North American. [volume] (Swanton, Vt.) 1839-1841, 1840-07-15


established by its Judgments, the law 10
govern commercial and personal actions in
all cases.
The gentlemen Of the bar have appear
ed 10 me much embarrassed 10 advise their
clients, OF the law which the courts would
| adopt 10 decide personal actions, and slill
mare so to ascertain The law that would
or ought TO govern the points OF practice.
The ordinances Of the province, The civil
code Of Louis XIV 10 1867. commercial
laws Of France and Of England are resort
ed To as Imagination directs have had
occasion TO consult the English and Cam
adam advocates OF practitioners, and have
found such TO be their legal advice"
We have also the testimony Of another
Legislative Councillor and a Judge Of the
Court OF Appeals, Hugh Finlny, Esquire,
who speaks thus -
The causes Dobie and Grayr. Lyons;
Anderson and PaT .. Thompson and
| Shaw were founded on mercantile trans
| actions, and adludged in the Court Of APP
peaIs by the ancient laws Of Canada.
From my notes | find the following
causes were decided in the Court of APP
peals on the principles Of English law -
Schefein .. VIM. Grant; Louis Aime ..
Barrack Hays Graham y. Park M'Ken-
zie .. Brash and Lindsay Grant and
Backwood o. Thomson and Shaw Free
man .. Widow Perraui.
have not known that the Court OF APP
peas, in the decision Of any cause, ever
formally laid down general principle Of
law to govern the transactions OF III. NJ.
subjects but believe both the English
and Canadian, members of that court,
decide according 10 their conceptions OF
the spirit, true intent and meaning Of
the Quebec Act.
Some of the members, and | believe oil
the Canadian gentlemen, have conceived,
that that Act has established the ancient
laws and customs of the country as the
rule OF decision in all cases OF what kind
or nature soever. Other members again
(most Of the English) are Of opinion, that
where the parties are ancient subjects, the
cause purely English, mercantile or per-
sonal action, 10 do strict justice according
10 the res spirit and true intent Of the
Quebec Act, the decision ought 10 be-
founded on the rule laid down for deciding
a similar case in England.
The case Of Mabbut and Wilkinson,
partte interrenante, against Howard, for
George AIsopp 10 seize 10 hogshcads OF
brandy unpaid for, according TO the coa-
tune, was given in favor OF Howard in
the Court Of Common Pleas. The judg-
ment was reversed in the Court of Appeals
on principles Of English law"
William Drummer Powell, Esquire, who
was practising lawyer OF Montreal, says
in his testimony before the tribunal Of
which we have already spoken -
"During my practice. until the COM
mencement of the last July Term, | have
Instituted 265 actions for sums above G10,
amounting together 10 about the sum OF
clio 900, nine tenlhs OF which sum sup
pose TO have become due from mercantile
transactions, and OF that again, nine tenths
wherein old subjects were plaintiffs.
have found the judgments OF the
Court of Common Pleas, for the district
of Montreal, founded sometimes on the
ordinances Of France, sometimes on the
custom of Paris, sometimes on the laws
OF England, but in common, have not
been able exactly TO ascertain on what law
they have been founded. | have known
cases adjudged by different rules Of law;
the greater number Of judgments pro-
nounced 10 causes, in which have been
concerned, consider 10 have been decided
rather on the Judges sense OF equity and
moral recttude, than on any known prin-
eiple of law.
truly believe, that the major part OF
the Judgments upon cases pleaded, have
been pronounced without any immediate
attention to any direct law.
The judgments upon the same points
have been so inconsistent, that ii was not
possible 10 advise on any given case sub
lect TO the least discussion, what would bs
the probable issue"
James Walker, ESQ.,, who was also
lawyer Of considerable practice in the same
ci,y, in answer TO the written questions
put to him by order OF the Commissioner,
'ays -
IS cannot ascertain the number OF ac-
ions was employed in prior 10 the LIST
n January 1850, ss kept no account OF
hem before that time but since then, 10
he beginning OF last Term, making seven
,esrs and hall, | instituted 5sl was
counsel in Eve hundred and odd Others;
a 4. IL n 49,