, sauf au dit demandeur son recours, si aucun 11 a, pour le surplus de sa demande, quand et comme il avi- sera. Pro. 51 Province du Bas Canada, ") Dans le Banc du Rot, District de Quebec. > 19 Feviier 1820. JACQUES LEBLOND et JOSEPH LEBLOND, vs. Demandeurs, GEORGE BOYLE et JOHN BOYLE, Dejhndeurs* La Cour, aprcs mure deliberation sur les pro- ductions des demandans en cette cause, vu la de- mande pour le profit des defauts faute de compa- rution bien et valablement obteniis contre les d^- fendeurs, et adjugeant le profit d'iceux, condamne les defaillants a payer aux demandeurs la somme de vingt-neuf livres un cliellin et demi courant, pour le montant de leur obligation en faveur des demandeurs, pass^e devant Mtre. Ch. Huot et son confrere notaires k Quebec, le seize de novem- bre mil huit cent dix-huit, avec inter^t k compter de la date d*icelle jusqu'au parfait paiement, et les d6pens, sauf aux demandeurs leur recours pour le surplus de leur demande, ainsi qu'ils avi- seront. Province of Lower Canada, 1 DISTRICT OF QUEBEC. J In the King's Bench, 20th day of April 1816. John Dennoye* of the City of Quebec, in the County and District of Quebec, Ship Carpenter, Plaintiff, vs. John Boyle, George Boyle, Thomas Boyle and Richard Annett, all of the Inferior District of Gasp6, in the County of Gas< pe, % K •*^w t^'i.. > > Hi 5S> p6, in the District of Quebec, joint owii- iers of the Schooner Mary Boyle, Defendants, La Cour ayant entendu Mtre. Vanfelson Procu- reur du Demandeur, et Mtre. Christie Procureur de John Boyle, sur les issues levees et parfaites par leurs plaidoyers en cette cause, vu les defauts due- ment obtenus contre les autres defendeurs et la permission de proceder expartCy encore les preuves donnees de part, et tout consider^, la Cour con- damne les defendeurs a payer au demandeur cin- quante-neuf livres seize chellins courant, pour lea causes mentionnees en la declaration filee en cette causes avec interet a compter du onze de Janvier dernier, jusqu'^u parfait paiement, et les depens. From the above an Appeal was instituted on the part of Bichard Annett one of the Defendants^ and on the Q9th July 1816, the following Judgment was given in Appeal, Province of > COURT OF APPEALS. Lower Canada. ) 29tli July, 1816. THE ing Court hav- ^_, ing heard the ^parties by their Coun- sel, examined the pro- RICHARD ANNETT, vs, Applt. JOHN DENOYE', Repdt.J ceedlngs of Record, it is considered that the judg ment of the Court below be reversed in so far as the said Judgment respects the Appellant j each party to pay their own cost of this Appeal, and it is ordered that the Record be remitted to the Court below, for such further proceedings, as to Law and Justice may appertain. By Order of the Court, (Signed) LOUIS MONTIZAMBERT, C* C A4 ^^^^, --it' r^ PROVINCE OF 1 tOWER-CANADA.J .' :•'■•? i5; ■ '-Ji-fM! .'IlHiJ^if!' ■f;.. .-' IN APPEAL. GEORGE ARNOLD, i (PLAINTIFF IN THE COURT BELOW.) AppMoHU Mltttt .':,/«. JOHN BOYLiE AND OTHERS (DEFENDANTS IN THE COURT BELOW,) *■" TPON the return of the Writ ot Appeal in the \j above Cause, it appeared that the original Instrument executed berore M'Pherson & Con- frere, Notaries, on the 17th day of November 1819, between the Respondents and certain of their Creditors, had not been returned— Where- upon the Appellant alledged a diminution, and ob- tained a Rule to shew cause why the Record should not be comp]eated-->In support of this ap- plication, he filed the following Letters : .., . Gentlemet), Quebec, SOtk May, 182S. i ji:.lj Being desirous of obtaining a fac simite of the Original Instrument, executed by certain of the Creators of Messrs. John Boyle and Brother/s, and filed in the cause of Arnold against Boyle and others, I would be obliged to you to inform me %i what time the person whom I have eqnployed A can % n. :0 6an finest conveniently to yourselves perform this "work under your own eyes. Gentlemen, I am, n f ,•« Your obedient Servant. (Signed) -''^•'' A* STUART. .■' .r.-*-v Messrs. PERRAULT & ROSS, Prothonotaries of the Court of } King's Bench. • (Copy of Answer.) .:•>■ ,yy<-i .-.v Sir, ««la^'1fr«>»V.;iu«rwsaratt»kl^iMLf 'In attiWei- ti> ytKu/r note of the SOth instairit re- lative to the obtaining a Jac simiie of the original Instrument, execoted by certain of the Creditors S. P. K. B. To Andrew Stuart, Esqr. > , .> ,n,« ; ; ii / Atty. & Counsel at L^w. V ;r ' Jn'j l\U .'; (Signed) Quebec, 31st May, 1822. •*■ *!:} /:'!(!■' / This Rule was made absolute by Consentr— and the Record having been compleated, the Cause "ame on to be heard in the Term of January lS23i For the Appellant it was said:— -I, I j/fw ,^ot ofit That since the rendering of the Judgment of the Court below, the Cause had assumed a much higher importance than it had in that Court.— !• That if tne Judgment of that Court remained unimpeached, a principle with its Sanction, would go abroad to the public, which it was apprehended would render all Notarial Titles and Instruments uncertain, and thereby destroy all security for pro- perty. . That the Judgment of the Court below was a judgment upon two several Issues, to which the Counsel would apply themselves severally. . / ^ < And first — as to the issue upon the truth or falsi- ty of the Instrument, purporting to have been exe- cuted before McPherson and Confrere, on the 17th day of November 1819, ; . . •: A 2 After 4 * ^^^ISi insisting upon the arguments stated in the ourt below, it was said, that the Court below had .iinaintained the validity of the instrument on the ground that there had been no fraudulent intention on the part of the Notary, and that the Instrument had been made conformable to the facts of the case. rr With all due deference to the Court below, it was the duty of the Counsel here to examine the validity of those reasons, t' ^ '* >' .(.*, It was contended, firstly — ^that there was evi- dence of an evil intention on the part of the No- tary ; and secondly — that if no such evil intention existed, still the instrument would not have been the less invalid; :-' • .. .,,,w;^.. ;. .. The Evidence of the intentions of men, was to be found in their actions— He who did an il- legal action could not be admitted to justify him- self in a Court of Justice, upon a Plea of a suppo- sed innocent intention; nor could innocence of intention be supposed in the Notary upon the pre- sent occasion, without presuming an ignorance of the Law on his part ; and it was an ancient and salutary Maxim of the Law ignorantia juris ne- minem excusat. — That this Maxim which was true even as to the most ignorant Classes of Socie- ty, was eminently so upon the present occasion as to the Notary qui spondebat periliam Artis siice. — If therefore the strongest Evidence had been of- fered of an innocent intention on the part of the Notarv, that evidence would have been counter- acted by the above legal presumptio Juris ei de Ju- rcy ^ re, of knowledge ofthe Law — But when th came to look at the Evidence, it would be that the supposed innocence of the Notary was u gratuitous assumption on the part of the Court below, unsupported by any evidence whatsoever. But next supposing that innocence of intention had been proved, and that it would have ex- empted the Notary from any consequences cri- minaliter ; could it also have done so civiliter? And supposing this also, could it cure the inher^ rent falsity of the Instrument ? and have the effect of substituting in the place of the Instrument which the party had signed, another and different Instrument, viz, the altered Instrument, which the party had not signed in that shape ? And of subjecting the party to obligations under the latter Instrument which he was not liable to under the former? And this whilst the other parties to the Instrument were manifestly exonerated from their obligations? i'>'. •iOi};; V^v^'i*>VViH It might be worth while to advert to some au- thorities of the English Courts upon this head. " If the seal of any deed be broken oif, the deed shall be void. So tho* it be broken oft' by a stranger, 5 Co. 28 a. 1 Rol 40. Or destroyed by mice before plea, 1 Rol. 40. , ■ - .; u.. • So if A and B by deed covenant jointly with divers persons, and tlie seal of one be broken ofli the whole deed shall be void, 5 Co. ^3 a. So if bound in an obligation jointly and seve- rally. :il 'til- > ? 6 the seal of one be broken off, U. ^» Corny n's Dig. Fait F. 2. A letter of which a considerable part appears obliterated is not evi- dence. ■M ;:.'f . Per Wilson J. Apvid 1 Anst. p. Q^'J, That authorities might be multiplied to the s^me end. ,;>■; .r ■;<;• $• VII. ^ No. 9» ' •' •'■'''' ''^' .''■''■■•'■'i'' ^' ' "' .''"Kr.fj.riu / That upon the above Grounds the Appellant had reason to expect that the Court below would have set aside the Instrument as a falsified Instru- ment :— but that on the contrary the Inscription en faux had been dismissed ; thereby virtually de- claring the Instrument as altered and changed a good and valid Instrument, and constituting sb long as the Judgment remained unreversed a res Judicata to that effect, as between these parties. ti. :ii ill" fir "M'. i ■^yji\ riOi As to the second issue upon the peremptory Ex- ceptions to the Appellant's action— «the Court be- low had abstained from giving any determination whether the matter was to be regulated by the French or the English Law. Yet this was mate- rial — It was luce clarius that by the Law of Ca- nada, an action could be brought against one, any, or all of several Debtors in SoUdo-^\\iQ whole Cut- rent of authorities of the Civil and French Laws went in this direction, without one solitary excep- tion. The authority cited in the Court below from Pothier was referred to, and the matter gone into at length, for the purpose of shewing that the Rule in England was a rule of Law and not of Evidence ; that it was true there had been ci- ted in the Court below, an authority from the Nouvelle Collection de Jurisprudence Verbo Consors" (Ante P. 27 in Notes; — As establish- ing it 4 i A 1' * f- !- \ ^^ jiMl^^ ig a rul6 that one out of several debtors in SoUdo could not be sued alone : but on referring to that authority it would be found that it had not the slightest bearing upon this question ; it establish- ed the rule that an action brought against A. B. & Company, without naming the persons, comprized under the designation of Company was bad, and this manifestly by reason of the uncertainty of the Judgment which would be to be rendered upoii such an action. But the authority itself contains a special exception as to Mercantile Companies, anddeclares that action well lies for a partnership debt, against aiiy individual partner, ** as well for liimself as for Lis Copartners." •i>'i; It was also urged that under the Civil Law Sys- tem, which obtains in this Country as in the Court of Chancery in England, want of sufficient parties was no ground for the dismissal of an action or Bill ; but only constituted a ground for staying Proceedings until they were called in (Prac. Keg. in Chanc. 29. 263— Com. Dig. Chancery E. 2.) Upon these Grounds the Appellant prayed the reversal «f the Judgment of the Court below* //I ] '■ - ■ : •, i h) i ., ]n.u '■■i ' ''■'•' ''iu i ,; ■;/// ] 'i- • ^ :■( 'Im .[ ,': i j-:'l f..,;i ■ \ ■*!• ';!- . ■ • ir-/ . '; ": ■:'.-* '.- ■ ' . . A I •'! ■■!. i,( ,■■ '.',,. i ! :■( {•l!',"; 1 S • i I'.'r) ■ 1 ' : . ', • . • . M ." »ii 1 .' ■■ • i ^^^ e For the Defendants, it was said. This action is upon a promissory note made by the firm of John Boyle aiid Brothers. In addition to the general is- sue, the Defendants hav6 fyled two Speciad Pleas. First, a teftiporarv eSLception, aliedijing in substance that the Plaintiff had erroneous!)' instituted hi^ action against John, George, James and Felix Boyles, as constituting the firm of John Boyle and Brothers, whereas the firm in fact consisted ot these four persons and of ahqther person,* namely* Richard Annett, (a BrOther-in-Law of the Boyles,) whom the Plaintiff had omitted to make a party in this cause, lliis omission had provied &tal. J.. Second, a perjpetuial exception^ or plea in bar, alledging in substance that the Plaintiff neld a high- er security for his debt, than the promissory note upon which the action was brougnt, and t'hat the note upon which thn action had been institnted was unduly and wrongfully obtained by the Plain- tiff, and to the prejudice of others, the Creditors of the firm of Boyle and Brothers, and therefore that this action could nbt be miaintaihed. /'■:t1 ij In the course of the proceedings another issue had been raised in tlie cause upon an inscription en Jaujc^ of a certain instrument, (being the higher security specified in the foregoing plea,) which having himself signed, and by tnat means induced others to do so also, Mr. Arnold ftow impeaiched, upon the supposition of its having been falsified by obliterations afler its execution, which in another stage of the argument he would shew to be utterly groundless. :>lv) '• v| y:\M': ;i> With respect to the first exception (the omissi- B on »'i i.rf \ %>■ 'h i ' 10 on to make one of the Partners who ought to have been njade a Defendant in the cause,) the authorities drawn from the Courts of Justice in England were pointed and conclusive. There could not be a doubt that an action could not be maintained against two or more of a greater number of joint and several Debtors, if advantage were taken of the omission by a plea in abatement. (He quoted Rice vs shute Burrows, vol. 5, )p. 2613— Chitty, vol. 1st p. 30— Term Reports, vol. S, p. 782, case of Stratfield vs Halliday — Bacons abridsinent, Verbo, Obligation, vol. 5, 164. — Evans" Pothier, vol. 2, p. 62 and post — Denizart, Verbo Assignation.) From these it was manifest that the action being for the recovery of a debt due by several joint and several obligors must be treated as wholly joint or as wholly separate ; that the Plaintiff was at liberty to sue the whole in one joint action, or to sue them all by separate actions, but thatan action was not man- tainable against two or more of the five persons composing the firm, and in this respect there was no real contradiction between the English and French authorities, for it would be found by re- ferring to Pothier's Traits d'Obligations, No. 271, that there was nothing repugnant in that passage to the interpretations which the Courts of Eng^ land, not less enlightened than those of France, had {)ut Upon obligations of a nature essentially simi- ar to those of which Pothier treated — The obli- gations in soUdo, of the Roman and French Law* were know^n in England under another appellation, ilamely, that of joint and several obligations. The decisions referred to, considered as wisdom only, were therefore of the highest authority, inasmuch a» iia 41 H'\ 11 , . ... f aft they traced the precise method of enforcing in^ Kngiand, the obligations which in that country; are called joint ana several, and which in France were called obligations solidaires. If these were wis- dom in the English Courts, they could not be folly here. It is not denied that every one of the Co- partners is liable for the whole debt. It is the le- gal mode of enforcing that liability that the De- fendants now insist upon Pothier's words at the conclusion of the No. above quoted (see Obi. No. 271,) This Mr. Evans, the Commentatbr of Pothier, was not without observing, and be parti- cularly notices it as a coincidence with the English Law, which he illustrates by pointing out the rules adopted by the English Courts for the enforcement of those solidaire or joint »nd several obligations.' The Objection which the Defendants had taken \\AA been treated by the Plaintiff as a matter of form. This was erroneous, such an Exception is nowhere to be found in Pigeau or any other author treating of the Instruction as a subject of pure form ; an Exception d la forme lies for some Vice, or Nullity apparent on the face of the Record. He referred to Pigeau. The present was an excep-^ tion involving an Essential Matter of Fact. The Plaintiff had prosecuted the four Defendants, as constituting the Firm of John Boyla & Brothers, and as such they were represented both iii the \Vrit and Declaration. If this fact were such as the Plaintiff had there stated it, his form was un- questionably correct. But the Defendants denied the Fact to be as stated, and plead specially that the Firm of John Boyle & Brothers consisted of five persons, naming the fifth Copartner (Richard AnnettJ whom the Plaintiff had omitted, and B2 whom w J la whom the Defendants have proved, was known as such by Mr. Arnold. The Appellant therefore had voluntarily committed the error which had proved fatal to his action, and consequently might only blame himself for not furnishing his learned Counsel with the names of all the Copartners in the FilTQ he had instructed him to prosecute ; fur if he had so done, the error would not have been committed. \: ,1 '\f.\ . IfOfMl ^^l-f •t'/iU 1'.' I.I i The essentiality of the Defendants' plea is great- er than at first sight it might appear to be ; it in- volved even the liability of the Defendants, for if any one or more oi the Defendants were liable for the debt, it could only be in consequence of their concern in the Partnership of John Boyle k Broth- ers, consisting of the five persons, John Boyle, George Boyle« James Boyle, Felix Boyle and Ri- chard Annett, there being no such Firm as that of John Boyle and Brothers, consisting only of the four persons whom Mr. Arnold had sued. The Plaintiff might indeed recover his debt from the whole or any one of these Copartners, andfor that purpose might sue them all in one joint action, or by separate actions as already stated : but, it behoved him nevertheless, in which ever way he might exer- cise his remedy to sue them in their proper qualitv, so that he who should pay the whole debt, might have his remedy over against his Copartners for ther respective proportion^, A Co'Solidiry debtor, who pays the debt of his Copartners is entitled to a Cession d* Actions of the Creditor, so as to be enab- led to recover against his Associates (Arjou Vol. 9t p* ^99,) and this Cession he has a right to in- sist upon payment of the debt. The present exception amounts to a derfiand to this effect ; for ' !i . ' i .' the % Id the Defendants not denying the debt, require of the Plaintiff that he sue them in their proper qua- lity, so that upon payment of the whole debt, by any one of them, he who pays may have his re- course ag'^inst all his Copartners for their several shares or contributions towards this Copartnership debt. »i| hfjj. nniHni.u>'»i ■m\\ m w'^fiUij li -xn If therefore the essentiality m£ the Obiection be manifest, the n<^xt question is, as to the manner in which it must be pleaded. And here af>ain the French and English authorities concur, aud inder a were they silent on this subject, t}ie reason of ^It thing would of itself be conclusive. 'I'he omisi ion of a person, who ought to have been mar <„> .. Plain- tiff, may be taken advantage of under tl e General Issue ; and this, because the Plaintiff cannot but know his own Copartners. But with respect to the Defendants it may be different. It is possible that he might have been ignorant of one of s-^veral Co- partners ; and if the Defendant sued thinks proper to raise an objection to an omission of his partner, he must once for all, by a special plea, name the Copartner omitted, so that the Plaintiff be enabled propejly to recommence his action. This is done m the English courts by a pu . in abatement, in the French courts the objectiou being something more than to form., namely to the quality of the Defendants, as already s'^ewn, would be pleaded not by an exception d la forme, but by afin de re- cevoh'f in plain English by a plea in abatement, (lie quoted Denizart V. Exception Vol. 8, pages ICG & 039, and Pigeau Vol. I,p. 163.) If however there had been any doubt on the subject, it was completely removed by the Provin- cial \. \ f! I* ',4 W- ^ 1^1 ! ; ! t; 1 '•^^' 1 \ * r i^^ 14 cial OrdinianAe of 1785, Chap. 2, Section X. By this it is provided that with respect to facts concer-' iiing commercial matters, recourse shaMbebad to the rules of evidence laid down by the English Laws. This fact in dispute evidently is one rela- ting to a commercial matter between traders, (both parties in the declaration and pleadings being treated as such). Now this matter of fact according to the English rules of evidence, would only be admissible and effectual inasmuch as it had been pleaded in abatement, and not otherwise. To give the benefit of the evidence to the Defen- dants, yet debar them o^ the plea under which it can only be given, would be manifest absurdity. If evidence of this matter of fact would under the English law prove fatal to the action, it is obvious that the special plea under which it is made should precede it, in order to apprize the Plaintiff of the' evidence he is to expect. In what respect can the Plaintiff complain of a course manifestly intended to give him information, and prevent him from being taken by surprize? '^ u* !! '>|' * ' > : The next enquiry is whether the partnership be proven, and here the best evidence that can pos- sibly be, is produced ; namely the Plaintiffs own admission of it by an authentic acte. This acle or instrument, he has, it is true, impeached of fal- sity, but even supposing it to be null with respect to all the purposes lor whicii it was originally in- tended, yet it proves the Plaintiffs knowledge of the fifth Copartner (Richard Annett) for his name is written in the margin of the Instrument in five or six different places, and the Plaintiff's initials G. A. appear under every marginal note. The Plaintiff has put on the Record copies of two Jiidg- 15 % Judgments rendered against some of the Boyles, in which no mention is made of Richard Annett as Copartner ; this proves nothing Qxcept that in those cases no advantage was taken of the omis- sion. In the present cause circumstances are difte- rent, and it is found expedient to take the benefit of the exception. A copy of another judgment is filed by the Plainti£^ in which Richard Annett being condemned ^ith Messrs. Boyles appealed, and had the judgment reversed. That case was essentially different from the present ; there, he was sued as a joint Owner of the Schooner Mary Boyle, for repairs done to that schooner, whereas he was not in fact a joint owner, nor had he any concern in the vessel, so that he had an interest in extricating himself from the liability to pay for the repairs of her. Here he really is a Copartner in trade with the Defendants, and as such they insist upon his liability. : There he was not a joint own- er with them, and not being ^o, he insisted upon being discharged from the liability under which he had been placed by the judgment of the Court be- low, and the judgment was aqcprdingly reversed upon grounds as substantial, as those now urged in supj)ort of the one rendered in this cause, name- ly upon facts essentially affecting the merits,; ; i With respect to the second plea, tliat the PiaUi- tiif having a higher security ought to have proceed- ed upon it, he quoted Chitty, vol. 1, p. 9it and U6. As to the allegation of fraud the facts must speak for, themselves, it was a fact that the Plain- tiff had signed &n instrument* by which he ostensi- bly gave the Defendants two years to pay the debt in question.-^It was a fact that he was the greatest of all the Creditors by more than double of what .•■'^ ■ , . was ^. signed by^ Arnold. This was utterly def^ti- tut^ of foundation in the evidence on record. Tl](ere was no evidence to that effect. On the contrary every presumption was on the other side, every renvoie or marginal note on the Acte being signed by Mr. Arnold himself. The Evidence in support of this charge of faliiiificatipn by adverting to it will be found contradictory, vague and un- certain. Mr. McCallum, Jun. in his evidence states that he saw his father sign it — that he at no time after that period had seen the Instrument, that when he saw it Arnold had not yet signed it, consequently does not know in what state it wasi when Arnold put his signature to it. His recol- lection of it, 13 evidently very imperfect, for he states that he has no recollection that Richard Annett's name was on the Instrument, although C V 'U.^ ^A M '» ■%l r ■■■''* *.^ I .' 18 he recollects seeing his father sign his initials to every marginal note. Now it is a fact that in eve» ry marginal Note in the instrument (five or six in number) Annett's name is mentioned. Tiie Evi- dence of Mr. Lindsay who was then a Clerk in Mr. McPhei son's Office is in no wise prejudicial to the yiaiUdity of the instrument. He explains away a part 01 the difficulty by admitting that he himself wrote some of the words, which it is assorted were introduced after the acte had received the Signa- ture of Arnold, but he does not by any means con- firm the supposition which it had been attempted tb realize. In fine, the alterations on the Instru- ment were Immaterial, as far as Arnold and all the other subscribing Creditors were concerned. Their object must have been» as we have every reason to presume, to obtaiq Secprity, and thiSt such of them as subscribed th^, Insjtrument, did obtain. It is also to be obsetved th^t of all the Creditors who did, or w|io did not sign the acte in question, Mr. Arnold who was the first person to sign it, and by that means induced others to do so in imitation of his example, alone complains. There is no proof thatanyoneof them isaggrieyed or dissatisfied-shall he afler misleading them, deprive them of the be- nefits of the acte, such as it is ? The names of th^ non subscribing Creditors (four in all) were, as they had not thought proper to accept the securi- ty and become parties to the «cfc, struck out by the Notjiry previous to giving authenticity to it by his own Signature, and it is worthy of remark that all the obliterations, as well as the signatures and ini- tials to the marginal notes and the words introdu- ced in the several Blanks, which had been left to Ijle filled at its execution, are of the same ink. i^' 19 ' L. C. Denisart verb. Acte Notari6 §. VII. No. 13, was cited to shew that although an Act purporting to be signed by two Notaries, as bylaw required, be signed by one only it would be binding. , ;. _y ,,^^.^ ,, ■'.1 lit Jn Reply it was said- no ji That the arguments of the Respondent's Coun-; sel as well as the Judgement of the Court below» appeared to proceed upon the assumption that there was a variance between the Declaration and the Evidence in this ; that the Declaration stated a debt to be due in solido by four, and by the c!yi- deiice it was proved that the debt was due iiot on,« ly by four but also by a fifth. , , , .» The Plaintiff in the Court below and Appellant here did not say that four only were responsible^ but he averred and proved that four were respon- sible in solido. — Whether a fifth was, or was not, also responsible in solido was immaterial. , r<' If he were so, it would according to the analo- gies of the French Law, have been the duty of the Respondents (after permission first obtained from the Court) to bring him into the Cause at their costs. The whole doctrine of the exception of division abundantly established this. If the English decisions were looked at, it was manifested that they did not proceed upon the ground of variance. > . The words of Lord Mansfield in the case of Rice& Shute, were too remarkable to be passed over here. C 2 ««To A- '■'*' f i % '•it** :i i ! (i m .- j»^ ;^-\ i ^ (( « «c That this rule found so inconvenient in England was to be forced into the Law of Canada, to the exclusion of the more simple convenient and equi- table rule of the latter Law. . ,uA.n .> ! 1 1 m ■■ It was. said that the Respondents had an interest in Annett*s being made a party to the suitor nam- ed •*mfi-' 21 ed in the declaration, as one of the Partners in the firm of John Boyle and Brothers. It was manifest that no such interest nor right existed. The Res- pondents* Counsel was constrained to admit that the Plaintiff might recover his debt from the whole or any one of the Co -partners, and for that pur- pose might sue them all in one joint action or by separate actions, but the* Respondent said, that it behoved him nevertheless, in which ever way he might exercise his remedy, to sue them in their proper quality, so that he who might pay the whole debt might have his remedy over against his Co- partners for their respective proportions. Now the appellant had stated the note of hand according to its legal effect, which was all that he was bound to do— He was entitled to his Judgment against the four Respondents — It was one debt, but each of them was debtor for the whole of that debt — If the four debtors had recourse over and aginst any fifth person for the whole or any part of the debt, that could constitute no ground of defence to the action of the Appellant, it would not afford any suf- ficient ground for a plea of division — Upon this point Pothier is express. The Judgement rendered in the Cause could not afiect the fifth person who was not a party to it — As to him it was res inter alios acta. — The recourse of the four Partners a- gainst the fiflh Co-partner is, as stated by Pothier and ail the authorities, by action in chief. Again had the Partnership been proved ? The Evidence upon which the Respondents relied principally, was the admission contained in the notarial Act. — Now that was an admission made by the Respondents, which if it had turned out to be true, might have improved the condition of their ♦ . ,. ( , { i ^ -V* I '■ M ■: ,M { A ^ \ -r-" -' !■ V ^j^i \ ) ! ^!2 their Creditors generally, and of the Appellant pdr* ticularly, and could not have injured the Appell- ant if it had turned out be false — It is not then an admission made by the Appellant to the Respon- dents, but an admission made bif the respondents to the Appellant. ■.-,. ij;.' r .. » • i.< I'o 'nv.i rM-, lo '^.''he Instrument being manifestly a falsified Ins- trunnent, as it could not be evidence for the Appel- lant, so neither could it be evidence against him. \ i« .7.: ^ ■ ■. v.- . » To the injury which the Appellant had already suffered from the Respondents in his purse from the non-payment of a just and long due debt, it had b^en attempted on the part of the Respon- dents to add a serious injury to the character of the Appellant. It had been set up that the note in question had been taken in fraud of the Credi- tors of the Respondents. ,, ., There was not the slightest colourfor thischarge. The Appellant had signed an instrument not ostensibly, b ut really and />ow«,yAflf^, which instru- ment contained the names of all the Creditors of the Respondents as parties thereto, and by which they purported to give to the Respondents a delay of two years. Unfortunately for the Appellant, the debt due him was much larger than that of any other Creditor. His name was first put down, and he first asked to sign the instrument, M'hich he did — Six others followed his example — The re- mainder of the Creditors refusing to sign, the ins- trument was then and ever after, until it made its appearance upon the files of this Cause, consi- dered by all the parties as a blank piece of paper. Subse- «8 Subsequently to this, the Appellant received the note of hand in question from the Respondents payable in one year. When he called open them for the payment of it at the termination of this period, the respondents not choosing or not being able to pay it, he sued them for the recovery of its amount. Where was the fraud in all this? Was it not manifest that he and the other six Cre^ ditors had granted the delay of two years under the idea that the remaining Creditors would come into the same terms ? Would they have consented to have tied up their own hands, and leave the other 'Creditors free ? Would they have interdicted themselves all access to the funds of John Boyle & Brothers, and letl the same open to the non signing Creditors to b^ divided amongst them ? Would they have come into the arrangement a^ all, without the security of James M*Callum & Co? Would this latter firm have had any motive of in- terest or of Freindship to be come siich surety, unless they were satisfied that the commercial ope- rations oi Messrs. John Boyle & Brothers would not be interrupted by any legal process from any one or more oi their Creditors during the assigned period f This implied condition failing, did not " the suretyship of James M*Callum & Co. fall to the Ground? In one word, was it not an inchoate and imperfect instrument. But it was said that the Appellant had fully se- cured his debt, for a court of law had decla- red' the instrument good. It was true that the Court below had virtually done so. But could it have done so against James M'Callun & Co? or against Richard Annett ? or against the credi- tors who had refused to sign it, and whose names had #^ \ f A I ( i^ 4' ; S4 had been obliterated ? or against the six creditors who actually did sign it, in the confidence and up- on the condfition implied in law, that the other cre- ditors named in it should sign also ? The principal ground upon which the Appellant asks the rever- sal of the Judgment in question, is that the Instru- ment is thereby held to be good and valid against the Appellant, whilst it is manifestly a nulnty as to the other parties thereto. \ The case was then not that of a creditor sign- ing a valid deed of composition and at the same time taking another seQirity for his del^t secretly. It was only after the negotiation for k compro- mise had entirely failed, by the refusal of four of the creditors to come into it, that this note was ta- ken. The evidence of the alterations in the Instru- ment was too palpable to admit of doubt ; but it was said what motive could the Notary have had ? It wasr not for the Appellant to scrutinize the mo- tives of the Notary ; with these he had nothing to do— the Instrument had been falsified — he re- lied upon the Court that that falsification should not prejudice him. ^ ., •>i It was also said that the alterations were immate- rial in as far as the Appellant was concerned, and that the names of the creditors who had refused to sign, had been struck out to give authenticity to the Instrument. ;, ,,, Was this making the Instrument conformable to the facts of the case ? Could a Notary in the ' absence -*J# •^^e?,:; «V< six creditors enccand up- ;he other cie- rhe principal Ls the rever- It the Inslru- valid against y a nuifity as creditor sign- L at the same el^t secretly. or k compro- sal of four of » note was ta- .;f. .r^-i . ... the Instru- oubt ; but it y have had ? lize the mo- lad nothing ified — he re- ation should 1 rere Immate- cernedy and d refused to henticity to «5 V absCtice of the parties by striking out words or na- mes give validity to an Instrument which before that illegal obliteration it had not? Must not the Instrument be good in the whole or bad in the whole ? If by reason of any lulsification it should not operate as a Mortgage could it have any other effect? It had been argued that although an Act, pur- porting to have been signed in the presence of two Notaries, was in truth signed only in the presence x)f one, it should be binding. This was true ; but it was under a long usage sanctioned by the de«> cisions, as well of the Courts of France as of the Courts of this Country, to this effect j nor was it upon the present occasion contended that the pre- sence of Mr. Glackmeyer, the second Notary, was lat all necessary, nor is his conduct in the slightest .degree impeached. But the great power which these decisions put into the hands of a single Notary, would render it more necessary that the other provisions of the Law, in respect of them, should be more strictly enforced, without which there was no security for 4)roperty. Judgoient affirmed with Costs.. conformable tary in the absence